author: WILLSON, C. J.

text:
    HILL v. HUBER et al.
    (No. 1945.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 14, 1918.)
    1. Brokers <&wkey;86(4) — Action for Commis-. sion — Sufficiency of Evidence.
    Evidence held to sustain finding that plaintiffs were the efficient procuring cause of the exchange of properties between defendant andi another.
    2. Brokers &wkey;>56(2) — Right to Commission..
    An employer who concludes a transaction with a party procured by a broker is not relieved1 from liability for commissions because he was. ignorant at the time he dealt with such party that such party was procured by the broker.
    3. Brokers <&wkey;65(4) — Action foe Commission-Defenses.
    That, pending negotiations for exchange ok property, plaintiffs’ brokers paid part of the expenses of broker for the other party to the exchange in showing defendant the land, would not bar action for commission, where it did not appear that plaintiffs undertook to represent such other party.
    Appeal from District Court, Navarro County ; H. B. Davis, Judge.

      Suit by P. W. Huber and another against B. W. D. Hill. Judgment for plaintiffs, and defendant appeals.
    Affirmed.

      The appeal is from a judgment in favor of appellees (who were the plaintiffs in the court below) against appellant for $400. The facts material to the controversy between the parties were, it appears, substantially as follows: Appellee Huber was in business as a real estate broker in Waco. Appellant, Hill, lived at Dawson (30 miles from Waco), where he owned a stock ’ of merchandise. Desiring to exchange the merchandise for land, Hill, in September, 1914, “listed” it with Huber. The latter, noticing in a newspaper the advertisement of Guy Tarlton, a real estate broker at Hillsboro, offering to exchange land for merchandise, and knowing that appellee Oasey, who, like himself, •was a real estate broker in Waco, was well acquainted with Tarlton, arranged with Casey to take up with Tarlton the matter of exchanging Hill’s merchandise for Tarlton’s land. In response to a letter from Casey, Tarlton went to Waco, where he conferred with Huber and Casey. Tarlton advised them that he represented one Parr, who owned land he wished to exchange for merchandise. As a result of the conference, and at the instance of Huber and Casey, Tarlton went to Dawson, where he saw Hill and endeavored, but failed, to trade him the Parr land for the merchandise. Hill knew from Huber before Tarlton reached Dawson that the latter was coming there to see him about making such an exchange, and Tarlton, when he reached Dawson, explained to Hill, Tarlton testified, that he was there because he had learned from Huber and Casey that he (Hill) wished to exchange merchandise for land. Failing in his effort to trade the Parr land for the merchandise, Tarlton told Hill he represented owners of other lands, but, it seems, did not then endeav- or to negotiate with Hill about any of those lands. Tarlton returned to Waco and reported to Huber and Casey his failure to exchange the Parr land for the merchandise. As a result of a conference then had between him and Huber and Casey, Tarlton on the day (that is, the day he returned to Waco from Dawson) returned to Dawson and took up with Hill the matter of exchanging for the merchandise land in Jackson county belonging to one Sims, whom Tarlton represented. The negotiations then commenced resulted finally in a deal between Hill and Sims, whereby the former exchanged his stock of merchandise for Jackson county land belonging to the latter. Pending the negotiations Tarlton went to Jackson county to show Hill the land, and in compliance with an agreement between them Huber and Casey paid to Tarlton two-thirds of the amount of the cost to him of his trip to Jackson county. From the time when Tarlton commenced the negotiations with Hill to trade him. the Sims land until the tinie when the contract between Hill and Sims was signed there was no communication between Hill and Pluber and Casey. After the contract covering the exchange agreed upon had been reduced to writing, but before it was signed by either Sims or 1-Iill, the latter, Tarlton testified, asked him if he (Tarlton) claimed a commission from him (Hill). Tarlton replied that he did not, but that he understood Huber and Casey were his (Hill’s) agents, and that he owed them a commission. Hill replied that he did not owe Huber and Casey anything on 'the deal. Subsequently to the time when Hill and Sims entered into the contract, and pending a compliance, it seems, by Sims with some of its terms, several letters in regard to commissions claimed by Huber and Casey passed between them and Hill. April 12,1915, Hill, in reply to a letter he had from Casey about paying him and Huber a commission, wrote Casey as follows:
    “In reply to yours of the 10th inst. will say that you and Mr. Huber in considerable hurry. In the first place Mr. Huber did not inform me that there was a man by the name of Sims. It seems that you and he think y'ou made the trade. It is difficult to understand how you could trade for me and not let me know you were making it; however, the trade has not been consummated, as you say you did it. Mr. Sims and I have not yet completed the trade. Mr. Sims has not complied with all agreements; think he will in a very few days. When I pay commissions I never was asked before till the trade was completed. When the deal is through I intend to take up the matter with Huber and pay him what is due him.”
    April 29, 1915, Hill wrote Huber as follows:
    “It id true I have possession of the land in a way, Mr. Sims is to furnish abstract, which he has not done to the present; there are several details to work 'out. You know if the title is not good that it will have to be worked out before I can close the trade. He says he can furnish good title, which his abstract will show when he gets it. I wrote Floyd Casey when the deal was closed I would take the matter up with you. I suppose he showed you my letter.”
    June 3, 1915, Hill wrote Huber as follows:
    “Your letter seems to be pressing me pretty hard. I wrote you when the deal was closed I would take the matter up with you. I thought when a man made a trade for another he helped him to dose the deal. You did not even write me a card about the deal, never even let me know that you had heard of Sims; instead of helping me to get my deal through and' trying to be of some assistance to me, you are trying to keep me in hot water all the time. If you sent Sims to me you should have told me and helped me to make the deal, which you never have. done. I have failed yet to get Sims to carry out his contract, which I have been trying my best to do. It seems to me you have never turned your hand in the trade to help me to get anything out of Sims, which I have failed to do so far. If getting a man to help me sell means to never get any information regarding the trade from him, and being' dunned and harassed for the commission before I can get a trade closed is good business, then I feel you are justified to continue your efforts to get money out of me now. If you know Sims and can get him to come across and comply with his contract, then I feel you have a right to dun me. I wrote your friend Casey, then I wrote you, as soon as I close the deal I would take, the matter up with you.”

      August 19, 1915, Hill wrote Casey as follows:
    “Yours received. I wrote you when I closed the deal with Sims I would take the matter up with Huber. It seems to me that if Huber would try to bring Sims across and help me a little instead of trying to harass me he would be acting the better faith. Sims assumed my indebtedness and told me he could take it up when the deal was closed, instead he still owes several thousand dollars. The creditors are refusing to release me until they dre paid. If Huber sent him to me it seems he ought to be interested a little in my behalf instead of threatening me the whole time before I get loose so as to be able to get money for my contract. If he was my agent he ought to be willing to help me out of a hole before he makes so many threats.”
    Richard Mays, of Corsicana, for appellant. C. H. Machen, of Waco, and W. A Tarver, of Corsicana, for appellees.
   WILLSON, C. J.

(after stating the facts as above). The finding of the trial court that it was due to Huber and Casey that Hill and Sims met, and therefore that they were the “efficient, procuring cause of the exchange of the properties between Hill and Sims,” is attacked as without support in the testimony. We think it has such support It appeared without dispute that it was due directly to Huber and Casey that Tarlton went, in the first instance, to see Hill about trading him the Parr land, and Huber testified that he sent Tarlton back to see Hill about trading him the Sims land. There was nothing in the testimony indicating that Hill would ever have met Sims and had an opportunity to trade with him as he did but for the acts of Huber and Casey. Certainly, in this attitude-of the case, the court reasonably might have found as he did. The contention to the contrary seems to be based mainly upon testimony showing that neither Huber nor Casey ever in any way communicated to Hill the fact that they sent Tarlton to him to propose the exchange finally made, and on the testimony of Hill that he did not know they sent Tarlton to him or had anything to do with the Sims trade. If Huber, employed as he was by Hill to find some one with land he was willing to exchange for the merchandise on terms satisfactory to him (Hill), acting with Casey, was the cause of Sims’ taking up with Hill the matter of making the exchange that was made, we think it is no answer to the claim of Huber and Casey for a commission Hill otherwise would háve been liable to pay them, to say that Hill was ignorant of the fact that Huber and Casey were the procuring cause of his making the deal with Sims. Bound v. Simkins, 151 S. W. 572; Ross v. Moskowitz, 95 S. W. 86; Id., 100 Tex. 434, 100 S. W. 768; McDonald v. Cabiness, 98 S. W. 943; Id., 100 Tex. 615, 102 S. W. 721; McKinney v. Thedford, 166 S. w. 443. We do not understand the Su preme Court to have held (in Goodwin v. Gunter, 195 S. W. 848, cited by appellant) to the contrary of the rule recognized by the weight of authority in this country (4 R. C. L. 430), and in the cases cited above decided by courts of this state, that the employer who concludes a transaction with a party procured by his broker is not relieved of liability to the broker because he was ignorant at the time he dealt with him, of the instrumentality of the broker in procuring the party.

