author: HUFF, C. J.

text:
    MOODY v. HEMPHILL COUNTY.
    (No. 1108.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1917.)
    Eminent Domain <&wkey;238(l) — Laying out First-Class Roads — Award oe Damages— Appeal.
    Appeal from award of damages in proceedings to lay out a first-class road is under Rev. St. 1911, art. 6866, to the district court; article 6882, giving appeal as from a judgment of a justice, and so to either the county or district courts, applying to other classes of roads.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 614, 658, 659.]
    Appeal from Hemphill County Court; J. L. Jennings, Judge.
    Appeal by Thomas F. Moody in highway proceedings to the district court was on motion of Hemphill County dismissed, and from the order of dismissal, he appeals.
    Affirmed.
    Hoover & Dial, of Canadian, for appellant. J. W. Sanders, of Canadian, for appellee.
   HUFF, C. J.

This is an appeal from an order dismissing an appeal prosecuted by Moody to the county court of Hemphill county from a decision of the commissioners’ court of that county allowing damages to appellant and ordering a public road over his premises. On the Í3th of May, 1916, the commissioners’ court of that county, on its own motion, appointed a jury of view to lay out a first-class public road from Canadian, the county seat of Hemphill county, to the county line of Lipscomb county. A jury of view was appointed under the order on the 6th day of June, 1916, and proceeded to lay out the road and assess the damages. They assessed damages to plaintiff’s land at $10 per acre for meadow land and $6 per acre for other land taken by the road. This road covered about 30 acres of meadow land and about 7 acres of upland belonging to the appellant. The appellant was notified and he filed with the commissioners’ court and the jury of view a statement of his claim to the amount of $2,160. The commissioners’ court allowed approximately $350 for his damages. Appellant, the owner of the land, being dissatisfied with the award, appealed from the order of the commissioners’ court to the county court of Hemphill county.

The county, by its attorney, filed a motion to dismiss the appeal on the ground that the county court had no jurisdiction thereof, but the appeal should have been taken to the district court, for the reason that the order was for a first-class road, laid out in pursuance of article 6S63.

The court filed findings of fact and conclusions of law finding substantially as above stated, and further:

“I find that article 6863, Yernon’s Sayles’ Civil Statutes 1914, providing that first-class roads shall be laid out from county seat to county seat, had never been complied with by the commissioners’ court of Hemphill county, and that said court was acting under the authority of this statute, and attempting to comply with the same when it laid out the road mentioned in this case.”

Under the findings of the trial court and the record in this case, it appears the road was a first-class road, and laid out under article 6863, Revised Civil Statutes, from Canadian, the county seat of Hemphill county, to the county line of Lipscomb county, by the most direct and practical route. The commissioners’ court of Hemphill county had not theretofore complied with this statute in laying out such road, and the commissioners’ court was attempting, in making the order and appointing the jury of view, to comply with this article. The proceedings were therefore governed by the act of February 6, 1884. This act is carried forward in the Revised Civil Statutes of 1911 as articles 6863 and 6870, inclusive. Under article 6866 of the Revised Civil Statutes and section 4 of the original act appeal, is given from the action of the commissioners’ court to the owner of lands to the district court. It was also provided in that act (section 8, and now article 6870) that nothing in the preceding articles, and, as stated in the original act, nothing in this act, “shall be construed to prohibit the opening of other roads as is now provided by law.” At the same session of the Legislature, February 5, 1884, the Legislature passed an amendatory act of several sections of the then Revised' Civil Statutes, referring to public roads. Article 4372 of that act, and now article 6882, gave the owner dissatisfied with the assessment made by the commissioners’ court the right of appeal therefrom “as in cases of appeal from judgments of justice courts.” This last article evidently refers to that class of roads mentioned in the amendatory act of February 5, 1884, as ‘article 4360, and now article 6860, and not to the class of roads provided for in the succeeding act of the same Legislature passed the day following, and under which the road here in question was laid out. An appeal from the damages assessed by the commissioners’ court in this ease therefore was to the district court. This distinction in the classes of roads and the court to which the appeal would lie is clearly pointed out by Judge Gaines, speaking for the Supreme Court, in the case of Taylor v. Travis County, 77 Tex. 333, 14 S. W. 137. The opinion in that case concludes:

“But, whatever the motive, we' think the Legislature intended to provide a different court of appeal under one statute from that provided in the other.”

The case then under consideration fell under the act of February 5, 1884, and it was therefore held in that case the appeal should have been to the county court. See, also, Northington v. Taylor County, 62 S. W. 936.

The appellant contends that article 6882, providing that the owner may appeal as from a judgment of the justice court, gives the owner in the character of road here sought to be opened the right of appeal to either the county or district court. This contention is refuted by the very authorities cited by appellant. County v. Ray, 57 S. W. 76; Bell v. County, 29 S. W. 928; Miller v. County, 26 S. W. 245; Huggins v. Hurt, 23 Tex. Civ. App. 404, 56 S. W. 944.

We believe the county court had no jurisdiction of the appeal in this case, and the trial court properly dismissed the appeal.

The judgment is affirmed.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY, O. J.

license: Public Domain

text:
    WOLFE v. ANDREWS.
    (No. 7678.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 20, 1917.)
    Gamins <&wkey;14 — Conteacts—Constbuction— “Wageeing Conteact.”
    A contract for the sale and purchase of cotton which provided that should market price of cotton change within a given time, etc., the seller would pay the buyer the difference between the sale price and any increase, and the buyer pay the difference between the sale price and any decrease, while couched in terms peculiar to the cotton trade, is a “wagering contract,” and may be so declared by the court, regardless of any ambiguity due to technical terms.
    [Ed. Note. — For other cases, see Gaming, Cent. Dig. §§ 25, 26.
    For other definitions, see Words and Phrases, First and Second Series, Wager Contract.]
    Appeal from District Court, Wood County; R. M. Smith, Judge.
    Action by M. H. Wolfe against H. G. Andrews. From a judgment for defendant, plaintiff appeals.
    Affirmed.

      M. D. Oarlock, of Winnsboro, J. E. Gilbert, of Dallas, and D. Upthegrove, of St. Louis, Mo., for appellant. Beavers & Wilkinson, of Winnsboro, Harris, Suiter & Britton, of Quit-man, and Jones & Jones, of Mineóla, for ap-pellee.
   RAINEY, O. J.

Appellant sued appellee to recover $5,193.92 on a transaction for the purchase and sale of 1,600 bales of cotton. Appellee answered by general and' special demurrers, which were sustained, and appellant refusing to amend, judgment was rendered for appellee, from which this appeal is taken.

The first, second, and seventh assignments of error complain of the sustaining of demurrers, to wit: General demurrer and special demurrers to the effect that the plaintiff’s petition shows on its face that it was a wagering or gambling contract, and contrary to public policy; that the petition alleged, in effect, that defendant sold and delivered to plaintiff 1,600 bales of cotton at 14.39 cents, basis middling, which was a complete sale, and the title thereto fully vested in plaintiff; and that in said contract was an additional paragraph wherein plaintiff and defendant entered into a wager or bet as to the future price of cotton, which made the liability, if any, of one to the other depend upon the decline in the price nf cotton, which constituted a gambling transaction in violation of law.

The petition to which demurrers were sustained, omitting formal parts, alleged as follows:

“That heretofore, to wit, on or about December 23, 1910, and dated as of said date plaintiff and defendant made and entered into the following contract in writing, signed by them respectively, to wit:
“ ‘Dallas, Texas, Dec. 28, 1910.
“ ‘Mr. R. G. Andrews, Winnsboro, Texas^ Dear Sir: We confirm purchase from you this day through Mr. Will Rash, Sulphur Springs, Texas, of the following cotton: Sixteen hundred (1,600) bales cotton at 14.39$, basis middling, based on March New Orleans at 15.14$, your option of fixing the price during market hours at any time between now and March 1, 1911, by giving notice to us of the time you select to fix the price. It is understood that at the time you select to fix the price if March New Orleans is above 15.14$ we will pay you the difference, but if March New Orleans is below 15.14$ you will pay the difference. Please confirm the sale by signing and returning the attached copy of this letter.
“ ‘Yours' very truly,
“ ‘M. H. Wolfe & Co., per J. H. H.’
“ ‘The above contract is accepted. R. G. Andrews.’
“That thereupon, and under the terms of said contract, defendant shipped and delivered to plaintiff the 1,600 • bales of cotton specified in said contract, and invoiced the same, and on the 29th day of December, 19Í0, plaintiff advanced to defendant $118,014.99, including exchange of $218.36 upon said 1,600 bales of cotton. By the terms of the contract aforesaid, and in accordance with the interpretation thereof by the parties thereto, the defendant reserved the right to fix the price of the cotton at which he would consummate the deal, not being willing to sell at the price prevailing in the market on the date of the shipment and contract, but defendant retained an interest therein, together with said right to fix the sale price at any time prior to March 1, 1911, as named in said contract, to be governed by the terms of the contract and the basis being what is known among cotton men as basis middling and based on the prevailing price in New Orleans, and reserving the right of fixing the price during the market hours at any time before March 1, 1911, by giving notice to plaintiff of the time defendant should elect to fix the price, and based upon the prevailing price at New Orleans, as specified in said contract, and that if the defendant did not sooner elect to fix the price the limit fixed in the contract within which the right should be exercised by defendant should be March 1_, 1911, as in said contract stated, and that if it was not sooner fixed the market conditions on that date should bind both parties. That by the terms of said contract, option to fix the price was under the exclusive control of defendant, and it was immaterial to plaintiff at what date defendant elected to fix the price prior to March 1, 1911. That plaintiff advanced to defendant, as aforesaid, the total súm of money aforesaid including exchange upon the cotton so sold and delivered by defendant to plaintiff, but defendant did not elect to fix the price until the expiration of the time stated in the contract, to wit, March 1, 1911, when the same was fixed by the terms of the contract and the sale closed thereby and the option to fix the price expired, and the defendant so notified and he had been previously notified that the option would expire on that date and asking that the price be fixed and notice given to plaintiff. That the price was not fixed in and by the terms of the contract because defendant was not willing to sell at the then market value of said cotton. That by the terms of the agreement made in the negotiations between plaintiff who acted by and through his duly authorized agent, Will Rash, and the defendant the cotton was not to be sold plaintiff until so directed by defendant, but that portion of the negotiations and agreement was omitted in writing up the contract, which was .done in plaintiff’s office in Dallas, and transmitted to defendant for his signature by mail after invoice of said cotton had been made by plaintiff’s said agent, Rash. That plaintiff’s said agent wanted and offered to buy said cotton outright in order that it might belong to plaintiff and under his entire disposition and control, and the plaintiff would have paid more for the cotton if so bought than he agreed to advance thereon under the terms of the contract, but defendant declined to sell outright for the reason that he wanted more than the market value. Plaintiff further shows that the parties thereto construed, treated and acted upon said contract as a valid and binding contract made in good faith upon the delivery of the cotton for the purpose and with intent that defendant might fix the price at a future date at which time the sale should be consummated; and defendant repeatedly declared and treated by his conduct, acts and declarations; that the contract was one by which he had not 'fixed the price at which the deal should be' closed, but had reserved the right to fix the price as per the terms therein stated, and while so acting and while the price was advancing stated he had made by not selling outright and by not fixing the price at the time of delivery as much as $1,500 thereon. Plaintiff further shows that the contract as written is stated in terms familiar only to cotton men and those versed in the technical language thereof, and it is not intelligible to others not so versed without explanation, but is ambiguous and uncertain, but plaintiff and defendant knew its meaning to be as alleged, and they both so understood and construed and treated and acted upon it as having the meaning alleged, and that it was made with the intent that it should have such meaning and be so treated, and that the price was not therein fixed and determinated, but was to be fixed at and within the time agreed upon for defendant to fix such price upon the technical basis agreed upon and so understood and construed by the parties; that on said date, March 1, 1911, said cotton on the basis contracted for in said contract, based on New Orleans basis middling was 13.76$ when the amount advanced to defendant on December 29th, was at 14.29$ being below the sum advanced and calculated upon the terms of the contract aforesaid that plaintiff had advanced to defendant in excess of what he should have done the sum of $5,193.92, the said cotton being worth less in the market than the amount advanced by plaintiff to defendant, whereby defendant became liable and promised to pay plaintiff the said sum of $5,193.92.”

Under tire foregoing assignments appellant presents the proposition that:

“When the effect of a writing does not depend entirely upon the construction or meaning of its terms, but upon extrinsic facts and circumstances, then it b'ecomes the duty of the court to submit, for the consideration of the jury, the instrument, together with the attending facts and circumstances adduced in evidence, with such instructions upon the legal effect of the instrument as will meet the various phases presented by the extrinsic evidence.”

We have no criticism to make of appellant’s proposition as to its being sound as a proposition of law, hut we think the contract is subject to construction by the court and is contrary to the law. It shows that the cotton was purchased, and the allegations of’ the petition show that in pursuance thereof it was delivered, and that so much money was advanced at the price of 14.39 cents basis middling, based on March New Orleans at 15.14 cents, etc., appellee to have the option of fixing the price at any time before March 1, 1911. While there may he some ambiguity in the terms thus far expressed to the uninformed mind in the cotton trade there is none in the latter clause, which reads:

“It is understood that at the time you select to fix the price if March New Orleans is above 15.14$ we will pay you the difference, but if March New Orleans is below 15.14$ you will pay the difference”

—which shows that the difference in the price of cotton was to be fixed at March 1st, New Orleans, and whether or not at that time it was above or below that figure the difference was to be paid to the one or the other. This was uncertain and not definite as to the price to be paid, and showed that chances were taken as to wha't the difference would be. The terms of this much of the contract being certain it was the duty of the court to construe it, and not leave any construction to be placed upon it by a jury, as it showed on its face that it was in violation of law. We are of the opinion that the contract relied on is a wagering one and one upon which no recovery can be had. In support of this holding we rely on the case of Burney v. Blanks, 136 S. W. 806, in which case a writ was denied by our Supreme Court. The opinion in that case was rendered by the Third Court of Civil Appeals at Austin, and the opinion written by Mr. Chief Justice Key. The principle announced therein, we think clearly in point, and settles this case against appellant. Said opinion had not been rendered when the transaction in this case was had, and evidently the parties here did not think this contract unlawful, nevertheless they so wrote it and by it they are bound.

There are several other assignments and propositions submitted, but, construing the contract to be unlawful, we deem it unnecessary to pass on them.

The judgment of the court below is affirmed.
      ®zs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    SOUTHERN PAC. CO. v. EVANS.
    (No. 655.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 25, 1917.)
    1. Master and Servant <§=>285(7) — Jury Question — Railroad’s Negligence.
    The defective condition of the running boards on two cars between which plaintiff brakeman was injured was not made a jury question by testimony that they came so close together as to indicate either defects in them or the car’s body, where plaintiff’s witness stated that in subsequent experiments the car shifted, thereby indicating its defective condition.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 1016.]
    2. Master and Servant <@=>285(11) — Jury Question — Speed oe Cab.
    Testimony that a car was kicked into the car on which plaintiff was standing, the force indicating it was moving 15 or 20 miles per hour, makes its speed a jury question.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1035.]
    3. Master and Servant <@=>139 — Proximate Cause — Riderless Railroad Oar.
    Where a railroad car was kicked at excessive speed inft> another, on which plaintiff brakeman was standing, without a rider to check its speed, the absence of such rider was the proximate cause of plaintiff’s injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 275, 282, 289, 296.]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by John Evans against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    See, also, 183 S. W. 117.
    Beall, Kemp & Nagle, of El Paso, for appellant. Geo. E. Wallace and P. E. Gardner, both of El Paso, for appellee.
   HIGGINS, J.

EVans brought this suit to recover of appellant damages resulting from personal injuries sustained by him while he was in the service of appellant as a switch-man working in its yards in Los Angeles, Cal. While engaged in the operation of switching cars in said yard, and while standing upon the brake platform of a car, it is alleged a string of ears was switched onto the track where he was working, and struck the car upon the brake platform whereon he was standing, and by the force of the collision the cars were driven close together, and lie was caught between the running boards and injured.

Plaintiff testified he was on a string of two refrigerator cars on the icehouse track, and was told by the foreman to hold same, which he did, by setting the brake on one of the cars. He was in between the cars, standing on the brake platform, and had reached down to release the “dog” with his club, when another ear came down and hit the string of cars he was on. The car did not couple upon the first impact, but rebounded and struck again. The force of the 'first impact threw Evans between the ends of the running boards, and when the second impact occurred, he was caught between the running boards and crushed. The brake platforms were on the ends of the two cars, and about 18 or 20 inches below the top.

Verdict was returned and judgment rendered in favor of Evans, and defendant appeals. It is assigned as error that the court erred in its charge in submitting as a ground of recovery the alleged negligence of defendant, based upon the theory that the drawheads or coupling appliances upon one or both of the two cars were out of order, whereby, when the impact of the other car occurred, the ends of the running boards upon the cars, between which plaintiff was standing, were driven closer together than they should have been. It is asserted there is no evidence that the drawheads or coupling appliances were in any wise defective. There is testimony that if the drawheads and coupling appliances and the bodies of the cars were in good condition, the ends of th'e running boards would be at least 12% to 15 inches apart when the couplers were compressed and the cars pressed together as much as they could be pressed by the constant and steady application of force, and that the same would be true when the cars were struck by another car, kicked against them as was done at the time of the accident.

Upon the former appeal, the witness Bowers testified that the ends of the running boards would not come closer together than 18 inches if the drawheads and coupling appliances were in good order. Plaintiff’s testimony tended to show that in fact the running boards did come closer together than that. So it was held that this was circumstantial evidence of a positive nature, directly tending to show that the drawheads or coupling appliances were defective, and it was therefore proper to submit the issue of negligence in that respect. Southern Pacific Co. v. Evans, 183 S. W. 117. But upon this appeal, the evidence presents itself in a different aspect. The evidence is that if the running boards came closer than 12% to 15 inches apart, then there is a defect in the drawheads or coupling appliances, or else the body of the cars would be loose on their frames, whereby the body of the ear would shift, or, as it was termed by some of the witnesses, “weave,” when an impact by collision occurred, and by this shift or “weave” the running boards at the top of the cars would come closer together than they should have come. The testimony all shows that there was no defect in the draw-heads or coupling appliances. According to the testimony of various witnesses of defendant, tests were made immediately after the accident, which showed that the two cars between which plaintiff was standing could not, by the application of a steady pressure, be forced so close together that the ends of the running boards would be closer than 12% to 15 inches. Examinations of the drawheads and coupling appliances, made immediately after the accident, showed them to be in good order according to these witnesses. At the time the foregoing test was made, another test was made by having the two cars stand still and another car kicked against it, reproducing the movement which occurred at th'e time of this accident. Plaintiff’s witness Martin testified that he was present and assisted in making these tests, and this second test disclosed that when the impact of the kicked car occurred, the body-of one of the cars between which Evans had been standing weaved, causing th'e ends of the running boards to come only 9 inches apart. This testimony was not disputed, and the unsafe condition of the body of the cars was submitted in the charge as an actionable ground of negligence. The foregoing testimony of Martin is the only evidence showing directly or indirectly what caused the ends of the car to come too close together. It was offered by plaintiff, and explained what caused th'e ends of the running boards to come too close together. It precluded any inference which otherwise might have been legitimately deduced that the closeness of the running boards was due to a defect in the drawheads or coupling appliances. Railway Co. v. Geary, 144 S. W. 1045. Upon the evidence adduced upon this trial, it was error to submit an issue with respect to defects in the drawheads or coupling appliances.

