author: FLX, C. J.

text:
    PALERMO BROS. v. CAPPS.
    (No. 5878.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 6, 1917.
    Rehearing Denied June 22, 1917.)
    1. Master and Servant &wkey;>258(12) — Injuries to Servant — Safe Tools — Complaint —Sufficiency.
    A complaint alleging that plaintiff was a servant in charge of cotton gins under instructions how to clean them and not to stop them, and that a lever used in cleaning them was de- . fective, so that he was hurt, is not demurrable.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 827.]
    2. Pleading <&wkey;ll — Injuries to Servant-Safe Tools — Complaint—Sufficiency.
    An injured servant need not in his complaint set out evidence, but where he states the injuries and the cause thereof, the complaint is sufficient.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 31.]
    3. Master and Servant &wkey;>278(3) — Injuries to Servant — Evidence—Sufficiency.
    Evidence held to show master’s negligence in furnishing a defective tool, in using which plaintiff servant was injured..
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 958.]
    4. Master and Servant &wkey;>281(l) — Injuries to Servant — Contributory Negligence-Evidence.
    Evidence held not -to show contributory negligence on the part of a servant using a defective tool.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 987.]
    Appeal from District Court, Brazos County; J. C. Scott, Judge.
    Action by James A. Capps against Palermo Bros. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Hudson & Hudson and Doremus, Butler & Henderson, all of Bryan, for appellants. Taliaferro & Armstrong, of Bryan, for ap-pellee.
   FLX, C. J.

This is a suit for damages arising from personal injuries, alleged to have been inflicted on appellee through the negligence of appellants, a partnership. The cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $3,500.

It was alleged in the petition that appellee was in the employ of appellants as a ginner, having in his charge six gin stands, that he had never run a gin, and objected to having charge of the same, but he was assured by appellants that each of the gins was of the latest improved pattern, and, after being shown by appellants how to run the same, he would have no trouble in running the gins safely and satisfactorily; that, acting on such assurances, appellee agreed to run the gins from August 7, 1913, to January 1,1914; that appellants undertook to show appellee how to run the gins, and particularly how to handle the breasts of the gins in case of fire or clogging or choking in the ribs. That instruction was that appellee should take off the top or lid and raise the breast by placing the lever attached to the side of it, then pressing it down until the notch of the lever caught in the iron flange or fastening provided for that purpose, then raising the breast still higher and propping it with an iron rod provided for that purpose, then using another stick in pushing the cotton from the ribs. It was alleged that appellee was ordered not to stop the gins in order to clean any one of them; there being no way to stop one gin without stopping all of them. Ap-pellee was assured that the prescribed method of cleaning a gin was safe, and that the rod would not drop out and throw the breast down on appellee’s arms while he was engaged in cleaning a gin. About August 23, 1913, appellee undertook to clean a gin in the prescribed manner, but while so engaged the breast fell with great force upon appel-lee’s left arm and hand and forced them against the saws of the gin, inflicting serious and permanent injuries. It was alleged that the breast would not have reached his arm, although the rod slipped out, had it not been for the defective condition of the lever which should have caught and held it before it reached the bottom. It was alleged that the only means of stopping the gins was to pull a cord on the wall near the gins, and appel-lee could not, with his arm caught, reach the cord, and he cried for help, and the manager ran to the cord and stopped the gins; that so much time was consumed by reason of the engineer not heeding the signal to stop that the manager had to run down stairs and shut off the steam, and ap-pellee’s hand and arm were so badly lacerated that he lost his arm.

The petition stated a cause of action, and was not open to general demurrer, as claimed in the first assignment of error. There is only one proposition under the assignment, and that is the abstract declaration that when a petition “shows on its face that it is subject to general demurrer, it is the duty of the court to sustain same:” The proposition is axiomatic, but has no premise in this instance.

The second, third, fourth, fifth, sixth, seventh, and eighth assignments assail the action of the court in refusing to sustain special exceptions to the petition. The petition, was not subject to the attacks made upon it. The pleader was not bound to set out the evidence or write a dissertation on law in the petition. It is a clear statement of the injuries and the causes leading up to them. The assignments are overruled.

The assignments of error from the tenth to the twenty-second, inclusive, assail the instructions of the court for many errors of commission and omission, none of which is meritorious. Paragraph 3 of the charge is full and explicit, and is a correct application of the law to the allegations and facts.

The eleventh assignment is multifarious and should not be considered. However, it states no tenable objections to the charge.

In no part of the charge is undue stress laid upon any issue, but it meets' every issue clearly and fully, and there were no abstractions in the charge that could possibly have injured appellants. There is no attempt to point out any testimony tending to show that appellee was an experienced hand.

The court not only charged fully on contributory negligence, but also gave three special instructions requested by appellants on the same subject. The jury found that ap-pellee was not guilty of contributory negligence.

The court did not err in refusing to instruct a verdict for appellants. The evidence showed that appellee was hired by appellants to run the packer, and after he had been so employed for two days, over his protests, he was put in charge of the gins. He had never run a gin and knew nothing about them and was afraid of them, and he so informed the appellants. He was informed that there was no danger in operating the gins and that he had to operate them or quit. One of the appellants showed appellee how to operate the gins, and how to clean them when they became clogged. He was instructed not to stop the gins while cleaning them. He followed the instructions as to raising the breast by pulling a lever and then raising it higher and placing an iron pin under the breast as directed. The lever was badly worn, but appellee was not aware of its condition when he was hurt. Appellee discovered fire in the gin stands where the cotton had become wedged in the ribs, and tried to get it out in the way he had been told and with the instrumentalities furnished him. The breast dropped from the iron pin, and, instead of being stopped in its downward course by the lever, the latter, being worn and defective, did not stop the breast, and it fell clear down, knocking ap-pellee’s arm against the saws so that it was injured to such an extent that he lost it.

Appellee could not reach the cord to stop the engine, but called for -help, and the manager came at once and gave the signal for the engine to stop, but the signal was not heeded, and he had to run down stairs to shut off the steam. All this time the saws were cutting and lacerating appellee’s arm. Appellee did not cause the iron pin to drop from under the breast. Appellee knew generally that all machinery was dangerous, and he was afraid of it, but he did not realize the danger of carrying out tire instructions of appellants in stopping a fire in the ribs of the gins. He followed his instructions to the letter. The lever would not hold. The vibration when the gins were running would shake it down, it was so defective. The evidence was clear as to the negligence of appellants, and no contributory negligence on the part of appellee was shown.

The cause was fairly presented to the jury, in the light of the law and facts, and it was not error to refuse the special charges requested by appellants.