It is insisted it appeared as a matter of law that l-Iuber and Casey were not entitled to claim a commission of Hill. The contention is predicated, it seems, on the finding that Huber and Casey agreed to pay, and did pay, two-thirds ■ of the amount of the expense of Tarlton’s trip to Jackson county to show Hill the Sims land, and on a rule of law stated as follows in 9 C. J. p. 540:

“A broker who is employed to exercise his ability or discretion on behalf of his principal cannot, without his principal’s knowledge, agree to represent the other party to the transaction; such an agreement is contrary to public policy and unenforceable, although the original principal is not injured, the broker intends no wrong, and the other party acts in good faith.”

If it should Be assumed, in the absence, as is the case, of anything in the record showing that Huber and Casey were employed to represent Hill in making the exchange, and not merely as middlemen to bring Hill and one ready to exchange land for merchandise together (9 C. J. p. 576), it would nevertheless appear, we think, that the rule had no application to the case, because it did not appear that Huber and Casey undertook to represent Sims in the transaction. The agreement between them and Tarlton that they should pay part of the expense of the trip of the latter to Jackson county may have been evidence of an obligation incurred by Tarlton to them or Hill, but certainly it was not evidence of an obligation to Sims on the part of Huber and Casey inconsistent with the duty they owed to Hill.

We do not think error requiring a reversal of the judgment is shown by any of the assignments. Therefore it is affirmed.
      iSsu>For other eases see same topic and KEY-NTJMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    MEREDITH, Sheriff, v. FLANAGAN et al.
    (No. 1921.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 14, 1918.)
    Judgment &wkey;>ll — Time fob Rendition — 'Violation of Court Rule — Effect.
    Judgment in cause submitted to the judge on the law and facts is not void so as to authorize enjoining of execution thereon, because rendered within two days of end of term, in violation of District and County Courts rule 66 (142 S. W. xxii).
    Appeal from Gregg County Court.
    Action by Tracy Flanagan and others against D. S. Meredith, Sheriff. From an adverse order, defendant appeals.
    Reversed and rendered.
    W. C. Hurst and F. J. McCord, both of Longview, for appellant. W. C. Shoults, of Longview, for appellee.
   WILLSON, C. J.

The appeal is from an order of the county judge made in vacation refusing to dissolve a temporary injunction he had granted to appellee Flanagan restraining appellant from levying an execution, in his hands as sheriff, issued on a judgment rendered by the county court of Gregg county in favor of one J. H. Stewart against said appellee Flanagan. The levy of the writ was enjoined on the ground alone, it seems, that the judgment was void because rendered (in violation of rule 66 for district and county courts [142 S. W. xxii]) within two days of the end of the term, in a cause which had been submitted to the judge on the law and the facts. It was, we think, error to grant the injunction in the first instance, and error to refuse to dissolve it. The judgment was not void because it was rendered on the last day of a term of the court. Harris v. Harris, 50 Tex. civ. App. 188, 109 S. W. 1138; Rowe v. Gohlman, 44 Tex. Civ. App. 315, 98 S. W. 1077. The order of the judge overruling appellant’s motion to dissolve the temporary injunction will be set aside, and an order dissolving the injunction will be entered here.
      <gus>For other cases see same topic and KEY-NUMBER in all Key-Numbered .Digests and Indexes


author: TALBOT, J.

text:
    EQUITABLE SURETY CO. v. MOSHER MFG. CO.
    (No. 7902.)
    (Court of Civil Appeals of Texas. Dallas.
    March 23, 1918.
    Rehearing Denied April 20, 1918.)
    Counties <&wkey;123 — Contractor's Bond —Extent oe Liability.
    A surety bond given by a contractor to a county, to secure performance of a contract to build a-courthouse, was conditioned by the de-feasance clause on the faithful performance of the contract by the principal and on payment of all claims for labor and material used in the construction of the building. The contract stipulated that the contractor was to provide all materials and perform all work for the building, but neither it nor the bond contained any affirmative promise by the principal in the bond to pay the claims of materialmen. Held, that the bond was one of indemnity to the county alone, and did not secure the claims of material-men, nor give them a right of action on the bond.
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Suit by the Mosher Manufacturing Company against the Equitable Surety Company and another. Judgment for plaintiff, and the named defendant appeals.,
    Reversed and rendered.
    Hunt & Teagle and Gill, Jones, Tyler & Potter, all of Houston, for appellant. Holloway & Holloway, of Dallas, and Campbell & Sewell, of Palestine, for appellee.
   TALBOT, J.

This suit was brought by the appellee, Mosher Manufacturing Company, against M. P. Kelley, as principal, and the appellant, Equitable Surety Company, as surety, on a bond for the erection of a courthouse for Anderson county, Tex. The case was tried on an agreed statement of facts. It was alleged and proved, in substance, that about May 20, 1913, the defendant Kelley entered into a contract in writ--ing with Anderson county to construct the Anderson county courthouse at Palestine, Tex., and complete the same at a contract price of $148,438; that on the 6th day of June, 1913, the defendant Kelley, as principal; .and defendant Equitable Surety Company, as surety, entered into a contract bond payable to Anderson county in the penal sum of $74,219, and conditioned upon Kelley’s faithful performance of the contract and payment of all claims for material and labor used in the building; that under contracts between plaintiff and Kelley the plaintiff had furnished material for the building, and the defendant Kelley was indebted to plaintiff therefor in the sum of $4,879.25 and interest, which materials were furnished Kelley by plaintiff prior to the time the county took over the completion of the work from Kelley; that thereafter Kelley became insolvent and abandoned the work and left the'state, and the building was completed by the county at a net loss to the county of $4,100.86 over and above the contract price agreed to be paid to Kelley, for which amount the county had been reimbursed by the defendant surety company and upon which payment the county had released the surety company from any further liability to Anderson county on the bond; and that, by reason of the premises, Kelley as principal', and the Equitable Surety Company as surety, were obligated to pay plaintiff’s claim. The defendant Equitable Surety Company answered, in effect, denying all material allegations in plaintiff’s petition except such as were confessed. The case was dismissed as to M. P. Kelley, whose whereabouts were uilknown. The bond recites the award of the contract, and that:

“As part of said award M. P. Kelley is required to enter into contract in writing as per draft thereof hereto attached and execute this bond.”

The defeasance clause of the bond reads thus:

“Therefore, should the said Kelley faithfully and fully perform, discharge and carry out all the things by him agreed to be done in his said contract within the time and in manner and form as therein set out and pay all claims for labor and material used in the construction of said building and fully indemnify and save the said Anderson county, Tex., harmless against all loss, damages and costs which he may suffer or incur by reason of the failure of the said M. P. Kelley to carry out and perform said contract, then this obligation shall become void; otherwise it shall remain in full force and effect.”

Article 1 of the contract stipulates that:

“The contractor shall and will provide all materials and perform all the wozk for the building of the Anderson county courthouse at Palestine, Tex., with basement and three stories and dome as shown by the drawings and described in the specifications prepared by O. H. Page & Bro., of Austin and Houston, Tex., architects.”

And article 5 provides that:

“Should the contractor at any time refuse or neglect to supply a suificiency of properly skilled workmen or materials of proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architects, the owner shall be at liberty after three days’ written notice to the contractor to provide such labor or materials and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architects shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for said work and * * * take possession for the purpose of completing the work, etc.”

The said contract contains no promise by tiie contractor, Kelley, to pay claims for labor and material. In an addenda to the contract there is a provision that:

“In case of the death or mental or physical incapacity of the contractor, the county of Anderson may complete the building, for and on account of the contractor, settlement to be made in accordance with an estimate to be made by the architect; that in making the estimate” the architect shall deduct and pay any lawful items for material or labor due by the said Kelley and charge the same to his account.

Anderson county took over the work and proceeded under said article 5 of the contract to complete the building. At the time Kelley abandoned the work, the county had paid to him $6,359 on account of material furnished by the appellee, and by contract with the county the appellee agreed to furnish the rest of the material called for by its contract with Kelley, “understanding that $6,359, which has been paid to Mr. Kelley on this work, is to be deducted from the amount of our contract, and we will complete the work for $3,600, and that the said $6,359 is to be paid after the completion of the building, if there is a sufficient fund to do so; otherwise, this amount will have to be collected from either Mr. Kelley or his bondsmen.”

The case was tried without a jury, the court filing conclusions of fact and law, and judgment rendered in favor of the appellee against the appellant for the sum of $5,571.-10. From this judgment the appellant perfected an appeal.

The first assignment of error, which is submitted as a proposition, is as follows:

“The bond sued on herein, given to indemnify the owner of the building against the breach of the original builder’s contract, being by its terms a bond of indemnity to the owner alone, no cause of action exists thereon in favor of subcontractors or persons who furnished material to the contractor, and the court erred in holding that such materialmen and subcontractors were beneficiaries thereunder and entitled to judgment against this surety for their claims against the original contractor.”

