author: HENDRICKS, J.

text:
    PALMER PRESSED BRICK WORKS v. STEVENSON et al.
    (No. 983.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 3, 1916.)
    1. Fraudulent Conveyances <§=>52(1) — Homestead.
    Part of the homestead property, not previously abandoned as such, may, without consideration, be conveyed to the wife, becoming her separate property, free from claims of the husband’s creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 118, 122-124; Dec. Dig. <g=»52(l).)
    2. Husband and Wiee <®^150 — Improving Separate Property with Community Funds.
    The wife’s land cannot be sold for the husband’s debts, because of improvements made thereon with community funds when he was insolvent, unless made to her knowledge with intent to defraud his creditors, though the creditors may have some remedy as to the improvements.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 575-5S1; Dee. Dig. 150.)
    Appeal from District Court, Dallas County ; E. B. Muse, Judge.
    Action by the Palmer Pressed Brick Works against F. L. Stevenson and others. From an adverse judgment, plaintiff appeals.
    Affirmed.
    C. M. Smithdeal, of Dallas, for appellant. W. N. Coombes, of Dallas, for appellees.
   HENDRICKS, J.

In 1894 F. L. Stevenson, a married man, acquired lot No. 12, in block No. 9, in Fairview addition, 70x175 feet, fronting on Simpson street, in the city of Dallas. In 1895 he built an 11-room house on said lot, used thereafter as a boarding house, and conducted by his wife, F. K. Stevenson. 'Previous to the construction of the house, Stevenson, the husband, built a bam on the northeast corner of said lot, and in the rear of said property, and in October, 1913, he conveyed 45x45 feet out of said lot, on which the barn was situated, to his wife, F. K. Stevenson. Prior to this conveyance to the wife, the barn was not used, except for purposes of storage; the horse owned by the husband having been sold several years previous thereto.

In 1911 the husband, F. L. Stevenson, became indebted to the appellant, Palmer Pressed Brick Works, for the debt sued upon in this case, and which was thereafter merged into judgment, and upon which an attachment was issued and levied upon the part of the lot conveyed to the wife, upon which the barn was situated. The wife was made a party to this suit before the rendition of final judgment, and upon the trial, as to the ownership of the property, the court denied appellant a foreclosure of the attachment lien. Another part of the lot — the northwest corner of same — seems to have been sold to other parties at a different time, and the rear of the property, including the barn, was at some time fenced separately from the main house; but the rear 'of the lot seems to have been used, at times for storing timber, and as a place for garbage, deposited in a can, hauled off by the city. The wife, F. K. Stevenson, reconstructed the barn, at a cost of about $200, into a tenant house; the husband testifying that at times he used one room of the same for an office, having his desk and certain papers therein, in his business as a contractor and carpenter.

So far as this record shows, the barn, on the rear of the homestead lot, whether used or not for the accommodation of a horse at the time of the conveyance by the' husband, constituted a part of the homestead; it was on the homestead lot. The husband had a right to deed any part of it to the wife; previous to the date of the conveyance, we do not find sufficient evidence to disclose segregation and abandonment of that' part of the homestead upon which the barn was situated to divest it of its homestead character. When the wife received the deed, it was her separate property, irrespective of a consideration. If she reconstructed the barn into a tenant house, with her separate property, the creditors could not reach any part of it.

It is claimed by the appellees that the money used in reconstruction constituted her separate property. It is shown that, several years before the conveyance to her of the particular part of her lot, she received, in different installments at different times, an aggregate sum from her father’s estate of about $1,000. This sum she mingled with the earnings, claimed as her own, arising, from the boarding house conducted by her. It is not definite what the $200 represented. In any event, the strongest case that could be made in favor of the creditor is a claim that the community funds, or a part of same, mingled with separate funds (on account of the confusion, making it community), entered into improvements upon her separate property, and constituted an asset for the benefit of a creditor. The record shows that at the time of the conveyance the husband was insolvent. If these funds constituted community property, it is true that when the husband is in such condition he could not give the same to the wife. Maddox v. Summerlin, 92 Tex. 483, 49 S. W. 1033, 50 S. W. 567. Speer, in his law on Marital Rights, § 335, p. 419, in regard to improvements says:

“The title to the property still remains in the wife, subject to this equity in favor of the community; but it is not such an equity or right in favor of the husband or the community as that creditors of the husband may seize and sell it upon execution”

—citing Schwartzman v. Cabell, 49 S. W. 113, as deciding the point, with numerous other cases also cited as bearing upon the question; also see Collins v. Bryan, 40 Tex. Civ. App. 89, 88 S. W. 432, Kane v. Ammerman, 148 S. W. 817, and Hendricks v. Snediker, 30 Tex. 297. Justice Brown said, in tke case of Maddox v. Summerlin, supra, 92 Tex. 487, 49 S. W. 1034:

“We conclude that the land of the wife cannot be sold at the suit of the creditor, unless the facts shall show that the husband made the improvements with his own or the community funds with intent to defraud his creditors, and that the wife, knowing of such intent, participated in the fraud.”

The wife testified:

“When Mr. Stevenson made me this deed, I knew the company (a contract company, in which the husband was interested) owed some debts. I did not know whether Mr. Stevenson did or not.”

It is not shown whether the Mullican Contract Company, in which Mr. Stevenson was interested, was a partnership or a corporation. Whether or not an attachment or execution would subject the particular interest in the property to the debt of the creditor, we think the record is such that the trial court could have concluded that the facts did not show that the community funds (if regarded as such) were placed upon the wife’s separate property, with a knowledge of the wife, with intention to defraud the husband’s creditors.

On the whole, we think the judgment should be affirmed; and it is so ordered.
      tS=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MIDDLEBROOK, J.

license: Public Domain

text:
    WALDON v. DAVIS.
    (No. 100.)

    (Court of Civil Appeals of Texas. Beaumont.
    March 9, 1910.
    Rehearing Denied April 20, 1916.)
    1. Appeal and Error @=722(1) — Assignments op Error — Filing in Trial Court.
    A general assignment of error, though not copied from the motion for new trial, constituting- the only assignments of error filed in the trial court, may, in connection with one copied from such motion, be sufficient for consideration.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994-2996; Dec. Dig. @=722(1).]
    2. HusbandI and Wipe ■ @=221 — Enpoecement op Lien — Parties.
    The wife of the purchaser is not a necessary party to action to enforce the vendor’s lien, though the purchaser has used the property as a homestead.
    IEd. Note. — Eor other pases, see Husb.and and Wife, Cent. Dig. §§ 707, 802-806, 968, 973, 976½ ; Dec. Dig. @=221.]
    3. Appeal and Error @=282 — Assignments op Error — Filing in Trial Court.
    Against objection, an assignment of error may not be considered, where no such assignment was filed with the trial court.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. @= 282.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Action by W. I. Davis against James Wal-don. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    D. M. Short & Sons, of Center, for appellant. Davis & Davis, of Center, for appel-lee.

      Application ior writ of error pending in Supreme Court.

   MIDDLEBROOK, J.

This suit was brought in the district court of Shelby county, Tex., and sought judgment and foreclosure of vendor’s lien for $715, as evidenced by two notes for $357.50 each. Note No. 1 was past due at the time of the filing of the suit, and under the terms of the notes, the second note was elected due. The notes retained a vendor’s lien upon said lands, and a vendor’s lien was also retained in the deed executed to Wald'on at the time the notes were executed.

Numerous pleadings were filed by both sides, which, briefly stated, amount to affirmation by the plaintiff that he was the owner and holder in good faith, for a valuable consideration, of the note sued on, and that if the notes did not properly and legally retain a vendor’s lien upon the land, and he was a purchaser in good faith for value of the notes, without notice or knowledge of any defense against the notes, and was therefore an innocent purchaser of the notes before their maturity. This plea was in addition to the ordinary plea for judgment and foreclosure of the vendor’s lien.

Defendant answered by general denial, pleaded settlement of the original purchase-money note, and also pleaded simulation in the securing and execution of the notes, and that in reality the transaction was an attempt to create a mortgage upon the homestead of Waldon after the original purchase money had been paid.

The able trial judge filed very exhaustive conclusions of fact, which we copy, and which give a full statement of the case, as well as the facts supporting his conclusions.