Complaint is also made of the submission of any issue of negligence with respect to the kicked car moving at an excessive rate of speed without a rider. It is objected that there was no evidence of the kicked car moving at an excessive speed, and that the failure to have a rider upon the same was not a proximate cause of plaintiff’s injury. There is ample evidence that the car was moving at an excessive speed. It should have moved at the rate of 4 miles an hour. It appears that its impact moved the two cars upon which plaintiff was standing a distance of about a car length. There is testimony that an impact sufficient to have moved these two cars that distance must have come from a car moving 15 to 20 miles an hour. This shows an excessive rate of speed. Th'e purpose of having a man riding upon a kicked car is to enable Mm to control its speed, so that it will not strike other cars at an excessive speed. The rules of the company require a rider upon a car moving at the rate of speed the testimony indicates the car was moving. If there had been a rider on this car, he could have controlled its movement, so that its impact with the two cars upon which plaintiff was standing would have been very slight and no injury would have resulted. This shows that the company’s negligence in failing to have this rider was a proximate cause of the injury.

The remaining assignments complain that the verdict is unsupported by the evidence and is excessive in amount. In view of a retrial, it would be improper to comment upon the probative force of the evidence, further than to say that in our opinion these assignments are both without merit.

For the error indicated, the cause is reversed and remanded.

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


author: RAINEY, C. J.

text:
    NATIONAL FIRE INS. CO. OF HARTFORD, CONN., v. McEVOY FURNITURE CO. et al.
    (No. 7658.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 13, 1917.
    Rehearing Denied Feb. 17, 1917.)
    1. Garnishment &wkey;>206— Parties — Claimants.
    A garnishee is entitled to have all claimants made parties in order that he may not be required to pay more than is justly owing defendant.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 398.]
    2. Garnishment <&wkey;214 — Parties — Claimants.
    In garnishment proceedings, the fact that the amount of a claim against the fund is less than the jurisdictional amount in the county court does not warrant court in refusing a motion to interplead such claimant, but the garnishee has the right to interplead all such claimants regardless of the amount of their claims.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 406.]
    3. Garnishment <&wkey;>214 — Evidence—Proof of Claims.
    In garnishment proceedings, it is error to exclude proof by garnishee of claim against the fund on the ground that such claim is less than the jurisdictional amount of suits- in county court, since the garnishee has the right to prove all claims regardless of amount.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 406.]
    4. Garnishment <&wkey;191 — Costs and Attorney Fees.
    Garnishee is entitled to statutory attorney fee where it admitted indebtedness to defendant and sought protection of court only to determine conflicting claims and preclude double, recovery.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 372-379.]
    Appeal from Hill County Court; J. D. Stephenson, Judge.
    Action by the McEvoy Furniture Company against J. W. Morgan and the National Fire Insurance Company of Hartford, Conn., garnishee. Judgment for plaintiff, and the garnishee appeals.
    Reversed and remanded.
    Crane & Crane, of Dallas, for appellant. J. J. Averitte and Wear & Frazier, all of Hillsboro, for appellees.
   RAINEY, C. J.

McEvoy Furniture Company sued J. W. Morgan in the county court of Hill county for $263, with interest and caused a writ of garnishment to issue to appellant insurance company.

Appellant answered that it was due Morgan on losses by fire $404.50, and by way of cross-action and petition in the nature of a bill of interpleader alleging that it had been garnished in a suit of E. B. Lary against said Morgan, pending in justice court precinct No. 1, Hill county, for $65, and interest, that Lary was claiming a lien that was owing by insurance company, and that the amount due by said insurance company would probably be insufficient to satisfy both claims, and prayed that McEvoy, Lary, and Morgan be cited to answer said bill of in-terpleader. Garnishee by way of amendment further answered before the service of the writs of garmshment that its authorized agents, Trezevant & Cochran, had drawn and delivered a draft on it for $404.50 in settlement of said claim to said Morgan; that said Morgan had sold same to the First National Bank of Itasca, Tex., and had obtained the money thereon; that said bank was claiming an interest in and lien upon said fund; that said bank be cited and made a party thereto; and that the court upon final hearing enter judgment directing it to pay the money to whomsoever it was due, and for costs of suit. '

J. W. Morgan answered, disclaiming any interest in the funds in garnishee’s hands. E. B. Lary answered, alleging that Morgan was due him $65; that he sued in the justice court and had his writ of garnishment served prior to McEVoy’s; that Morgan had fraudulently obtained possession of said draft and had wrongfully disposed of it to the First National Bank of Itasca, etc.

The First National Bank of Itasca filed successively motion to quash garnishment proceedings and plea in abatement, which were overruled. It filed general and special exceptions to the answer of Lary, which were sustained, and Lary was dismissed from the ease, because his claim “showed upon the face of the record that it was not within the jurisdiction of the court.” The bank further answered that it was an innocent purchaser of the draft; that it was negotiable.

McEvoy replied by proper pleadings to the pleas of the other parties.

The result of a trial before a jury upon instructed verdict by the court was a judgment in favor of the bank against the insurance company and McEvoy, and the insurance company was not allowed an attorney’s fee on the ground as recited in the judgment that, it “having made itself a litigant and litigated some of the questions herein involved, and failed and refused to properly contest the claim of plaintiff in garnishment,” it was entitled to no fee as garnishee. From this judgment the insurance company alone appeals to this court.

The first assignment of error complains, in effect, of the court’s action in dismissing E. B. Lary from the garnishment proceedings at the instance of the First National Bank of Itasca. Its proposition submitted is:

“The several parties having asserted conflicting" claims to money in the hands of the garnishee, the garnishee, having no interest in same, was entitled to have all parties asserting such claims brought before the court in the garnishment suit and their respective rights in and to said money adjudicated, so that a judgment conclusive upon all parties might be entered fully protecting it against having to pay the debt or part thereof twice.”

The ground on which the court sustained the bank’s exceptions to Lary’s plea and dismissed him as a party was the claim to the garnished fund, which was only $65, and interest, and was therefore not within the jurisdiction of the county court.

The insurance company admitted its liability to be $404.50, and attempted to bring all parties into the garnishment proceeding to have the court adjudicate to whom the fund was due and that it might have a settlement of all conflicting claims, and so it would not be adjudged that it should pay more than it was justly due to pay. A garnishee is entitled to have all claimants made parties to the proceedings, that he may not be called upon to pay more than he is justly owing. The fund garnished in the hands of the insurance company was within the jurisdiction of the county court, and the insurance company had the right to interplead all claimants to it, regardless of the amount of the claim, and to adjudge to each, if any, the amount due, in order that the interpleader should not be forced to pay any one more than the amount of the fund held by the garnishee. By the judgment rendered in this case Lary was not bound by it, and it left the insurance company subject to further litigations as to whether it was bound to the garnishment issued at the instance of Lary in the justice court. This should not have been, but the right to the fund should have been settled in the county court. Therefore the court erred in dismissing Lary from this proceeding. Rochelle v. Express Co., 120 S. W. 543; Westmoreland v. Miller, 8 Tex. 168; Iglehart v. Moore, 21 Tex. 501; 23 Cyc. 10.

The second assignment of error Is:

“The answer of garnishee showing that there was and is a garnishment suit pending against garnishee in the justice’s court, precinct No. 1, Hill county, Tex, in which E. B. Lary is plaintiff, and J. W. Morgan is defendant, and that the said plaintiff, E. B. Lary, is seeking to subject the fund in garnishee’s hands to the payment of a debt alleged to be owing him by the defendant J. W. Morgan, the court erred in sustaining the objection of the defendant First National Bank of Itasca to the testimony of the witness Hart and in refusing to permit garnishee to show by said witness that there was such a garnishment suit pending in said court, and that the defendant J. W. Morgan had been cited and made a party to said garnishment suit by garnishee, all of which is more particularly set out in garnishee’s bill of exception No. 1.”

The trial court excluded the testimony on the exception of the First National Bank of Itasca, as stated in the assignment of error just quoted.

The insurance company had the right to protect itself from a double recovery. It being shown that the fund was not sufficient to pay both claims, it was error not to allow proof of the amount of Lary’s claim.

The third assignment of error complains of the court for not allowing garnishee an attorney’s fee for filing its answer. The garnishee filed its answer admitting its indebtedness and submitted to the court the conditions under which it was situated. It admitted the amount, made no fight, and sought only the protection of the court to prevent a double recovery. This we think' it had the right to do, and was entitled under the statute to an attorney’s fee.