The judgment is affirmed.
      @=3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    SOUTHWESTERN SURETY INS. CO. v. GULF, T. & W. RY. CO.
    (No. 8531.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 17, 1917.
    On Motion for Rehearing and to Certify, May 26, 1917.)
    1. Judgment &wkey;sl43(17) — Default—Right to Take.
    Letters from plaintiff’s attorneys to defendant’s attorneys, stating that the writers were not willing to accede to the settlement suggested by defendant’s attorneys, and that in the absence of any satisfactory offer they would proceed with the trial of the case, could not have misled defendant into believing that a settlement would be effected and that no judgment would be demanded, and hence did not authorize the setting aside of a default judgment rendered against defendant.
    [Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 290.]

      2. Judgment <&wkey;143(14) — Default—Excuse.
    Where suit had been filed a month before default judgment was taken and defendant’s attorney had been advised thereof, the fact that such attorney was called to a distant state by the illness of his sister did not excuse defendant’s failure to file an answer before the appearance day or have an attorney present to represent him' on that day, where it was not specifically shown that the absence of his attorney prevented him from securing another attorney or filing his answer.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 287.]
    8. Appeal and Error (@=3865 — Default — CONOLUSIVENES'S AND EFFECT.
    A defendant against whom a default judgment had been rendered was precluded on proceedings in error from asserting any defense as to its liability and was limited to the question of the amount of the judgment rendered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 8462-3466.]
    4. Judgment <&wkey;126(l) — Rendition of Default Judgment — Proof.
    Where, in a railway company’s action against the surety on a contractor’s bond for the amount of a judgment on foreclosure of a statutory lien attaching to plaintiff’s property through default of the contractor and for the costs of such suit, the judgment was not introduced in evidence or the amount thereof shown, and there was no evidence as to the costs, it was error to render a default judgment for the amount of such judgment and costs.
    [E'd. Note. — For other cases, see Judgment, Cent. Dig. §§ 223, 224, 228.]
    5. Evidence <&wkey;43(3) — Judicial Notice — Judgment.
    Judicial notice cannot be taken of the amount of a judgment to which the defendant in the case on trial was not a party, though adjudicated in the same court and by the same judge.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 64.]
    Error from District Court, Jack County; F. O. McKinsey, Judge.
    Action by tlie Gulf, Texas & Western Railway Company against the Southwestern Surety Insurance Company. Judgment for plaintiff, and defendant brings error..
    Reversed and remanded, with directions.
    Capps, Cantey, Hanger & Short, of Ft. Worth, for plaintiff in error. Sporer & McClure, of Jacksboro, for defendant in error.
   BUCK, J.

Defendant in error sued plaintiff in error as surety on a contractor’s bond, executed by the Texas Building Company, as principal, and plaintiff in error, as surety, the bond being in the penal sum of $20,-000, conditioned that the Texas Building Company, hereinafter called “Building Company,” would well and truly perform its contract with the defendant in error for the construction of its railroad from Jacksboro to Salesville, Tex., and would hold defendant in error harmless an'd indemnify it against every claim, lien, demand, or suit for materials furnished, or for labor done, in performing the work under said contract, and remunerate an'd reimburse defendant in error for any and all judgments, costs, and expenses of every nature and kind whatsoever which it might be required to pay by reason of the performance or the nonperformance of the said construction contract. Allegations were made that one C. L. Walker, as assignee, instituted suit against said Building Company and J. H. Holland, a subcontractor, on account of certain work and labor claimed, and sought a foreclosure on the property of defendant in error for alleged laborers’ and materialmen’s liens; that at a trial thereof judgment was rendered against said Building Company for $799.34, with interest at 6 per cent, from September 3, 1913, the date of judgment, and foreclosing a statutory lien on defendant in error’s property; that said Building Company gave notice of appeal and filed a supersedeas bond, but failed to perfect its appeal, and judgment was affirmed on appeal against the. sureties on said supersedeas bond of said’ Buildin’g Company; that defendant in error and the said C. L. Walker made every effort to collect said judgment against the said Building Company and its sureties on its supersedeas bond, but that execution was returned by the sheriff of Tarrant county nul-la bona; that said Building Company, as well as its sureties, had no property upon which execution could be collected; and that defendant in error was informed that they were insolvent. Defendant in error further alleged that on the 6th day of January, 1915, it was compelled to pay the said Walker judgment, which “with the interest and all costs that had been incurred in the premises at that time amounted to the sum of $969.-66”; that it had notified plaintiff in error of the said judgment, but that plaintiff in error had refused to pay off the same; that said judgment was a just one, and by reason of the premises plaintiff in error was justly due defendant in error said sum of $969.66, the amount of the judgment, costs, etc., with legal interest from the date of its payment, for which amount the defendant in error prayed judgment.

The only exhibit attached to defendant in error’s petition was the bond executed by the Building Company, as principal, and plaintiff in error, as surety. Plaintiff in error, though duly served, having failed to answer, on appearance day, to wit, March 2, 1915, judgment by default was rendered against it for the full amount prayed for. Plaintiff in error on March 18, 1915, filed its motion for a new trial, in which it urged that by reason of certain correspondence between its attorney and the attorney for the defendant in error it was led to believe that no judgment would be demanded on appearance day by defendant in error, and that the claim against plaintiff in error would be compromised and settled. It further alleged that on account of the unavoidable absence from the state of its attorney, who had been called to the bedside of a sister who was very sick, it was denied the right and privilege of representation by an attorney at the time of the taking of said default judgment. It was further pleaded that plaintiff in error was not guilty of any neglect or laches in permitting the default judgment to be rendered, and that it had a meritorious defense by reason of the fact that defendant in error failed to comply with the terms of the construction contract between ‘defendant in error and the Building Company, in failing to withhold at least 10 per cent, of said contract price until the complete performance by the said Building Company of its contract. It was: urged that said provision inured to the benefit of plaintiff in error as surety, and that defendant in error knew, at the time it paid the full contract price an'd failed to withhold the 10 per cent, thereof, of the existence of the laborers’ |.nd ma-terialmen’s claims which subsequently ripened into the Walker judgment.

On March 22, 1915, judgment was entered overruling plaintiff in error’s motion for new trial, which judgment recites, in part, as follows :

“And it appearing to the court that said defendant was not made a party to the suit, C. Li. Walker v. Texas Building Company, and the Gulf, Texas & Western Railway Company, and J. H. Holland, in which judgment was rendered in favor of C. L. Walker, and it further appearing to the court that in this case plaintiff offered no proof as to the amount of indebtedness due plaintiff by defendant, yet the court is of the opinion that defendant has shown no reasonable or legal excuse for not appearing and answering herein, and that the judgment herein, should not be vacated. It is therefore ordered, adjudged, and decreed by the court that said motion for new trial be and the same is in all things overruled.”