The question is whether the bond sued on was a bond of indemnity to the county of Anderson alone, or one securing to material-men the payment of their claims and upon which they have a right of action in their own names. We think it must be held,' under decisions of the appellate courts of this state, that the bond in question is merely one of indemnity to Anderson county against any failure on the part of M. P. Kelley to furnish the labor and materials and to erect and complete the courthouse agreed to be built, in accordance with the terms and provisions of the contract entered into between the parties, and does not give a right of action to the materialmen against the surety upon the bond. Like the cases to which we refer above, there is no affirmative promise by Kelley in the contract entered into between him and the county, nor by him or the surety in the bond under consideration, to pay the claims of materialmen. It is true the defeasance clause of the bond reads that:

“Should the said M. P. Kelley faithfully and fully _ perform, discharge and carry out all things by him agreed to be done in his said contract within the time and in the manner and form as therein set out, and pay all claims for labor and material used in the construction of the said building (italics ours), etc., the bond shall become void; otherwise it shall remain in full force and effect.”

But in General Bonding & Casualty Ins. Co. v. Waples Lumber Co., 176 S. W. 651, it was held that language almost identical with that quoted did not “express an affirmative promise to the materialmen or for their benefit.” It is also held in that case (which is elementary) that surety bonds on building contracts are not to be construed as contracts of insurance, but as the obligation of a surety, and to be strictly construed; that in the absence of allegations of ambiguity, or fraud, or accident, or mistake, in the execution of the contract, or pleading seeking a reformation of either, which is the case in the present suit, the obligation of a surety cannot be extended beyond the plain import of the language used in the writing. As pointed out by counsel for appellant, there is in the language of the bond sued on no affirmative promise on the part of' appellant that it would pay claims for labor and material in the construction of the building, and there is no such promise that it would do anything; but the language of the entire bond constitutes merely a statement of the conditions under which the surety will become liable to Anderson county for such portion of the penal sum named in the bond as the county may be damaged by the breach thereof. Stated differently, it is not an undertaking on the part of the appellant, the surety, to do the things mentioned in the condition clause of the bond, but merely to indemnify Anderson county for any loss it may sustain by reason of Kelley’s failure to do those things.

In National Bank v. Railway Co., 95 Tex. 176, 66 S. W. 203, the defeasance clause of the bond, so far as need be stated, was in this language:

“Now, the condition of this obligation is such that if the said above bounden B. B. Evans and O. A. Hoshour shall well and faithfully pay to all laborers, mechanics, and materialmen and persons who supply such contractors with provisions or goods of any kind, all just debts due to such persons or to any persons to whom any part of such work is given, incurred in carrying on such work agreed to be done and performed by the said above bounden E. B. Evans and 0. A. Hoshour, and also shall well and truly save and keep harmless the said Gulf, Colorado & Santa Eé Railway Company from the payment of any and all liens, claims, demands, costs, suits, judgments, and executions that may be made, taken, rendered, had, or obtained against the said Gulf, Colorado & Santa Eé Railway Company or its property by reason of the nonpayment of any.of the debts, claims, or demands of any of the several parties hereinbefore mentioned and provided for, and shall duly perform and observe all the stipulations and agreements contained in said contract and on his part to be performed and observed, * * * then this obligation shall be null and void; otherwise to be in full force and virtue.”

This language is very similar to the language of the bond in the present case, and the Supreme Court, in construing it, held that it did not contain any promise on the part of Evans and Hoshour to pay those persons who might contract with them during üie progress of the work, but that it was simply the expression of a condition upon which their liability to the railway company is denied and for a breach of which they would be liable to the company itself. The language so construed by the Supreme Court is perhaps stronger, in support of the position assumed by appellee, than the language of the bond we are considering, and yet that court held that it was the mere expression of the conditions under which the sureties would be liable to the railway company, the named obligee in the bond, and afforded no right of action thereon in favor of materialmen. There is no provision of the bond or contract entered into for the erection of the Anderson county courthouse, which may be looked to in determining the nature and extent of appellant’s liability, or fact disclosed by the report of the cases mentioned, which, in onr opinion, tends to lessen the force of the language of those cases when attempted to be applied in the case at bar, or which renders altogether inapplicable those eases. The trial court correctly held that Anderson county, in declaring that Kelly had breached his contract for the erection of the building, and in taking over the work of its construction, proceeded under article 5 of said contract and not under the addenda provisions thereof; that the option given to said county to proceed in accordance with the addenda provisions of the contract upon the happening of the contingencies therein specified was a mere personal privilege of the county, to be exercised or not as the county then elected, and to the exercise of which materialmen had no vested rights, and to the exercise of which by the county were attached conditions precedent which were not performed by the county, therefore the appellee had no right to recover herein against the contractor or his surety by reason or anything contained in the addenda provisions of the contract, but that such provisions might be looked to along with other provisions of the contract and bond in determining whether the bond was intended to indemnify the county alone, or was intended also for the protection of materialmen. We agree with appellant that to affirm this case would be to expressly overrule the decision in the case of General Bonding & Casualty Ins. Co. v. Waples Lumber Co., supra, in which a writ of error has been refused by our Supreme Court. The following are some of the other Texas cases which announce the same principle on similar bonds: Garrett v. McAdams, 163 S. W. 320; Wilkerson & Satterfield v. McMurray, 167 S. W. 278: Dean v. McAdams, 172 S. W. 762.

There are- reported cases in Texas in which it has been, held that materialmen and lien-holders were beneficiaries and entitled to a right of action against the sureties on a contractor’s bond for the erection of a building. We cite some of those cases. Republic Guaranty & Surety Co. v. Cameron & Co., 143 S. W. 317; Texas Glass & Paint Co. v. Southwestern Iron Co., 147 S. W. 620; United States Fidelity & Guaranty Co. v. Thomas, 156 S. W. 573; Nelson v. Stephenson, 168 S. W. 61; Texas Glass & Paint Co. v. Crowdus (Sup.) 193 S. W. 1072. In every such case, so far as our knowledge extends, the bond itself, or the contract requiring its execution, provided, in effect, that the claims of mate-rialmen, or such as were entitled to liens, be paid by the principal and sureties on the bond or that the, bond should enure to the benefit of such creditors. No such provision, is contained in the contract or bond in this case. So it follows that, under the decisions of this state; the language of the defeasance clause of the bond, and upon which appellee in the main bases his right of recovery against the appellant, must be construed and held to be simply the expression of a condition upon which the liability of appellant to Anderson county is defined and for a breach of which it would be liable to said county, and not to materialmen who may have furnished, under a contract with Kelley the contractor, material to he used in the construction of the Anderson county courthouse.

The appellee’s counsel have filed in this court an able and exhaustive brief, in which is cited many cases from other jurisdictions which doubtless express a contrary view to that expressed by our Texas decisions. There seems to be a mass of decisions upon the subject, a number of which, rendered by courts of high standing, hold that on contracts for public work the obligation of the surety on the contractor’s bond should be extended to materialmen to whom the surety had not expressly made his obligation payable. There seems to be, however, very reputable foreign authority practically in accord with the decisions of our own courts. But whatever may be the rule in other states, the law of this state is weli settled as hereinbefore stated and will he followed by us.

There are several other assignments of error, but they simply present in different forms the question discussed.

The case appears to have been fully developed, and it becomes our duty under the statute to render such judgment here as we think should have been rendered in the lower court. It is therefore ordered that the judgment of the district court he reversed, and that judgment he rendered in this court in favor of appellant, that appellee take nothing by his suit, and that appellant recover all costs. ’