For the error indicated, the judgment against the insurance company is reversed, and the cause remanded.
      &wkey;>For other caaes see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLX, C. J.

text:
    KING et al. v. DAWSON.
    (No. 5773.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1917.
    Rehearing Denied Feb. 21, 1917.)
    1. Master and Servant <&wkey; 107(2) — Injuries to Servant — Liability.
    Where a servant passed through a hole in a floor, and, to reach the hammer he was seeking, braced himself against an unblocked rolling door, when he could have held about a post, with his foot on a cleat, and so reached the hammer without touching the door, and the door moved so that he - fell and was injured, his employer was not liable, since the mere fact that an appliance, as the door, happens to be placed where it can be used for the performance of work does not warrant the inference that the master meant that the servant should use it as he did, or the inference that the master was in fault in not knowing that the servant was likely to do so.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 200, 254.]
    2. Master and Servant &wkey;>128 — Injuries to Servant — Liability.
    If the door had fallen on the servant while being put to its normal use of being opened or shut, or had fallen of its own weight and injured the servant, the latter would have had a cause of action against his employer, but not when it fell from a use for which it was not intended.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 256.]
    3. NEGLIGENCE <&wkey;25 — LIABILITY — PRECAUTIONS AGAINST INJURY.
    It is not negligence to fail to provide for an accident which could not have been foreseen.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 35-38.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Suit by Ed Dawson against Mrs. H. M. King and others. From a judgment for plaintiff, defendants appeal. Judgment reversed, and judgment rendered that plaintiff take nothing by his suit.
    James B. Wells and J. K. Wells, both of Brownsville, H. R. Sutherland, of Corpus Christi, I-Iarbert Davenport, of Brownsville, and G: R. Scott, Boone & Pope, of Corpus Christi, for appellants. J. C. Scott, of Corpus Christi, Geo. P. Brown, of Laredo, and E. B. Ward, of Corpus Christi, for appellee.
   FLX, C. J.

This is the third appeal in this case. 121 S. W. 917, and 171 S. W. 257. The case is fully stated in the two opinions on the former appeals. The two reversals took place because the trial judge failed and refused to submit questions of fact to the jury. The trial from which this appeal arises resulted in a verdict and judgment for appellee in the sum of $7,500. The cause was submitted on special issues.

The facts on the last appeal of this case indicated to this court, and it was so found, that in going upstairs through the hole that had been cut for a staircase “it was absolutely necessary to take hold of the door.” This court also found that “the failure to furnish stair steps made it absolutely necessary for appellee to pull himself up through the hole by laying hold of objects on either side of the hole.” We also found that appellee “was compelled to grasp the door on one side and the post on the other,” in ascending to the upper floor. The facts on this appeal present a different case from that on the former appeals. The testimony of appellee shows that there was a post at or near the opening left for the staircase; that cleats or wooden cross pieces had been nailed to the post, forming handholds and steps to be used in ascending to the upper floor. On the occasion that he was hurt appellee ascended the post by means of the cleats thereon for the purpose of getting a hammer on the upper floor. He had reached a point where the hammer could be reached. He was standing with his left foot on a cleat and his right suspended in the air, his left arm being clasped about the post from the front, and not from the rear, as would seem to be the most natural and effective way. While in this position he reached over and placed his right hand on the rolling door which was on one side of the stairway on the upper floor, at the same time releasing his hold of the post with his left hand. He intended to pick up the hammer with the left hand. When he pressed the door with his right hand it rolled off at one end and swung down, causing appellee to fall.

Appellee admits that he could have put his left arm around the post with his left foot on the cleat, and could have reached the hammer with his right hand without touching the door, or he could have stepped from the post to the floor and have safely secured the hammer with either hand. Appellee testified;

“If I had thought that the door was going to fall, I would have put my right foot on that cleat and put my left arm around the south side of that 6x6 and pulled myself against the post, and have reached over with my right hand and have gotten the hammer.”

Instead, he chose to stand on the cleat with his left foot, his right foot suspended in the air, and lean over and press against the rolling door, and try to get the hammer with his left hand. His position was awkward and insecure, and he admitted that if the door had been securely blocked and had moved any “reasonable distance,” as it probably would have done if he had pressed as he did against it, he would have fallen. There was absolutely no necessity for using the door to ascend to the second floor, and it was not used for that purpose by appellee. Nor was there any necessity for appellee to use the door as a brace while he was reaching for the hammer. There was a platform on the first floor from which appellee and the Mexicans assisting him would step on the first cleat to ascend to the upper floor. Appellee had been up the post a number of times, but did not use the door to ascend. There was no necessity for so doing.

The question of a safe place in which to work is not raised by the evidence. The place was perfectly safe for the prosecution of the work in which appellee was engaged, and, had appellee not attempted to use the door in a way it was never intended it should be used, it would never have fallen, or if he had used the means and instruments supplied for reaching the second floor, he would not have been, injured. No one would have anticipated thht appellee would climb the post and press upon the rolling door, which he in the discharge of his duties was not called upon to touch, and use sufficient force to throw the door off its support. “The mere fact that an appliance happens to be placed where it can be used for the performance of the work which the injured servant undertook to do with it does not warrant the inference that the master meant that he should use it as he did, or the inference that he was in fault in not knowing that he was likely to do so.” Labatt, Master and Servant, § 921.

The master’s obligations to the servant are limited by the uses to which the instrumen-talities were intended to be put by tbe servant. In a Mississippi case (Bell v. Oilmill Co., 77 Miss. 387, 27 South. 382), an employs hauling buckets of tar up on a roof lost his balance, and, in falling, graspedi>a triangular wooden “horse” used as an appliance in hauling up buckets. It broke and fell, and it was held that the defendant was not liable because it did not appear that the instrumentality was insufficient for the purpose for which it was intended. To the same effect are numerous authorities. Jayne v. Sebewaing Coal Co., 108 Mich. 242, 65 N. W. 971; Telephone Company v. Speicher, 59 N. J. Law, 23, 39 Atl. 661; Lighting Company v. Letherman, 46 Ind. App. 303, 92 N. E. 346; McPherson v. Bridge Co., 20 Or. 486, 26 Pac. 560; Morrison v. Burgess Sulphite-Fibre Co., 70 N. H. 406, 47 Atl. 412, 85 Am. St. Rep. 634.

In the last case cited, the facts, briefly stated, were that Morrison was a workman who had access to every part of defendant’s building, and his work took him to every part of the mill. There was an elevator whose top was open, but covered with a canvass. While at work the plaintiff-stepped on the canvass and was precipitated into buckets in the elevator used for conveying material to different floors. Plaintiff thought the elevator was covered with boards; but it was not necessary, but convenient, for him to step on the top of the elevator. The owner did not intend the elevator to be used as it was by plaintiff. The court said:

“If this elevator was a tool or appliance, the defendants owed the plaintiff no duty respecting it at the time of the accident, for he was then putting it to a use for which he knew it was not intended; and, although it is a master’s duty to use due care to furnish his servants tools and appliances suitable for the purpose for which they are provided, he owes them no such duty when they put his tools to uses for which they were not intended. * * * The case does not show that the defendants either intended for the plaintiff to use this elevator as he did, or knew, or were in fault for not knowing, that he was likely to do so.”

The facts in that case were much stronger in favor of the plaintiff than in this, and we are not called upon to approve it as applied to its facts, but it is pertinent and applicable to the facts of this case.

The liability of the master does not attach under the circumstances of this and like cases, because an instrumentality or appliance is put to a use not contemplated or anticipated by him, and because the accident results from contributory negligence on the part of the servant. As said in Felch v. Allen, 98 Mass. 572:

“If the servants undertake to use machinery or instruments for purposes for which they were not designed, and for which the employer had no reason to suppose they would he used, it is their own fault or folly if harm comes from it.”

The facts in this case do not tend to show that the employers of appellee could have possibly anticipated that appellee would use the rolling door as a brace for his body while he reached for a hammer or for any other purpose. If the door had fallen while being opened or shut, or if it had fallen of its own weight and had injured appellee, he would have had a cause of action. Or if it had been shown that appellants had not furnished a staircase, and that it was necessary to use the door in ascending to the second floor, appellee might claim damages. But this was not done, and it appears that appellee and his employes had been ascending to the upper floor without touching the door, and when he was hurt he was not using the door to reach the upper floor, but was using it as a convenience, or, perhaps, because another way to reach the hammer, while safer, would have caused a little more exertion. The failure to have a staircase and failure to block the door were not the proximate cause of the injury to appellee, but the injuries arose from appellee using the door for purposes for which it was not intended it should be used, and for which it had not been customarily used. As was said by this court, through Associate Justice Neill, in Railway v. Reiden, 48 Tex. Civ. App. 401, 107 S. W. 661:

“While it is the duty of the master to exercise ordinary care to furnish his servant a reasonably safe place to work, the obligation is generally restricted to the purpose for which it was designed. The master is not ordinarily required to answer for an injury to his servant, where the emergency which tested the fitness of the place arose from a use for which it was not designed, and which he could not reasonably anticipate. Hence the rule that an employer is not liable where the servant’s injury was not caused by any defect in the place which affected its safety, when used in the ordinary way and for the purpose for which it was intended.”

In that case the judgment of the lower court was reversed and judgment rendered for appellant, and a writ of error was refused by the Supreme Court. See, also, Railway v. Scott, 64 Tex. 549.