No statement of facts appears in the record, but plaintiff in error attached to its motion for new trial, or rather included in it, an affidavit from E. V. Mitchell, who stated that he was chief adjuster and claim attorney for plaintiff in error, and that on or about February 5, 1915, he was apprised of the filing of the suit herein, and of the names of the attorneys representing the plaintiff; that he immediately began to correspond with said plaintiff’s attorneys for the purpose of effecting a settlement or adjustment; that he firmly believed that as a result of such correspondence an amicable adjustment would be effected; that on or about February 8th he was apprised by telegraph of the serious and dangerous illness of his sister in Illinois, and went immediately to said state, and was there detained by reason of said sister’s sickness until March 4th thereafter; that the attorneys for plaintiff in the court below were notified by letter of February 12th of affiant’s absence and the cause thereof; and that by letter of March 9th from said plaintiff’s attorneys defendant below was advised for the first time that a default judgment had already been taken. Affiant further stated that he was in charge of all matters pertaining to litigation of this character had by defendant and charged with the duty and responsibility of attending to the same, and that there was no one else in the office who was advised of the merits of this claim and suit, and that, as soon as he was advised of judgment having been taken, he took prompt steps to file a motion for new trial, etc.

In the condition of the record, we are not prepared to say tíiat the trial court erred in his conclusion that the defendant below was not entitled to a new trial on the ground here claimed; that is, that defendant showed, even in its motion, a sufficient excuse or reason for its failure to file an answer before appearance day. I-Ience we overrule plaintiff in error’s second assignment, which presents this question. The correspondence set out in the motion fails to disclose that plaintiff’s attorneys had made any offer or promise to continue the cause, or to refrain from taking judgment on appearance day, or that they had agreed to any compromise or adjustment. On the other hand, their letters convey the information that they are not willing to accede to the settlement suggested by defendant’s attorneys, and that in the absence of any satisfactory offer they would proceed with the trial of the case. Hence we are of the opinion that the contention that defendant was misled by said letters into believing that a settlement would be effected, and that no judgment would be demanded or taken, cannot be sustained. Nor do we think sufficient diligence was shown, even by the pleadings, to file an answer before appearance day, or to have some attorney present on said day to represent the defendant below. The suit had been filed at least a month before default judgment was taken, and defendant attorney had been advised thereof, both by citation and by letters. He knew when the court convened at Jacksboro, and though it is urged that, on account of the urgent nature of his call to a distant state, Mr. Mitchell was not able to be present, yet it is not shown that the defendant thereby was prevented from having representation or from filing-its answer. We think due diligence would have required that the defendant should have employed further counsel when it was known that its attorney who had such matters in charge was absent from the state, and would probably be absent when the case was called for hearing. I. & G. N. Ry. Co. v. Miller, 87 Tex. 430, 29 S. W. 235; Ratcliff v. Hicks, 23 Tex. 173; Freeman v. Neyland, 23 Tex. 529; Cromer v. Sgitcovich, 28 Tex. Civ. App. 193, 66 S. W. 882.

Plaintiff in error’s first assignment urges that the cause of action as shown in plaintiff’s original petition is not liquidated; “that the amount of damages, if any, had never been adjudged by any suit or proceeding, or agreement, in which this defendant was a party, or' in any way represented, or which, is binding on this defendant”; that the judgment was rendered by default without any proof of the amount of the claim, the justness thereof, or the liability of the defendant for same.

It will be remembered that plaintiff’s petition contained allegations as to the Walter judgment and the amount thereof, to wit, $799.34, and the date of its rendition. The judgment in the instant case is for $969.66, .which the petition stated was the amount of the Walter judgment “with interest and all costs that had been incurred in the premises.”

We thint in the state of the record here shown plaintiff in error is precluded from successfully asserting any defense as to its liability, and is limited only to the question of the amount of the judgment rendered.

“A default admits the cause of action and the material and traversable averments of the declaration, although not the amount of damages; and, upon the proceeding for their assessment, the amount of damages is all that the plaintiff is required to prove or the defendant is permitted to controvert. The former must produce whatever evidence is necessary to fix the amount of his claim with precision.” 1 Black on Judgments, § 91, p. 100.

Even in a suit on a promissory note, judgment is not rendered upon the allegations of the petition, but upon the note itself, which is required to be produced or proof of its contents offered, in order to show the amount of defendant’s liability. Trabue v. Stonum, 20 Tex. 453; Niblett v. Shelton, 28 Tex. 548; Harland v. Hendricks, 19 Tex. 292; articles 1938, 1939, Vernon’s Sayles’ Texas Civil Statutes, and authorities there cited; R. R. Dancy & Co. v. Rosenberg, 174 S. W. 831. The Walker judgment not having been introduced, nor .any evidence as to its amount, we are of the opinion that there was presented to the court no sufficient basis for rendering a judgment in the amount shown in the instant case. Even had the Walker judgment been introduced, which was not done, we think evidence would have been necessary to establish the costs accrued at the time of the rendition of said judgment and subsequent thereto, and the amount plaintiff had been required to pay. The trial court would not be, authorized to take judicial cognizance of the Walker judgment, to which the defendant below in the instant case was not a party, for the purpose of determining the amount of said Walker judgment, and the amount due plaintiff in the instant ease. The ■court cannot take judicial notice of the record in another case, between different parties, though adjudicated in the same court and by the same judge. Taylor v. Shelton (writ denied) 134 S. W. 302; Goodwin v. Harrison, 28 Tex. Civ. App. 7, 66 S. W. 308. It is said in 16 Cyc. p. 918, par. d:

. “A judge is not at liberty to give one of the parties the benefit of a fact known to himself simply because it is a matter of record in his own court. Courts, including those of probate, cannot in one case take judicial notice of their records in another and different case, even though the cases are connected.”

See, also, State v. Savage, 105 Tex. 467, 151 S. W. 530; Armendiaz v. Serna, 40 Tex. 291. While, as is decided in State v. Savage, supra, where an appellate court has already determined by its final judgment the status of the law, within a certain locality, it may consider its determination in the first case and take judicial notice of the former decision to decide a case subsequently presented, yet it cannot consult the record in another case to ascertain a fact not shown by the record in the case before it It becomes immaterial, in this case, whether the judgment rendered by the trial court was for liquidated damages, as claimed by defendant in error, or for unliquidated damages, as claimed by plaintiff in error, since there was no evidence introduced upon which the court or the clerk might determine the amount of damages to which plaintiff was entitled.

Hence we conclude that plaintiff in error’s first assignment must be sustained, and the judgment reversed in so far as the*amount of recovery is concerned only, with instructions to the trial court to hear evidence upon this issue.

Judgment reversed, and cause remanded, with instructions.

On Motion for Rehearing and to Certify.

Plaintiff in error, as a ground for the issuance of certificate of doubt by us, urges that, in reversing the judgment and remanding the cause as to one issue only, we are in conflict with the Court of Appeals -for thi First District in Dancy & Co. v. Rosenberg, 174 S. W. 831. In that case the court reversed the judgment and remanded generally for the evident reason that it found that the defendant below had a meritorious defense, and also showed - excuse for failure to file answer before default. But no such condition exists in the instant case, and we are of the opinion that no conflict of law has been shown.