Reversed and rendered.
      (gssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    BOST v. BARRINGER.
    (No. 1935.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 21, 1918.)
    COMPROMISE AND SETTLEMENT <&wkey;20(l) — SlJF-eiciency op Evidence.
    An agreement that, in settlement of suit for damages for breach of contract to furnish meat, defendant would pay costs, transfer a certain note to plaintiff, and give him credit on another note held by defendant, and signed by plaintiff as surety, compromised and settled the suit by an accord and satisfaction, although defendant failed to enter credit on the latter note, for the offset or credit on that note became legally effective upon the mutual agreement that it be allowed, and entry of the fact of credit on the note was not essential to the performance of the agreement.
    Appeal from District Court, Rockwall County; Kenneth Foree, Judge.
    Action hy W. F. Barringer against W. W. Bost. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment entered for defendant.
    The appellee agreed to furnish the appellant dressed meat at a stated price for the period of one year. Appellant conducted a meat market in the town of Royse. The ap-pellee furnished meat until February 7,1915, on which date appellant refused to accept any more meat under the contract. Thereafter the appellee instituted suit against appellant in the county court for damages for breach of the contract. At a term of the county court in January, 1916, the parties to the suit “agreed on a settlement of the controversy, and the suit was dismissed.” According to the testimony of appellee, the only witness testifying:
    “We agreed on the settlement. The terms of that agreement were as follows: Mr. Bost (the defendant in that ease) agreed to pay the costs in the county court, to transfer without recourse a note for $80 on my son George, and to give me credit for $40.50 on another note which he held and that I had signed as surety. * * * The settlement of the controversy at that time provided that I was to receive a credit of $40.50 on the note of $315 and interest at the! bank, which credit would reduce it to $295, and also Bost was to pay the court costs and to transfer to me the $80 George Barringer note.”
    Appellant transferred and delivered to ap-pellee the note of George Barringer, and ap-pellee was paid the jury fee of $3, which he had theretofore paid to the clerk; and the court costs were paid. Arp Rice was the principal, and appellee the surety, and • appellant the holder and owner of the note for $315 and interest. There does not appear any memorandum of a credit of $40.50 on the note. Appellee testified that:
    At the maturity of the note in February “I phoned J. D. Miller, cashier of the First National Bank, and asked him to take up that note from Will Bost; that I had contracted to pay it. I told him the amount was $295 if there was a credit on the note. He said that he would go and attend to it. The.nekt day I was over there, and he had collected the whole note for $335.50, with no credits on it at all. * * * I do not know, of my own knowledge whether the credit was allowed or not. Mr. Miller was repaid as follows: I helped Arp Rice borrow $200 and I. got Mr. Miller to carry the balance.”
    On July 25, ,1916, the appellee instituted the present suit for damages for breach of the original contract to furnish meat, claiming that appellant had not allowed the credit of $40.50 and had repudiated the settlement and compromise. The appellant answered by denial, and pleaded in bar the compromise and settlement of the controversy as contained in the compromise made in January, 1916. The case was tried before the court, and judgment was entered for the plaintiff for the damages proven.
    A. I-I. Mount, of Dallas, for appellant. H. M. Wade, of Rockwall, for appellee.
   LEVY, J.

(after stating the facts as above). It is insisted by appellant that the court erred in not entering judgment in .his favor because it is established by the evidence that the cause of action originally instituted in the county court for damages for the breach of the contract was compromised and settled by an accord and satisfaction. And it is believed that the contention should be sustained. For it admittedly appears that there was a mutual agreement made between the appellant and the appellee as a settlement of the lawsuit then pending in the county court. The admitted terms of agreement were that (1) appellant transfer without recourse to appellee a certain note in the principal sum of $80, executed by George Bar-ringer; (2) appellant give and appellee receive credit in the sum of $40.50 on the principal sum of a note on which appellee was surety, and of which the appellant was the holder; and (3) appellant pay the court costs. And the evidence admittedly shows a full, complete, and legal performance by appel lant of the things required of him to be done under the terms of the agreement. For the appellant satisfied the court costs and aetually indorsed without recourse and delivered to appellee the note of $80 owned and held by appellant against George Barrin-ger. And the agreement in itself that the holder of the note give and the surety receive “credit” on the principal of the note in the sum of $40.50 operates as a release or relinquishment of the payment of the principal amount of the note to the extent of the agreed sum of $40.50. Por as the appellant was the holder of the note it was not required, nor legally essential, in order to carry out and perform that term of the agreement to “give credit” in the sum of $40.50 on the principal of the note, that any other act be done. The offset or payment of the $40.50 was legally effective upon the mutual agreement being made that such credit or payment be then allowed. As, for illustration, had the appellant sued for the full amount of the note, the appellee could have predicated a defense against payment of the full amount upon the agreed reduction of the principal amount by the sum of $40.50. The entry of the fact of credit by $40.50 on the note was not essential to the legal effectiveness of the agreement, and the failure to make the memorandum of the fact of credit on the note did not make the terms of agreement legally ineffective. Accepting, as the appellee did, the appellant’s promise of allowance of the credit of $40.50 on the note as a settlement of the suit, the agreement was an executed and not an executory one; and the remedy of appellee for the breach thereof is by an action thereon, and not on the original right to damages. Railway Co. v. Harriett, 80 Tex. 73, 15 S. W. 556.

The judgment is reversed, and judgment will be here entered in favor of appellant, with costs of appeal and of the trial court.
      cg£5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    HAHL v. DAVIDSON.
    (No. 6007.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 3, 1918.)
    1. Appeal and Error &wkey;>1043(7) — Harmless Error — Surprise—Continuance.
    There was no prejudice in refusing to grant a continuance on the ground of surprise as to new matter contained in an amended petition, where the findings on the old issues were sufficient to support the judgment.
    2. Continuance &wkey;>37 — Grounds—Application.
    Where application for continuance on ground of illness of witness did not state how long the illness had existed, so as to excuse failure to take deposition, or that he could have added to testimony on a former trial which was introduced in evidence; its refusal was not error.
    3. Appeal and Error <&wkey;1043(7) — Harmless Error — Continuance.
    A party was not harmed by refusal of a continuance to obtain deposition of a witness as'to an agreement, which was shown in a deed admitted in evidence.
    4. Continuance <&wkey;37 — Grounds por — Surprise — Diligence—Application.
    Where application for continuance, claiming surprise as to new -matter in amended petition served five days before trial, did not show that time was too short to procure testimony, there was no error in refusing a continuance.
    5. Appeal and Error <&wkey;1070(2) — Harmless Error — Unimportant Issues.
    Where • findings of jury not attacked would support the judgment, insufficiency of evidence to support other findings was harmless.
    6. Appeal and Error <&wkey;1062(2) — Harmless Error — Refusal op Issues.
    Refusal to submit a special issue is harmless, where the verdict on the issues submitted amply supports the judgment.
    7. Fraud <&wkey;66 — Action—Special Issues.
    In an action for fraudulent representations by a vendor a special issue whether the purchaser could by ordinary prudence discover the value of the land sold to him was improper, unless, as a matter of law, the purchaser undertook to discover the truth with regard to such value.
    8. Fraud <&wkey;64(5) — Representations as to Value — Inspection of Land — Jury Question.
    The mere fact that a purchaser demanded the privilege of inspecting the land would not, as a matter of law, establish that he undertook to discover the truth with regard to representations as to value:
    Appeal from District Court, Jim Wells County; V. W. Taylor, Judge..

    Suit by William Davidson against O. W. Hahl. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    W. R. Perkins, of Alice, J. E. Leslie, of McAllen; and C. C. Forty, of Brownsville, for appellant. S. H. Woods, of Alice, and Arnold, Cozby & Peyton, of San Antonio, for appellee.
   MOURSUND, J.

Appellee, Davidson, sued appellant, Hahl, alleging that by reason of certain fraudulent representations made to him by Hahl and his agents he was induced to accept from Hahl a conveyance of the west half of section 41 in Duval county at the price of $4,843.50, of which he paid $1,500 by conveying certain lots in Louisiana, and gave vendor’s lien notes for the remainder. He alleged that Hahl had sold the Louisiana property, and prayed for the recovery of the value thereof and for cancellation of the notes given by him to Hahl, and in the alternative for damages on account of the fraud if it should be held that he was not entitled to the remedy of rescission. The issues made by the pleadings, in so far as necessary to be considered on this appeal, will be sufficiently disclosed by the special issues submitted to the jury, which with the answers thereto are as follows:

“Q. .No. 1. When Davidson came to Texas the first time to inspect the land described in his preliminary contract as a part of section 41, did the agents of the defendant point out to-Wm. Davidson a part of section 56 and fraudulently represent to him that it was the land he was buying, namely part of section 41?
“We, the jury, answer: Yes.
“Q. No. 2. If you have answered ‘Yes’ to question No. 1, then you will answer the following two questions designated (A) and (B) but if you answer ‘N'o’ to question No. 1, then you' need not answer the following two questions:
“(A) If it was represented to Davidson that part of section 56 was the part of section 41 which he was buying, then did Davidson believe such representation to be true?
“We, the jury, answer: Yes.
“(B) Did Davidson rely and act on said representation, if any, and was he induced thereby to sign the notes and deed to his Louisiana property?
“We, the jury, answer: Yes.
“Q. No. 3. Did the defendant fraudulently represent to Davidson that the west half of section 41 was rich, agricultural land?
“We, the jury, answer: Yes.
“Q. No. 4. If you have answered ‘Yes’ to question No. 3, then you will answer the following three questions designated (O), (D) and (E) but if you answer ‘No’ to question No. 3, then you need not answer the following three questions:
“(0) If defendant represented to Davidson that the west half of section 41 was rich, agricultural land, was such representation false?
“We, the jury, answer: Yes.
“(D) Did Davidson believe such representation, if any, to be true?
■ “We, the jury, answer: Yes.
“(E) Did Davidson rely upon said representation, if any, and was he induced thereby to sign the notes and execute the deed to the Louisiana property?
“We, the jury, answer: Yes.
“Q. No. 5. Did defendant fraudulently represent to Davidson that the reasonable market value of the west half of section 41 was not less than $15.00 per acre?
“We, the jury, answer: Yes.
“Q. No. 6. If you have answered ‘Yes’ to question No. 5, then you will answer the following questions (F), (G), and (H), but if you answer question No. 5 ‘No,’ then you need- not answer the following three questions:
“(F) If defendant represented to Davidson that the west half of section 41 was worth not less than $15 per acre, was said representation false?
“We, the jury, answer: Yes.
“(G) Did Davidson believe said representation, if any, to be true?
“We, the jury, answer: Yes.
“(H) Did Davidson rely upon said representation, if any, and was he induced thereby to sign the notes and deed- the Louisiana property?
“We, the jury, answer: Yes.
“Q. No. 7. Did defendant represent to Davidson that the title to the west half of section 41 was clear of mortgages or encumbrances?
“We, the jury, answer: Yes.
“Q. No. 8. Was the defendant able to clear the west half of section 41 of the mortgages, if any, at the time he delivered the deed to Davidson?
“We, the jury, answer: No.
“Q. No. 9. If you answer ‘Yes’ to question No. 7, then answer the following three questions, (I), (J), and (K), but if you answer ‘No’ to question No. 7, you need not answer the following three questions:
“(I) If defendant represented to Davidson that the title to the west half of 41 was clear of mortgages, was said representation false?
“We, the jury, answer: Yes.
“ (J) Did Davidson believe said representation, if any, to be true?
“We, the jury, answer: Yes.
“ (K) Did Davidson rely upon said representation, if any, and was he induced thereby to sign the notes and deed the Louisiana property?
“We, the jury, answer: Yes.
“Q. No. 10. What was the reasonable market value on. or. about May 1, 1915, of the property in Louisiana deeded by Davidson to the defendant?
“We, the jury, answer: $1,500.00 (fifteen .hundred dollars).
“Q. No. 11. What was the reasonable market value on or about May 1, 1915, of the west half of section 41?
“We, the jury, answer: $6.00 (six dollars) per acre.
“Q. No. 12. After Wm. Davidson had been given the deed to a part of section 41 by defendant, did he thereafter enter into a contract with the defendant or his agent and agree to accept a portion of section 78 in lieu of a portion of section 41?
“We, the jury, answer: No.

The court entered judgment upon such verdict in favor of Davidson for $1,699.44, and canceling the deed from Hahl to Davidson and the notes by Davidson to Hahl.

Appellant complains of the overruling of his first application for a continuance. It was contended that by reason of the filing on the day of the trial of an amended petition setting up new matters, appellant should have been given a continuance. A copy of the amended pleading was in the hands of appellant’s attorneys four or five days previous to its filing. The main issue in the case was whether the agents of appellant pointed out to Davidson a different tract of. land than the one conveyed to him. This issue had been in the case from its inception, and evidence thereon had been introduced at a previous trial. There can be no claim of surprise as to this issue. While it was alleged in the application that the testimony of D. It. Guffey was material on this issue, and it was shown that he was ill, it was not shown how long he had been ill, so as to excuse the failure to take his depositions, and in addition his testimony on the former trial was introduced in evidence by appellant. It was not made to appear in the application that he could have added anything to his former testimony. As the findings of the jury with regard to such main issue are not attacked and support the judgment, and no prejudice resulted to appellant as to such issue by reason of the refusal of his application for a continuance, it appears that the assignment should be overruled.

The appellant did not suffer any harm as to the issue whether the land was free from mortgage by inability to take Mrs. Gunter’s depositions to show the agreement between her and appellant, as the deed from her, which contained such agreement, was introduced in evidence.

The allegations of misrepresentation as to value and quality of the land conveyed to Davidson were such as to require additional evidence than that introduced at the former trial, but it was not made to appear that the time was too short to procure such testimony after ascertaining that such, issues would be raised upon the trial. If a judgment had been entered for damages, appellant might plausibly contend that he should have been given an opportunity to procure additional testimony as to. the value of the land he conveyed appellee, but as the remedy awarded was that of rescission, and the judgment is required by the findings other than those relating to value and quality, it conclusively appears that it should not be reversed on account of the refusal of the application for continuance. If the jury had found against Davidson on the first issue, and thus established that he was shown the land conveyed to him, it could be contended that he could not rely on representations as to quality, and testimony with regard to value would have been important. On the main issue appellant had the benefit of such testimony as was procurable, and he is not entitled to a reversal on the ground that the refusal of his application may have denied him additional testimony on issues which became unimportant.

Appellant attacks the answer to subdivision I-I of the sixth issue and the answer to issue No. 8 as unsupported by evidence, but does not attack the other findings of the jury. We find that the evidence sub stains the findings attacked. It is obvious, however, that even if such answers be eliminated, the remainder of the verdict amply supports the judgment, and that, therefore, if the jury had erred, such error would be a harmless one.

Appellant also complains of the refusal of the court to submit his special issue containing the question whether Davidson could by the use of ordinary prudence discover the value of the land sold him. The assignment, if well taken, presents a harmless error, for the reasons stated in discussing the preceding assignments of error.

The question was, to say the least, improper, as worded, unless it could be said as a matter of law that Davidson undertook to discover the truth with regard to the value of the land. The mere fact that he demanded the privilege of inspecting the land would not as a matter of law establish that he undertook to discover the truth with regard to representations as to value.

The judgment is affirmed.
      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    LOUISIANA WESTERN R. CO. v. WHITE.
    (No. 312.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 27, 1918.
    Rehearing Denied April 17, 1918.)
    1. Railroads <&wkey;33(2) — Venue—Plea of Privilege — Foreign Railroad Operating in State.
    Where several railroads were under one management and each operated trains over the road of the other, the court had jurisdiction of the subject-matter and the parties and properly overruled a plea of privilege to be sued in a county in which it had an agent of one of the companies whose road was out of the state, but which was operating its trains over the road of the other within the county when it injured plaintiff.
    2. Appeal and Errob <&wkey;97S(3) — Discretion of Court — Misconduct of Juey.
    The court on appeal will reverse for abuse of discretion in not granting a new trial on ground that jury considered amount of attorney’s fee in fixing the amount of damages for personal injuries, where it was shown that amount of fees was discussed and one juror stated positively that he was influenced and four jurors were not called and examined as to whether they were influenced thereby.
    Appeal from District Court, Orange County.
    Action by Frank H. White against the Louisiana Western Railroad Company and others. From a judgment against the named defendant, it appeals.
    Reversad and remanded.
    Orgain, Butler & Bolinger, of Beaumont, and Baker, Botts, Parker & Garwood, of Houston, for appellant. Stuart R. Smith, of Beaumont, and S. P. Jones, of Marshall, for appellee.
   BROOKE, J.

Plaintiff filed his original petition in the district court of Orange county on the 6th day of December, 1915, seeking to recover from the Louisiana Western Railroad Company, the Texas & New Orleans Railroad Company, and ithe Morgan’s Louisiana & Texas Railroad ■& Steamship Company, for damages resulting to him by reason of his left leg being run over by one of the ears of defendants, while plaintiff was at work in the yards of the defendant Louisiana Western Railroad Company, at Lake Charles; it being alleged that said plaintiff was at that time employed by the defendants, and engaged in switching cars in the yards of the defendants, and each of them, at Lake Charles, La., and received said injury by reason of the negligence of the defendants, in substantially the following manner: That the plaintiff was engaged' in switching cars, and making up and breaking up trains in the yards at Lake Charles, and while engaged in said work, and in the discharge of his duties, he was giving signals to the members of the crew in which he was working, when by reason of the negligence of the defendants, and its agents, certain cars being operated by another switching crew in the said yards of the defendants at Lake Charles were propelled against the plaintiff, knocking him down, catching one of his feet between one of the wheels of one of the cars and the rail, causing said foot to slide on said rail until the same came to an unblocked frog, when same was caught in said frog, causing the wheel to run over same, crushing and mangling it to such an extent as to require amputation. It was also alleged that said defendants, and each of them, were jointly engaged in operating a continuous line of railroad from Houston to New Orleans, and were at the time of the injury a partnership; each of said defendants sharing- in the profits and losses of the other dompany. The negligence alleged against the defendants were five in number: (1) In permitting said ears to be moved against plaintiff, without giving any signal or warning to him of the near approach thereof; (2) in permitting said ears to be propelled over the track where plaintiff was working at said time, and permitting them to strike and injure the plaintiff; (3) in leaving the frog in which plaintiff’s foot was caught unblocked and unguarded; (4) in not having a man on or near the back end of said car to notify him of the approach of said train; and (5) in failure to blow the whistle or ring the bell before said train started backward.