“Eindings of Eact.
“(1) I find' that about 20 years ago, the testimony failing to show the date, W. D. Ellington contracted to sell James Waldon the land upon which plaintiff prays a foreclosure of the vendor’s lien; and that Waldon, being a married man, a citizen of Texas, and the head of a family, moved on the land and has since continuously occupied it; that Ellington executed a bond for title binding himself to convey the land to the defendant upon payment of the purchase price, $600, with 10 per cent, interest per annum thereon from date of said bond for title until paid, which instrument was never placed of record, has been lost or mislaid, and is not in evidence.
“(2) I find that during all the time that the defendant occupied the land he paid no part of the purchase price, and that on January 1, 1911, he owed not only all the purchase money, but a considerable amount of interest, and that on that date the defendant owned a horse on which Z. W. Davis had a mortgage; that Ellington agreed to make to the defendant a conditioned deed to said land in consideration of said horse and of the execution of a vendor’s lien note for $625; that Z. W. Davis agreed to allow the horse to be traded to Wellington in consideration of the defendant’s agreement to make Z. W. Davis a deed to the land in question.
“(3) I find that W. D. Ellington, for the consideration named, did, by deed of date January 1, 1911, convey the land in. question to Waldon retaining a vendor’s lien, both in the deed and note to secure the payment of the $625, which amount was evidenced by Waldon’s note bearing even date with said deed payable to W. D. Ellington, with interest thereon from date until paid at the rate of 10 per cent, per annum, interest payable annually, and said principal sum of said note being due and payable, $100 annually.
“(4) I find that on February 17, 1911, defendant, Waldon, and his wife, in compliance with defendant’s agreement, by a deed absolute on its face, deeded the land in question to Z. W. Davis, the deed reciting a cash consideration of $600, although, in fact, there was no consideration other than the surrender by Z. W. Davis of his right to the mortgaged horse, by means of which defendant was enabled to secure the deed.
“(5) I find that at the time of making of this conveyance the defendant was indebted to Z. W. Davis in the sum of $600, which was evidenced by the defendant’s note dated January 2, 1911, due November 1, 1911, payment of which was secured by a mortgage on some stock and the defendant’s crop, to be produced on the land described in said conveyance.
“(6) I find that W. D. Ellington duly transferred the note for $625 to S. O. McKee, who was the owner of same, on November 23, 1912, on which date, Z. W. Davis, at the request of the defendant, Waldon, went to the Farmers’ National Bank, in Center, Tex., which was^ holding said note and handling same for McKee, and paid to said bank the sum of $784.60, the defendant being present, and that in defendant’s presence H. E. Norris, assistant cashier, delivered said note to Z. W. Davis; and that afterwards defendant renewed said note by a statement in writing on the back thereof, as follows:
“ ‘Jan. 2, 1913, I hereby acknowledge this within note to be an honest and just debt, due Z. W. Davis, and I agree to pay the same.
“ ‘[Signed] James Waldon.’
“(7) I find that during the years 1912 and 1913, there was considerable dealings between defendant and Z. W. Davis, involving quite a considerable sum of money which was loaned by Z. W. Davis to defendant, to secure which mortgages on live stock and crops were given, but that on and prior to January 22, 1914, the defendant paid to Z. W. Davis all that he owed for borrowed money, which was secured by mortgages -as. aforesaid, and also paid a sufficient amount on the vendor’s lien note then held by Z. W. Davis to reduce the amount due on same to the sum of $715; and that on said date, by agreement between the defendant and Z. W. Davis the latter conveyed the land in question to James Waldon, for the real consideration of the execution of two vendor’s lien notes for the sum of $357.50 each, aggregating the amount Waldon then owed on said land note, due January 1, 1915, and January 1, 1916; said notes containing a provision authorizing the holder to mature each of said notes upon a failure to pay either of same or any installment of interest when due.
“(8) I find that on December 23, 1914, W. I. Davis, the plaintiff, purchased the notes and the superior title to said land, taking a written conveyance of said notes and land, which conveyance was duly signed and acknowledged by Z. W. Davis and by him delivered to plaintiff, who paid a valuable consideration therefor, after an examination of the records of the deeds above mentioned, all of which I find are in every respect regular upon their face, with the acknowledgments thereto in statutory form, that neither of said notes was at said time due, and that the plaintiff had no notice of any defense, real or fancied, which the defendant had or claimed as' against the validity of said notes.
“(9) I find that the first of said notes matured and was not paid, that the plaintiff has elected to mature the second note, and has filed this suit for the recovery of judgment for the principal, interest, and 10 per cent, attorney’s fees provided for by said note.
“(10) I find that W. I. Davis, the plaintiff, afterwards secured from W. D. Ellington a written transfer of the original $625 note of date January 1, 1911, executed by the defendant, Waldon, together with transfer of all his rights and equities in and superior title to the lands in question, which transfer was in writing, was duly signed and acknowledged by W. D. Ellington, and that after obtaining said transfer of all of Ellington’s rights, equities, and interest in said note and said land, that by supplemental petition the plaintiff declared upon said note, praying in the alternative for judgment thereon with a foreclosure on the vendor’s lien.
“(11) I find that said $625 note executed by James Waldon to W. D. Ellington of date January 1, 1911, contained a provision to the effect that failure to pay the interest of any installment thereof matured all of said notes, that no part of said principal sum of said note was ever paid by the defendant, James Waldon, and that after deducting all payments made on the interest due on said note on the date of the rendition of the judgment September 10, 1915, the sum of $811.85 principal and interest.
“Conclusions of Law.
“(1) I conclude, in the light of the foregoing findings, as a matter of law, that the plaintiff, W. I. Davis, by reason of said transfer and transactions, was subrogated to all the rights to which W. D. Ellington, the original vendor, was entitled as, the holder of said original vendor’s lien note for $625, that he is entitled to his judgment and the foreclosure of the vendor’s lien for said sum of $715, with interest at 10 per cent, per annum on $625, from January 22, 1914, until this date, amounting to the total sum of $811.85, and that he is entitled to a personal judgment against the defendant for the sum of $81.15 as attorney’s fees.
“(2) I further conclude that W. I. Davis, the plaintiff is an innocent purchaser of said notes and indebtedness, and is entitled to recover against the defendant as such, and that defendant is estopped, in so far as the plaintiff is concerned, from denying the regularity of any part of the chain of title from and including the deed from W. D. Ellington to the defendant, down to and including the deed from Z. W. Davis to the defendant.
“(3) That manner of ascertaining the amount due being most favorable to the defendant, I have directed that judgment be entered for the plaintiff for the principal amount of his two notes, $715, and that interest be computed only on the sum of $625 from the date of the execution of the notes.
“(4) I conclude that the land in question is defendant’s homestead, but is subject to the payment of the purchase money, but not to the credit of attorney’s fees, specified in the two notes last executed, and hence a foreclosure is awarded only as to the principal debt and interest.”

Appellant’s first assignment of error is to the effect, substantially, that the judgment is void in so far as it attempts to establish a foreclosure of the lien on the land in controversy, because the testimony shows that the land in controversy is the homestead of the appellant, and was such homestead at the time of the execution of the notes, and the wife not having been made a party to the suit, no judgment could be rendered to conclude her; the homestead being an indivisible estate, ,she was a necessary party to the suit.

This is a general assignment of error, not copied from the motion for new trial in the trial court; tlie motion for new trial being the only assignments of error filed in the trial court; but it is followed by assignments Nos. 1, 2, S, 4, 5, 6, and 7 copied in htec yerba in appellant’s brief.

Appellee objects to the consideration of this assignment of error, because it complies neither with the law nor with the rules as promulgated by the Supreme Court in briefing cases in the Courts of Civil Appeals. We think the assignment in connection with assignment No. 1, which is copied from the original motion for new trial, is sufficient for consideration; assignment No. 1 being as follows:

“The court having found it a fact that the land in controversy was the homestead of the defendant, who was a married man at the time he acquired said homestead, and that said action when said homestead was acquired was when W. D. Ellington’s $600 note was paid off and the records showing that the wife is not a party to the suit the judgment rendered under such circumstances is a nullity.”

It is to be observed that nothing is said in any of the proceedings of this case about the wife being a necessary party to the suit until it is mentioned in the brief of the appellant in this court; but even if such had been the case, under the facts and the findings of the trial court, we do not think appellant’s contention is well taken. The wife is not a necessary party to a suit brought to foreclose the vendor’s lien upon the homestead for the original purchase money of the homestead.

Again, as a matter of fact, the trial court found that the notes were for the original purchase money of the land, and he found also that W. I. Davis was an innocent purchaser of said notes before maturity for a valuable consideration. Such being true, we fail to find any merit in appellant’s contention on either issue, as presented by his assignment of error. The first assignment of error is therefore overruled. See Nunez v. McElroy, 174 S. W. 829, and authorities there cited.

Appellant’s second assignment of error is:

“The trial judge erred in Ms conclusions of fact Nos. 6 and 7, as shown by bill of exception No. 4.”

Appellant then copies the court’s findings of fact Nos. 6 and 7 under this assignment, and, follows this with:

“Eirst Proposition under This Assignment of Error. — Where the owner of a vendor’s lien note places it in a bank for collection, and not for any other purpose, the only authority the bank has .in the absence of any other instructions is to collect the amount shown to be due and when the bank receives the money, as the agent of the owner of the note, this transaction constitutes a payment of said note and not a sale thereof.”

No such, assignment of error is set up in appellant’s motion for a new trial. The ap-pellee has objected to the consideration of the assignment of error, because no such assignment was made in the original motion for new trial. We think the motion not to consider is well taken, for it has been repeatedly held by the courts that failure to file with the court below assignments of error distinctly specifying the grounds on which appellant relies, specifically waives all errors not assigned in the trial court. See Pollard v. Allen & Sims, 171 S. W. 892, and authorities there cited; also Gillett v. Holligan, 162 S. W. 367, and Railway Co. v. Reed, 165 S. W. 4.

It has been held by our appellate courts that where objection is raised to the consideration of an assignment of error not properly brought up in the record, the appellate court has no alternative in the matter, if> the objections are well taken, other than to decline to consider the assignments. See De Lay et al. v. Wolffarth, 154 S. W. 1031; El Paso Electric Ry. Co. v. Lee, 157 S. W. 748; Greene v. Gold-Silver et al. Co. v. Silbert, 158 S. W. 803; Cain v. Delaney, 157 S. W. 751.

The third, fourth, fifth, and sixth assignments of error, as set out in appellant’s brief, are subject to the same objection, and, such objection being urged by appellee, the same disposition is made of these assignments as is made of assignments Nos. 1 and 2.