The motion for rehearing, and álso the motion to certify, is overruled.
      <S=sRor other casas see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «tenFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BOYCE, J.

text:
    HACKLER v. INGRAM.
    (No. 1178.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 13, 1917.
    Rehearing Denied June 27, 1917.)
    1. Physicxans and Surgeons &wkey;>18(ll)— Malpractice — Excessive Damages.
    Where plaintiff’s wife, when operated on received a wound which did not heal, which constantly swelled, gave her great pain and suffering, caused her to lose sleep, and from which finally a surgical needle was removed by another physician, a verdict of $1,000 against the operating physician was not excessive.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. § 46.]

      2. Appeal and Error &wkey;>1050(l> — Harmless Eeroe. . , „
    . , „ Error, if any, m permitting a witness to testify concerning a diseased condition by calling it an abscess, is harmless, where other witnesses referred to the condition in the same term without objection.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4158, 4157.]
    3. Physicians and Surgeons <&wkey;18(7) — Malpractice — Evidence—Admissibility.
    In action against physician for alleged negligence in.performing operation, the sole cause alleged being the actual negligence in the instant case, wherein plaintiff introduced no evidence of liis general ability, the defendant could not introduce testimony as to his general ability.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Gent. Dig. §§ 40, 41.]
    Appeal from District Court, Dallas County.
    Action by W. J. Ingram against G. M. Hackler. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Seay & Seay, of Dallas, and Hunt, Myer & Teagle, of Houston, for appellant. C. E. Greenwood, of Dallas, and D. D. Johnson, of Ferris, for appellee.
   BOYCE, J.

Appellee, Ingram, sued appellant, Hackler, for damages alleged to have resulted from negligence in the performance of an operation upon appellee’s wife, and subsequent treatment of her. The negligence alleged, generally stated, was that appellant, who was a physician and surgeon, in performing an operation on Mrs. Ingrám about May 15, 1912, was negligent in leaving a skin needle sewed up in Mrs. Ingram’s side where the operation had been performed, and in subsequently failing to remove the same; Appellant answered by general denial and specially that he had proper training and skill and exercised proper skill and care in the performance of the operation and treatment of Mrs. Ingram, and that if she was injured in any way, such injury was the result of the negligence or misconduct or the act of some other person than himself. A trial before a jury resulted in a verdict and judgment against appellant for $1,000.

By the first assignment appellant insists that the verdict is excessive. The operation performed was a serious one, and there is evidence to the effect that within a few days after the operation a swelling appeared on Mrs. Ingrain’s side near the incision where the operation had been performed ; that this swelling grew to about the size of an egg, and was inflamed and discolored, resulting in intense pain so that Mrs. Ingram could obtain no rest and could perform no work, it was alleged, for months afterwards. Appellee and his wife lived at Ferris, and Mrs. Ingram made four different trips to Dallas, where Dr. Hackler resided, and where the operatibn was performed, for the purpose of having him examine her. The testimony further shows that on each of these occasions Dr. Hackler informed Mrs. Ingram that the condition was not serious, and advised her to cease worrying about it and it would disappear. On the fourth visit, about the last of August, 1912, Dr. Hackler was absent, and another physician examined Mrs.' Ingram and removed from this swollen place what is described as a skin needle, being a needle used by surgeons, in sewing up the skin where an incision had been made. Plaintiff’s testimony further-shows that after the removal of the needle-there was a discharge of pus from the lump where the needle had been, which continued until February, 1913, when said place burst and Mrs. Ingram became better thereafter, though she testified that she had continued to suffer some pain until the time of the trial. Appellee’s testimony is to the effect that during all this period of time Mrs. Ingram suffered intense pain, was sick and in a state of constant anxiety. There is considerable expert testimony that a needle of this kind, if it was sterile, which this needle was supposed to be, imbedded in the flesh, ought not to be so very painful, and that the wound would heal as soon as the needle was removed, and appellant’s testimony tends to show that a great deal of Mrs. Ingram’s suffering was the result of hysteria. The presence of the continued discolored and protruding lump ■in the side near the incision, where an operation had been performed on the vital parts of the body, with no satisfactory explanation for its cause, and as time passed not getting apparently better, but worse, was a natural cause for anxiety and worry, and notwithstanding the testimony of the experts, Mrs. Ingram and her husband testified that she suffered intense pain during this time. We-cannot say that the verdict is excessive.

By the second assignment appellant' insists that the court erred in permitting appellee, Ingram, while testifying as to his-wife’s affliction, to call it an abscess. The statement of facts shows that not only this witness, but his wife, spoke of the place from which the needle was subsequently taken as an abscess, and this without objection. So that the error, if any, would be harmless. However, the witnesses described the place-as being a hard lump, showing inflammation, and stated that after the needle was removed it discharged pus for several months, and finally burst. The condition was thoroughly described to the jury, and it makes little difference what it was termed, though the word “abscess” appears to the ordinary mind as being properly descriptive of such condition.

By the third assignment appellant complains of the refusal of the court to permit evidence of numerous -physicians who offered to testify that they had observed Dr. Hackler in operations, and that he was a skillful, competent, and careful surgeon. The court qualified the bill of exceptions to this action of the-court by this statement:

“Plaintiff did not at any time offer any evidence whatever to prove that defendant was incompetent or unskillful, hut confined his case to the fact that Dr. Hackler had left a needle in the flesh of plaintiff’s wife, and that this was an act of negligence.”

Appellee in his petition alleged that appellant “represented and held himself out to the general public as a skillful, careful, and competent physician and surgeon, in the practice of medicine and surgery, and that on or about the 14th day of May, 1912, plaintiff, believing and relying upon the defendant to be what he professed to be as above alleged, brought his wife * * * to' be examined, and if necessary to be treated by him in his professional capacity, and as such physician and surgeon.” Then follows allegations to the effect that plaintiff’s wife was placed in a sanitarium, the operation performed, and a statement of facts .with reference to the needle being left in the flesh of plaintiff’s wife and the subsequent acts of the appellant in failing to remove the same and relieve plaintiff’s wife; it being alleged that appellant knew that the needle had been left in the flesh, and that his subsequent acts were the result of an effort to conceal such fact. The appellee then made this allegation of negligence :

“Plaintiff alleges that the defendant was guilty of inexcusable negligence in said operation in each of the following particulars: (1) In leaving said needle in the person and flesh of plaintiff’s wife; (2) in carelessly andi negligently handling said needle, causing it to break and leaving a part of it in said person and flesh; (3) in not using said needle in a careful, prudent, and skillful manner; (4) in not promptly and immediately removing said broken needle and taking it out; (5) in not making known to plaintiff .and his wife the fact of such inexcusable accident; (6) in not removing same as soon as he learned the condition of said wound and side, and the patient’s suffering therefrom; (7) in closing up the wound over said needle, leaving it concealed, so as to fester and poison the flesh, internal system, and general health of said Mrs. Ingram; (8) that said operation and breaking •and leaving of needle as aforesaid, was careless, negligent, incompetent, and inexcusably unskillful, and defendant negligently failed to use prop•er care to avoid said accident and injuries.”