The employer cannot be charged with negligence because, in the light of past events, if certain things had been done, the accident would not have occurred. It is not negligence to fail to provide against an accident that could not have been foreseen. After most accidents it can be seen how it could have been prevented, but that does not tend to prove that the accident should have been anticipated by the exercise of ordinary care and provision made against it. It is what should have been known or anticipated before, and not wbat every one knows after an accident, that fixes the liability of the master. Maue v. Railway, 198 N. Y. 221, 91 N. E. 621; Meyers v. Ideal Steam Laundry, 60 Wash. 134, 110 Pac. 803. It would be the greatest injustice to charge appellants in this case with knowledge of a possible emergency which would necessitate the use of an unblocked rolling door by a servant to prevent his fall from a post upon which he had ascended to an upper floor. As said in the New York case last cited:

“The defendant’s duty and liability are to he measured, not in. the light of plaintiffs sad mishap, but by the conditions which antedated it.”

Our view of the testimony renders it unnecessary to consider the numerous assignments of error of the two appellants.

The judgment of the trial court is reversed, and judgment here rendered that ap-pellee take nothing by his suit and appellants recover all costs in this behalf expended.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      C&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PEREZ v. ATCHISON, T. & S. F. RY. CO.
    (No. 642.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 25, 1917.
    Rehearing Denied Feb. 15, 1917.)
    1. Master and Servant &wkey;>S8(7) — Duties of Master — Course of Employment.
    In an action for damages under federal Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), the evidence showed that the employs, a section hand, after quitting work sought shelter from the elements behind a box car in order to watch his children safely cross the tracks, and while standing was injured by another car with defective brakes, which was propelled by the wind against the car behind which the employé was standing. Held, that peremptory instruction for defendant was proper, the servant being engaged in a personal undertaking in the performance of which the master owed him no duty.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 150.]
    2. Master and Servant <&wkey;88(7) — Duties of Master — Course of Employment.
    That a section hand was subject to emergency calls to duty at any hour did not entitle him' to damages for injuries received by him not in the performance of duty, not during working hours, and while he was engaged in the personal undertaking of watching his children safely cross the tracks.
    [Ed. Note. — For other cases, see Master and Servant, .Cent. Dig. § 150.]
    3. Master and- Servant <&wkey;88(7) — Duties of Master — Course of Employment.
    The fact that a section hand was licensed or permitted to freely pass to and fro across the tracks of the defendant railroad when off duty did not entitle him as licensee to recover damages for injuries received by him while loitering behind a standing box car after working hours, while engaged in the personal undertaking of watching his children safely cross the tracks.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 150.]
    Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.
    Action by Luis Perez against the Atchi-son, Topeka &• Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Volney M. Brown and Jos. M. Nealon, both of El Paso, for appellant. Turney & Burges, of El Paso, and Terry, Cavin & Mills, Jno. G. Gregg, and A. H. Culwell, all of Galveston, for appellee.
   HIGGINS, J.

Perez was employed by ap-pellee as a section hand at the station of Ormonde, Ill. His hours of work were from 7 a. m. to 6 p. m. He lived at Ormonde with his family in a section house furnished by defendant and situate upon its right of way. lie was subject to call at any time after his regular working hours if anything occurred which required attention. On. September 1, 1914, the section gang with which he was working stopped work about 5:30 p. m. and returned to Ormonde. They placed their tools in the toolhouse to the west of the house where Perez lived. Defendant has four tracks at Ormonde which run east and west. The house in which plaintiff lived was situate south of the tracks. After placing the tools in the house, plaintiff started along the tracks to his house, and met his children just before he reached home. They requested and obtained from him permission to go to a house a short distance north of the tracks to get some milk. After granting the permission, Perez passed the house in which he was living, and wont a short distance east thereof to a car which was standing on the most southerly track. This was known as the house track. At the time there was a very high wind blowing and some rain falling, and to protect himself therefrom he passed to the east end of the car and stood behind the same. At the time passenger train No. 15 was due at Ormonde, and Perez testifies that his purpose in assuming the position indicated was to watch his children as they returned home and protect them from injury by the train then due and from any harm from the wind and rainstorm then raging. At the time there was another car standing upon tfye house track. This car was standing alone and some little distance west of the car behind which Perez was standing. The grade sloped from the west to the east. The most westerly car had a defective brake, and the force of the wind started this car to moving. Under the impulse of the wind and force of gravity, it moved easterly and against the car Perez was standing behind, propelling the same against and1 over him, whereby he sustained very severe personal injuries. The accident occurred a few minutes before 6 p. m., but the day’s work had been completed, and he had quit work for the day. The rules of defendant required that station agents must know that all cars standing on side tracks had the brakes properly set, and if the brakes were out of order, the wheels must be blocked, and that a car standing alone should he both braked and blocked. There is evidence that the westerly car was neither properly braked nor blocked, and that the defendant was negligent in leaving it standing in an unsecured position. There is evidence that the section men at Ormonde were permitted to wander in and about the yards there and cross tracks at any point when they were off duty. There was no restriction imposed upon them as to where they should be upon the tracks or right of way. The section hands were required to live in the houses upon the right of way provided by defendant, so they would be immediately available in case an emergency at any time arose for their service.

This suit was by Perez to recover damages arising from the injuries so received. In response to a peremptory instruction, verdict was returned and judgment rendered against him. The instruction was properly given. An employer is only liable as a master to the servant when the latter is actually in his service, and the relation does not exist where it appears that the performance of the master’s work had been completed and the servant was engaged in a personal undertaking. Railway Co. v. Gonzales, 163 S. W. 619. At the time of the injury, Perez was performing no service for the defendant, but he was engaged in a purely personal undertaking. Under the facts detailed, appellant claims he was entitled, at the time of his injury, to the care that a master owes to a servant while on duty. It is true that he was subject to call in case of an emergency, but this does not alter the fact that at the time he was not on duty, and was engaged upon his own private affair. The master does not at all hours of the day owe to the servant the care that is owed while the servant is in the discharge of his duty under his employment. The master owes this duty to -the servant only while the latter is engaged in the performance of his work. This general rule has been extended to also apply while the servant was necessarily upon the premises of the master in going to and returning from his work, or when for a short time he has stopped his work for some natural or necessary purpose which would fall within the natural contemplation of the master, and also when present upon the premises of the master for some purpose desired by the master, which will assist in the performance of the master’s work. Very generally speaking, this.covers the time when he is entitled to protection as a servant, and we know of no case that has gone so far as to hold that he is entitled to this protection when he was not performing any. duty, when he was not present at the particular place for the master’s benefit, and when he was engaged in a purely personal undertaking.

At first blush, the cases cited by the appellant might seem to sustain his contention in this case, but a careful analysis of them will show that each one comes under the rules set out above, and that in each case there was some fact which showed the servant was not on' a private undertaking, but was either engaged in doing something that was natural and should have been anticipated, or which would assist in some way in the furtherance of the plans of the master. Those most pertinent will be briefly reviewed.

In Railway Co. v. Scott, 71 Tex. 703, 10 S. W. 298, 10 Am. St. Rep. 801, plaintiff, a watchman, in employ of the railway company, under order of the regular engineer, who, from sickness, was disabled for duty, took charge of a work train and ran to where some pile driving was being done. The engine used in pile driving was on the rear car of the train. Plaintiff, upon stopping the train at its destination, went back to the car in which was the pile driver, boiler, and engine, when the boiler exploded, injuring him. It was held that the fact that he was not engaged in labor.at the time of the injury, he being with the train in discharge of a duty the engineer had power to impose, would not, for the time, destroy the relation of master and servant, and he was entitled to the care owing by a master to a servant on duty. In discussing this phase of the case, Judge Stay ton said:

“It is true that the employer is only liable as master to the servant when the latter is actually in his service, and that at times, during the period of an engagement, the employé may sustain to the employer no other relation than that of stranger. It does not follow from this, however, that the1 employé is to be deemed in the employer’s service only when he is actually engaged in labor. He is to be deemed in the master’s service whenever present to perform his duty under the contract creating the relation of master and servant and subject to orders, although at a given moment he may not be engaged in the actual performance of any labor.”

In Railway Co. v. Ryan, 82 Tex. 565, 18 S. W. 219, plaintiff was a member of a bridge gang, and living in a car furnished by the defendant for that purpose. While sitting in th’e car after working hours and engaged in writing a letter, he was injured by a collision occurring through the defendant’s negligence. It was held that at the time plaintiff was in the service of the master. It was said:

“In this ease we think it is evident, from the facts testified to by the appellee, that he was, in contemplation of law, in the employment of the company at the time of the collision. His presence in the car on the side track at the time of the collision can be explained in no other way under the proof. It was only by reason of the fact that he was an employé of the company that he was in the car on the side track at the time he was injured. We do not wish to.be understood as holding that if the fact was established that his employment had terminated, he could not recover in a proper case. But we mean to say that we do not think that under the facts in this case his employment had ceased, or that he was not, in contemplation of law, at the time of the injury in the service of his employer. We think that he was in such' employment.” Railway Co. v. Welch, 72 Tex. 298, 10 S. W. 529, 2 L. R. A. 839, was parallel to the Ryan Cáse.

These last two mentioned cases may be readily differentiated from this one in this: That at the time of the accident, the plaintiffs therein were not only subject to call, but were in a place where they were authorized and expected to be, whereas Perez, though subject to call and having a right to cross the trade at any point, was not authorized to loiter upon the track in the lee of a car, and defendant could not reasonably have expected that he would be in such a position; and the presence of Ryan and Welch in the car when they were injured was with the master’s knowledge and for the master’s benefit, and it was only natural that they should have been entitled, under the circumstances, to protection.