The findings of fact, as filed by the learned trial court, are in harmony with the statement of facts, and under the facts and pleadings, we think proper disposition was made of the case in tlie trial court. The judgment of the trial court is therefore affirmed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    WINNSBORO COTTON OIL CO. v. CARSON.
    (No. 7438.)
    (Court of Civil Appeals of Texas. Dallas.
    April 29, 1916.)
    1. Appeal and Ekkor <@=>797(1) — Motion to Dismiss — Waiver—Rule of Court.
    Under Rule 8 for Courts of Civil Appeals (142 S. W. xi), providing that all motions relating to informalities in appeals thereto shall be waived unless filed and entered upon the motion docket within 30 days after the filing of the transcript, a motion to dismiss on the ground of the appellant’s failure to file its motion for new trial in the court below within the statutory 2 days after verdict raised an informality, as distinguished from a jurisdictional question, and, when not filed within the 30 days after the filing of transcript, waived such question.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149, 3150; Dec. Dig. <§=> 797(1).]
    2. Appeal and Error <@=>797(1) — Motion for New Trial — Record.
    The failure to file the motion for a new trial within 2 days being an informality relating to the manner of appeal, which was waived by not filing the motion to dismiss the appeal within 30 days after the filing of the transcript, the motion for a new trial, even if filed too late, is in the record for consideration for all purposes.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149, 3150; Dec. Dig. <§=> 797(1),] . .

      3. Appeal and Error <§=>722(1) — Motion poe New Teial — Assignment op Errors — Sufficiency.
    A motion for a new trial attacking both the verdict and the judgment on the ground of the insufficiency of the evidence, or that the undisputed evidence was at variance .with the verdict, in view of Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, constituting the motion for new trial the assignments of error, repeated in an assignment of error that the verdict should he set aside because without evidence to support it, sufficiently raised such issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990, 299A-2996; Dec. Dig. <§=>722(1).]
    4. Mastee and Sebvant <§=>233(4) — Mastee’s Liability — “Vice Pbincipal.”
    A servant who, in addition to his authority to direct and, supervise the work of those under him, has authority to hire and discharge such subordinate servants, 'becomes a “vice principal.”
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 704; Dec. Dig. <§=>233(4).
    For other definitions, see Words and Phrases, First and Second Series, Vice Principal.]
    5. Mastee and Servant <§=>281(6) — Action poe Injury — Suppicienoy op Evidence — Vice Principal.
    In a servant’s action for personal injury wherein defendant claimed that at the time of his injury he was a vice principal, verdict for plaintiff held against the weight of the evidence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 990; Dec. Dig. <§=> 281(6).]
    6. Master and Servant <§=>229 — Action poe Injury — Contributory Negligence.
    A servant is required to exercise that degree of care in the performance of his duties which persons of' ordinary prudence exercise to the same end when similarly engaged.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 674, 683; Dec. Dig. <§=> 229.]
    7. Master and Servant <§=>289(28) — Action poe Injury — Question por Jury — Contributory Negligence.
    In a servant’s action for injury to his hand when pulling the lever which directed the hulls from a conveyor without the use of a lantern, contributory negligence held a question for the jury.
    [Ed. Note. — For other cases, -see Master and Servant, Cent. Dig. § 1120; Dec. Dig. <§=> 289(28).]
    8. Master and Servant <§=>288(2) — Action por Injury — Assumption op Risk — Question por Jury.
    On evidence in such action, held, that the plaintiff’s assumption of risk was properly referred to the jury.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. <§=>288(2).]
    9. Master and Servant <§=>203(1) — Master’s Liability — “Assumed Risk.”
    “Assumed risk” is the voluntary exposure of a servant without remonstrance to the ordinary hazards of the particular use of machinery or appliances claimed by him to be defective or unfit, but of which conditions or dangers he knew or must necessarily have acquired knowledge in the ordinary pursuit of his duties.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-540, 542, 543; Dec. Dig. <§=>203(1).
    For other definitions, see Words and Phrases, First and Second Series, Assumption of Risk.]
    10. Master and Servant <§=>235(7) — Sake Place to Work — Inspection.
    A servant has no duty of inspection, but in the pursuit of his work may assume that the master has done his duty and provided a safe place to wqrk.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 714; Dec. Dig. <§=> 235(7).]
    11. Trial <§=>219 — Instructions—Refusal op Request.
    In a servant’s action for personal injury, where the defense was that he was a vice principal, and where the court, submitting the case upon special issues, propounded to the jury questions relating to the duties and authority of the plaintiff under the terms of his employment raising the question of law as to whether he was a vice principal, the refusal of the defendant’s specially requested charge defining a vice principal was not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 489; Dec. Dig. <§=>219.]
    12. Master and Servant <§=>270(7) — Action por Injury — Evidence — Subsequent Repair op Appliances.
    Evidence of changes or repairs made subsequently to the injury, or as to subsequent precautions taken to prevent recurrence of injury, are not admissible as showing negligence, or as amounting to an admission of negligence, as the effect of admitting such evidence would 'be to inform a defendant that changes or repairs would be under a penalty; but, as an exception to the rule, such evidence is admissible when in proving the conditions existing at the time of the injury it is necessary to show that subsequent repairs were made, or to prove subsequent repairs in rebuttal of any claim that the condition which brought about the injury could not be improved.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 918; Dec. Dig. <§=> 270(7).]
    13. Master and Servant <§=>270(6) — Injury to Servant^-Appliances — Condition Subsequent to Injury.
    In a servant’s action for injury while operating a lever of a hull conveyor when his hand caught in an exposed cogwheel, his testimony that he examined the box head nine days after, he was injured, and that the bolts which fastened it were then loose, and that it was in apparently the same condition as when he was injured, was admissible as showing its condition at the time of the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 917; Dee. Dig. <§= 270(6).]
    14. Master and -Servant <§=>270(5) — Injury to Servant — Condition of Appliances— Examination before Injury.
    In such case evidence of a witness who examined the box head three months prior to the injury was admissible if it appeared that there had been no change in the condition of the machinery since the accident; the lapse of time being a matter within the discretion of the trial judge.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 916; Dee. Dig. <§=> 270(5).]
    15. Evidence <§=>213(1) — Admissions — Attempted Compromise.
    In a servant’s action for personal injury, his unaccepted offer to compromise his claim was properly withdrawn from the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 745, 748-750; Dec. Dig. <§=> 213(1).]

      16. Trial @=>253(9) — Instruction—Excluding Matters from Jury.
    In a servant’s action for injury, where defendant set up an adjustment of the claim and offered testimony in support thereof, and where it further appeared that plaintiff’s offer to compromise had not been accepted, an instruction eliminating the attempted compromise, and also charging not to consider any other amount offered plaintiff, or that the defendant agreed to pay him any amount in settlement, was misleading and erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 620; Dec. Dig. @=>253(9).]
    17. Damages @=>64 — Personal Injury — Right to Recover — Insurance.
    (_Tke fact that a servant was insured against accident, could not affect his right to recover for personal injury, if otherwise entitled to do so. \
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 113; Dec. Dig. @=>64.]
    18. Evidence @=>215(1) — Admissions—Writings.
    In a servant’s action for injury, where defendant claimed that plaintiff was a vice principal, declarations contained in' plaintiff’s proof made to his insurer might be considered on the issue of the capacity in which he was employed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 754; Dec. Dig. @=>215(1).]
    19.' Trial @=>121(2) — Conduct oe Counsel-Argument.
    Counsel should be allowed the most liberal freedom of speech, and may discuss all facts in evidence or admitted 'by the pleading, may arraign the conduct of the parties and attack the credibility of the witnesses, may discuss the failure of parties to the suit to testify or to call known favorable witnesses, and may draw conclusions from the evidence and give his opinion thereon, but the court has the right to require him to observe a proper limit in the presentation of his case, and he may not state facts not supported by or inferable from the evidence, or discuss excluded or inadmissible evidence or facts based on his knowledge only.
    [Ed. Note. — For other cases, see Trial, Cent Dig. § 296; Dec. Dig. @=>121(2).]
    20. Trial @=>108½ — Conduct ojt Counsel-Examination oe Jury — “Heeler.”
    In a servant’s action for personal injury while in the employ of defendant oil company, it was improper for counsel for plaintiff in the preliminary examination of the jury to ask whether any “heeler” of the defendant’s had discussed the case with them, as the term is op-probious, and means in common and general acceptation a person who is the lackey or hanger-on of another, and in a political sense an unscrupulous and disreputable person.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. @=>108½.]
    Appeal from District Court, Wood County; M. B. Briggs, Judge.
    Action by I-Iomer W. Carson against the Winnsboro Cotton Oil Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for a new trial.
    Doe & -Bomax and W. D. Smith, all of Ft. Worth, and M. D. Oarlock, of Winnsboro, for appellant. J. II. Beavers, of Winnsboro, J. M. Burford, of Mt. Pleasant, and W. G. Russell, of Winnsboro, for appellee.
   RASBURY, J.

Appellee sued appellant, a private corporation, for damages for personal injuries alleged to have been negligently inflicted by appellant. Appellant conceded the injury, but alleged that it was due to ap-pellee’s contributory negligence, or was the result of the risk assumed by appellee as an employé of appellant; also that appellee was the representative of appellant in control and management at the time he was injured, or its vice principal, and for that reason not entitled to recover; and, finally, that an adjustment of the claim for injuries was had between the parties. The case was submitted to a jury upon special issues of fact, and upon the answers of the jury thereto judgment was rendered by the court for appellee for ⅜3,000. From such judgment, this appeal is prosecuted.