No testimony of general incompetency was offered, and the court charged the jury, that if it should find that Dr. Hackler, in performing the operation upon Mrs. Ingram, left a needle in her person, and permitted it to remain, and that in so doing he failed to exercise “reasonable skill and ordinary care and diligence,” and that as a direct and proximate result of such acts plaintiff’s wife was injured, etc., then to. find for the plaintiff. The cause of action and recovery was therefore based, as we conceive it, on negligence and unskillfulness in the performance of the particular operation and subsequent conduct with reference thereto, and we do not think evidence of general skill and efficiency was admissible. However careful and competent a person may be generally, such fact is no defense to a specific act of negligence. M., K. & T. Ry. Co. v. Johnson, 92 Tex. 380, 48 S. W. 568; Baker v. Hancock, 29 Ind. App. 456, 63 N. E. 323, 64 N. E. 38; Degnan v. Ransom, 83 Hun, 267, 31 N. Y. Supp. 967; Alexander v. Menefee (Ky.) 64 S. W. 855; Samuels v. Willis, 133 Ky. 459, 118 S. W. 339, 19 Ann. Cas. 188; Cyc. vol. 30, p. 1585. The Supreme Court, in the case of M., K. & T. Ry. Co. v. Johnson, supra, quotes the following with approval from the case of Tenney v. Tuttle, 1 Allen (Mass.) 185:

“When the precise act or omission of a defendant is proved, the question whether it is actionable, negligence is to be decided by the character of that act or omission, and not by the character for care and caution that the defendant may sustain.”

The allegations in plaintiff’s petition in this case are somewhat similar to those in the ease of Baker v. Hancock, supra, in reference to which the court said:

“No charge of unskillfulness or lack of education is made in the complaint. It proceeds upon, the hypothesis that the appellee did not exercise that degree of skill required of his profession. There is a recital in two of the paragraphs to the effect that appellant’s injury was caused by the carelessness, negligence,, and lack of skill and knowledge of the appellee. Such recital is not equivalent, and does not amount, to an averment of incapacity. It has relation to the preceding averments.”

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

      <§S»I?or oilier oases see same,topic and KEYr NUMBER in ail Key-Numbered Digests and,Indexes ,


author: HAUL, J.

text:
    SIMMONS-NEWSOME CO. v. MALIN.
    (No. 1190.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1917.
    Rehearing Denied June 27, 1917.)
    1. Homestead <&wkey;77 — Peoceeds — GaknishMENT.
    Proceeds from voluntary sale of homestead are subject to garnishment after six months from the sale.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 109.]
    2. Homestead &wkey;>77 — Peoceeds — GARNISHMENT.
    Where proceeds from voluntary sale of homestead are transferred without consideration to a third party and are not reinvested within six months from such sale, such proceeds can he garnished in the hands of the transferee by seller’s creditor.'
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 109.]
    3. Homestead <&wkey;77 — Peoceeds — Garnishment.
    Where a widow traded her homestead, the advancement of $425 by the man who thereafter became her husband and his assumption of mortgage of $900 on the property received in exchange was sufficient consideration for having the notes executed by the other trading party made payable to such husband, so that the debt represented by them could not be garnished as her property.
    [E’d. Note. — For other cases, see Homestead, Cent. Dig. § 109.]
    Appeal from Dallas County Court; T. A. Works,. Judge.
    Action by the Simmons-Newsome Company against Mrs. Metta Sears; T. R. Malin, garnishee. Judgment for garnishee, and plaintiff brings error.
    Affirmed.
    George Sergeant, Spence & Haven, and W. J. Rutledge, Jr., all of 'Dallas, for appellant. W. W. Hilbrant, of Dallas, for appellee.
   HAUL, J.

This suit was instituted in the county court at law of Dallas county, by the filing of an affidavit in garnishment after judgment by Simmons-Newsome Company, a corporation, against T. R. Malin, garnishee, to recover funds alleged to be due Mrs. Metta Sears, by Malin. The judgment in' favor of Simmons-Newsome Company was obtained against Mrs. Metta Hodges, who since the rendition of said judgment married J. S. Sears. The judgment was rendered for goods sold to Mrs. Hodges (Mrs. Sears) after the death of her first husband, and before her marriage to Sears. Garnishee Malin answered : That he was not indebted to J. S. Sears or Mrs. Metta Sears and did not have any property belonging to either of them and did not know of any other persons ,who were indebted to either of them, except that the garnishee owed the amount due on two vendor’s lien notes; the first for the sum of $400, and the second for the sum of $500, dated February 2, 1914, and due respectively at one and two years, payable to the order of J. S. Sears, and bearing interest at the rate of 8 per cent, per annum, payable annually, said notes having been executed by the garnishee in an exchange of properties between the garnishee and Mrs. Metta Hodges, and having been made at the direction of Mrs. Metta Hodges, payable to the order of J. S. Sears. That the first of said notes was due, and that there was due on both.of said notes interest from date, making a total amount due and unpaid at the time of the filing of his answer of $473.50. That he believed that J. S. Sears was still the owner and holder of said notes, and stated that they were asserting some interest in the amount due on said no.tes, and asked that they be made parties to the suit. J. S. Sears and wife answered, asserting that no judgment had been rendered against J. S. Sears; that the notes described by the garnishee were executed in part payment of property .which had been the homestead- of Mrs. Metta Hodges after the death of her husband; that such notes, having been executed in payment of exempt property belonging to Mrs. Metta Hodges, were not liable to the debt of the plaintiff; that the notes had been by the direction of Mrs. Hodges made to the order of J. S. Sears for the reason that she, at the time of the execution of said notes, had received certain advancements from J. S. Sears for the purpose of discharging liens and other indebtedness against her homestead property, and that J. S. Sears, in the exchange of property, had assumed an indebtedness of $900 against the property conveyed to him by Malin; and that the said Sears was now the owner of the two notes described by the garnishee. Plaintiff filed a supplemental petition, denying the exemption claimed by the judgment debtors, and alleging that the execution of the notes to J. S. Sears for property belonging to Mrs. Metta Hodges was made without consideration and for the fraudulent purpose of evading the payment of the debt. The court directed the jury to return a verdict in favor of the garnishee and the judgment debtors for the rea--son that:

“The homestead of Mrs. Metta Hodges-Sears was to her from forced sale as against the debt of plaintiff, and that no "conveyance of the same could be a fraud on the creditors, as they had no interest in the same.”

Judgment was entered in accordance with the verdict, from which the plaintiff in garnishment has appealed.