In the cases of Railway Co. v. McHale, 47 Tex. Civ. App. 360, 105 S. W. 1149, and Railway Co. v. Turner, 92 S. W. 1074, the servant was actually engaged in his duties, and only stopped for a few. moments to perform acts which the master should have expected, and in reality did not amount to stopping work, or to entering upon any other undertaking.

In Railway Co. v. Balliet, 48 Tex. Civ. App. 641, 107 S. W. 907, the employé was looking for the yardmaster in order to get him to do certain things which would assist in the performance of the duties required by his employer. The result of his acts would have been of benefit to his master, and not to himself, and in this case there was nothing in the nature of a stepping aside from his regular work to engage in any private business.

. in Railway Co. v. Rentz, 162 S. W. 959, the servant had entered the master’s premises just a few minutes before time for him to assume his duties. It was necessary that he should come upon the premises before going to work, and his only purpose, so far as appears, in being there at that time was to start upon th'e performance of his duties. No personal reason appears for his having been there at that time.

In Foster Humber Co. v. Rodgers, 184 S. W. 766, the injured party was on the lumber company’s tram track in connection with sales to be made by them. It was to their benefit and with their knowledge that he was present at the time, and his only purpose and only reason for being there was to inspect the ties which the lumber company desired to sell. In this case, as in all of the others, his presence was either connected with his work, or was for the master’s benefit, and he had no personal end to subserve by his presence.

In the Hendricks Case, 49 Tex. Civ. App. 314, 108 S. W. 745, the real effect of the holding is that at th'e time the plaintiff was not in the service of his master.

The facts in the instant case take it out of the rules laid in the cases noted. The railway company had no interest in Perez being where he was at the time he was injured. No benefit inured, or could have inured, to it by his stopping upon the track. 1-Ie had completed his labors and had started to his home. Being interrupted, he entered upon a task of his own. He and not the railroad company was interested in the acts which he was performing. Had he been going across the track to his home, a serious question would be presented, but when he stopped on his journey from the railroad’s work and entered upon th'e doing of things in which he alone was interested, the relation of master and servant ceased to exist.

And even though the appellant may have been licensed to pass to and fro across the tracks of the appellee at the point where he was injured, this would not constitute a license to stop and loiter upon the track at that point in the lee of a car. Smith v. Railway Co., 34 Tex. Civ. App. 209, 78 S. W. 556; Railway Co. v. Cowles, 29 Tex. Civ. App. 156, 67 S. W. 1078.

Finding no error in the giving of the peremptory instruction, the judgment is affirmed.
      ®s»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    HORNBECK v. BARKER, Sheriff, et al.
    (No. 650.)
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 25, 1917.
    Rehearing Denied Feb. 15, 1917.)
    1. Appeal and Error @=»237(3) — Review — Preservation op Questions.
    Failure to request a peremptory charge in favor of plaintiff does not preclude the consideration of assignments of error that the undisputed evidence conclusively shows a state of facts entitling plaintiff to recover.
    2. Appeal and Error <&wkey;560 — Review — Statement of Facts — Form and SuffiCIENCY.
    Under Rev. St. 1911, art. 2070, requiring statement of facts on appeal to be in narrative form, a statement of facts covering about 30 pages of record, and containing less than one-half page of evidence in the form of questions and answers, held not to show such flagrant violation of statute and rules as to exclude statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2490-2493.]
    3. Appeal and Error &wkey;»562 — Review — Statement oe Facts — Form and Sufficiency.
    Under district and county court rules 72-76 (142 S. W. xxii), it is unnecessary to copy deeds and acknowledgments in full in the statement of facts, where there is no question as to the validity or correctness in form or record of such instruments.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2495-2499.]
    4. Trusts &wkey;>89 (2) — Resulting Trusts — Evidence — Sufficiency.
    In action to enjoin execution sale of lands, evidence hold to show that the execution defendant had no interest in the lands, but purchased them merely as agent for plaintiff, who advanced the entire purchase price, a resulting trust in hib favor being created, notwithstanding that record title was in his agent.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 135.]
    5. Evidence <&wkey;5S6(3,4) — Sufficiency — Negative Testimony.
    Although there are cases in which negative testimony might sustain a verdict against positive testimony, yet in such cases not only must the comparative credibility of the witnesses be placed in the balance, but there must be something by which the means of knowledge can be weighed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2434, 2435.]
    6. Trusts &wkey;S4 — Resulting Trusts — Rights oe Cestui Que Trust as Against Judgment Creditor and Trustee.
    Where plaintiff advanced to his agent money with which to purchase land, and such agent took title in his own name and gave his personal notes for the unpaid purchase money, which notes, however, were paid by plaintiff before defendant bank loaned money to such agent, a resulting trust in plaintiff was created to the extent of the entire interest in the property, and such properties were exempt from defendant’s statutory lien under levy of execution against plaintiff’s agent; such trusts not being within the operation of the statutes of registration.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 125-127.]
    7. Execution <&wkey;>40 — Property Liable — Resulting Trusts — Enlargement.
    Where plaintiff furnished money for purchase of lands to his agent, who took title in his own name and gave notes secured by vendor’s lien, which notes were subsequently paid by plaintiff, KM, the resulting trust in plaintiff was enlarged by discharge of vendor’s lien, and an execution creditor of plaintiff’s agent could not claim that plaintiff’s resulting trust was in no greater portion of the property than the ratio the cash consideration bore to the entire purchase price.
    [Ed. Note — For other cases, see Execution, Cent. Dig. §§ 50, 89-94.]
    8. Evidence <&wkey;441(8) — Admissibility.
    Where plaintiff furnished money to agent with which to purchase lands, and agent took title in his own name, in an action by plaintiff to restrain execution sale by creditor of his agent, parol evidence was admissible to show the facts leading up to and constituting the entire transaction.
    Error from District Court, Pecos County; Joseph Jones, Judge.
    Suit for injunction by F. A. Hornbeck against D. S. Barker, Sheriff, and others, to enjoin execution sale. Judgment for defendants, and plaintiff brings error.
    Reversed and rendered.
    Williams & Jackson, of Ft. Stockton, for plaintiff in error. Hadden & Smith,.of Ft. Stockton, for defendants in error.
   WALTHALL, J.

Plaintiff in error filed this suit in the district court of Pecos county to enjoin the sale of certain real estate levied on under execution issued out of the county court of that county in a suit wherein the First State Bank of Ft. Stockton was plaintiff and John C. Firth was defendant. The titles to the real estate stood on the records in Pecos county in the name of said Firth. Attachment was issued out of the county court and levied on said land before trial in the suit of the bank against Firth. The lands were in two parcels, lots 1 to 6, block 16, being purchased July 5, 1910, and block 8 being purchased June 22, 1910. A part of the consideration in each purchase was paid in money, and the balance evidenced by notes executed by Firth. On September 29, 1910, Firth conveyed all of the lands to F. A. Horn-beck, but the deeds were not filed for record until January 27, 1915, which was after execution had been issued and levied on the lands in the case of the bank against Firth.

Hornbeck in this suit alleged that Firth purchased the property for him and with his money and took the deeds in his (Firth’s) name. Temporary injunction was granted by the district judge.

The case was submitted to the jury on special issues in two groups, having reference to the two purchases, and on the answers to the issues the court rendered judgment denying permanent injunction and dissolving the temporary injunction. The issues submitted and the answers of the jury are as follows:

Group One.
(1) Was J. O. Firth acting as the agent of F. A. Hornbeck when he purchased lots 1 to 6 in block 16 from James Rooney, Herman H. Butz, and W. P. Rooney? Answer “Yes” or “No.” To this issue the jury answered “No.”
(2) Did said Firth make the aforesaid lots under an agreement with Hornbeck that he was acquiring the same for him? Answer this question “Yes” or “No.” The jury answered “No.”
(3) Was the consideration for the purchase of said lots paid with money furnished by or belonging to Hornbeck? Answer “Yes” or “No.” The jury answered “No.”
Group Two.
(4) Was J. C. Firth acting as the agent of F. A. Hornbeck in the purchase of block 8, conveyed by John R. Nasworthy to said Firth? Answer “Yes” or “No.” Answer: No.
(5) Did J. O. Firth make the purchase of said block 8 under an agreement with Hornbeck that he was acquiring the same for Hornbeck? Answer “Yes” or “No.” Answer: No.
(6) Was the consideration for the purchase ol said .block 8, paid with money furnished by or belonging to Hornbeck? Answer “Yes’.’ or “No.” Answer: No.

Appellant presents seven assignments of error, with appropriate propositions, in which it is insisted that the verdict of the jury is not supported by the evidence, and for that reason the court should have granted his motion for a new trial. It is contended that the evidence is conclusive and undisputed that Firth was acting as agent for Hornbeck in the purchase of the two properties and with Hornbeck’s money under an agreement with Hornbeck that he was acquiring same for him (Hornbeck), that he did acquire same for him, and that the evidence showing these facts is undisputed and conclusive. Plaintiff did not object to the charge submitting the case to the jury on special issues, nor request a peremptory charge, and defendants in error object to a consideration of the assignments on the grounds stated in the assignments because of the failure to request a general charge in his favor. We are referred to Gilbert v. Fuhrman, 182 S. W. 51, and Railway Co. v. Wheat, 173 S. W. 977, as sustaining the contention.