From the evidence contained in the respective briefs of the parties we find that appellant operates at Winnsboro a combined cotton oil mill, cotton gin, and electric light plant. Appellee was its employé; the capacity in which he was employed being a disputed question at trial. Appellant contended that he was a vice principal; appellee that he was an ordinary employé. A part of appellant’s gin equipment consisted of a hull conveyor, which conveyed the hulls either to the hullhouse or to another point where they could be deposited in cars. The. conveyor was of simple construction, consisting of a spiral auger incased in a wooden box running horizontally from the outside west wall through a portion of the building to destination. The covering for the end of the box designated by the witnesses as the box head -was_ of iron, bolted onto the wooden portion of the box, and consisted, in addition to a piece of iron of the dimensions of the end of the wooden box, of bearings for a counter-shaft which operated or turned the auger by cogwheels attached to the countershaft. The entire box head, consisting of the bearings, shaft, and cogwheels, was exposed on the outside wall, and was about 12 feet from the ground. Immediately beneath the box head was a wooden lever, which- when pulled in one direction opened a valve and diverted the hulls to the hullhouse, and when pulled in the opposite direction- diverted the hulls to the cars, and which was operated by hand At the time appellee received his injuries he was directed by appellee’s superintendent to so adjust the lever that a car might be loaded with hulls. In order to reach the lever it was necessary to go upon a “runway,” which consisted of a plank 11 inches wide, 1 ⅛ inches thick, laid upon beams at each end, and reached from the ground by ladder. Appellee got upon the runway and walked thereon to the lever, feeling for same with his hands, it being dark, and that side of the building being unlighted. He finally got his hand upon it and gave it a pull. The lever failing to work or slide, he gave another pull, which started the runway or board upon which he stood to swaying, causing him to lose his balance and to throw out his hands involuntarily and clutch the cogwheels, which injured his left hand so seriously that it became necessary to amputate his thumb, first and second fingers, and nearly half of the body of the hand. Appellee claimed, and the evidence adduced in his behalf tended to show, that the wooden conveyor box onto which the iron box head had been bolted was deteriorated and rotted, and as a result the box head had worked loose and was rest-, ing upon the lever, preventing it from sliding in the usual and normal manner, and but for such condition the injuries would not have resulted, and the jury so found. The foregoing are the salient facts developed in the case and which support the verdict of the jury. There was, of course, another theory of the case supported by the evidence tendered by appellant, but, since the jury has properly solved the conflict, we will not relate the facts deducible from the evidence offered by appellant. We will, however, at another place in this opinion discuss the sufficiency of the evidence to sustain the finding of a certain fact by the jury and put in issue by appellant.

Prior to any consideration of the issues advanced under the assignments contained in appellant’s brief we are met in limine by a motion to dismiss the appeal, and in the alternative to strike out every assignment of error presented by the brief of appellant. The ground urged as basis for both issues is the failure of appellant to file its motion for new trial in the court below within the statutory 2 days after verdict. Appellant’s counter proposition is that the motion comes too late. Rule 8 promulgated by the Supreme Court for observance by the Courts of Civil Appeals (142 S. W. xi) provides, in substance, that all motions relating to informalities in appeals to said courts shall be waived unless filed and entered upon the motion docket within 30 days after the filing of the transcript. The transcript in the instant case was filed in this court March 30, 1915. The motion to dismiss is contained in appellee’s brief, which was filed November 4, 1915, and, if such presentation can he considered a motion entered upon the docket by the clerk, it nevertheless comes too late, since it is clear that the issues raised in the motion are informalities as distinguished from jurisdictional questions. Conn v. Houston Oil Co., 171 S. W. 520; Tyler v. Sowders, 172 S. W. 205; McLane v. Haydon, 178 S. W. 1197.

Appellee also in limine objects to any consideration of the first, second, and third assignments of error on the ground that there is in the record “no” motion attacking the verdict of the jury. This objection, we assume, is based upon the claim that, the motion having been filed after the expiration of the statutory 2-day i^eriod, the verdict would stand as unchallenged, because the motion, could not be considered in support of the assignments. We have said that the matter of when the motion for new trial was filed was an informality relating to the manner of appeal, and was waived in the absence of motion attacking same filed within 30 days after filing transcript in this court. Hence, having waived the time of filing motion for new trial, even if filed too late in the court below, which we do not determine, the same is in the record for consideration for all purposes. If, on the contrary, it is meant that the motion, if considered, does not attack the verdict of the jury, we conclude it is sufficient, since it, in substance, attacks both the verdict and the judgment on the ground of the insufficiency of the evidence;- or, to put it more nearly in the language of the motion, on the ground that the undisputed evidence was at variance with the findings of the jury, which is substantially the same thing. The precise ruling in Scott v. Bank, 66 S. W. 485, cited in support of the motion, was that it was not only necessary to urge in the motion for new trial the insufficiency of the evidence to support the findings of the jury, but that, when such motion was overruled, it was necessary in order to review such action to assign as error the action of the court in overruling the motion for new trial. The motion for new trial now constitutes the assignments of error. Article 1612, Yernon’s Sayles’ Stats. Hence a complaint in the motion repeated in the assignment of error that the verdict should be set aside because without evidence to support it sufficiently raises the issue. Missouri, O. & G. Ry. Co. of Texas v. Black, 176 S. W. 755. In the case cited writ of error was recently denied by our Supreme Court.

We now come to a consideration of the appeal upon its merits, and in that consideration we will not attempt to discuss each assignment seriatum, but, instead, will discuss the issues as such.

The first issue in importance is the claim that appellee was appellant’s agent or vice principal, to whom was delegated the supervision and management of the mill, including the repair of all machinery at the time he was injured, and that the negligence which resulted in his injury was his own for which appellant was not liable in law. This issue was submitted to the jury, and the jury found that appellant was not a vice principal. This finding of the jury is attacked on the ground that it is without support in the evidence, which requires a review of the testimony by us on the issue so-raised. We will not recite the evidence of the witnesses in hsec verba, but will state in our own language the facts deducible therefrom. According to the testimony of Homer W. Carson, appellee, he had been employed at the mill in some capacity since 1901, and was well acquainted with the premises, and efficient and experienced in all departments of the mill, gin, and electric light plant. He was “night foreman,” and was in that capacity in charge of the mill, gin, and electric light plant, and at the time of the accident had been for two seasons. His duties were to go from place to place in the mill and see that the employés, consisting of nine or ten men, were at their proper places and properly performing their work and to keep their time; also it was his duty to shift the lever, which he was doing at the time he was injured; to “sometimes” make necessary repairs to the machinery or cease operating it; to repair a broken belt or similar mishap to the electric light plant; to keep the presses going. He was not a common laborer, but did at times perform such work as shoveling cotton seed and hulls. The other employés were not compelled to obey appellee’s orders or quit, although appellee required them to obey his orders. It was appellee’s duty, under instructions of the day superintendent, when the night crew was short or an extra man was needed, to employ one. The wage to he paid in case of vacancy was fixed by the day superintendent, but not where extra men were needed at night. Appellee did employ one hand while night foreman. He did employ and discharge help under the instructions of his employers before Mr. Leonard became day superintendent, but did not recall discharging any since. All employés other than appellee were employed and paid by the day superintendent. Appellee was employed and paid by the month, and worked regularly the full year. Between seasons he would be engaged in repairing the mill preparatory for the succeeding season, or, if not that, would he doing line work for the electrical department, putting up new lines, and installing electric lights in the houses of patrons. Appellee when injured was insured against accident, and in the written and sworn proof of his injuries made for the insurance company stated that he was “night superintendent at the oil mill.” His explanation of that statement was that he told the agent what his duties were (being those we have detailed), and that the agent wrote it in the proof as it appeared.

Walter Leonard, for appellant, testified, in substance, that he was and had been in the employment of appellant about 8½ years and was its superintendent, and that appellee was night foreman of the mill, and his duties were to supervise the mill and men, discharge employés if they were not performing their duties, and employ others to fill vacancies. He could not recall the names of any discharged, but appellee had told him of discharging help. The employés reported to appellee for work or if they had trouble with the machinery. It was his duty to repair machinery, and he exercised his discretion in that particular without reporting to witness who was superior in authority.

Clarence Oarlock, witness for appellant, in substance, testified that he was manager of appellant, and had been for four years. His duties are principally in the oflice, looking after the business side of the concern. The mill is operated night and day, and there is a day and a night superintendent, due to the fact that there is a day and night shift of employés. The day superintendent is more experienced than the night superintendent and outranks him in authority, and would be the one in authority even at night if present; otherwise at night the former would be in authority. Ordinarily the day superintendent leaves at 7 o’clock, leaving the night superintendent in charge, whereupon he assumes full and complete charge of the mill. At the time appellee was injured Leonard was day and appellee night superintendent; both being employed by the witness. Appel-lee was employed by the year, receiving $00 per month for six months and $50 per month for six months, and, in addition, was furnished a residence belonging to appellant and lights. Leonard, Carson and the office force were the only salaried employés; the common laborers being paid by the day. Carson received his salary, notwithstanding the loss of a few days, while the laborers were paid according to the hours they actually labored. When witness and Leonard left the mill ap-pellee was in charge and had authority to employ and discharge men and exercised that authority. He discharged Gene Christian, a negro employe, who resented Carson’s calling his brother to task for being late, and hired another in his stead. He did not ask witness’ consent to do so, nor did he exceed his authority. Appellee was authorized to repair the machinery which injured him or to authorize another to do it. He could have sent'any employ é to open the valve which he opened, and it was the duty of the one so instructed to obey appellee. I-Ie had been instructed to put up the necessary lights about the mill and exercised that authority according to his judgment. Appellee was instructed to watch all machinery day and night and keep it in repair. Witness could not recall specifically the time of such instructions, but did recall an occasion when appellee, without specific instructions, placed additional lights about the building, and thereafter directed witness’ attention thereto.