The defendant answered by general demurrer, general denial, and pleas of contributory negligence and assumed risk, it being specially alleged that the plaintiff, while engaged' in (interstate commerce, was doing his work at a place that was more dangerous than other and different places that were open to him, between the tracks of the defendant; that, if he used another and different way, there would have been no danger of his being struck. Defendant further alleged that the work plaintiff was then engaged in, if any, was being done in a manner contrary to the rules of the company, and that plaintiff was also violating that rule which requires employés, when working about double tracks to always stand outside and in the clear of both tracks while trains are passing; that plaintiff was further violating that special rule of the company which warned all employes that they must not rely upon others to notify them of the approach of a train, and that in doing the work in the manner alleged, and in violating the rules, plaintiff assumed risk of injury, and also was guilty of contributory negligence.

On October ,30, 1916, plaintiff filed an amended petition with leave of the court, by its terms dismissing the case as to the Morgan’s Louisiana & Texas Railroad & Steamship Company. The case went to trial on October 30, 1916. On November 2, 1916, plaintiff filed its request for a dismissal as to the Texas ■& New Orleans Railroad Company. On the 20th day of April, 1917, plaintiff filed its first amended petition, leaving out the Texas & New Orleans Railroad Company, and leaving the Louisiana Western as the only defendant. Thereafter on April 28, 1917, defendant for the first time filed a plea of privilege to be sued in Harris county, set7 ting up that when the suit was first filed the Morgan’s Louisiana & Texas Railway & Steamship Company and the' Texas & New Orleans Railroad Company were made parties defendant, and attached and made a part of the motion, a copy of plaintiff’s original pleading, alleging partnership between the various defendants, said plea of privilege further setting forth that at the time of the filing of said suit, and ever since said time, the Texas ■& New Orleans Railroad -Company operated a line of railroad in Orange county, and maintained an agency in said county; that on the 20th day of April, 1917, plaintiff filed his first amended petition in effect dismissing as to the Texas & New Orleans Railroad Company and leaving the Louisiana Western' Railroad Company the only defendant. Said plea then set forth the fact that none of the statutory grounds giving jurisdiction to the court of Orange county existed, said plea • specifically setting forth that it; was not a resident of the state of Texas, but was created under the laws of the state of Louisiana; that it did not own of operate, and was not at the time of the filing of the suit, nor at the time of the service of process, nor at the time of the filing of the plea, the owner or operator of any rail ■ road in the state of Texas; that it did not at the time of the filing of the suit, nor at the time of the service upon it, nor at the time of the filing of plaintiff’s first amended original petition, nor at the time , of the filing of said motion, have an agent or representative in Orange county, Tex., but did have an agent and representative in the city of Houston, Harris county.

Said plea of privilege was submitted to. the court, together with evidence in support of the same upon the 30th day of April, 1917, and the plea overruled, ■ to which action the defendant then and there in open court excepted.

There was a trial before a jury, the case being submitted on special issues, and a verdict of the jury returned on May 4, 1917. Plaintiff in due time filed his motion to enter judgment on the verdict, and judgment was rendered in favor of the plaintiff and against the' defendant for $21,000. Defendant filed its first amended motion for new trial, which was overruled, and notice of appeal given and supersedeas bond filed, and the case is now properly before this court for revision.

The first, second, and third assignments of error call in question the action of the court in overruling the plea of privilege. These assignments are followed by the'following propositions:

“(a) The evidence shows that the Louisiana Western Railway Company does not operate any trains in Texas, and does not maintain any agents in Orange county, Tex., within the venue statutes of this state, said evidence showing that all trains on the line of the Louisiana Western operated to the Sabine river, and from there west are operated by the Texas & New Orleans Railroad Company, and that all control on the part of the Louisiana Western Railroad Company and its officers ceases, when said train reaches the Sabine river and west thereof, and that the agent at Echo is not under the control of the Louisiana Western Railroad Company to any extent, except that it is arranged through the Texas & New Orleans Railroad Company that the agent of the Texas & New Orleans Railroad Company at Echo shall receive, and deliver to employés of the Texas & New Orleans Railroad Company train orders that are operative after said train and employés reach the state of Louisiana, on the trades of the Louisiana Western Railroad Company, and said employés come under the control of the Louisiana Western Railroad Company and its officers.
“(b) When plaintiff’s pleading showed jurisdiction against the nonresident defendant, by reason of allegations of partnership with another defendant over which the court properly has jurisdiction under the pleadings, under which condition defendant answered, said defendant by réason of that fact will not be deprived of the opportunity to plead its privilege if the plaintiff by his pleading thereafter files another pleading dismissing as to the other defendant so as to create a condition giving to the pleader -of the privilege, for the first time, a fight to plead said privilege.
“(c) It appearing that the Louisiana Western Railroad Company was a nonresident, not doing business in this state, and had properly pleaded its privilege to be sued in Harris county, it was error to overrule same.”

On this proposition the court made the following findings of fact:

“The original defendants in this cause, to wit, Texas & New Orleans Railroad Company, the Louisiana Western Railway Company, and Morgan’s Louisiana & Texas Railroad & Steamship Company, are a part of the general system of railways known as the ‘Southern Pacific’ system, which embraces, among other lines, and sections of railway, the section of railway running from El Paso, Tex., to New Orleans, La., forming one unbroken main line of track between said points; that this track between Houston and Sabine river is included within the properties of the Texas & New Orleans Railway Company; that from Sabine river to Lafayette, La., this track is included in the properties of the Louisiana Western Railway Company, and the section between Lafayette and New Orleans, is included in the properties of the Morgan’s Louisiana & Texas Railroad & Steamship Company; that the point where one section included in one of these companies’ properties ends, and the section included in the other begins, is not in any way marked, and the trains and crews operating them pass over all the sections without change and are directed by the officers of the Southern Pacific system, the sections above named being divisions of that system; that all three of the said companies have the same managing head and the same labor rules and system; that the Texas & New Orleans Railroad Company and the Louisiana Western Railroad Company have the same president, who resides at Houston, Tex.; that the Louisiana Western Railway Company operates its trains from Lake Charles, La., to and across the Sabine river into Texas as far as the station of Echo, in Orange county, Tex., and maintains an agent at Echo, Tex., through whom it directs the movements of the trains over its lines, and is doing business in Texas, and was at the time of the filing of this .suit, and then had and now has an agent in Orange county, Tex.”

As a matter of law, the court concludes that:

“This court had at the time, and still has, jurisdiction of the subject-matter of this suit, and over the person of the Louisiana Western Railway Company, and that the venue is properly laid in Orange county.”

Without going into detail and considering this matter in extenso, we are of opinion that this action of the court was warranted. The assignments therefore are overruled.

Inasmuch as this ease must be remanded for a new trial because of the misconduct of the jury, we shall not consider the assignments of error in the order in which they come.

The twentieth assignment complains that the verdict should be set aside-for the reason that the jury indulged in improper conduct, and considered improper matters that were not in evidence and not included in the charge of the court, in that members of the jury, in considering what amount they should award plaintiff by way of damages, discussed atnong themselves freely and considered what portion of the amount allowed the plaintiff as damages he would pay his attorneys and costs of court, and that, in fixing said amount to be allowed plaintiff as damages, members of the jury permitted themselves to consider and be influenced by the fact that a portion of said amount allowed as damages would be paid to the lawyers, and paid out as court costs, and were thereby caused to allow the plaintiff a greater and larger sum than otherwise would have been fixed by them as compensation for his injuries, and a larger sum than the jury would otherwise have fixed under the charge of the court; that members of the jury were influenced by the discussion and consideration of what amount should be paid by plaintiff for lawyers’ fees and court costs, and because of this discussion and improper consideration of said matters, and improper conduct of said jury and members of same, the verdict of the jury is void, and should be set aside and held for naught. The proposition under this assignment is that where it appears, from the evidence submitted in support of a motion for new trial, that the jury discussed or considered what portion of the verdict in favor of the plaintiff is to be paid to plaintiff’s attorneys, and that consideration enters into the verdict of the jury, thereby increasing the amount thereof, a refusal upon the part of the trial court to grant a new trial violates the discretion lodged in the trial court, and is cause for reversal.