We will not discuss the two cases referred to, but content ourselves with holding that neither sustain the objection made. Defendant in error filed a motion to strife© out the statement of facts on the ground that the statement is made up partly in narrative torra and partly in questions and answers.

The statement of facts cover about 30 pages of the record. The questions and answers complained of cover less than one-half page. Article 2070, R. S., requires the statement to be in narrative form. A portion of the evidence of a witness is in narrative form. The questions and answers copied do not show such flagrant violation of the statute and rales as to exclude the statement of facts. The motion is overruled. We might suggest, however, that under rules 72- to 76 for district and county courts (142 S. W. xxii) it was unnecessary to copy the deeds and their acknowledgments in full, as there was no question made as to the validity or correctness in their form or the record of them.

A discussion of the assignments requires a full synopsis of the evidence. Plaintiff in error introduced a deed duly acknowledged of date July 5, 1910,. from grantors, Rooney, Butz, and' Rooney, conveying to Firth lots 1 to 6, block 16, town of Ft. Stockton, consideration $1,250, of which $500 paid in cash by Firth, balance in vendor’s lien notes of $250 each, due in 6, 12, and 18 months, each signed and delivered by Firth, deed duly acknowledged of date June 22, 1910, from Nas-worthy and wife, conveying to Firth block 8, town of Ft. Stockton, consideration $1,100 cash paid by Firth, and two-notes each for $1,100, executed by Firth and due in 12 and 18 months, retaining vendor liens. Hornbeek testified: Residence, Kansas City, Mo.; occupation, selling or handling lands for self and others; knew Firth; was his brother-in-law; Firth went to Ft. Stockton and in the real estate business at witness’ suggestion; threw; him all business he could; Firth frequently recommended to witness lands as being desirable to purchase, and acted as witness’ agent in the purchase of several pieces of land in Ft. Stockton; witness instructed E’irth to purchase the lands described in the two deeds, stating the terms as in the deeds; instructed Firth by telegram and letter in the two purchases; produced true copies of letters and telegrams on his files; originals sent Firth and could not be shown; _ was in Stockton and talked with Firth regarding making these purchases, and had a verbal understanding before purchases were made. Witness and Wm. New are one and the same person. Used name of New for convenience. Firth had no right or title in or to either of the properties, and did not pay any part of the purchase money. Letters marked “9” and “10,” addressed to “Fritz” and signed “Jack,” are from Firth to witness. Letter marked “11,” to Miss Jean Davidson, is for witness. She was witness’ secretary. Witness had some written correspondence with Firth regarding ' taking the titles in his name and signing notes for part of the purchase price, but was unable to find the originals or copies, except a copy of letter July 1, 1910, produced instructing to take lots in Draper's name. Witness made first cash payment on purchases from Nasworthy and from Rooney,. Butz, and Rooney by draft drawn on witness-by Elrth on July 21, 1910. Draft was made-through the Stockton bank and the First National Bank of Kansas City. Witness produced the draft, which was for $2,200, and said it included the purchase price of other property as shown in Exhibit. Witness stated that he paid to the Ft. Stockton bank all' the money due on all of the notes given by Firth in part payment for the purchase of the-properties and attached to deposition the-correspondence. Firth never had any real right, claim, or interest in the property, and Firth conveyed the property to witness. Witness did not pay Firth $1 for the conveyances. Witness still owns the properties; learned of' the levy of execution through notice made by sheriff mailed to Firth.

Appellant produced and read in evidence-a number of letters and telegrams — one of date May 26, 1910, from appellant to Firth, instructing him to buy the six lots at $1,250, taking title in Firth; letter June 13th from appellant to Firth, confirming wire of same date saying, “Close option in your name-block eight. Have Williams examine abstract block sixteenletter July 1, 1910, from appellant to Firth instructing to send everything to Miss Davidson who will forward to appellant, and instructing;

“ * * * If you have closed on the lots in block 8 and 16 in Draper’s name have Judge Williams take deed back from Draper to me, signed by his wife, or perhaps you had better leave the grantee in the deed blank as I may wish to have somebody else hold title. These deeds from Draper are important for if anything should happen to him I could put them-on record; savy ?"

Appellant read in evidence copies of telegrams: -

“Kansas City, Mo. June 8th, 1910. J. C.. Firth, Ft. Stockton, Texas: Offer twenty-five hundred block eight. Wm. New.”
“Kansas City, Mo., June 16th, 1910. J. C.. Firth. Ft. .Stockton, Texas. Did you contract block eight? Wm. New.”
“Kansas City, Mo. June 13th, 1910. J. C. Firth, Ft. Stockton, Texas. Close option in your name block eight. Have Williams examine • abstract block 16. Wm. New.”
“Ft. Stockton, Texas, June 7th, 1910. Wmt New, 3525 Gilliam Road, Kansas City, Mo. Block eight held at thirty-five hundred one third - cash balance twelve and eighteen months. Have abstract on six lots in block sixteen. Shall mail it you or have it examined here? Answer. J. C. Firth.”

Notation on above in pencil:

“I used New’s name so public would not know who was buying or negotiating. F. A. Horn-beck.”
“ffm. New, 3525 Gillam Road, Kansas City, Mo. [Partly in code message and closing:] Do you want Williams to examine abstract on block sixteen or shall I mail to you? J. C. Firth.”

Letter:

“Ft. Stockton, Texas, 6 — 17—10. Fritz: Have been checking up and find unless I am mistaken we stand as follows: Have purchased for your account block 16, lots 1, 2, 3, 4, 5, and 6, $500.00 cash, $250.00 6 months, $250.00 12 months, $250.00 18 months, 8% block 8, all $1,100.00 cash, $1,100.00 one year, $1,100.00 18 months, 8%. Tracts 79, 80. S5, 86 W. part of Sur. 17, $600.00 cash, $200.00 6 months, $200.00 12 months, 8%. Would suggest you send me draft for $1,600.00 to cover cash payment on block 16 — S. In whose name do you want 16 taken? Who do you want to examine it? Don’t fail to advise. Sincerely, Jack.”

Letter:

“Ft. Stockton, Texas, 6 — 23—10. Fritz: I am to-day drawing on you, as per telegram of yours, for $2,200.00, to cover cash payment on the following described property; Block 16, lots 1, 2, 3, 4, 5, 6, $500.00, block 8, all, $1,100.-00, tracts 79, 80, 85, and 86 survey 17, $600.00. Tours sincerely, Jack.”

Letter:

“Ft. Stockton, Tex. 8 — 12—10. Miss Jean B. Davidson, Kansas City, Mo. — Miss Davidson: Under separate cover, I am to-day mailing you all papers covering following list of lots and acreage owned by Mr. Hornbeck, lots 1, 2, 3, 4, 5, 6, block 16; all of block 8; you will notice that all of the town lots are deeded to me. As for the town lots yon had better write Mr. Hornbeck, asking him what he wishes to do about them. Tours very truly, J. O. Firth.”

Draft:

“First State Bank, Ft. Stockton, Texas, June 21st, 1910. Pay to the order of J. O. Firth two thousand two hundred and no/100 dollars, value received and charge same to account of
J. C. Firth.
“To F. A. Hornbeck, Kansas City, Mo.”

Appellant said:

“This is an original draft, and the matters set out are partly printed and partly written with pen and ink. On the face of the instrument written with lead pencil, is the word ‘less,’ and to right of same immediately under the figures ‘2,200* is the figure ‘1,600’ and a line is drawn under the ‘1,600* as is customary in subtracting one number from another and under the line is the figure ‘600,’ and just to the left of the figures ‘600’ is the words ‘per wire,’ and under the written words, Kansas City, Mo., is ‘Magr., U. 5. & Mex. Trust Co.’ — all of which is in pencil writing. The face of the draft also has in small letters the word ‘with exchange.’ The draft is also stamped ‘Paid,’ dated July 1, 1910, in green ink with letters around margin of stamp, ‘First National Bank, Kansas City, Mo.’ This draft is indorsed in ink on the back, ‘Jno. C. Firth;’ also stamped on back with purple ink as follows: ‘Pay to the order of any bank, banker or Trust Co. All prior endorsements guaranteed. 1145. June 22, 1910. 1145. First State Bank, Ft. Stockton, Texas.’ An exact copy of said draft being as follows: [Then follows copy.]”

Then follow in the record copies of four notes, two each, dated July 5, 1910, in the sum of $250, payable to Rooney, Butz, and Rooney, reciting that they are given in part payment for lots 1 to 6, block 16, Ft. Stockton, conveyed to Firth, retaining lien, and signed by Firth, two notes each dated June 22, 1910, in sums of $1,100, payable to Nas-worthy, in payment of land, Ft. Stockton, conveyed to Firth, retaining lien signed by Firth, notes all marked “Paid.” Then follow letters from Hornbeck to First State Bank, Ft. Stockton, inclosing drafts to pay above notes and receipts from the bank acknowledging receipt of drafts and inclosing notes canceled; deeds from Firth to Horn-beck, date September 29, 1910, conveying the properties involved in this suit; second deposition of I-Iombeck explaining the notations on the $2,200 draft above. Firth testified that he purchased the real estate levied on for appellant; did not at any time use any money of his own in making the purchases; that the money was furnished by appellant to make the payments; that he never had any interest or ownership in the property; took the title in his name at the request and for the conveniénce of appellant; executed the deeds to appellant covering the property; appellant paid him nothing for the deeds.

O. W. Williams testified that he examined the abstract of title to the property for appellant at the request of Firth; is appellant’s attorney and represented him in this case; did not advise him not to put his deed of record, nor to.put them of record; Firth was in the real estate business here at that time and acting largely as appellant’s agent.

H. H. Butz testified:

Sold the lots 1 to 6, block 8, to Firth, stating the terms. When the deal was first made there was a forfeit put up of $200, consisting of Firth’s check on the First National of Kansas - City, and balance of $500 was paid on delivery of deed, and it was paid by. Firth’s check on the First State Bank of Ft. Stockton. At the time the property was sold witness did not know whether or not appellant had any interest in the property; did not know anything about it until this suit was brought. The $200 check first given on the 30th of May, 1910, was sent for collection on the 28th of June, 1910.

It seems to us that the evidence is clear and convincing — in fact, there is none to the contrary — that Hornbeck, through Firth, as his agent, bought the lands' involved in this suit, taking the deeds in Firth’s name, and that he (Hornbeck) paid all of the consideration, both the cash and the deferred, with his own money. Firth had only the equitable title in his name, the legal title remaining in the grantors. There is no question made of any reservation by deed of title or interest in Firth in any of 'the properties. He had none and claimed none. The checks he drew on the Kansas City bank to meet the first cash payments were received by the Ft. Stockton bank for collection, and when Hornbeck paid the cheeks the money was then applied to the cash payments recited in the deeds. We fail to see how appellee can find any interest whatever remaining in Firth upon which to levy an attachment or execution by reason of the existing trust relation between Hornbeck and Firth, under the undisputed facts and evidence in this case. This is not a suit between the trustee and the cestui que trust, nor is it a suit between Firth and the grantors in either of the deeds, nor is the question of the undisclosed principal in the deeds in any way involved. The attachment and execution levy could be effective only on such actual interest as Firth had in the lands at the time of the levy.

As said by the 'Court of Appeals in Railway v. Arias, 10 Tex. Civ. App. 190, 30 S. W. 446, there are cases in which negative testimony might, in the face of positive testimony, sustain a verdict; but in such cases, not only must the comparative credibility of the witnesses be placed in the balance, but there must be something by which the means of knowledge can be weighed.

The evidence is clear and undisputed that Hornbeck furnished every dollar used by Firth in the purchase of the properties levied upon, and that Firth, immediately after receiving the titles in himself, conveyed the entire interest he then held to Hornbeck. If it could be said that Firth, having signed the unpaid purchase-money notes, and for that reason and to that extent, retained an equitable interest in the lands conveyed by him to Hornbeck, the proof shows that before the levy of either the attachment or execution Hornbeck with his own money had paid the notes, and thereby secured to himself both the legal and equitable titles.

Appellee presents three cross-assignments of error: First, to the action of the court in overruling its general demurrer to the petition; second, in overruling its special exception^ the petition, it showing on its face that the land in controversy was levied upon more than four months prior to the filing and recording of appellant’s title; and, third, to the admission in evidence of appellant’s statement to the effect that he had some written correspondence with Firth regarding his taking the title to the properties in his (Firth’s) name and signing the notes for deferred payments, the correspondence showing that it occurred subsequent to the taking of the deed in Firth’s name. It is the contention of ap-pellee under its first assignment that, Firth having taken the deeds in his name and executed the vendor lien notes in each transaction, Hornbeck, by having furnished the money to pay the cash considerations and assuming the lien notes, can claim a resulting trust in no greater portion of the property than the ratio the cash consideration bears to the entire purchase price, whatever may have been their intentions or agreements preceding, attending, or subsequent to the transactions. Briefly the petition alleged that Firth, by previous agreement and as agent for Hornbeck, bought the properties, paying in each instance a part of the consideration with Hornbeek’s money, and executed his (Firth’s) notes for the deferred' payments, and took the .deeds simultaneously in his own name; that Firth subsequently convey-1 ed the properties to Hornbeck, Hornbeck assuming to pay, and before the levy of the attachment and execution did pay, with his own money, all of the deferred payments. Appellee refers us to a number of cases which he contends sustain his view.

if we are right in our conclusion that the evidence shows that Firth bought the properties with Hornbeck’s money and held the titles in trust for Hornbeck, and that, although Firth gave his notes for the unpaid purchase money, Hornbeck paid said notes before the bank made its loan to Firth on which it obtained its judgment against Firth, and before the levy of the bank’s attachment and execution, we think it also follows that these facts establish a resulting trust in Hornbeck to the extent of the entire interest in the properties, and that the properties were exempt, by reason of the trust, from the bank’s statutory lien under the levy of its execution, as such trusts are not .within the operation of the statutes of registration. Blankenship v. Douglas, 26 Tex. 225, 82 Am. Dec. 608; Brown Hardware Co. v. Marwitz, 10 Tex. Civ. App. 458, 32 S. W. 78; Hix v. Armstrong, 108 S. W. 797; Hood v. De Cordova, 92 Tex. 202, 47 S. W. 522. As said in Simpkins on Equity, p. 235, in creating re sulting trusts, equity keeps its eye on the consideration and protects the one who furnishes it. The trust follows the consideration. Equity creates the trust for the purpose of transferring the legal estate to the beneficiary, and declares the trust that the right of property may be fixed. The rule would be different if Firth had paid the consideration with his own means, although his intention at the time was to have Hornbeck reimburse him for his money paid. His mere intention at the time of the payment would not create a resulting trust in Hornbeck. Firth would in that instance simply be Horn-beck’s creditor to the amount of such payment. Torrey et al. v. Cameron et al., 73 Tex. 583, 11 S. W. 840; Johnson v. First National Bank, 40 S. W. 334. Neither would any act, conduct, or payment of Firth’s prior or subsequent to the purchase of the proper ties, entirely independent of the actual purchase, although the prior or subsequent act is a complete ratification of what was done in the purchase, have the effect to create the resulting trust. But ,we think that where a purchase is made for Hornbeck by Firth as his agent and earnest money paid, or the first cash payment is made, by Hornbeck, and a deed is executed' and delivered in the name of and to Firth, reciting an unpaid balance of the purchase price evidenced by vendor lien notes signed by Firth, and where Horn-beck subsequently, with his own means, paid the cash consideration as previously agreed and understood, such payment would not be an act independent of the purchase of the land, but such subsequent act of payment would be a continuation and part of the original transaction of purchase. Arnold v. Ellis, 20 Tex. Civ. App. 262, 48 S. W. 883; Perry on Trusts (6th Ed.) § 133. We think the facts of this case can be distinguished from Oury v. Saunders, 77 Tex. 278, 13 S. W. 1030. In that case Saunders purchased the land at public sale in his own name and for himself, and the entire purchase price was expressed in a deferred vendor’s lien note. When the note became due Saunders did not have the money to pay the note, and to pay the note he used the money in part payment of children of his first wife, he having their money in his possession in trust, and the balance of the money was taken from money belonging to Mrs. Gordon. It was held in that case that at the time of the purchase by Saunders he did not contemplate the use of the children’s money in paying the note, and the use made of the money was in paying off the note, and not in the original purchase of the land three years before. The Supreme Oourt held that in determining the question of a resulting trust we must look to the transaction in which the money was used, i. e., in paying off the notes, and not in the purchase of the property. It ,was held that a resulting trust was not created. To the same effect is the holding of the court in Lacey v. Clements, 36 Tex. 662, where the money used was no part of the original purchase money, the court holding that no subsequent advance of money after the purchase' was complete can become the subject of resulting trust; the advance of money to create the trust must be coeval with the execution of the deed. In that case Smith, one or two years after the purchase of the property by Lacey, bought the notes given in part payment for the land. He also purchased an older mortgage over the property. Lacey sold the whole property to Smith in discharge of Smith’s claim, the half of which Smith sold back to Lacey, and leased to Lacey, the remaining half, Lacey then holding the one-half free of incumbrance. The circumstances did not create a resulting trust. The rule is stated by Perry on Trusts & Trustees (6th Ed.) § 133, that the trust must result, if at all, at the time the deed is taken and the legal title vests in the trustee, and that no oral agreements and no payments before or after the title is taken will create a resulting trust, unless the transaction is such at the moment the title passes that a trust will result from the transaction itself. But the same author says, if the transaction creates a trust, a subsequent act may enlarge its effect, as by removing a mortgage to which the trust is subject We think that in the case at bar the entire transaction, when looked to, discloses that the trust was subject to the vendor’s lien, and that a discharge of the lien by Hornbeck simply enlarged the effect of the original purchase, and comes well within' the rule stated..

There was no error in overruling the general and special exception as claimed in the cross-assignments.

Neither is there error in admitting the evidence complained of in the third cross-assignment. Parol proof is admissible to show the facts leading up to and constituting the entire transaction between Horn-beck and Firth under which the properties were purchased. Hornbeck sufficiently accounted for the absence of the original correspondence, and was then permitted to introduce copies of the correspondence between himself and Firth relating to the transaction of the purchase. Other evidence showed the agency of Firth, and the evidence admitted had reference to the agency and the transaction, and before the transaction of the purchase was fully completed by the payment of the entire purchase money.

For the reasons stated, the case is reversed, and it appearing that the matters of fact have been fully developed, judgment is here rendered that the injunction prayed for by appellant be granted and made final.
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