Whether the facts related show appellee to have been the vice principal of appellant at the time he was injured is to be determined by the rule in this state as to what facts in law will establish that relation. That rule is well settled, and was succinctly restated in Hugo, Sckmeltzer & Co. v. Paiz, 104 Tex. 563, 141 S. W. 518, to be that, if a given servant, in addition to his authority to direct and supervise the work of those under him, has authority to hire and discharge such subordinate servants, he becomes a vice principal. The question then is; Did appel-lee, according to the testimony, come within the rule? We have stated the facts deducible from the evidence fairly and fully in this opinion, and they speak for themselves and, while we will not disturb the verdict of the jury, save in strict compliance with those rules authorizing us to do so, we feel that in the instant case, even if it can be said that appellee’s testimony can be held to sustain the finding of the jury, about which we have grave doubts, at the same time it is so manifestly against the weight and preponderance of the other testimony that it presents an occasion for us to exercise the authority conferred in such instance and reverse the case on that ground.

In view of another trial it is necessary to consider the contention that appellee was guilty of contributory negligence as matter of law in going upon the runway in the dark without a lantern, which the evidence develops was at hand for the use of em-ployés, in making a second pull at the lever when it failed to work when pulled the first time, and in going upon the runway which was insecure, which the evidence disclosed he had been using in that condition for several years. The evidence does without substantial contradiction support the facts comprehended within the proposition contended for. Nevertheless, the issue of vice principal aside, we conclude that such facts do not, as matter of law, establish contributory negligence which would preclude a recovery. By the oft-stated rule appellee’s sole duty, aside from assuming the risk incident to his employment, was the exercise of that degree of care in the performance of his duties which persons of ordinary prudence exercised to the same end when similarly engaged. Under the rule stated, it appearing that appellee was without knowledge of the fact that the box head was out of repair, or, at most, that fact being one in dispute, it was a question of fact for the determination of the jury whether he should have gone upon the insecure runway without a lantern and made more than one attempt to pull the lever.

It is also urged under practically the same assembly of facts that appellee was not entitled to recover for the reason that he was familiar with the conditions which brought about his injuries or with which he could have been familiar in the exercise of ordinary care, and hence assumed the risk of what occurred. Assumed risk is:

"The voluntary exposure of the servant, without remonstrance, to the ordinary hazards of the particular use of machinery or appliances, claimed by him to be defective or unfit, but of which condition and its dangers he knows, or must necessarily have acquired knowledge in the ordinary pursuit of his own duties.” G., H. & H. Ry. Co. v. Hodnett (Sup.) 163 S. W. 15.

The proximate cause of appellee’s injury was the defective box head, which, again waiving the issue of vice principal, it was not his duty to keep in repair, and appellee’s evidence not only tends to show, but the jury found, that he was without knowledge in that respect Further, “there is on the servant no duty of inspection,” and he may in the pursuit of his work “assume that the master has done his duty and provided for him a safe place to work.” American Mach. Co. v. Haley, 165 S. W. 83, and cases cited. Accordingly we conclude that the issue of assumed risk was properly referred to the jury.

It is also urged that the court erred in refusing to allow appellant’s specially requested charge defining what in law constitutes a vice principal. What the court actually did was to propound to the jury certain questions relating to the duties and authority of appellee under the terms of his employment. These questions were pertinent to the evidence as developed at trial, and whether appellee was a vice principal or not would arise as matter of law upon the answers of the jury thereto. Such course was proper in view of the submission of the case upon special issues. Had the case been submitted to the jury generally, the refused charge, or one substantially similar, would have been proper-. In that connection we have stated the law of vice principal as announced by the Supreme Court, which will be the guide upon another trial.

Complaint is made of the admission of certain testimony in relation to repairing the box head after appellee’s injury and the action of the court in attempting to limit or explain the purpose of the admission of such testimony. We will not attempt to state specifically the several issues so arising, but will state the rule in such cases for the guidance of those interested upon another trial. An accepted authority says:

“While some courts hold to the contrary, the great weigit of authority is that evidence of changes or repairs made subsequently to the injury, or as to precautions taken subsequently to prevent recurrence of injury, is not admissible as showing negligence or as amounting to an admission of negligence. The reason for the rule is that the effect of declaring such evidence competent would be to inform a defendant that, if he makes changes or repairs, he does it under a penalty,” etc. 29 Cyc. 616. .

The rule is sustained by our appellate courts. G., C. & S. F. Ry. Co. v. McGowan, 73 Tex. 355, 11 S. W. 336; St. L., A. & T. Ry. Co. v. Johnston, 78 Tex. 536, 15 S. W. 104; Texas Trunk Ry. Co. v. Ayres, 83 Tex. 268, 18 S. W. 684. An exception to the rule as stated by the same authority exists where in proving the conditions existing at the time of the injury it is necessary to show that subsequently repairs were made. It is also admissible to prove subsequent repairs in rebuttal of any claim that the condition which brought about the injury could not be improved. 29 Cyc. 618, 619.

Appellee testified, and the admission of the testimony is complained of on appeal, in effect, that he examined the box head nine days after he was injured, and that at that time the bolts which fastened it were loose, and that it was in “apparently” the same condition it was when he was injured. In such matters, when the time between the injury and the subsequent examination is not considerable, sucb evidence is admissible as showing the condition at the time of injury. G., C. & S. F. Ry. Co. v. Johnson, 83 Tex. 628, 19 S. W. 151; Austin, etc., Ry. Co. v. Flannagan, 40 S. W. 1043.

What we have just said concerning examination of the machinery subsequent to the injury applies with reference to such examinations prior to the injury, and in admitting the evidence of the witness Finkley, also complained of, who examined the box head three months prior to the injury, the trial judge should have admitted the evidence if it appeared there had been no change in the condition of the machinery since the accident, and then have exercised his discretion with reference to the lapse of time. In such matters this court necessarily will and must allow much to the discretion of the trial judge.

As we have said at another place in this opinion, appellant pleaded adjustment with appellee of his claim for damages and adduced testimony tending to sustain such, plea, and the court submitted the issue so raised to the jury, which the jury resolved against appellant. In connection with such issue evidence of attempts to compromise was admitted, among which was an offer by ap-pellee to accept $1,000 and other considerations in settlement of his injuries, but which was not accepted by appellant, and which was not the adjustment claimed by appellant as having been consummated. For the purpose of eliminating from the consideration of the jury the attempts at compromise the trial court instructed the jury not to consider appellee’s offer to accept the $1,000 in payment for his injuries. The court, however, went further, and directed the jury not to consider “any other amount” offered him, “or that the defendant agreed to pay him any amount in settlement of his claim.” This charge clearly withdraws from consideration of the jury the very settlement which appellant claims was made, and which was submitted to the jury for their consideration. It was correct to withdraw from consideration of the jury the unaccepted offer of the appellee, but not the offer which the appellant claims was accepted, and in support of which it offered testimony. Yet such was the result when the court told the jury it could not for “any purpose whatever” consider the claim that appellant “agreed to pay him (appellee) any amount in settlement of his claim.” There could have been no settlement without such an agreement. We are constrained to believe the charge was misleading, and hence error.

Appellee at the time he was injured was insured against .accident, and certain declarations contained in the proof made to the insuring company in support of his claim concerning the capacity in which he. was employed by appellant were offered in evidence on that issue alone. For the purpose of limiting the consideration of the jury to the very purpose for which the proof of the insurance was made the court instructed the jury that they could not consider the policy of insurance for any purpose. While we think the policy proved nothing, and that the fact that he was insufed against accident could not affect his right to recover, if otherwise entitled to do so, the better course would have been to direct the jury in so many words that, while the declarations in the proof could be considered on the issue of the capacity in which appellee was employed, in no other respect could they consider either the proof or the fact of insurance.

There are a number of assignments of error which complain of remarks of counsel for appellee made in the selection of the jury and in the presentation of the case to the jury. Since the case is to be reversed, it will not be necessary to specifically consider the several assignments, but it is appropriate to state the general rule in such matters for observance on another trial, which is that, while the court has no discretionary control over a litigant’s right to be heard by counsel save in reference to the order, time, and division, etc., he does have the right to require counsel to observe a proper scope in the discussion.’ Generally speaking, all authority holds that the most liberal freedom of speech should be allowed in such matters. Counsel is at liberty to discuss all facts in evidence or admitted by the pleading, “arraign the conduct of the parties, and attack the credibility of the witnesses, and he may engage in oratorical conceit or flourish.” He may discuss the failure of parties to the suit to testify, or to call known favorable witnesses. 1-Ie may draw conclusions or inferences from the evidence adduced and give his opinion thereon, etc. He may not state facts not supported by or inferable from the evidence in the case under discussion, save such matters of which the court takes judicial notice or has common knowledge. He may not discuss excluded or inadmissible evidence, nor facts based on his knowledge only. There are many other matters which counsel may do or may not do under the general rule which it is unnecessary for us to detail. In the instant case, however, we do not approve the action of counsel in the preliminary ■ examination of the jury in asking them whether any “heeler” of appellant had discussed the case with them. The term is opprobrious, and means in common and general acceptation a person who is the lackey or hanger-on of another, and in a political sense an unscrupulous and disreputable person. 4 Gent. Diet. 2771. The inference to be drawn from the inquiry by those who were to try the case was that appellant probably had such persons on hand to approach the jury that was to try the case. Such at least was the innuendo fairly to be drawn from the manner of the use of the term. We do not mean, of course, to assert that it was improper for counsel to inquire if any agent, attorney, or otter representative of appellant had discussed the case with them. There are other remarks of counsel contained in the record of doubtful privilege under the general rule, but, since it is probable that the court on another trial will confine counsel within the rules cited, further discussion is unnecessary.

There are some issues presented in the brief which we have not discussed, but which we have nevertheless considered, and which are overruled because, in our opinion, they fail to present reversible error.