Under the. first assignment, appellant advances two propositions: First, that the proceeds from the voluntary sale of the homestead are subject to garnishment after six months from said sale; and, second, where proceeds from the voluntary sale of a homestead are transferred without consideration to a third party and are not reinvested within six months’ time from such sale, such proceeds can be subjected to garnishment in the hands of the transferee by creditor of the seller. As abstract propositions of law, these statements are correct, but they do not apply to the facts of this case. The record discloses that on the 2d day of February, 1914, Mrs. Metta Hodges was the owner of lot 1, block B, of Woodlawn Place addition to the city of Dallas, and that T. R. Malin was the owner of lot 12 in block --— of Browder’s Providence addition to the city of Dallas, and on said date they agreed to trade places, consenting that the two places were of equal value. At this time there was a mortgage against the property owned by Malin, to secure a debt of $900, and there were outstanding vendor’s lien notes against the property owned by Mrs. Hodges, in the sum of $300, together with unpaid taxes against both places. J. S. Sears, who about a .week after the date of the trade was married to Mrs. Hodges, advanced her $300 with which to pay off the vendor’s lien notes against her property and advanced for her benefit $100 to T. R. Malin, in order to enable the parties to consummate the exchange. That, when the conveyances were made to the respective pieces of property, Mrs. Hodges directed that the deed to the Providence addition property be made by Malin to J. S. Sears, and that the two notes executed by Malin should also be made payable to J. S. Sears. It further appears that, in pursuance of this agreement, Sears assumed payment of the $900 note secured by a mortgage against the property conveyed to him by Malin. The property conveyed by Mrs. Hodges was her homestead and had been for many years, and was free of all liens save the purchase price, to the extent of $300, and taxes, which. Sears advanced before their marriage. The record shows that the total amount advanced by Sears, including the vendor’s lien notes, the $100 paid Malin, and delinquent taxes, is in excess of $425. This, in addition to the $900 lien against Malin’s property, which he assumed, was a sufficient consideration for having the notes executed by Malin made to him as j)ayee. At the time of the exchange, the property owned by Mrs. Sears .was her homestead, and she had a perfect right to dispose of it or its proceeds as she saw fit. Both the homestead and the proceeds being exempt at that time, she could mate any disposition she desired of either, and no charge of fraud upon the creditors could be based upon such disposal. Sears and his wife both testified that he was the owner of the notes when the garnishment writ was •served, and their uncontroverted statements of the transaction through which he acquired them sustains their contention.

There being no issue of fact for submission to the jury, the court did not err in directing a verdict, and the judgment is affirmed.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    KRUEGEL et al. v. STANDARD SAVINGS & LOAN ASS’N.
    (No. 1187.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1917.
    Rehearing Denied June 27, 1917.)
    1. Removal of Causes &wkey;>97 — Authobity of State Coukt.
    Under U. S. Comp. St. 1916, § 1010, as to removal of causes to federal courts for diversity of citizenship, when sufficient petition and bond are filed, and bond is approved, the state court has no authority further than to enter order of removal, and issues of fact raised to reply to petition for removal may be considered only by the federal court to which the case is removed.
    [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 206, 208-211, 224.]
    2. Removal of Causes <&wkey;86(l) — Petition fob Removal.
    Petition of foreign corporation for removal to federal court of action against it need not allege its permit to do business in the state.
    [Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 166-169, 176, 178.]
    3. COBPOBATIONS '&wkey;661(6) — FOREIGN COBPO-BATIONS.
    Statutes preventing suit in state courts by foreign corporations without permit to do business in the state do not affect the jurisdiction of the federal courts.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2539, 2542, 2544, 2564.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by Herman Kruegel and others against Standard Savings & Loan Association. From judgment for defendant, plaintiffs appeal.
    Affirmed.
    Herman Kruegel, of Dallas, for appellants. Flournoy, Smith & Storer, of Ft. Worth, for appellee.
   HUFF, C. J.

This is an appeal from an order of judgment of the Sixty-Eighth judicial district court, Dallas, Tex., removing this cause to the United States District Court for the Northern District of Texas. This record is here upon the motion or petition of removal, the bond executed therein, with the approval of the judge thereon. The papers of the original suit have-not been brought up to this court.

The Standard Savings & Loan Association filed its petition in the Sixty-Eighth judicial district court, alleging substantially that Herman Kruegel and his wife, Minna Krue-gel, filed their petition in that court against the Association, praying for a judgment against it, declaring null and void a certain judgment rendered in the United States District Court for the Northern District of Texas, in the Dallas Division thereof, and that the judgment clouded the title of the plaintiffs to a certain lot of lánd in the city of Dallas, which is described by metes and bounds in the petition, and which it is stated that the Association, by the judgment, recovered against Kruegel and his wife the title and possession of the land to the Association, and that that judgment had never been appealed from, and that it was final and valid, and a subsisting judgment; that the action brought by Kruegel in the district court is of a civil nature, and that the Association disputed the right of the plaintiffs therein, and alleged that the judgment sought to be set aside and removed is in all respects valid and binding, and that the real estate is owned absolutely in fee simple by the Standard Savings & Loan Association. It is alleged that the matter in controversy in the suit, exclusive of interest and costs, is of the value of $3,000, the land being of the value of more than $3,000, and that the controversy is wholly between citizens of different states, and that the only parties to the suit are Herman Kruegel and Minna Kruegel, who are plaintiffs therein, and the Association, who is the only defendant. It is alleged that proper notice was duly issued and served on the petitioner to answer the suit of Kruegel on the 7th day of April, 1916, commanding it to appear in the district court of Dallas county, Tex., for the Sixty-Eighth judicial district, at the next regular term thereof, which was on the first Monday in May, 1916, and that it was not required to answer until the 1st day of May, 1916. It is further al-legd that at the commencement of the suit by the Kruegels, and at the time of the filing of the petition, the plaintiffs therein, Kruegel and his wife, were and are citizens and residents of the state of Texas, having their home and residence in the county of Dallas and city of Dallas; that the defendant Association was at the time of the commencement of the suit, and ever since has been, and still is at the time of the filing of this petition, a citizen of the state of Michigan, and a resident thereof, being a corporation chartered under the laws of the state of Michigan, with its principal office and place of business in the county of Wayne and city of Detroit, in that state, and that it was not at the time of the filing of this petition, and never has been, a resident of the state of Texas. The petition was accompanied by a bond in proper form and amount, which was duly approved by the district judge and properly filed. The defendant Kruegel answered this petition for removal by special exceptions and general answer.

There appears to be no contention that the petition, bond, and notice thereof are insufficient to remove the case to the federal court, except that the matters in controversy between the parties involve no interstate business nor federal question, but strictly local state matters. The ground stated in the petition is diverse citizenship. The Judicial Code of the United States (section 1010, U. S. Compiled Statutes 1916) provides:

“When in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the District Court of the United States for the proper district.”