In a recent decision by this court, St. Louis Southwestern Railway Oo. of Texas v. Jack Roberts, 196 S. W. 1004, which case was reversed on account oí the error complained of here, this court used the following language:

“Does this evidence show, without dispute and with reasonable certainty, that the question of the amount of plaintiff’s attorneys’ fees was discussed by the jury while deliberating upon their verdict, and before their verdict was reached; and also does it show., without dispute, and with reasonable certainty, that the jurors who sat in this case, or any of them, were influenced by such discussion, and caused thereby to render a verdict in favor of appel-lee for a greater amount than would have been rendered in his favor had not such discussion and consideration by the jury occurred? * * *
“If the discussion as to attorneys’ fees occurred, which must be admitted (as it must be admitted in the instant case), because it is absolutely without dispute, then, of course, there can be no question regarding its impropriety, and that question is not an open one in this state. Every opinion emanating from every appellate court in this state, which has ever spoken on this question, holds that at-
torneys’ fees in matters of this kind are not recoverable, and are not proper to be considered by juries in reaching verdicts; and some of the courts, including the Supreme Court, speaking through Chief Justice Brown, has emphatically said that such conduct as this is not only improper, but that it is highly reprehensible, anil that jurors who indulged in such conduct should be promptly punished for same. Railway Co. v. Gray [105 Tex. 42] 143 S. W. 606.
“It is not contended by appellee that the discussion by the jury of the question of attorneys’ -fees complained of was not improper, but appellee contends that since the motion for new trial on this ground was addressed to to sound discretion of the trial judge, and his discretion having been exercised, and he, in the exercise of that discretion, having overruled the motion, the ruling is conclusive and binding on this court, even though it may be made clear to this court that the trial court abused his discretion in overruling the motion. We cannot agree to this contention by appellee, and while we concede that this ground of the motion for new trial was a matter resting within the sound .discretion of the trial judge, yet we also hold, though reluctantly, that it is made clearly to appear, by the evidence of the jurors Stephens, Day, and Murphy, and more especially by Stephens, that the trial court abused his discretion in overruling this motion.”

This court, in the opinion supra, goes into the matter rather fully, and in addition cites the case of Traction Co. v. Cassanova, 154 S. W. 1190, for a full discussion of this question. We also cite the opinion above, handed down by this court, and the Cassanova Case, for the purpose of showing clearly that the conclusion that we have reached in this case is not only not in conflict with other decisions, but that the instant case is a still stronger case than either of the cases cited. In the present, like a great many of the other cases, there were at least four jurors who were not present, and who did not testify with reference to what influence, if any, was had upon them by their discussion of this matter. In addition thereto, the trial court, in his findings of fact, used the following language:

“The juror Stratton says that he was influenced by the amount of attorneys’ fees and that he made an allowance of $5,000 in the $21,000 he agreed to, as attorneys’ fees and expenses, and that he would have agreed to only $16,000 as damages if he had not been permitted to make an allowance of $5,000 for attorneys’ fees and expenses. * * * Although the juror Stratton agreed at and before the time of the rendition of the verdict that he would not consider attorneys’ fees and voted for the verdict of $21,000 damages under the instruction of the court, and when polled by the court upon the return of said verdict into court stated that he had agreed to and that said verdict was his verdict, but when testifying before the court upon the motion for a new trial testified that he did consider the attorneys’ fees as a part of his verdict, and that he allowed $5,000 as attorneys’ fees. Therefore I find that, as stated by the juror Stratton, he did consider attorneys’ fees when he voted for the verdict to the extent of $5,000.”

As said by this court in the Roberts Case, above referred to, we reluctantly hold that the trial court abused and exceeded his judicial discretion in not holding that the motion for new trial was good.

We may remark, also, that from a careful reading of this record we are of opinion that the trial court was not in error in holding, under the sixth assignment, that the appellee was not guilty of contributory negligence as a matter of law, and in refusing to so charge the jury. Therefore, without going into and discussing the various assignments, we hold that, for the reason above given, this cause must be reversed and remanded for a new trial, and it is so ordered.

HIGHTOWER, Jr., C. J., did not sit in this case.
      <§c^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, O. J.

text:
    COTULLA STATE BANK v. HERRON et al.
    (No. 6020.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 10, 1918.)
    1. Judges <&wkey;50 — Refusal to Act.
    A judge should not try a case in which there is the least ground upon which to base a claim for his disqualification, and if an error is ever made as to disqualification, it should be in favor of the disqualification rather than against it.
    2. Trial <&wkey; 194(2) — Instructions — Province oe Jury — “Casual.”
    The word “casual” meaning something by chance without being foreseen or expected, an instruction referring to a conversation as casual when the evidence tended to show it to have been material and sought by one of the parties was on the weight of the evidence.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Casual.]
    3. New Trial <&wkey; 108(2) — Newly Discovered Evidence.
    After judgment for defendants in an action to set aside a previous judgment because of disqualification of the judge, the discovery of a letter, tending to show such judge had acted as advisor and attorney for defendants as to the claim upon which they recovered in the former action, was sufficient to warrant new trial, the evidence not being cumulative.
    4. Appeal and Error <&wkey;933(l) — Review-Discretion oe Lower Court.
    Appellate courts treat with great deference the action of lower courts on motions for new trial, but where motion is based on newly discovered evidence that is material and will have an important bearing on the issues, and where the ends of justice will probably be obtained by another trial, new trial will be granted.
    Appeal from Dimmit County Court; Covey C. Thomas, Special Judge.
    Action by the Cotulla State Bank against H. A. Herron and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    See, also, 191 S. W. 154.
    F. R. Williams, of San Antonio, and R. R. Smith, of Jourdanton, for appellant. Vandervoort & Johnson, of Carrizo Springs, for appellees.
   FLY, O. J.

This is a suit instituted by appellant to set aside a judgment in cause 197 on the docket of the county court of Dimmit county, wherein H. A. Herron was plaintiff, and A. A. Luther, and appellant and another bank were defendants, and to enjoin the issuance of an execution therein; the sole ground for declaring said judgment void being the disqualification of J. O. Rouse, county-judge, who rendered the judgment. The ground of disqualification alleged xvas that Rouse had been, prior to institution of suit No. 197, retained and employed as an attorney by H. A. Herron, and that his fee was contingent upon the collection of a check for $500 which formed the basis of the suit.

The cause was tried by jury, and the testimony was quite conflicting. It is to' be regretted that a judge should try a case in which there is the least ground upon which to base a claim, for his disqualification, and, if an error is ever made as to disqualification, it should be in favor of the disqualification rather than against it. An independent, unbiased, disinterested, fearless judiciary is one of the bulwarks of American liberty, and nothing should be suffered to exist that would cast a doubt or shadow of suspicion upon its fairness and integrity. If there should be any evidence tending to show that J. O. Rouse had any interest in any way in the money Herron sought to. collect from appellant, that issue should be presented to the jury on another trial.

The charge requested by appellees and given by the court which informed the jury that “a casual allusion in a conversation to a cause of action that is either commenced or may have not yet been commenced and filed in his court will not in itself disqualify him in trying the cause” was upon the weight of the testimony, and should not have been given. It was for the jury to say whether a conversation .was important and ■ material or not, and the court should not have dubbed such conversation “casual” when the jury might have deemed it otherwise. “Casual” means something coming by chance, without being foreseen or expected, and no such conversation was shown to have been held between Rouse and Herron, but the one held by them was sought by Herron, and the one held by Rouse and Luther, the maker of the check which formed the basis of the original suit, was not casual, but material and important.

Appellant filed a motion for a new trial, setting out the discovery since the trial of a letter written by J. O. Rouse to another attorney, in which it was disclosed that Rouse had been consulting and advising with appellee, Herron, about the case afterwards brought by him against appellant; that said Rouse had advised Herron to retain the services of W. D. Love, to whom the letter was written by Rouse, to make the arrangements with said Love to assist in the progeeution of Herron’s suit against appellant, which suit was afterwards tried by said Rouse as county judge. It appeared that, while W. H. Love is an honorable and highly respected attorney, he was very friendly with Rouse, had been associated in cases with him, and did not feel inclined to volunteer testimony against him, and this was shown as offering a reason for a failure to sooner obtain the testimony. In view of the character of the testimony offered and the conflict shown, the letter would be very important on another trial, and we think a new trial should have been granted. The evidence contained in the letter, while it may tend to impeach Rouse, has a broader significance, in that it tends to show that Rouse was acting as attorney and counselor for Herron just before the suit against appellant was instituted. The evidence .was not cumulative, but was a new and distinct fact, tending to prove the issue in the case, .which might change the result on another trial.

Appellate courts treat with great deference the action of trial courts in regard to motions for new trial, but the appellate court is not powerless in such matters, and where the evidence discovered since the trial is material, and will have an important bearing on the issues, and where the ends of justice will probably be obtained by another trial, will grant a new trial. Railway v. Forsyth, 49 Tex. 171; Wolf v. Mahan, 57 Tex. 171.

The jury has found in this case that the evidence adduced by appellant had not been sufficient to satisfy them that the cause in which the assailed judgment was rendered was not tried by a disinterested and impartial judge, but it appears that other and important testimony bearing on the subject has been discovered since the trial, and in the interest and for the preservation of that respect for the honor and integrity of the judiciary held by the people, a new trial should be granted that might remove every ground of suspicion, or set aside a judgment not obtained through a properly qualified judge.