For the reasons stated, thé judgment is reversed, and the cause remanded for another trial not inconsistent with the views herein stated.
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered .Digests and Indexes

      ®=>For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@^>For otjier oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    STINE OIL & GAS CO. v. ENGLISH.

    (No. 8333.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 26, 1916.
    On Motion for Rehearing, April 29, 1916.)
    1. Trial <&wkey;352(4) — Special Issues.
    In an action on an alleg'ed oral agreement for work done in converting an oil well, abandoned as such, into a gas well, there being no controversy as to the kind of work necessary, or as to whether the person malting the agreement with the plaintiff was acting as president of the defendant company, a special issue submitted to the jury, requiring them to find whether or not the defendant’s president employed the plaintiff to do further work on the well, to make it produce gas after it was abandoned as an oil well, when taken with another issue, requiring the jury to find the rate per day agreed upon, if they found that an oral contract existed, was proper and sufficient to cover the issues raised by the testimony.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 840; Dec. Dig. &wkey;352(4).]
    2. Trial <&wkey;351(5) — Special Issues.
    In such action, the existence of the contract and the rate per day agreed upon having been submitted to the jury by special interrogatories, a requested instruction submitting as an issue whether or not F. IS., as president of defendant corporation, had stopped the drilling, and had by verbal contract employed the plaintiff to shut off the water for the purpose of making the gas well, and promised to pa'y the plaintiff the sum of $15 per day, was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 834; Dec. Dig. &wkey;351(5).]
    3. Trial &wkey;>352(4) — Special Issues.
    In an action under an alleged oral agreement to finish as a gas well one bored under a written agreement specifically providing for an oil well, an instruction directing the jury to find whether defendant with knowledge that the original contract between the parties had been completed, directed the way in which the work should he done from and after its abandonment as an oil well, was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 840; Dec. Dig. &wkey;352(4).]
    4. Contracts &wkey;>322(l) — Breach—Evidence —Burden oe Proof.
    In an action on an alleged oral agreement to convert into a gas well an oil well bored under a written agreement providing for a price per foot up to 2,000 feet, which had been terminated, it being necessary to withdraw a portion of the casing in returning to the gas sand, which caused water and sand to flow into the well, the burden of proof was not on the plaintiff to show that the work done after pulling the 5-inch casing was made necessary by water coming from below the gas sand, or that, after being requested not to drill any further for oil, he drew the 5-inch easing, cased off all water above the gas sand, bailed, sand-pumped, and put the well in good condition, since, as he was not required to do the work of returning to the gas sand under the written contract, it was necessarily covered by the parol contract pleaded.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1306, 1465, 1754, 1772; Dec. Dig. &wkey;?322(l).]
    5. Appeal and Error <&wkey;690(l) — Assignments op Error — Statement.
    Where it does not appear from a bill of exceptions that the defendant was not notified to produce the original of a check, or that he did not have the check in court, an assignment of error that the plaintiff had, over objection, been permitted to testify as to the check, will not be considered.
    _[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897, 2904; Dec. Dig. &wkey;> 690(1).]
    6. Trial <&wkey;219 — Instructions—Definition op Terms — Knowledge op Language — Presumption.
    The terms “burden of proof” and “preponderance of the testimony” being of common use, it will not be presumed that the jury did not understand them; and the refusal of instructions defining such terms is not ground for reversal.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 489; Dec. Dig. &wkey;219.]
    7. Trial <&wkey;>217 — Instructions — Duty op Jurors — Compliance with Oath — Presumption.
    It will not be presumed that the jury would be inclined to go contrary to their statutory oath to find upon the issues submitted without reference to their opinions as to the legal rights of the parties, and a refusal to instruct on the duty of jurors in that .respect is not reversible error.
    [Ed. Note. — For other cases, see Tidal, Cent. Dig. §§ 483, 485; Dec. Dig. &wkey;217.]
    8. Contracts <&wkey;354 — Appeal and Error-Findings.
    In an action upon an alleged oral agreement, where the only controverted issue of fact was the existence of the agreement, the neglect of the court to require a finding that the plaintiff did the particular work alleged in his petition was not error.
    [Ed. Note. — For other cases, see Contracts, Dec. Dig. &wkey;354; Trial, Cent. Dig. §§ 858,
    9. Damages <&wkey;>225 — Actions—Work Performed After Commencement op Suit.
    In an action on an oral contract to finish as a gas well an oil well drilled under a written contract where defendant did not object to the completion of the work after the institution of the action, or seek to abate the action for that reason, plaintiff’s cause of action being upon his entire contract, he was entitled under an amended petition to recover for the work performed after the institution of the suit.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 567; Dec. Dig. <&wkey;225.]
    10. Contracts <&wkey;232(l) — Construction—Incidental Expenses.
    Under an oral contract to do additional work, changing a proposed oil well into a gas well, at a specified rate per day, the absence of proof that expenses alleged by the plaintiff to be incidental to the work were to be paid by the defendant, in addition to the rent per day, they became a part of the work which he undertook to perform at the agreed price.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1071, 1073-1075%, 1078-1086; Dec. Dig. <&wkey;>232(l).]
    On Motion for Rehearing.
    11. Woek and Labor >&wkey;13 — Acceptance op Services — Quantum Meruit.
    In an action upon an alleged oral agreement to do additional work in changing a proposed well into a gas well, where the plaintiff showed the performance of work of the value alleged in the agreement upon the repudiation of the contract by the defendant, so as to deprive the plaintiff of the legal right to recover on said contract for work done after the institution of the suit, he was entitled to recover upon his alternative claim of quantum meruit.
    [Efl. Note. — For other cases, see Work and Labor, Cent. Dig. § 28; Dec. Dig. &wkey;>13.]
    Appeal from District Court, Clay County; J. W. Akin, Judge.
    Action by H. W. English against the Stine Oil & Gas Company. From a judgment for plaintiff, defendant appeals, and plaintiff cross-appeals.
    Reformed and affirmed.
    Samuels & Brown, of Ft. Worth, and Wantland & Parrish, of Henrietta, for appellant. Arnold & Taylor, of Henrietta, and Huff, Martin & Bullington, of Wichita Falls, for appellee.

      Application for writ of error pending in Supreme Court.

   DUNKLIN, J.

The Stine Oil & Gas Company employed H. W. English to drill a well on a tract of land in Clay county, for the purpose of obtaining oil and petroleum therefrom. The contract of employment was in writing, in which the Oil Company was designated as the party of the first part and English as the party of the second part, and is as follows:

“I. Party of the second part hereby agrees to drill a well for the party of the first part for the purpose of obtaining therefrom 'oil and petroleum; said well to be sunk on a forty-acre tract of land in Clay county, Texas, near Petro-lia, and consisting of lots 3 and 6, in block 1, according to the plat of land belonging to .estate of J. D. Stine and M. F. Stine, deceased, of record in Book 1, page 16, of the Plat Records of Clay County, Texas, at a point to be designated by party of the first part.
“II. Said party of the second part agrees to drill said well to a depth of two thousand (2,-000) feet unless oil in paying quantities is discovered at a lesser depth.
“III. Party of the second part is to supply, furnish, provide, and assemble at his own expense (except as hereinafter specified), at the place where said well is to be sunk, all and singular the necessary and requisite labor, fuel, material, machinery, appliances, apparatus, equipment, tools, utensils, and connections to ■enable him to sink and complete said well in a skillful, efficient, and scientific manner and way under the terms of this contract.
“IV. Diameter of the well when completed shall be 6% inches, if possible, and all and ■singular the appliances, machinery, apparatus, and utensils shall be of standard make and adequate as well as efficient for the purpose of this contract.
“V. If for any reason before the final completion thereof the drill should break, or said well cave in or become clogged or impassable, so as to prevent its ultimate completion, then party of the second part shall be under obligation to sink another well and perform an equivalent work without additional charge therefor, at another point on said tract.
“VI. Party of the second part agrees to begin the drilling of said well within thirty days from the date hereof, and to prosecute such work with diligence, efficiency, and good faith until the completion of the same under the terms of this contract, and the ultimate period within which said well shall be completed is hereby fixed at three months from the date hereof, unless further time is granted for that purpose by party of the first part. It is further agreed that said well is to be drilled with standard rig and cable tools.
“VII. Party of the first part is to furnish the casing for said well, to be delivered on the ground where said well is to be sunk.
“VIII. Each party is to pay one-half of the cost of fuel, which total cost shall not exceed seven and 50/ioo dollars ($7.50) per day, or, in other words, the share of such expense to be borne by party of the first part shall not exceed three and 7Vioo dollars ($3.75) per day; water for drilling purposes to be furnished by party of the first part in tank adjacent to well, but the pumping thereof to be done by party of the second part at his own expenses.
“IX. In drilling said well, party of the second part agrees to report to party of the first part the sands found in said well, and said party of the second part, at request of party of the first part, agrees to stop the drilling of said well at any sand when requested so to do, and test the same to determine whether or not it will produce oil in paying quantities, and, if oil in paying quantities is found at a lesser depth than 2,000 feet, then party of the second part agrees to stop the drilling of said well and finish the same in a workmanlike manner.
“X. If the said well is completed to a depth of 2,000 feet and oil in paying quantities has not been found therein, then party of the second part agrees, at his own cost, to pull the casing in said well, and unjoint the same, and have the same properly stacked: Provided, however, that it is possible for said casing to be drawn from said well with the machinery then on hand.
“XI. Party of the first part agrees to pay party of the second part, and party of the second part agrees to accept, as consideration for his performance of this contract, the sum of three dollars ($3.00) per foot to the point of completion, not to exceed 2,000 feet, which consideration is to be paid on the completion of the well under the terms of this contract.
“XII. Party of the first part is to be the judge, as the drilling of said well proceeds, whether oil is found in paying quantities, and when it shall be determined by said party of the first part, its agents and servants, that oil is or is not to be found in paying quantities, then the work of drilling said well shall desist and cease at its request, and party of the first part shall not be liable for any further costs thereof.
“XIII. All and every risk, hazard, damage, and liability in the matter of assembling the material, and in drilling said well and in connection therewith, and in testing and demonstrating said well, shall be and is hereby made the sole responsibility of party of the second part; Provided, however, that in the event the rig should be blown down or destroyed by a cyclone or tornado,, the cost of restoring same shall be borne by party of the first part.
“XIV. When completed, unless prevented by too great a volume of gas or oil, the well shall be thoroughly bailed and ‘sand-pumped’ by said party of the .second part, until all drill-ings and sediment are removed therefrom and the well thoroughly cleaned.
“XV. Party of the second par.t agrees to de-livei? said well, when completed to the depth required, to party of the first part in good order, free and clear of all obstructions.”

The well was drilled to a depth of 1,719 feet into a gas sand, which produced gas at the rate of 16,000,000 cubic feet per 24 hours. Eight-inch casing had been set at a depth of 1,694 feet, and 6-inch casing was set at a depth of 1,719 feet, where the gas was struck. The well could then have been finished and used for a gas well, and under a contract with the Lone Star Gas Company, which already owned the gas rights upon said land, could have been turned over to that company at a price equal to the cost of the work up to that time. But the officers of the Oil Company, preferring an oil well instead, decided to have the well drilled deeper in the hope of securing oil, and in obedience to instructions to that effect English continued drilling, and, having struck water below the gas sand, he shut it off by using a 5-inch casing, which was continued down to a depth of 1,783 feet, when he was directed by Mr. Eitch Stine, president of the Oil Company, to cease drilling. English was tiien directed by him to withdraw the 5-inch casing and return to the gas sand and finish the well as a gas well, which was afterwards done. The Oil Company paid English, for drilling the well to a depth of 1,783 feet, the contract price of $3 per foot, with the exception of a small balance of $138.05.

This suit was instituted by H. W. English against the Stine Oil & Gas Company to recover the aforesaid balance of $138.05 under the original contract, and also for the work he performed and certain expenses incurred in returning to the gas sand and finishing the well as a gas well after the company had decided to abandon its further efforts to procure oil. The demand for the work in returning to the gas sand and finishing the well as a gas producer was predicated upon an alleged parol contract on the part of the company, represented, by Mr. Eitch Stine, its president, and Dr. Humph, its vice president, to pay English for the alleged extra work at the rate of $50 per day, which was alleged to be the usual and customary price for such work with the drilling outfit used by plaintiff therefor. The claim for the expenses incurred in performing such alleged extra work, aggregating $155.85 and consisting of divers characters, such as telephone charges, hired help, etc., an itemized statement of which was attached to the petition as an exhibit, was based upon allegations that the same were necessary and that the defendant thereby impliedly became bound to pay the same. But, according to the plaintiff’s contention, said extra work, for which he claimed compensation at the rate of $50 per day, did not include the drawing of the 5-inch casing, after the further drilling had been abandoned, which he admitted he was obligated to draw under and by virtue of the original written contract.

In its answer the defendant denied making the parol contract sued on, and specially pleaded as follows:

_ “In this connection this defendant affirmatively alleges: That on or about the 24th day of June, 1914, the plaintiff and defendant entered into a written contract by the terms of which plaintiff obligated and bound himself to, drill, case, and complete and clean in a good workmanlike manner a well on lots Nos. three (3) and six (6), in block No. one (1), of land belonging to the Stine estate in Clay county, to-a depth of not to exceed 2,000 feet, for the price-of three ($3.00) dollars per foot. That drilling, casing, cleaning, and completing the well in good workmanlike. manner and within the expressed and implied terms of said contract, meant the casing off of water from the top to-the bottom of said well, all of which plaintiff was under obligation, by the terms of said contract, to do before the obligations assumed by him had been performed, and all work and material performed and furnished by plaintiff in-connection with said well were performed and' furnished under said contract; and any undue-length of time consumed or seemingly additional work done to properly case off the water so-as to leave the well dry were caused by the-plaintiff negligently failing to case off the water-as the will was being drilled. Defendant says that the said Eitch Stine and D-r. Humph and each of them were without authority to make-the verbal contract alleged in paragraph 3 of' said petition.”

The case was submitted to a jury upon special issues; such issues and the findings of the jury thereon being as follows:

“Special Issue No. 1. When the well about which this suit was brought was abandoned' as an oil well, did Fitch Stine employ plaintiff, H. W. English, to do further work on said’ well in order to make it produce gas? Answer: Yes.
“Special Issue No. 2. If you have answered-special issue No. 1 ‘yes,’ then state what was the rate or remuneration per day agreed upon by the parties. Answer: $50.00.
“Special Issue No. 3. State from the evidence before you whether the defendant company or its officers and agents, with knowledge the original contract between the parties had been completed, directed the way in which the work should be done from and after October 17, 1914. Answer: Yes.
“4. The burden of proof is upon the plaintiff' to establish his cause of action by a preponderance of the testimony.
“5. You are the judges of the credibility of' the witnesses, and of the weight to be given their testimony, but the law of the case you will receive from the charges given you by the court and be governed thereby.”

There was no controversy in the proof with-respect to the number of days that English' was employed in finishing the well, and that issue was determined by the court, the- correctness of which has not been challenged.. Judgment was rendered in favor of the plaintiff against the defendant for the sum of $2,942.90, being the amount sued for, less the-sum of $776, with interest thereon at the-rate of 6 per cent, per annum from this date. From that judgment the defendant has appealed.

Complaint is made of the first issue-submitted to the jury upon the following grounds: (1) That it did not require a finding of what particular work Stine employed English to do; (2) that it did not require-a finding on the entire contract alleged; (3) it did not require a finding of compensation which plaintiff alleged was agreed to be paid; and (4) it did not submit the issue as to whether or not Stine was acting as president of the defendant. The assignment is overruled, because the first and second issues, taken together, submitted all of the issues relative to the alleged contract concerning which there was any controversy in the testimony. There was no controversy as to tlie kind of work it was necessary for English to do in order to convert the well into a gas well, nor was there any controversy that, if Stine made the contract at all, as alleged, he was acting as the president of the defendant.

And for the reasons just stated there is no merit in the appellant’s second assignment complaining of the refusal of a requested instruction submitting as an issue whether or not—

“F. Stine, as president of the Stine Oil & Gas Company, after he had stopped the drilling on or about October 17, 1914, by verbal contract, employed H. W. English to shut off the water under direction of said Stine and Dr. Rumph, for the purpose of making a gas well, and promised to pay said English the sum of $50 per day.”

Error has been assigned also to the third issue submitted, on the ground that by that issue the court assumed as a fact that, when the drilling was stopped on October 17, 1914, plaintiff had performed all work required of him under the written contract, which was one of the vital issues in the case. That the defendant, through its officers, did stop the drilling on October 17, 1914, and did decide not to drill any further for oil, but to return to the gas sand and finish the well as a gas well, was proven beyond controversy. And we are of the opinion, further, that the written contract itself shows that the work done by English, after the further drilling for an oil well had been abandoned, in returning to the gas sand and finishing it for a gas well, was not work contemplated or covered by such written contract. The written contract specifically recites that the drilling was to be for the purpose of obtaining oil and petroleum, and there is nothing in that contract which in .any manner indicates that a gas well was in contemplation of the parties. Neither was there any pleading by the defendant of mutual mistake in the terms of that contract.

Error has been assigned to the refusal ■ of two other special issues requested by the • defendant reading:

“Do you find from the preponderance of testimony that the work which English did on the well, after he pulled the five-inch casing, was made necessary by water coming from below the gas sand? In this connection, you are charged as a matter of law that the burden of proof rests on the plaintiff to prove that the work was made necessary by the water coming from below the gas sand.”
“Do you find from the preponderance of the •■testimony that H. W. English, after F. Stine requested him not to drill the well any deeper, prior to October 20, 1914, drew the 5-inch casing, cased off all water above the gas sand, bailed, sand-pumped the well, and put it in good, order, free and clear of all obstructions? In this connection you are instructed as a matter of law that the burden of proof is on H. W. English to establish the affirmative of this issue.”

English testified that, when the. defendant’s officers decided to drill no further for oil, the well was then dry; in other words, that at that depth all water had been shut off by the 6-inch casing down to the gas sand, and by the 5-inch casing below the gas sand. That the well was dry when further drilling was abandoned seems to be undisputed by any evidence. It was also shown beyond controversy that when the 5-ineh casing was withdrawn, and the work of completing the well as a gas well had begun, a great volume of water came into the well, which had to be shut off. According to the testimony of English, all of this water came from a point below the 6-inch casing, and was water that had been shut off by the 5-inch casing before that casing was withdrawn. But the defendant introduced -some testimony to the effect that that water came from behind the 6-inch casing. If it could be said that the written contract between the parties required English, after further drilling for oil had been abandoned, to return to the gas sand and finish the well as a gas well, then clearly the requested issues should have been submitted. But, as said already, he was not required to do that work under and by virtue of that contract, and, being work not required by that contract, it was necessarily covez'ed by the parol contract pleaded by plaintiff, if that contract was in fact made. Accordingly, there was no error in refusing the submission of the requested issues referred to.

Over objection of the defendant, English was permitted to testify that on December 20, 19X4, he received a check from the defendant for $159, and that on the left-hand corner of the check it was noted that the same was given in payment of expenses by English for the defendant company, and objection was made to that testimony on the ground that the check itself was the best evidence, and that the defendant had not been notified to produce it, and did not then have it in court. That objection was overruled, and error has been assigned to the ruling^ It does not appear from the bill of exception that the defendant had not been notified to produce the original, or that it did not have the check then in court, as urged in the objection, and this of itself would be a sufficient ground for overruling the assignment. C., R. I. & G. Ry. .Co. v. Thompson, 58 Tex. Civ. App. 134, 124 S. W. 144.

There was no reversible error in the refusal of a requested instruction defining the terms “burden of proof” and “preponderance of the testimony,” since those were terms of common use, and it cannot be supposed that the jury did not understand them. Nor can we say that there was reversible error in the refusal of the defendant’s request for an instruction that the jury should find upon the issues submitted, without reference to th'eir opinions as to the legal rights of the parties. When the jury took the statutory oath' required to be administered to them, they must have understood their duty to be as stated in the requested instruction, and it cannot be presumed that they would be inclined to go contrary thereto in the absence of such instruction.

By two other assignments of error appellant complains that th'e issues submitted by the court did not require a finding that the plaintiff did the particular work alleged in his petition, and that, in the absence of a finding upon that issue, the court was not authorized to enter a judgment upon the special contract sued on. These assignments are overruled, for the reason that it was shown beyond controversy that the particular work alleged in plaintiff’s petition as extra work was in fact done by him, leaving as the only controverted issue of fact relative thereto, whether or not the defendant made the alleged parol contract to pay plaintiff therefor, which was found by the jury in plaintiff’s favor.

The foregoing disposes of all of appellant’s assignments of error.

The evidence shows that this suit was instituted on February 9, 1915, at which time the extra work, for which compensation is claimed by the plaintiff, had not been finished, and was not finished until plaintiff thereafter had done 12 additional days’ work. The evidence further shows that such further work after the institution of the suit was done without-any objection on the part of the defendant. On May 12, 1915, plaintiff filed his amended original petition, in which he included a demand for $600 for said 12 days’ work in addition to that sued for in the original petition. After the verdict was returned, defendant, by written contest, resisted any judgment for said 12 days’ work, and also for the incidental expenses incurred by English in doing said extra work, aggregating $155.35, mentioned above, and that objection was by the court sustained: the ground of such objection being that plaintiff should not be allowed to recover for said additional 12 days’ work after the defendant had disputed the said alleged special contract, and that he should not be allowed to recover the incidental expenses because he had not alleged that the defendant had agreed, either expressly or impliedly, to pay the same.

By cross-assignment appellee insists that there was error in that ruling. We are of the opinion that plaintiff should have been allowed a recovery for the $609 for the 12 days’ work mentioned. The basis for the contention that the defendant had repudiated the contract before the institution of the suit was testimony of Dr. Rumph, in effect that, just prior to the institution of the suit, plaintiff appeared at a meeting of the board of directors of the defendant, and requested an acknowledgment of its liability to plaintiff in accordance with the terms of the contract of employment for such extra work, which he then claimed had been made with him by Fitch Stine, as the president of the company. According to the further testimony of this witness, the board of directors at that meeting refused to acknowledge such liability, upon the ground that such alleged extra work was in fact included in the original written contract as work which plaintiff had obligated himself to perform, and compensation for which was included in th'e $3 per foot for the total depth of the well. It thus appears that the defendant, instead of forbidding the completion of the well as a gas well, in fact expected it to be finished as such, and, as noted , already, plaintiff was permitted to proceed with the work after the institution of the suit without objection on th'e defendant’s part. In order for plaintiff to recover on the parol contract for extra work as alleged, it was necessary, of course, for him to show that he had completed it in accordance with the terms of the contract. The defendant did not seek to abate the suit because it had been instituted prior to the completion of the alleged work, nor was there any issue tendered in th'e pleadings of either party with respect to plaintiff’s measure of damages, if any were recoverable at all, in the event the work had not been completed in accordance with its terms. Plaintiff’s cause of action was upon his entire contract; he could not have two suits based upon the same contract, and under the circumstances related we are unable to perceive any valid reason why he should not recover for the work performed by him after the institution of the suit. Weber Gas & Gasoline Engine Co. v. Bradford, 34 Tex. Civ. App. 543, 79 S. W. 46; Bryson v. McCone, 121 Cal. 153, 53 Pac. 637; 8 R. C. L. pp. 539 to 541, inclusive.

Appellee has cited no evidence to show that it was understood by and between the parties at the time the special parol contract was made for the extra work that the incidental expenses referred to above should be paid by the defendant in addition to the $50 per day it agreed to pay plaintiff, or that the defendant even knew, or had reason to believe, that it would be expected to pay therefor; and in the absence of such proof, and in view of plaintiff’s pleading that such expenses were necessary to finish the well as a gas well, the same were incidental to and became a part of the work which he agreed to perform at the agreed price of $50 per day. Accordingly, ap-pellee’s assignment of error to the refusal of a recovery for such expenses is overruled.

For the reasons noted, the judgment of the trial court is reformed, so as to include said $600 for work performed after the institution of the suit in the amount of plaintiff’s recovery, thus making the amount of the principal of the judgment in favor of plaintiff against the defendant $3,542.90 with interest thereon from the date of the judgment at the rate of 6 per cent, per annum, and for costs of suit, and, as so reformed-, the judgment is affirmed.

Reformed and affirmed.

On Motion for Rehearing.

If, under such authorities as noted in 9 Oye. 638, 639, and many of which are collated in notes to Davis v. Bronson, 33 Am. St. Rep. 783, it could be said that the action of the board of directors of the Oil Company, referred to in our original opinion, considered in connection with the other attendant circumstances mentioned, was such a repudiation of the contract to pay $50 per day for the alleged extra work as to deprive plaintiff of the legal right to recover on said contract •for the work done after the institution of the suit, still plaintiff showed a clear right to recover $50 per day for such work upon his alternative plea of quantum meruit, since it was shown by uncontroverted evidence that the work was reasonably worth that sum, was performed with the knowledge and consent of the company, and was accepted by it.

The motion for rehearing is overruled.
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author: MOURSUND, J.

text:
    HOOK et al. v. PAYNE.
    (No. 5735.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 3, 1916.)
    Injunction <®=3l22 — Pleading— Sufficiency of Verification.
    In an action for an injunction, where the petition was signed “Pope & Sutherland, Attorneys for Plaintiff,” verification by the affidavit of H. R. Sutherland, who did not therein describe himself as the agent or attorney of the plaintiff, in the absence of anything in the petition or affidavit to show that the affiant was a member of the firm was insufficient.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. <⅜^>122.]
    Appeal from District Court, Kleberg County ; W. B. Hopkins, Judge.
    Action for injunction by W. Payne against T. Wesley Hook and J. S. Scarborough, Sheriff of Kleberg County. Temporary injunction granted, and defendants appeal.
    Order reversed, and judgment entered, refusing the application, and dissolving the injunction.
    T. Wesley Hook, of Kingsville, for appellants.
   MOURSUND, J.

This is an appeal from an interlocutory order granting a temporary injunction restraining T. Wesley Hook and J. S. Scarborough, sheriff of Kleberg county, from proceeding to sell certain woodworking machinery under an order of sale issued out of the county court of Kleberg county. The injunction was applied for by AY. Payne, who alleged that he had purchased said property at a sale# made by R. F. Watt, receiver of the Kingsville Planing Mill & Manufacturing Company, a corporation; said sate having been made under order of the district court of Kleberg county, duly entered in case No. 23, styled Don Payne et al. v. Kingsville Planing Mill & Manufacturing Company, in which case such receiver had been duly appointed. Plaintiff alleged that the sate had been confirmed by said district court, and he had paid the purchase price, but upon appeal the order of confirmation was reversed, and the cause remanded, with instructions to hear evidence on the allegations made in opposition to the confirmation of the sale. He further alleged that another hearing on the matter of confirmation of the sate would not take place until in May, 1916.

We deem it unnecessary to state more fully the allegations of the petition because we conclude that the same is not verified as required by statute, and for that reason the court erred in granting the same. The petition is signed, “Pope & Sutherland, Attorneys for Plaintiff.” The affidavit was made by I-I. R. Sutherland, who does not, in such affidavit, describe himself as either the agent or attorney of the plaintiffs. In the case of Willis v. Lyman, 22 Tex. 268, the Supreme Court, in passing on the sufficiency of an affidavit in a garnishment case, said:

“The petition, in the present case, is signed by ‘Fly & Fly, Attorneys for Plaintiffs,’ and the affidavit is made by B. F. Fly, who does not, in the affidavit, describe himself as either the agent or the attorney of the plaintiffs. The court cannot know that the person who makes the affidavit is one of the persons who signed the petition as attorneys for the plaintiffs; nor will the court look to the records, in the original suit, to. find information which ought to bo contained in the affidavit itself.”

In the case of Cherryhomes v. Carter, 66 Tex. 167, 18 S. W. 443, the court said:

“When an affidavit is made, in the course of a judicial proceeding, by one person in behalf of another, his authority to do so should be made to appear in some way from the record, or it will not serve in the place of the oath of the proper party.”

In this case there is nothing in the petition or affidavit to show that the H. P. Sutherland, who made the affidavit, is the Sutherland who is a member of the firm of Pope & Sutherland, and, therefore, in view of the defeisions above mentioned, we hold that the affidavit is not sufficient.

The order of the district judge granting the temporary injunction is reversed, and judgment here entered refusing the application, and dissolving the injunction.