The petition shows the matter in controversy, and that the value of the lot exceeded $3,000, that Kruegal and his wife are and were citizens of the state of Texas, and that the appellee, Standard Savings & Loan Association, was a citizen at the commencement of this suit, and ever since that time and still is a citizen, of the state of Michigan, and incorporated under the laws of that state, and a resident thereof. The facts stated in the petition, under the statute, conferred upon the federal court jurisdiction, and when the petition and bond were filed and the bond approved by the district judge, after proper notice, the district court had no authority to proceed with the case, more than to enter the order of removal. Railway Co. v. Davis, 93 Tex. 378, 54 S. W. 381, 55 S. W. 562; Bank v. Glaser, 46 Tex. Civ. App. 286, 102 S. W. 171. If there was an issue of fact raised by appellant’s reply to the petition for removal, that fact rested alone with the federal court to which the case was removed. Authorities, supra; Railway Co. v. Dunn, 122 U. S. 513, 7 Sup. Ct. 1262, 30 L. Ed. 1159; Railway Co. v. Eastin, 89 S. W. 440.

It is insisted that the petition for removal shows that appellee is a foreign corporation, without a permit to do business in this state. We presume it could be more correctly stated that the petition or motion for removal does not allege that appellant had such permit. This we do not understand to be a necessary allegation in a petition for removal. The fact that appellant had not procured a permit in this state will not of itself render the judgment void which is sought to be canceled, and upon which ap-pellee was relying to support its right to the land in question. This law, therefore, would not prevent the federal, court from maintaining a suit or a defense based on such judgment, even though in a state court such right could not be enforced therein. The only penalty inflicted for failure to obtain a permit to do business in the state would be to prevent a suit by the corporation in this state. This does not affect the jurisdiction of the federal court. David Lupton’s Sons v. Automobile Club, 225 U. S. 489, 32 Sup. Ct. 711, 56 L. Ed. 1177, Ann. Cas. 1914A, 699. The trial court ruled correctly, we think, in holding he could not hear evidence after the petition and bond were filed for removal. The petition appearing to be sufficient on its face, the bond, in proper amount and approved by the district judge, had the effect to oust the state court of jurisdiction. There was no error in refusing to file conclusions of fact and law by the trial judge. There were no facts which he could have passed upon. All such matters were for the federal court.

We have very grave doubt about our jurisdiction to entertain this appeal, it being from an order removing the cause from the state court to the federal court. There appears to be some conflict of authority upon this question. It is certain the only issue that we could take jurisdiction to consider would be to ascertain if the petition and bond presented are sufficient upon their face. It is hard for us to conceive what order we could make when the state court had removed the cause and a federal court had assumed jurisdiction. We shall not attempt to go further into this matter at this time.

The judgment of the lower court will be affirmed.
      <S=5>Kor other oases see same topic and KEY-NTÍM.BER in all Key-Numbered Digests and Indexes


text:
    COLLINSVILLE MFG. CO. v. STREET et al.
    (No. 1191.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 6, 1917.
    Rehearing Denied June 27, 1917.)
    1. Contracts <&wkey;252 — Building Contract— Rescission — Evidence.
    Where, when the financial embarrassment of a building contractor was made known to a subcontractor, it acquiesced in the advice of the contractor to quit work until the outcome of the matter should be known, and made no express declaration of an election to rescind the contract, although prior installments under the contract had not been paid, such acts did not indicate that either party considered the contract as being at an end.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1145.]
    2. Contracts <&wkey;252 — Building Contract-Rescission — Evidence.
    Where, upon the appointment of a receiver for an insolvent building contractor, the receiver and a subcontractor entered into a new contract to finish the work, but the subcontractor made no claim that the old contract had been forfeited, and after the execution of the new contract filed a sworn account and had it recorded in the mechanic’s lien records, but did not include in this account, filed in an attempt to fix its lien, an itemized statement of the material and labor furnished, or of the reasonable value thereof, independent of the contract, but debited the contractor with the amount due “as per original contract,” and credited it with the sums received from the contractor and from the receiver on the new contract, and stated in the affidavit that the material and labor were furnished “to said [contractor] under and by virtue of the contract between [subcontractor] and [contractor],” and bases suit upon compensation fixed in the old contract, an intention to absolutely rescind the old contract was not indicated, but the evident intention was a mutual abandonment of further performance thereof, which would leave the rights of the parties already accrued under it to be determined by its terms, and subcontractor may not recover on quantum meruit.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1145.]
    3. Mechanics’ Liens <&wkey;208 — Time oe Attachment-Contract Waiving Lien.
    In view of Eev. St. 1911, art. 5622, which provides for the filing of the contract under which the material was furnished and the work done, or, in the absence of a contract, an itemized statement of the account, within a stated period after the indebtedness shall have accrued, where, in a contract with a building contractor, a subcontractor expressly waived and released any lien for labor performed or material furnished under the contract, in an action on quantum meruit, alleging a rescission of the contract by the subcontractor, he would not be entitled to a mechanic’s lien on the property, since, although, when full performance of a contract is prevented by the wrongful act of one of the parties after partial performance by the other, the party not in default may either sue on the contract or proceed as if there had been no contract, and recover the reasonable value of the services performed, if at the time the material and labor is put into the building no lien exists, then no subsequent acts of third parties could thereafter create such a lien.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 382.]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Action by the Collinsville Manufacturing Company against G. C. Street, Jr., receiver of the bankrupt estate of Fred A. Jones Building Company, and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Glover C. Johnson, of Ft. Worth, for appellant. Alex F. Weisberg, Thompson, Knight, Baker & Harris, and Thomas, Milam & Touchstone, all of Dallas, for appellees.
   BOYCE, J.

This suit was brought by appellant, Collinsville Manufacturing Company, against G. C. Street, Jr., receiver of the bankrupt estate of the Fred A. Jones Building Company, and the Southern Methodist University, to recover of the said bankrupt estate a balance due for labor and material furnished by the Collinsville Company as subcontractor, to the-Fred A. Jones Company, original contractor, in the erection of a building known as the Dallas Hall for the Southern Methodist University. The appellant also prayed for judgment against the Southern Methodist University for foreclosure of mechanic’s lien against said property. The Fred A. Jones Building Company as original contractor for the erection of said building, entered in^o a written contract with the Col-linsville Company, whereby said company was to furnish and erect the sheet metal work and copper roofing therefor. The contract provided for payment monthly during the progress of the work, of 85 per cent, of the value of the work done and material furnished during each preceding month upon certificate of the Fred A. Jones Company’s general superintendent and satisfactory evidence that the premises were free from liens for material and labor chargeable to the Col-linsville Company. By this contract the said Collinsville Company expressly waived and released any lien for labor performed or material furnished under the contract. The Collinsville Company proceeded with the performance of this contract until the institution of bankruptcy proceedings against the Jones Company. The testimony tended to show that for several months prior to the bankruptcy proceedings against the Jones Company the Collinsville Company had not been paid the full 85 per cent, of the value of the labor and material furnished under its contract during the preceding months. On the day before the filing of the bankruptcy proceedings against the Jones Company, the manager of the Collinsville Company, having been advised that the dones Company was in financial difficulties, had a conference with the representative of said company, the result of which was that the Jones Company’s representative advised the Collinsville Company to quit work on the job for a few days, until the Fred A. Jones Company’s difficulties could be cleared up, or until advised to start again. The Collinsville Company thereupon suspended work and had its employes cover up the material, etc., so as to preserve the same, and the building, until work should be resumed. On the day after this conference involuntary bankruptcy proceedings were instituted against the Fred A. Jones Company, wherein it was adjudged a bankrupt and the appellee Street was appointed receiver. A few days after the appointment of the said Street as receiver, he and the Collinsville Company made a new contract for the finishing'of the work which was to have been done by the Collinsville Manufacturing Company .under its original contract, and the receiver paid the said company for the material and work done in finishing the contract. The court, trying the case without a jury, found the facts’as substantially stated above, and that there was a balance due the Collinsville Company of $2,483.23, for labor and material farnislied on the original contract, for which amount judgment was accordingly entered against said bankrupt estate, but appellant’s prayer against the Southern Methodist Uni♦versity for foreclosure of a mechanic’s lien was denied. t i l • • i

The only question on this appeal is as to the action of the court in denying appellant a foreclosure of a mechanic’s lien on the property on which it worked. Appellant’s position is that the contract was breached by the failure of the Jones Company to pay it the monthly estimates of the amount due on its contract and by the direction to quit work, and that it thereupon had the right to treat the contract as rescinded and recover on quantum meruit for the value of the material and labor furnished, and in such a suit the party breaching the contract could have no benefit of any of its provisions, and hence it could not be set up to defeat the lien which the law gave appellant. In the consideration of the question it is first necessary to decide as to the effect on the contract of the acts of the parties as above set forth. There was never any express declaration on the 'part of the Collinsville Company that it elected to rescind the contract by reason of the acts which it alleged constituted a breach thereof. If the failure to pay an installment when due, or the direction to cease work temporarily, constituted such a breach as would authorize appellant to terminate the contract, it could waive this right, if it saw fit to do so. All of appellant’s actions prior to the appointment of the receiver were inconsistent with a determination on its part to terminate the contract; for when the embarrassment of the Jones Company was made known to it, and said company advised appellant to quit work until it became known what would be the outcome of the matter, appellant acquiesced in this suggestion, so that we do not think it can be concluded that the contract was then considered as being at an end by either party to it. : • ■ i ; ■

Upon the appointment of a receiver, when the new contract was entered into between him and appellant for finishing the work, there was still no express claim on the part of the appellant that the old contract had been forfeited. Appellant’s manager simply testified that the receiver was willing to make a new contract, and the matter was handled in that way, as he preferred that arrangement. This, we think, indicates not an intention to absolutely rescind the old contract and annul its terms as governing rights already accrued under it, but merely evidences a mutual abandonment of further performance thereof, which would leave the rights of the parties already accrued under it to be determined by its terms. Alabama Oil & Pipe Line Co. v. Sun Co., 99 Tex. 606, 92 S. W. 253, and authorities there cited, The subsequent acts of appellant are in accord with this conclusion. Appellant, after the execution of the new contract with the receiver, filed a sworn account and had it recorded in the mechanic’s lien records, but did not include in this account, which it filed in the attempt to fix its lien, an itemized statement of the material and labor furnished and of the reasonable value thereof, independent of the contract, but simply debited the Jones Company with the amount due “as per original contract,” and credited it with the sums received from the Jones Company and from the receiver on the new contract, and stated in the affidavit that the material and labor were furnished “to said Ered A. Jones Building Company,under and by virtue of its contract between said Collinsville Manufacturing Company and said Fred A. Jones Building Company.” No itemized statement of such material and labor, and the value thereof, independent of the contract, was contained in the pleading or proof of the Collinsville Company, but the recovery was based on compensation fixed by the contract. The court below made no express finding as to whether the contract was breached by the Jones Company and rescinded on such account by the Collinsville Company, and under the facts stated we do not think that the appellant may properly treat the recovery herein as being on the quantum meruit.

But, even if the contract had been ■ : , ¡ i ¡ j , j a , i ] treated by appellant as being breached and ended, and he had proceeded to recover strictly on the quantum meruit, we are inclined to think that it still would not be entitled to a mechanic’s lien on the property of the Southern Methodist University. It is true that, when full performance of a contract is prevented by the wrongful act of one of the parties after partial performance by the other, the party not in default may either sue on the contract or proceed as if there had been no contract and recover the reasonable value of the service performed. Hearne v. Garrett, 49 Tex. 619; Davidson v. Laughlin, 138 Cal. 320, 71 Pac. 345, 5 L. R. A. (N. S.) 584, note; 5 Corpus Juris, 13S8. But we doubt whether these principles can properly be applied to the situation created by the facts in this case. The existence of a mechanic’s lien relates to the tíme of the furnishing of the material or doing the work. While the law provides for the filing of the contract under which the material was furnished and the work done, or, in the absence of a contract, an itemized statement of the account, within a stated period after the indebtedness shall have accrued (R. S. art. 5622), such compliance with the law merely fixes the lien which was created by law at the time the material and labor went into the improvement, and the lien relates back to such time. Trammell v. Mount, 68 Tex. 210, 4 S. W. 378, 2 Am. St. Rep. 479; Keating Imp. & Machine Co. v. Marshall Electric Light & Power Co., 74 Tex. 605, 12 S. W. 489; Warner Elevator Mfg. Co. v. Maverick, 88 Tex. 489, 30 S. W. 438, 31 S. W. 353, 499. Now, at tire time the material was furnished and the work done by appellant, it was proceeding under a contract which the article of the statute above referred to contemplated it would file, and which espressly waived the lien. Therefore no lien was created on the property of the appellee Southern Methodist University at such time. Any lien on said property, created by transactions between the Jones Company and the Collinsville Com-, pany, in order to have any validity, must necessarily be a creature of law, as such parties could not, by agreement, create a lien on the property of a third person. It seems to us that, if at the time the material and labor is put into the building no lien exists, then no subsequent acts of third parties could thereafter create such a lien. The authorities are pumerous to the effect that a mechanic’s lien may be waived. Pope v. Graham Co., 44 Tex. 199; 27 Cyc. 261; Jones on Liens, § 1500; Rockell on Mechanics’ Liens, 173. And there are also authorities holding that, if the lien is once waived, it cannot be revived. 27 Cyc. 266; Center Creek Mining Co. v. Coyne, 164 Mo. App. 492, 147 S. W. 148; Matthews v. Young, 16 Misc. Rep. 525, 40 N. Y. Supp. 26; Gray v. Jones, 47 Or. 40, 81 Pac. 813.

These conclusions result in overruling all of appellant’s assignments, and the case will be affirmed.

HALL, J., not sitting.
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