■ For the errors indicated, the judgment is reversed, and the cause remanded.
      iS=»For other cases see same topic and KEY-NUMBEE in all Key-Numbered Digests and Indexes


text:
    AMERICAN SURETY CO. v. CAMP.
    (No. 1934.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 19, 1918.
    On Appellant’s Motions for Rehearing and for Additional Findings, April 11, 1918.)
    1. Appeal and Error &wkey;>1043(7) — Harmless Error — Denial op Continuance.
    .Where plaintiff, in an action against a contractor and a surety company, based on nonperformance of building contract, amends complaint so as to recover liquidated damages, the denial of a continuance on ground of surprise on account of the amendment, if error, was harmless, where judgment was not predicated on such claim.
    2. Continuance <&wkey;2S(3) — Absence op Witness-Diligence.
    In an action against contractor and surety for nonperformance of contract, a motion for continuance by surety company, because contractor was not present at trial to testify contract had been complied with, was properly overruled, where surety company had exercised no diligence to procure his attendance as a witness;
    3. Evidence <&wkey;158(26) — Best Evidence — Competent Evidence.
    In an action against a surety company on an indemnity bond, originally executed by another company, but reinsured by defendant company, a letter, written by surety company, stating that it had reinsured bond, although not the best evidence of the assumption of the obligation, was competent evidence thereof.
    4. Appeal and Ebeok &wkey;oll69(4) — Reveesal —Admission of Evidence.
    In an action against a surety company on a bond, reinsured by defendant, and indemnifying plaintiff against nonperformance of a contract, the admission of a letter from plaintiff, notifying original company of nonperformance, and the admission of the reply thereto, informing plaintiff of reinsurance, if error, was not ground for reversal.
    5. Evidence &wkey;>370(2) — Documentary Evidence — PRELIMINARY PROOF.
    In an action against a surety company on an indemnity bond, reinsured by defendant, recognition by defendant of the existence of the contract rendered such bond admissible in evidence, without preliminary proof of execution.
    On Appellant’s Motions for Rehearing and for Additional Bindings.
    6. Principal and Surety i&wkey;69 — Termination of Liability.
    Where a surety bond, conditioned that a contractor would perform a building contract, stipulated that the bond should terminate and become void on August 1, 1914, such stipulation does not preclude obligee from recovering on the bond for nonperformance, though all of the work of another contractor in doing the work had not been finished, and all payments to such contractor had’not been made, at such date.
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by T. L. Camp against the American Surety Company and another. Judgment for plaintiff, and defendant named appeals.
    Affirmed.
    June 28, 1913, one Nichols agreed (in writing), at his own charge for labor and material necessary, to so waterproof the basement of a certain building in Dallas belonging to appellee “as to make same absolutely dry.” He was to complete the work by July 12, 1913, and pay appellee $15 a day as liquidated damages for every day the work remained incomplete after that date. To indemnify appellee against loss in the event he should fail to comply with his undertaking, Nichols on June 30, 1913, made appellee a bond, with the Title Guaranty & Surety Company of Scranton, Pa., as surety, in the sum of $978 (which was the amount appellee was to pay him for the work), conditioned that he (Nichols) would “perform all things required of him by said contract and in all things faithfully and honestly comply with and fulfill all the terms and conditions of said contract.” The work as done by Nichols was accepted as in compliance with his undertaking and was paid for by appellee as provided in the contract. Afterwards, in October or November, 1913, it developed that the effort of Nichols to make the basement dry as he had agreed to do was ineffective. Nichols endeavored to cure the defects in his work, which permitted water to seep into the basement, but failed, finally, in May or June, 1914, admitting he could not make it dry as he had agreed to do. Appellee then employed one Arendt to furnish the material and do the work necessary to made the basement dry, paying him therefor the sum of $1,046. By a letter dated May 13, 1914, appellee notified the Title Guaranty & Surety Company of Nichols’ failure to comply with his contract, performance of which it had guaranteed by the bond mentioned above. That company replied May 18, 1914, that “the case has been reinsured by the American Surety Company (appellant) and we are referring your letter to Mr. J. W. Mason, vice president of that company, for attention.” May 22,1914, appellant wrote appellee as follows:
    “Your favor of the 13th inst., addressed to the Title Guaranty & .Surety Company, has been referred by that company to us for attention. The Title Guaranty & Surety Company is retiring from the surety business, and the above bond executed by the Title Company has been reinsured by this company.”
    As originally brought by appellee by a petition filed May 26, 1915, this suit was to recover of Nichols the $1,046 paid by appellee to Arendt for doing. the work Nichols had agreed, to do, and $96.22 expense appellee incurred in repairing defects in the elevators in the building, due, he alleged, to water seeping into the basement, and to recover of appellant $978, the amount of the bond it had assumed for the Title Guaranty & Surety Company. By an amended petition filed July 7, 1916, appellee alleged that Nichols failed to complete the work he undertook by July .12, 1913, as he had agreed to do, and, in the alternative, sought a recovery against Nichols of $15 a day for each day thereafter the work remained incomplete, as the liquidated damages stipulated for in the contract. The recovery sought against appellant in the amended petition was the same as that sought in the original petition, to wit, $978, the amount of the bond. The trial was before the court without a jury, and resulted in a judgment in appellee’s favor against Nichols for $1,046, and against appellant for $978.' The appeal is by appellant alone.
    Adams & Stennis, of Dallas, for appellant. C. M. Smithdeal, of Dallas, for appellee.
   WILLSON, C. J.

(after stating -the facts as above). [1, 2] The assignments based on the action of the court in overruling appellant’s motion for a continuance of the cause are overruled. The grounds of the motion were: (1) Surprise because of the claim, made for the first time in the amended petition, of a right in appellee to recover of Nichols as liquidated damages $15 a day for each day after July 12, 1913, the work of making the basement dry remained incomplete; and (2) the absence from the court of Nichols, who, appellant alleged, had promised to be present, and who, had he been present, would have testified, appellant alleged, that the fact that the basement was not dry was not due to a failure on his part to comply with his undertaking, but to “alterations and changes and openings made in the basement” by appellee or his tenants. The record makes it clear enough that the court did not find anything in appellee’s favor on account of delay in completing the work Nichols undertook, but predicated his judgment on a finding that appellee was damaged in the amount, to wit, $1,046, he had to pay Arendt to do the work Nichols engaged, but failed, to do. That being true, had the court erred in overruling the motion on that ground, the error would appear to be harmless. As to the other ground of the' motion, it does not appear, from the bill of exceptions or otherwise, that any diligence whatever was used to procure the testimony of Nichols. Mayer v. Duke, 72 Tex. 445, 10 S. W. 565.

Appellant objected to the admission in evidence of the letters referred to in the statement above. The grounds of the objections were: To appellee’s letter of May 13th to the Title Guaranty & Surety Company, that it was not the original, but a carbon copy; to the reply of the Guaranty & Surety Company to that letter, that it “had not been properly proved”; and to the reply of appellant to the letter, that it was “not the best evidence of the contract entered into between the parties.” In the letter last referred to appellant in effect admitted that it had assumed the obligation the Title Guaranty & Surety Company incurred when it executed the bond. If the admission was not the best evidence of the fact that appellant had assumed the obligation, it was nevertheless competent evidence thereof. If it was error (17 Cyc. 411) to admit either of the other letters in evidence, it was'not such error as entitled appellant to a reversal of the judgment.

It is insisted that the court erred when he admitted the bond in evidence over appellant’s objection that its execution by the Title Guaranty & Surety Company had not been proven. Appellant testified that Capt. J. E. Ducy, appellant’s general manager for Texas, admitted to him that appellant had assumed the Title Guaranty & Surety Company’s contract with appellee, and negotiated with him as to the loss he claimed he had suffered by the breach of the contract by Nichols. A like admission was contained in appellant’s letter of May 22d referred to above. As the bond objected to was the only contract existing between the Title Guaranty & Surety Company and appellee, we think the admissions were referable to it, and authorized a finding, as against appellant, that the Title Guaranty & Surety Company executed the bond as alleged in appellee’s petition.

Other objections are urged to the judgment, but we think they also are not tenable.

The judgment is affirmed.

On Appellant’s Motions for Rehearing and for Additional Findings.

The contention, made when the record was first before us, that the judgment was excessive, is vigorously renewed in the motions. The contention was and is based on a stipulation in the bond that it should “terminate,” quoting, “on the 1st day of August, 1914, on which date this bond shall become null and void,” and on testimony showing that part of the work done by Arendt in making the basement dry as Nichols had agreed to make it was done after August 1, 1914, and that part of the sum paid him by appellee for doing such work was paid to him after that date. We did not- think that was a reason why appellee should not recover as he did, and do not yet think so. What Nichols undertook to do, and appellant guaranteed he would do, was to furnish the material and do the work necessary to be done to make the basement dry and to keep it so for a period of one year. Nichols having failed to do that, appellee was entitled to recover of him the sum it was reasonably necessary to expend to have it done, to wit, $1,046, as shown by the testimony, without reference to whether the work was done and the expenditure made before August 1,1914, or not, and was entitled to recover of appellant the $978 it bound itself to pay in the event of such failure .on Nichols’ part.

The motions are overruled.
      <g^?For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      <@=»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes