author: BRADY, J.

text:
    WESTERN UNION TELEGRAPH CO. v. FLETCHER.
    (No. 6014.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 29, 1919.)
    1. Telegraphs and Telephones <®=o65(1)— Failure to Deliver Message — Petition.
    Petition of person willing to sell cattle, against telegraph company, for failure to deliver to him message stating buyer’s willingness to buy, J.veld demurrable as not alleging sufficient facts to show contract by telegraph company to transmit and deliver message, which it was alleged was never delivered, and as not sufficiently alleging facts to show existence of company’s duty to transmit and deliver.
    2. .Sales <S=>22(4) — Offer and Acceptance-Conditional Acceptance.
    Answering telegram expressing willingness of buyer of cattle to take heifer yearlings offered him held not acceptance of seller’s proposal to sell, not having been' unconditional, so that no binding contract of sale resulted.
    3. Contracts cg=26 — Offer and Acceptance —Acceptance by Telegraph.
    If contractual offer -be submitted by telegraph, sendee may accept proposal by same instrumentality, and, if there is an 'unconditional acceptance, filing of telegram of acceptance with telegraph company constitutes binding contract without reference to delivery.
    4. Telegraphs and Telephones ®=?60 — Contract by Telegraph — Liability op Company.
    Where filing of response to telegram with telegraph company made a binding contract, there could be no recovery against it for failure to transmit the response.
    5. Telegraphs and Telephones <S=^60 — Failure to Transmit Counter Proposition-Right oe Action.
    If telegraph company assumed duty to transmit telegram accepting, though not unconditionally, a contractual offer, and negligently failed to transmit and deliver to party making the offer, the latter could recover any damages proximately resulting from his failure to receive qualified acceptance or counter proposition, providing he could show he would have consummated contract on terms of telegram of acceptance.
    Appeal from Lampasas -County Court; J. Tom Higgins, Judge.
    Suit by E. N. Fletcher against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Albert T. Benedict, of New York City, and McCartney & McGee, of Browmvood, for appellant.
    W. H. Adkins and Word & Walker, all of Lampasas, for appellee.
   BRADY, J.

Appellee brought this suit in the county court of Lampasas county against appellant, alleging, in substance: That appellant, a private corporation with an agent at Lampasas, had prior to and since July 7, 1916, owned and operated a telegraph line from Lometa, Lampasas county, Tex., to Carrizo Springs, Dimmit county, Tex., and for hire transmitted telegrams ‘and messages for the public generally between said points. That on said date appellee was the owner of 150 head of yearling heifers of the reasonable market value of $27 per head; said cattle being located in Lampasas county. That on or about said date appellee “delivered to defendant’s agent at Lometa, Tex., a telegram addressed to R. R. Tate, Carrizo Springs, Tex., offering to sell said yearlings to said Tate at the sum of $30 per head. That on or about the 9th day of July, 1916, said R. R. Tate delivered to the defendant’s agent at Carrizo Springs, Tex., a telegram addressed to this plaintiff at Lometa, Tex., in which telegram said Tate advised this plaintiff that he would take 150 head of said yearlings at the sum of $30 per head.” Ap-pellee further alleged that by the terms of the telegrams defendant and its agent were informed of the facts and circumstances requiring a speedy transmission and delivery of said telegrams; that defendant was in possession of the telegrams, and appellee demanded their production. Appellee further alleged that the telegram dated July 9th, from Tate to* appellee, was never delivered by defendant, and that appellee did not know until long thereafter that Tate had delivered the telegram “to the defendant for delivery to this plaintiff.” It was alleged that by the use of reasonable and proper diligence appellant could have delivered the telegram to appellee at Lometa, and that he would have been able to make the sale of said yearlings to Tate for $30 per head, and that Tate was at said time ready, able, and willing to pay appellee said sum. Appellee alleged damages in the sum of $450, as the result of the alleged negligence of appellant in failing to deliver said telegram of July 9th, and prayed judgment therefor.

Appellant answered by general demurrer, certain special exceptions, and by general denial, and the case was tried by the court without a jury, and judgment rendered for appellee against appellant for the sum of $450. The trial court filed findings of fact and conclusions of law, as follows:

“Findings of Fact.
“First. I find that on July 7, 1916, prior to and since said time, the defendant, Western Union Telegraph Company, was a private corporation duly incorporated and doing business in Lampasas county, Tex., and owned and operated a telegraph line from the city of Lometa, Lampasas county, Tex., to Carrizo Springs, Dimmit county, Tex.
“Second. That on said 7th day of July, 1916, plaintiff was a resident of Lometa, Lampasas county, Tex., and was the owner of 152 head of straight ‘Y’ brand heifer yearlings, of the reasonable market value at Lometa, Lampasas ■county, Tex., of $27 per head at said time; said yearlings being good clean stuff with no dogies among them.
"Third. That the plaintiff was informed that one R. R. Tate, who resided at Carrizo Springs, Tex., wanted to buy said cattle.
“Fourth. That on or about the 7th day of July, 1916, plaintiff delivered to defendant, its agents and employes at Lometa, Lampasas county, Tex., a. telegram for transmission addressed to R. R. Tate, Carrizo Springs, Tex., which said defendant transmitted to said R. R. Tate at Carrizo Springs, Tex., wherein plaintiff offered to sell to the said R. R. Tate 150 head of heifer yearlings at the price of $30 per head, and to send man to look at said cattle.
“Fifth. I find that the said R. R. Tate knew the cattle owned by plaintiff, and was acquainted with their kind and character, having seen said cattle a few days prior to the date of said telegram.
. “Sixth. I find that said R. R. Tate, on July 9th, delivered to the defendant telegraph company a telegram at Carrizo .Springs, Tex., for transmission and delivery to plaintiff at Lometa, Lampasas county, Tex., the following telegram: ‘E. N. Fletcher, Lometa, Texas. . 7/9/16 40 pd. N. L. 01. Will pay thirty dollars for heifer yearlings for straight “Y” brand dogies taken ■out and then ten per cent. cut. Cannot, handle less than one hundred and fifty. Will be able to ■receive them by the fifteenth of this month. R. R. Tate So. B. M. 5.48p.’
“Seventh. I find that at the time of the delivery of said telegram to the defendant by said R. R. Tate for transmission and delivery to plaintiff, and until and after the 15th of said month, the plaintiff was the owner of 152 head of heifer yearlings, straight ‘Y’ brand, there being no dogies in said 152 head, all of said 152 head being well bred, clean Hereford yearlings, and that plaintiff would have accepted said sum of $30 per head for 150 head of said cattle and •delivered same by the 15th. day of said month, if defendant had delivered said telegram to plaintiff within said time.
“Eighth. I find that the said R. R. Tate was ready, able, and willing to comply with the terms of said telegram so delivered by him to defendant for transmission to plaintiff.
“Ninth. I find that defendant failed to deliver ■said telegram from said R. R. Tate to plaintiff within a reasonable time after same was accepted by defendant for transmission to plaintiff, and never delivered said telegram to plaintiff until long after the time limit in said telegram had expired, and that plaintiff never ascertained that said Tate had sent said telegram to defendant for transmission to plaintiff.
“Tenth. I find that, when plaintiff first learned of the sending of said telegram by Tate, the time limit fixed by the said Tate in said telegram had expired, and it was too late and impossible for plaintiff to comply with the terms ■of said contract.
“Eleventh. I find that by the use of reasonable and ordinary care and diligence the defendant could have delivered said telegram from said Tate to plaintiff at Lometa, Tex., within the time limit fixed in said telegram for the delivery of | said cattle, and that plaintiff could and would have sold and delivered to the said R. R. Tate by the 15th of July, as specified in said telegram, 150 head of heifer yearlings, straight ‘Y’ brand, no dogies, at $30 per head.
“Twelfth. I further find that the telegram from plaintiff to said Tate was a proposition to sell 150 head of yearlings at $30 per' head.
“Thirteenth. I find that the telegram from said R. R. Tate to plaintiff that defendant failed to deliver was an acceptance of said proposition from plaintiff, provided the cattle were delivered by plaintiff to said Tate by the 15th day of July, 1916.
“Fourteenth. I find that by the terms of said telegrams defendant was put upon notice as to the purpose of said telegrams and*of facts and circumstances requiring a speedy transmission and delivery of said telegram, and that said sale could not be consummated if said telegram was not delivered within the time specified in said telegram for the delivery of said cattle, and that time was the essence of said contract.
“I conclude as a matter of law that the plaintiff, E. N. Fletcher, is entitled to recover of and from the defendant, the Western Union Telegraph Company, by reason of its failure to deliver said telegram from said R. R. Tate to plaintiff, the sum of $450, being the difference in the mai’ket value of said cattle at Lometa, Lampasas county, Tex., at the time said telegram should have been delivered, and the price the plaintiff could and would have sold said cattle to said R. R. Tate had said telegram been delivered to plaintiff within a reasonable time after it was delivered to said defendant for transmission and delivery to plaintiff.”

We adopt the findings of fact made by the trial court, except in the particulars and with the qualifications hereinafter indicated.

Appellant by his first assignment of error complains of the action of the trial court in overruling its general demurrer to appellee’s petition. We have carefully examined the allegations of the petition, and have reached the conclusion that the general demurrer should have been sustained, for the reason that the petition does not allege sufficient facts to show a contract by appellant to transmit and deliver the telegram, which it is alleged was never delivered; nor does the petition sufficiently allege facts to show the existence of a duty on the part of appellant to transmit and deliver said message.

It is true that appellee alleged that Mr. Tate delivered the telegram of July 9th to appellant, but it is nowhere alleged that said telegram was accepted by appellant, or its agents, or that it undertook to transmit and deliver the same. Considering a similar question in Western Union Tel. Co. v. Henry, 87 Tex. 165, 27 S. W. 63, Justice Gaines, speaking for the Supreme Court, said:

“Does the petition anywhere allege a contract between either of the senders and the defendant, by which the latter undertook to transmit the messages, or either of them? As to the first message only is it alleged that it was delivered to the defendant, and it .is not even there alleged that it was delivered and accepted for transmission. As to the other messages, it is simply averred that they were ‘sent’ and were ‘delivered,’ but how they were sent, and by whom delivered, is not alleged.”

After stating that the court was not empowered to dispense with the statutory requirement that a plaintiff must state in his petition facts which constitute a cause of action, Justice Gaines, in the above-cited case, held the petition bad upon general demurrer, because no express promise to transmit the messages was alleged in the petition, and because there were no averments of fact from which such a promise can be implied.

In the instant case the sole allegation, which it could he claimed constitutes an averment of a contract or duty on the part of the telegraph company to transmit and deliver the message in question, was the mere averment that Tate delivered the message to defendant and its agent. Under the authority of Western Union Tel. Go. v. Henry, we are compelled to hold that such allegation is insufficient. Therefore we sustain appellant’s first assignment of error, and this case must he reversed for the error of the trial court in overruling the general demurrer.

In view of the disposition we have made of this case, and the probability of another trial, we consider it proper to indicate our views upon some of the other questions raised by other assignments in appellant’s brief. Appellant complains of the eleventh, twelfth, and thirteenth findings of fact by the trial court, on the grounds that the eleventh finding of fact is upon an issue not in the case, and that the evidence does not support any of these findings. We do not agree with appellant that these findings were upon issues not made by the pleadings or the evidence. However, we seriously question the sufficiency of the evidence to sustain the court’s findings that, if the telegram from Tate to ap-pellee bad been transmitted and delivered with reasonable diligence within the t'ime limit fixed in said telegram for delivery of the cattle, appellee could and would have sold the cattle to Tate upon the terms stated in said telegram. We have carefully read all the testimony in the statement of facts. Ap-pellee admitted that he had but 152 head of heifer yearlings “Y” brand at the time, and while he stated that he would have sold the cattle to Tate at the price; $30 per head, if he had received his telegram, he admitted that, if Tate had exercised his privilege of cutting out 10 per cent, of the total number of the cattle, he could only have delivered 135 to 137 head of yearlings, whereas, Tate’s telegram expressly stated that he could not handle less than 150 head. The only other evidence upon this question is the testimony of Mr. Tate. He stated that he was ready, willing, and able to take 150 head of yearlings from appellee, at $30 per head, up to the time stated in his telegram for delivery, and that he had a buyer for that number of the cattle at $32.50 per head. He stated that he knew the cattle well, and had helped to load them at Carrizo Springs a few days before appellee’s telegram was delivered to him. But it will be observed that Mr. Tate did not testify that he would have taken any less than 150 head of the cattle, nor that he would have waived his right to cut out 10 per cent, of the total number. He had reserved the privilege of cutting out 10 per cent, of the cattle, by the terms of his telegram to appellee, although at that time he had all the knowledge that he ever possessed concerning the grade, quality, and number of the cattle. Therefore we say that it is very doubtful whether the testimony sustains the finding that appellee would have sold 150 head of these identical cattle to Tate had his telegram been promptly delivered. However, Mr. Tate’s testimony may he susceptible of the meaning that, knowing the cattle as he did, he would have taken 150 head, and not have exercised his privilege of cutting out 10 per cent, or any part of the 150 head. For this reason, we do not feel inclined to set aside the trial court’s finding on this point; but, in view of the probability of another trial, we think it proper to indicate our doubt as to the effect of Tate’s testimony.

Appellant by certain assignments insists that the trial court erred in its thirteenth finding of fact, that the telegram from Tate to appellee was an acceptance of ap-pellee’s proposition, provided the cattle were delivered by July 15, 1916; and that the court erred in rendering judgment for ap-pellee , under this finding, because the evidence shows that Tate’s telegram was not an acceptance. Appellant follows these propositions with an assignment to the effect that, the court having found that Tate’s telegram was an acceptance of appellee’s offer, there was no liability upon the part of appellant to appellee, because under such findings there was a binding contract made between appellee and Tate, and appellee’s cause of action, if any, was not against appellant, but was against Tate for nonperformance of the contract.

We think appellant is right in its contention that the evidence does not sustain the finding that Tate’s telegram was an acceptance of appellee’s proposition, and that it did not constitute a binding contract between them. It is elementary that a proposal must be unconditionally accepted and in the very terms of the offer, otherwise a binding contract will not result. If there is any substantial alteration in the terms of the offer by the terms of the acceptance, thfere is no contract, but the alleged acceptance will be treated as, in legal effect, a counter proposition. These rules are too well established in the law of contracts to need the citation of any authority.

Tested by these standards, it is ¡ clear to us that Tate’s telegram was not an acceptance of appellee’s proposal. We thirds: there can be no doubt that appellee’s telegram to Tate was a proposal to sell him 150 head of yearlings at $30 per head, but Tate’s telegram did not undertake to unconditionally accept this offer. We will point out the particulars in which we think Tate’s telegram was a variance from tire proposal:

In the first place, appellee did not specify the brand of cattle offered for sale. Tate’s reply specified straight “Y” brand. Tate’s telegram further provided: “Dogies taken out and then 10 per cent. cut. Cannot handle less than 150.” These were conditions not contained in the proposal. Another material variance was the condition in Tate’s reply to the effect that the cattle must be delivered by July 15th, which was also not a part of appellee’s offer. For these reasons, we think the trial court’s finding that Tate’s telegram was an acceptance of appellee’s proposition is not sustained by the evidence.

Whiie we conclude that the evidence did not support the finding that Tate’s reply was an acceptance of appellee’s offer, we do not agree with appellant that under this theory of the case appellee would not be entitled to recover damages against appellant, although he might show that he suffered loss proximately caused by the failure of appellant to perform a contractual obligation or duty to transmit ¿nd deliver Tate’s tele* gram to appellee.

It seems to be the law in this state that, if an offer be submitted by telegraph, the sendee may accept the proposal by the same instrumentality, and, if there be an unconditional acceptance of the proposition, the filing of the telegram of acceptance with the telegraph company constitutes a binding contract, without reference to the delivery of the same to the sender; and that in such cases there would be no cause of action against the telegraph company for failure to •deliver the telegram, or for negligence in its transmission, but that the cause of action, if any, would be against the party accepting the offer and making the contract. See Tel. Co. v. Connell Land Co., 61 Tex. Civ. App. 168, 128 S. W. 1162; Blake v. Ins. Co., 67 Tex. 163, 2 S. W. 368, 60 Am. Rep. 15; Mortgage Co. v. Davis, 96 Tex. 504, 74 S. W. 17, 97 Am. St. Rep. 932; Tel. Co. v. Williams, 137 S. W. 148. However, if the acceptance is not unconditional and complete, but is a substantial variance from the proposal, constituting, in legal effect, a counter proposition, the above rule would have no application. If the telegraph company contracted or assumed the duty of transmitting and delivering the telegram of acceptance, and negligently failed to transmit and deliver the same to the party making the offer, the latter could recover any damages proximately resulting from the breach of contract or duty by the telegraph company, provided he could show that he would have consummated the sale upon the terms and conditions of the telegram of acceptance, but for the negligence or breach of duty on the part of the telegraph company.

The latter rule was recognized and applied by this court in the case of Western Union Tel. Co. v. Williams, 137 S. W. 148, and the facts of that case are quite analogous to the facts of the instant case.

We indicate these conclusions for the guidance of the trial court in event of another trial of this cause. We do not deem it necessary or important to consider any of the other assignments of error in appellant’s brief; but, for the error above pointed out in overruling appellant’s general demurrer to appellee’s petition, this case is reversed and remanded.

Reversed and remanded.
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source: Caselaw Access Project

author: .TALBOT, J.

license: Public Domain

text:
    WITTLIFF v. TUCKER et al.
    (No. 8074.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 4, 1919.
    On Motion to Reverse and Render, Feb. 15, 1919.)
    1. InsubaNce <&wkey;668(3) — Life Insurance— Delivery of Policies — Question for Jury.
    In suit on note given for first year’s premium on life policies issued to defendants, question of delivery of policies through a bank to defendants held for jury under'evidence.
    2. Appeal and Error <&wkey;742(4) — Statement Under Assignment of Error — Admission of Evidence.
    Where court is simply left to presume that exceptions were taken to admission of evidence complained of, and that proper bills were prepared, approved, and filed, in such condition of brief appellant is not entitled to have ruling complained of reviewed.
    On Motion to Reverse and Render.
    3. Insurance <&wkey;136(2) — Life Insurance-Delivery of Policies.
    Contract of life insurance was not complete without delivery of policies to insured, and delivery to a bank was not a delivery to insured, unless they agreed to or instructed such delivery.
    4. Appeal and Error <&wkey;742(5) — Briefs — Statement Under Assignment of Error.
    Statement under third assignment of error, “same as under first assignment of error,” which asserted court erred in instructing to find for defendants, held not in compliance with rules as to briefing, statement under first assignment covering four pages of typewritten brief, and including nearly all testimony.

      5. Appeal and Erkoe i&wkey;499(3) — Questions Reviewable — Biles oe Exception —Exclusion op Evidence.
    Bills of exception not disclosing specific ground of objection, if any, urged to introduction in evidence of each particular receipt offered, merely reciting court excluded each receipt from evidence, and plaintiff appellant duly excepted, held insufficient to authorize review of rulings.
    Appeal from Navarro County Court; M. E. Taylor, Judge.
    Suit by H. A. Wittliif against S. S. Tucker and others. Prom a judgment for defendants, plaintiff appeals.
    Reversed, and cause remanded.
    Dexter Hamilton, of Corsicana, for appellant.
    Hawkins Scarborough, of Corsicana, for ap-pellees.
   .TALBOT, J.

The appellant sued the ap-pellees in the justice court on a promissory note for the sum of $100.85, alleged to have been given for the first year’s premium on life insurance issued to appellees. The ap-pellees pleaded a general denial and failure of consideration in that the policies were never delivered. A trial in the justice court resulted in a yerdict and judgment for the appellees, and appellant appealed to the county court. In the county court a jury was impaneled to try the case, and at the conclusion of the evidence the court peremptorily instructed the jury to return a verdict in favor if the appellees. Appellant filed a motion for a new trial, which was overruled, and he appealed to this court.

Whether the delivery of the policies to the appellees became an issue of fact under the evidence for the determination of the jury, is the question to he decided. If the question should receive an affirmative answer, the trial court erred in taking the case from the jury.

The undisputed evidence shows that the appellees, on July 31, 1914, made application in writing to the insurance company for the issuance of policies of insurance upon their respective lives, and executed the note sued on for the first year’s premium. These applications and the note were delivered to the appellant, Wittliff, as agent of said company and by him forwarded to the company. Each of said applications recited that the “business address” of the applicant was Corsicana, Texas, care First National,” and each contains a provision to the effect that the policy therein applied for shall not take effect until the application has been accepted by the insurance company at its office in Dallas, Tex., and the first premium shall have been paid, accepted by the company, or its authorized agent,'and the policies delivered to the insured, all during his lifetime and continued good health. The applications were duly approved and accepted by the insurance company, and the policies therein applied for were issued. The note sued on was also accepted by the insurance company in payment of the first annual premiums due on the policies. Appellant became and was at the time this suit was instituted the owner of said note. When the insurance policies in question were issued they were sent to the First National Bank of Corsicana for appellees. The evidence was sharply conflicting as to whether or not the appellees personally instructed the agent of the insurance company taking the applications for the insurance to deliver the insurance policy to the First National Bank of Corsicana for the appellees.

Both appellees testified no such instruction was given. The appellant, however, testified: The policies were ¡delivered to the First National Bank at Corsicana, Tex., within 30-days from the date of issuance. The insurance company did not at any time decline to deliver the policies for which note was given. The delivery of the policies was made in compliance with the instructions of the defendants. The delivery was made to the First National Bank at Corsicana, Tex. Such delivery was made by instructions of the Tuckers (appellees) as per instructions on the writing of the business; they both stated that they used the First National Bank for all their business dealings, and that their premiums would always be paid through the First National Bank of Corsicana. This witness further testified:

“At the time the defendants, W. H. Tucker and S. S. Tucker, instructed me to leave the insurance policies at the First National Bank, I was at Drane; no one was present at the time except the Tuckers and myself.”

In addition to the testimony of the appellant it appears that Wilmott Townsend, collector and bookkeeper of the First National Bank of Corsicana, testified, in substance, that he remembered the bank receiving the policies of insurance in question; that he saw the appellees in the bank and mentioned the fact to them, and that they said just keep them there in the vault.

As has been seen, the suit' was upon a promissory note executed and delivered by the appellees to cover the first premium due on life insurance policies, and the only defense was failure of consideration by reason of the nondelivery of said policies. The trial court took the view that this defense was conclusively established by the evidence, and instructed a verdict for the appellees. This we think was error. While the evidence was conflicting, it was sufficient to authorize a finding that the insurance policies issued upon the lives of the appellees were according to agreement of the parties or by instruction of the appellees left with the First National Bank of Corsicana, Tex., for appellees. If tliey were, then delivery on the part of the company was complete, regardless of the failure of the appellees to call for the policies or want of actual knowledge on their part that they were there. “To authorize the court to take the question from the jury the evidence must he of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.” Such was not, in our opinion, the character of the evidence in this case, and the trial court erred in directing a verdict for appellees.

There is an assignment of error complaining of the exclusion of certain receipts offered in evidence by the appellant. In briefing this assignment it is not pointed out that hills of exception wei’e reserved to the court’s ruling- in including this evidence. The assignment of error is that “the court erred in excluding from evidence the following described receipts.” Then follows a description of the receipts, but no reference is made to any bill or bills of exception taken to the action of the court, nor does it appear that any exception whatever was taken to the court’s ruling. We are simply left to presume that exceptions were taken, and that proper bills were prepared, approved, and filed. In this condition of the brief appellant is not entitled to have the ruling complained of reviewed.

The judgment is reversed, and the cause remanded.

On Motion to Reverse and Render.

Appellant’s second assignment of error is as follows:

“The facts of the case prove a complete contract and delivery of the insurance policies for which the notes sued upon was given, there being, under all the facts, a delivery in law.”

, It is asserted that we erred in “ignoring” this assignment. This assertion is evidently made upon the assumption that the assignment was ignored because it is not stated and discussed specifically in our original opinion. The question raised by the assignment is effectually disposed of by what we said in the discussion and disposition made of the first assignment of error. That we reversed and remanded the case for a new trial upon the ground that the evidence did not conclusively show a “complete contract and delivery of the policy” is manifest, we think, from what is said in our original opinion. The contract was not complete, without a delivery of the policies to appellees, and a delivery of them to the First National Bank at Corsicana would not constitute a delivery to appellees unless they agreed to or instructed such a delivery. Whether the policies were left at the bank mentioned by agreement of the parties or in compliance with instructions given appellant by the appellees was, as pointed out in the original opinion, an issuable fact for the determination, and the judgment of the court below was reversed because that court withdrew the question from the jury and directed a verdict in favor of appellees.

Our refusal to consider the third assignment of error is (dearly supported by decisions of the appellate courts of this state. In briefing that assignment the statement made under it does not comply with the rules. The only statement made is: “Same as under first assignment of error.” The first assignment of error asserts that the trial court erred in instructing the jury to find “for the defendants.” The statement thereunder covers about four pages of the typewritten brief, and includes the greater portion, if not practically all, of the testimony in the case. To find out whether or not the bill of exceptions, claimed to have been reserved to the court’s refusal to allow the introduction of the evidence referred to in the third assignment of error, was quoted or the substance thereof stated in the statement under the latter assignment would require at the hands of this court an examination of the entire statement. Such an examination is not imposed upon us by the rules. However, we have looked at that statement, and all we find, which appears under the second proposition advanced under the first assignment of error, relating to the matter under consideration, is that-—

“The plaintiff offered in evidence various receipts for insurance premiums, which were excluded by the court. The plaintiff excepted to the action of the court in each case when the court excluded such receipts.” Transcript, pp. 20 to 25.

In a long line of decisions it has been held that an assignment of error, followed by no statement except a- reference to different parts of the record, is not in compliance with the rules, and will not be reviewed. Bayne v. Denny, 21 Tex. Civ. App. 435, 52 S. W. 983; Kirby Lumber Co. v. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 607; Carlisle v. Gibbs, 44 Tex. Civ. App. 189, 98 S. W. 192; Robertson v. Warren, 45 Tex. Civ. App. 584, 100 S. W. 805; Railway Co. v. Powell, 51 Tex. Civ. App. 409, 112 S. W. 697. Many other cases to the same effect could be cited, but we deem it unnecessary to do so.

There appears in the statement made under the second assignment of error what purports to be copies of the material parts of the bills of exceptions in question; but in the statement under the third assignment of error we are not even referred to that part of the brief to ascertain that such bills were reserved. If, however, we were authorized or disposed to waive the insufficiency of the statement under the third assignment of error, we find upon examination of said bills of exceptions, during our consideration of this motion, which are six in number, that neither of them discloses the ground of objection, if any, urged to the introduction in evidence of the receipt offered each bill, simply reciting in this regard that “the court excluded said receipt from evidence, and the plaintiff then and there in open court duly excepted to the action of the court in excluding the same.” What the particular objection was, or whether only a general objection was made, does not appear.. Neither does the ground upon which the trial court excluded the receipts appear. That such bills of exceptions are insufficient to authorize a review of the court’s rulings is well established. Grinnan v. Rousseaux, 20 Tex. Civ. App. 19, 48 S. W. 58, 781; Railway Co. v. Jarrell (writ of error refused) 38 Tex. Civ. App. 425, 86 S. W. 632.

The motion for a rehearing and prayer to reverse and render judgment in this court in favor of appellant is overruled.
      cfcaFor other -cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©csjFor otEer cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SAN ANTONIO & A. P. RY. CO. v. MOORE.
    (No. 6143.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 15, 1919.
    Rehearing Denied Feb. 12, 1919.)
    1. Railroads <&wkey;338 — Injuries on Track —Last Clear Chance.
    Plaintiff whose automobile stuck on a railroad crossing and was demolished by a train, though the engineer had actually seen it in time to stop by using proper means, could recover from the railroad, even if he had been a trespasser on the track, which he was not.
    2. Railroads &wkey;348(2) — Injuries on Crossing — Proximate Cause — Sufficiency of Evidence.
    In action against railroad for injuries to automobile stuck on its crossing, evidence held to justify finding that railroad’s negligence through its engineer was direct and proximate cause of injury, plaintiff not having voluntarily placed ear on track; it having been there by accident over which he had no control.
    3. Railroads <&wkey;324(l) — Injuries on Crossing — Damage to Personal Property —Contributory Negligence.
    It was not negligence for plaintiff to leave in his automobile a violin, which was destroyed with the car when the latter, stuck on a railroad crossing, was demolished by a train.
    4. Appeal and Error <&wkey;1060(l) — Harmless Error — Refusal to Instruct to Disregard Argument.
    In action against railroad for destruction of automobile stuck on crossing, trial court’s refusal to instruct jury not to consider certain language used by plaintiff’s counsel in argument held harmless.
    Appeal from Kendall County Court; J. W. Lawhon, Judge.
    Suit by L. N. Moore against the San Antonia & Aransas Pass Railway Company. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Augustus McCloskey and Taliaferro, Cunningham & Birkliead, all of San Antonio, for appellant.
    Engelking & James, of San Antonio, for appellee.
   FLY, C. J.

This is a suit instituted by appelleé to recover damages of appellant alleged to have arisen by reason of the train of appellant negligently colliding with and destroying an automobile and a violin contained therein, as well as inflicting personal injuries on appellee. Appellant pleaded contributory negligence. The cause was submitted on special issues, and judgment rendered in favor of appellee for $425, upon the answers of the jury to the special issues.

The evidence shows that appellee, in trying to avoid collision with another automobile at a railroad crossing, was so crowded to the edge of the crossing that his car skidded on a rail and became so fastened an the track that its own power would not release it. While with the assistance of others he was trying to get the car off the track, a train of appellant ran into and destroyed the car and a violin that was in it. Appellee swore that the track, in the direction the train came, was straight, by actual measurement, for 1,400 feet, and the engineer on the train admitted that he saw the object on the track, when halfway on the straight track. He stated that the track was straight for only 800 feet, but the jury evidently preferred the actual measurement of appellee to the calculation or guess of the engineer. Appellee testified that the speed of the train was not lessened until the automobile was struck, although he lighted matches and waved his hat to stop the train. The headlight on the engine illuminated the track for at least 1,000 feet, and the train could be stopped in from 550 to 700. feet. No effort was made to stop the train until it was within less than 500 feet of the automobile.

The engineer should have kept an outlook for the crossing, and if he ¡had done so he would have discovered the automobile at a distance of a least 1,000 feet, and did actually discover it when at least 700 feet away from it, and by using proper means could have stoppped the train before striking the automobile. The fact that appellee might have been a trespasser on the track, although he was not, did not relieve appellant of the duty of keeping a lookout to discover objects on the track. This rule is well established in Texas. Railway v. Sympkins, 54 Tex. 615, 38 Am. Rep. 632; Railway v. Watkins, 88 Tex. 20, 29 S. W. 232; Railway v. Broomhead, 140 S. W. 820; Railway v. Jaramilla, 180 S. W. 1126; Frick v. Railway, 207 S. W. 198, by this court, not yet officially reported.

The evidence justified a finding by the jury that the negligence of appellant was the direct and proximate cause of the injury. Appellee did .not voluntarily have his automobile on the track, but it was there by an accident over which he had no control, and he had used every means in his power to get the automobile off the track, and when that could not be done in time he did all in his power to warn the engineer of the situation. It was not negligence to leave the violin in the automobile.

The third assignment of error assails what is claimed to have been a refusal of the court to instruct the jury not to consider the folllowing language used by counsel for appellee:

“Gentlemen of the jury, you are not here .for the purpose of answering the questions, but to go down deep into the case and do justice.”

It is not apparent what was meant by counsel, but whatever it was it was probably innoxious. We fail to see how it could have had any effect on the verdict.

Hiere is no error pointed out requiring a reversal, and the judgment is affirmed.
      <&3For other eases see same tonic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: RAINEY, O. J.

text:
    BAKER v. GREER.
    (No. 8124.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 1, 1919.)
    1. Beokers &wkey;88(2) — Right to Compensation — Employment—Sufficiency oe Evidence.
    In suit by realty broker for services in endeavoring to exchange defendant’s land with third person, evidence that there was never any employment of plaintiff by defendant 1veld to sustain verdict for defendant.
    2. Brokers <&wkey;67(2) — Compensation — Representation oe Both Parties.
    Where realty broker was representing person who had listed his land for sale or exchange, he could not legally represent his principal and defendant whom he endeavored to procure to exchange land, unless both principal and defendant knew he was representing both, and could not recover compensation or commission from defendant.
    3. Brokers <&wkey;106 — Action by Broker-Liability oe Customer in Default.
    A realty broker, who procures defendant to agree to exchange his land for the land of the broker’s principal, is not entitled to recover damages by way of lost commissions from defendant, who has refused to perform.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    . Suit by I. L. Baker against D. W. Greer. From judgment for defendant, plaintiff appeals.
    Affirmed.
    J. Webb Stollenwerck and J. E. Clarke, both of Hillsboro, for appellant.
    J. J. Avei’itte and Wear & Frazier, all of Hillsboro, for appellee.
   RAINEY, O. J.

Appellant brought this suit against appellee to recover for services rendered by him to appellee in trying to effect an exchange of land with one V. J. Love. Appellant claimed to be acting for both parties, and appellee, after making a contract, refused to consummate the deal, and became bound for appellant’s commission of 2½ per cent., and for that amount appellee would have been responsible had he not refused to have closed the deal.

Appellee answered by general demurrer, general denial, and special denial of making any contract with appellant for him to act as agent in making sale or exchange of ap-pellee’s land, and that he was representing himself in the deal; that appellant was not in any wise the agent of appellee, and that it was never anticipated, understood, or agreed that the appellee had employed the appellant as agent.

Special issues were submitted to a jury, and upon a return of answers thereto favorable to appellee, judgment was rendered in favor of appellee.

The first assignment of error presented by appellant is, in substance, that the verdict of the jury is contrary to the evidence, in that the contract in this case and the basis of this suit is expressed in writing, and marked No. 6 for identification, and then at some length purports to set out some of the provisions of said contract. The 'following proposition under said assignment is presented :

“The evidence as matter of law is that ap-pellee signed instrument No. 6, and that in exact accordance with same a deed was drawn to Mrs. L. E. Ferguson, and all notes and payments were in exact conformation with said instrument No. 6.”

Y. J. Love listed his 156 acres of land with the appellant for sale or exchange. Appellant approached appellee, and endeavored to get appellee to exchange 86 acres he owned for the 136 acres owned by Love, and induced appellee to write him a letter containing a proposition for the exchange of the two tracts. In all the negotiations had between Baker and appellee regarding said deal Baker was representing Love, and appellee was representing himself. There is no evidence in the record that any agreement was entered into between appellee and Baker that Baker was to represent appellee in consummating the exchange of land. One of the issues submitted by the court was:

“Question 8. Did the defendant, D. W. Greer, authorize plaintiff, I. L. Baker, to make the exchange of his S8 acres of land for the 136 acres of land owned by V. J. Love in accordance with the proposition contained in the. instrument signed by D. W. Greer and marked ‘No. 6’?” Answer: “No.”

Purther, the following issue was also submitted :

“Question 10. If you have answered all the above and foregoing questions, ‘Yes,’ then you will state what sum of money you find from the evidence plaintiff is entitled to as a reasonable compensation for his services rendered for defendant, D. W. Greer, and V. J. Love in connection with the exchange or sale of said 88 acres and the said ISO acres of land?” Answer: “None.” .

Also submitted issue No. 3, as follows:

“Did the plaintiff, I. L. Baker, ever tender to the defendant, D. W. Greer, for his ratification and signature, any such written contract as fully complied with the contract required by the terms of the letter dated August 21, 1917?” Answer: “No.”

The record is silent as to any showing of appellee's liability to appellant for any commission due him as agent, and said assignment is overruled.

As appellant was representing Love at the time, he could not legally represent both parties, unless Love and Greer knew and understood that appellant was to represent both parties in the deal. When appellee made his proposition to exchange lands, he did not know that appellant was representing Love in the exchange of his land. Tinsley v. Penniman, 12 Tex. Civ. App. 591, 34 S. W. 365; Armstrong v. O’Brien, 83 Tex. 635, 19 S. W. 268; Keitt v. Gresham, 174 S. W. 884.

In the case of Armstrong v. O’Brien, supra, it is said:

“It is well settled that a person cannot act in the capacity of agent for both the buyer and seller, and receive commissions from both; and frbm principles of public policy such an agent would not be allowed to recover ■ compensation from either party, unless ho should so act with the full knowledge and consent of both principals, and about this exception there is a conflict of authority. It makes no difference that the principal was not in fact injured, or that the agent intended no wrong, or that the other party acted in good faith.”

Appellant is not entitled to recover any amount from appellee for the commission due by Love for appellee’s breach, if any, of the contract of exchange. “A mere land agent or broker has no such interest in a contract to purchase land secured by him as authorizes a recovery of damages in the way of lost commissions from the proposed purchaser, who has refused to comply with the contract.” Le Master v. Agency, 56 Tex. Civ. App. 302, 121 S. W. 185; Tinsley v. Dowell, 87 Tex. 23, 26 S. W. 946; Bird v. Rowell, 180 Mo. App. 421, 167 S. W. 1173.

There are a number of other assignments, but all relate to supposed errors affecting the contract between Love and appellant, the decision of which would in no way affect the questions involved between appellant and ap-pellee, and they will not be further discussed.

The judgment is affirmed.
      <SssFor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    BRIDGES et al. v. HOLLIFIELD.
    (No. 409.)
    (Court of Civil Appeals of Texas. Beaumont.
    Jan. 18, 1919.
    Rehearing Denied Feb. 12, 1919.)
    Judgment <&wkey;17(5) — Process to Support-Naming Dependants — Default.
    Under Rev. St. 1911, art. 1852, providing names of all parties shall be stated in citation, service of citation, in action against residents of the county and residents of another county, had upon the latter, was insufficient to warrant judgment by default against them, where citation named none of defendants except one of resident guarantors.
    Error from District Court, San Augustine County; Garland Smith, Special Judge.
    Action by W. S. Hollifield against W. A. Bridges and others. To review judgment for plaintiff, defendants bring error.
    Reversed and remanded.
    Minton & Lewis, of Hemphill, for plaintiffs in error.
    Wm. McDonald, of San Augustine, and D. M. Short & Sons, of Center, for defendant in error.
   HIGHTOWER, C. J.

This cause comes here on writ of error from the district court of San Augustine county. The defendant in error, W. S. Hollifield, was plaintiff below, and W. A. Bridges, W. K. Knight, R. G. Mc-Gown, J. C. Webb, T. E. Alford, and A. D. McGown, who are the plaintiffs in error, were defendants below. The cause of action asserted by the plaintiff below, briefly stated, was as follows:

It was alleged that the plaintiff, Hollifield, had sold and delivered to one N. A. Griffin a number of head of stock, consisting of horses and mules, for an agreed consideration of $1,275 in the aggregate, which consideration was not paid in cash, but which was agreed to be paid by Griffin within 60 days after such sale to him. It was further alleged by the plaintiff that the defendants above named, by their written contract of guaranty, bound themselves to pay plaintiff the said sum of $1,275 in the event the said Griffin should fail to pay the same when due. It was further alleged by the plaintiff that Griffin had wholly failed to pay any part of the purchase price of said stock, and that he was, at tlie time of the filing of the suit, heyond the jurisdiction of the court, and was hopelessly and notoriously insolvent, and judgment was prayed against the above-named defendants, as guarantors, for the full amount of the purchase price of said stock.

It appears that Bridges, Knight, and Chil-ders were residents of San Augustine county, and each of them, after the suit was filed, executed and filed a waiver of the issuance of any citation as to them, and accepted service as defendants in the suit; but defendants Webb, Alford, R, G. McGown, andi A. L. Mc-Gown, who, it appears, were residents of Sabine county, did not appear or answer in the suit, and, when the ease was called for trial, judgment by default was rendered in favor of the appellee, Hollifield, against all of said defendants jointly.

There is but one assignment of error found in the brief of the plaintiffs in error, and by this assignment the judgment of the trial court is assailed on the ground that the service of citation had upon the Sabine county defendants was wholly insufficient to warrant a judgment by default against them, for the reason that the citation served upon them did not name all the defendants in the suit. Upon consideration of this assignment and inspection of the record as brought here, we have concluded that the contention by plaintiffs in error on this point must be sustained. The purported citation to the Sabine county defendants names none of the defendants in the suit except W. A. Bridges. By article 1852, Revised Statutes, it is provided, among other things, that the names of all the parties to a suit shall be stated in the citation. This statute has been many times construed by the appellate courts of this state, and it has been uniformly held that the requirements of the statute with reference to what shall be stated in the citation are mandatory, and that, where either of the requirements of the statute is shown to be lacking in the citation, a default judgment cannot be sustained. Revised Statutes 1911, art. 1852; Burleson v. Henderson, 4 Tex. 49; Battle et al. v. Eddy, 31 Tex. 368; Delaware Western Construction Co. v. Farmers’ & Merchants’ National Bank, 33 Tex. Civ. App. 658, 77 S. W. 628; Portwood v. Wilburn, 33 Tex. 713; Norvell v. Garthwaite, 25 Tex. 584; McCaulley v. Western National Bank, 173 S. W. 1000.

It would serve no useful purpose for this co'urt to discuss the question here raised more at length, for we consider that the contention made by plaintiffs in error is fully supported by the above-cited authorities, and this court has no other alternative than to reverse this judgment and remand the cause for a new trial, and it is accordingly so ordered.

Reversed and remanded.
      igssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McKELVY et al. v. GUGENHEIM et al.
    (No. 6149.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1919.)
    1. Chattel Mortgages <&wkey;138(3) — Mortgage on Chop — Landlord’s Lien.
    Under Rev. St. art. 5475> a mortgage on a crop given prior to the time when a landlord’s lien attached would not take precedence' over the latter.
    2. Witnesses <&wkey;150(3) — Transaction with Deceased Person.
    Where one of several plaintiffs died after suit commenced, and his heirs were substituted as plaintiffs, defendant could not testify as to a conversation had with him, under Rev. St. 1911, art. 3690.
    3. Trial &wkey;>356(l) — Verdict—Sufficiency.
    In an action on a note, where without objection on the part of defendants the court instructed the jury that, if they answered a third question as to a waiver of the landlord’s lien and the acceptance of 20 bales of cotton to settle the note in the affirmative, then they should answer issue No. 4, and the jury answered issue No. 3 in the negative, it was unnecessary to repeat under the fourth issue that the cotton was not delivered as indicated.
    4. Appeal and Error <&wkey;759 — Matters Re-VIEWABLEr-BRIEF.
    Where an assignment of error is not copied in the brief, propositions thereunder will not be considered.
    Appeal from Nueces County Court; David M. Picton, Jr., Judge.
    ■Suit by S. Gugenheim and others against J. R. McKelvy and another. Judgment for plaintiffs, and defendants appeal.
    Affirmed.
    Pope & Sutherland, of Corpus Christi, for appellants.
   FLY, C. J.

This is a suit instituted by S. Gugenheim and H. Cohn against J. R. McKel-vy and J. C. Baldwin to recover on a promissory note for $350, executed by the last-named parties, appellants herein, a paj'ment of $95.34 being admitted to have been made on the note. Afterwards the death of H. Cohn was suggested, and his only heirs, Anna Cohn and Joseph A. Cohn, were made plaintiffs. Appellants answered by general demurrer and general denial, and specially answered that they executed the promissory note; that Baldwin at the time of execution of the note obtained from his codefendant, McKelvy, a chattel mortgage on his crop “and all succeeding crops of the said J. R. McKelvy until the note was paid together with other advances made by Baldwin for making crops”; that after the note matured McKelvy delivered to appellees $1,100 worth of cotton on which the mortgage rested, with the understanding and agreement that out of the proceeds of the cotton the note should be paid, hut the same was not done by appel-lees. The cause was submitted to a jury on special issues, and upon the answers thereto judgment was rendered in favor of appel-lees for $406.75, with 10 per cent, per annum from date of judgment.

Appellees in a supplemental petition represented-, and on the trial proved, that McKelvy was their tenant, and that they made la»rge advances to him to enable him to make a crop. It is the contention of appellants that a mortgage on the crop, executed before the landlord’s lien attached, was superior to the last-named lien. The question is ►raised through a refusal of the trial judge to permit appellant to introduce the chatttel mortgage in evidence. Article 5475, Rev. Stats., gives a landlord “a preference lien upon the property of the tenant, * * * upon such premises, for any rent that may become due and for all money and the value of all animals, tools, provisions and supplies furnished by the landlord to the tenant * * * to make a crop on such premises.” It is clear that a mortgage on the crop, given prior to the time when the landlord’s lien attached, would not take preference over the latter. The decisions so hold. Neblett v. Barron, 160 S. W. 1167; Ivy v. Pugh, 161 S. W. 939; Burlington State Bank v. Marlin National Bank, 166 S. W. 499; Frith v. Wright, 173 S. W. 453; Caswell v. Lensing, 183 S. W. 75. Appellant Baldwin did not allege that the crop was more than required to pay advances by the landlord, and ask for a judgment for the excess.

J. C. Baldwin sought to introduce evidence as to a conversation between him and H. Cohn, deceased, in which it was stated that appellees would waive their lien as landlords in favor of Baldwin if he furnished money and animals to McKelvy to make a crop. The evidence was not permitted. There was no allegation that Baldwin furnished any animals or money, and there was no plea of waiver of the' landlord’s lien. Baldwin testified that appellees agreed to protect him for the amounts he might advance to make the crop, but did not intimate that there was a waiver of the lien. The evidence was as to a transaétion with and? statement by H. Cohn, deceased, and was properly excluded under the terms of article 3690, Revised Statutes, which prohibits such testimony. Stuart v. Altman, 8 Tex. Civ. App. 657, 28 S. W. 461; Bay View Brewing Co. v. Grubb, 31 Wash. 34, 71 Pac. 553. The second assignment of error is overruled.

Without objection upon the part of appellants the court instructed the jury that if they answered the third question, as to a waiver of the landlord’s lien and the acceptance of 20 bales of cotton to settle the note, in the affirmative, then they should answer issue No. 4. The third issue was answered in the negative, and it was unnecessary to repeat that the 20 bales of cotton were not delivered as indicated. The third assignment is overruled.

No fourth assignment of error is copied in the brief, and consequently propositions thereunder will not be considered.

The judgment is affirmed.
      «gc^Eo-r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    GARRETT v. J. A. HUGHES GRAIN CO.
    (No. 6154.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 29, 1919.
    Rehearing Denied Feb. 19, 1919.)
    1. Corporations <⅝^503(2) — Venue — BREACH OX CONTEAOT — ACTION AGAINST COEPOEATION.
    Where contract for sale of 50 carloads of hay was.made at Bexar county, so that cause of action for its breach arose in part in such county, the seller being private corporation, buyer’s suit for damages could be brought in Bexar county, under Rev. St. 1911, art. 1830, subd. 24.
    2. Venue <⅞=7 — Breach ox Contract — Place ox Perxormance.
    Contract for sale of 50 carloads of hay held performable, in Bexar county, where it was made, at least under subsequent amendment, whereby seller agreed to deliver hay in said county, despite clause that all obligations pertaining to or growing out- of contract were payable at point in Grayson county.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by R. N. Garrett against the J. A. Hughes Grain Company. From judgment sustaining defendant’s plea of privilege, plaintiff appeals.
    Reversed, and cause remanded.
    Lewright & Douglas, of San Antonio, for appellant.
    Wood, Jones & Hassell, of Sherman, for appellee.
   MOURSUND, J.

This is a suit for damages for alleged breach of a written contract for the sale of 50 carloads of hay by appellee, a corporation chartered under the laws of Texas, to appellant. The appellee filed a plea of privilege to be sued in Gray-son county, to which appellant answered by alleging exceptions to the venue statute (Rev. St. 1911, art. 1830) under subdivisions 5 and 24 thereof. The plea was sustained,- and this appeal followed.

The contract was prepared by the president of appellee and sent in duplicate to appellant for liis acceptance. Appellant signed the two copies at San Antonio, retaining one and sending the other to appellee. The cbn-tract provided for the sale to he “f. o. b. points taking common point rate”; that prices are always either f. o. b. shipping point, or based on value at shipping point, plus freight charges to destination; that no part of appellee’s agreement is to be performed at destination; that drafts on appellant, with bills of lading, always in appellee’s name, attached, will be sent to the Alamo National Bank of San Antonio, “except demand drafts or all shipments to prepay stations.” Appellee’s president testified that the words, “f. o. b. points taking common point rate,” mean that the hay is to be shipped with freight prepaid to any point taking the Texas common point rate which might be designated by appellant; that on March 1, 191S, appellant wired appellee to ship 1 or 2 carloads of the hay to San Antonio each day, and by letter appellee informed appellant that its shipper had been instructed to comply with such request. Several cars were shipped consigned to appellee or one of its employes, and drafts on appellant, with bills of lading attached, sent to Alamo National Bank for collection, but appellant refused to accept the shipments on the ground that the hay was not of the quality called for in the contracts. The contract contained the following clause:

“It is also hereby agreed that all obligations, pertaining to or growing out of the contract, are payable at Howe, Texas.”

The contract was made in Bexar county, and therefore the cause of action arose, in part, in said county, and, appellee being a private corporation, the suit could be brought in Bexar county under the twenty-fourth exception to article ⅜830. Cummer Mfg. Co. v. Kellam, 203 S. W. 463; Cuero v. Feeders’ Supply Co., 203 S. W. 79. We are also of the opinion that the contract was performable in Béxar county, at least under the subsequent amendment thereof, whereby it was agreed to deliver the hay at San Antonio. Appellee relies on the clause in the contract that all obligations pertaining to or growing out of the contract are payable at Howe, Tex., contending that it constitutes a clause fixing the exclusive venue in Grayson county. We do not so construe the clause. It does not purport to designate Howe, Tex., as a place of exclusive venue, and it was optional with the appellant to sue in Grayson county or any other county in which the statute authorizes the suit to be instituted. The case of Moline Plow Co. v. Biggarstaff, 185 S. W. 341, relied on by appellee, is not in point, for the reason that the language is entirely different, and discloses an intention to agree on a place of - exclusive venue.

The judgment is reversed, and the cause remanded.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LOVENSKIOLD v. NUECES HOTEL CO.
    (No. 6135.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 22, 1919.
    Rehearing Denied Feb. 19, 1919.)
    1. Executors and Administrators <⅜=>7 — Authority tq Bind Estate — Subscription to Stock.
    •Independent executor under terms of will had no authority to bind estate in subscribing to stock of hotel company; no power to invest any part of estate in any business having been given in will, which provided revenues from realty should be divided among certain devisees, etc.
    2. Executors and Administrators <S=>96 — Contracts — Binding Force on Estate.
    Contracts of executor or administrator are not binding on estate, in absence of statutory authority or express or implied power in the will itself.
    3. Executors and Administrators <⅜=>96— ' Subscription oe 'Stock — Individuad Liability.
    Executor, who signed as such an instrument reading, “I,-, hereby subscribe the sum of $500 to the capital stock of” a hotel corporation, held individually bound, for, even if he had contracted in name of estate, he alone and individually would have been bound.
    4. Executors and Administrators <S=»7 — Action Against — Pleading — Personal Liability.
    Hotel company’s petition to recover from independent executor on subscription to capital stock held sufficient to show executor’s personal liability, alleging in alternative that, if executor did not bind estate, he bound himself personally.
    Appeal from Nueces County Court; David M. Picton, Jr., Judge.
    Suit by the Nueces Hotel Company against P. G. Lovenskiold. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. C. Scott and E. B. Ward, both of Corpus Christi, for appellant.
    G. R. Scott and Boone & Pope, all of Corpus Christi, for appellee.
   FLY, C. J.

Appellee sued to recover from appellant, as independent executor of the estate of O. C. Lovenskiold, deceased, and individually, on a certain subscription to build the Nueces Hotel in Corpus Christi, Tex. The court held that the estate was not bound by the instrument executed by appellant, but that be was personally bound and rendered judgment against bim for $707.20.

Tbe instrument on wbicb tbe suit is based is as follows:

“Corpus Christi, Texas, 1 — 17—1911.
“I, -, hereby subscribe the sum of $500 to the capital stock of the corporation to be organized for the purpose of purchasing the site and building a commercial hotel on the beach portion of the city of Corpus Christi, Nueces county, Texas.
“As soon as $150,000 of the capital stock for said purpose has been subscribed (provided same is done on or before April 1, 1911), I hereby agree, bind, and obligate myself to pay in cash, when called upon by the treasurer of said company, 50 per cent, of the amount herein subscribed by me.
“The balance of said amount subscribed X will pay to the treasurer in two equal installmeuts, in 60 and 120 days, respectively, after the date of said first payment.
“[Name] P. G. Lovenskiold,
“Executor O. C. Lovenskiold Estate.”

It is clear that tbe independent executor under tbe terms of tbe will of Oscar C. Lovenskiold bad no authority to' bind tbe estate of tbe testator in subscribing tbe stock of a botel company. No power to invest any part of tbe estate in any business is given in tbe will, but it is provided in tbe will that the revenues from tbe real estate should be divided among certain devisees; that certain real estate should be sold and tbe proceeds divided; that all personal effects be divided between two brothers, and life insurance money be used in building, a monument and in paying $1,000 for tbe support of A. L. Lovenskiold, a brother of deceased. Everything was fully provided tor, and no provision was made for any investments of any kind. It is tbe rule that the contracts of an executor or administrator are not binding on the estate, in the absence of statutory authority, or express or implied power in tbe will itself. The statutes of Texas do not authorize an executor, whether independent or otherwise, to take tbe money of the estate and invest it in stocks or bonds, and the will in this case gives no such authority, either expressly or by implication. No general powers are given by tbe will, but each and every act authorized is set out therein. The trial court properly held that the estate was not bound by the subscription.

It is equally clear that tbe instrument given by appellant bound him individually. The very language of the instrument binds him as an individual, and there is nothing to indicate that tbe estate bad any connection with the subscription, except that appellant wrote after bis, nam e the words, “Executor O. C. Lovenskiold Estate.” But, if be bad contracted in the name of the estate, it would not have bound the estate, but would have bound him individually. Elliott on Contracts, §§ 512-519; Gibson v. Irby, 17 Tex. 173; Warren v. Hanold, 92 Tex. 417, 49 S. W. 364; Pease v. Realty Co., 141 Iowa, 482, 119 N. W. 975, 42 L. R. A. (N. S.) 57; Germania Bank v. Michaud, 62 Minn. 459, 65 N. W. 70, 30 L. R. A. 286, 54 Am. St. Rep. 653. In the case last cited tbe executor-signed tbe note, “The Estate of E. Langevin,. by Aehille Michaud, Administrator.” It has-been held that the executor may save himself by inserting in the note a provision against personal liability. Banking Co. v. Morehead, 116 N. C. 413, 21 S. E. 191; Fisheries Co. v. McCoy (Tex. Civ. App.) 202 S. W. 343.

The allegations of the petition were sufficient to show the liability of appellant. The allegations were aimed primarily at liability as executor, but it was distinctly stated:

“That should it appear, and should the court hold, that by the execution of said stock subscription, defendant did not bind the assets of the estate of O. C. Lovenskiold, deceased, and that his act in the execution of said instrument would not have the legal effect of binding said estate, then in that event, plaintiff would allege-that by reason of the foregoing allegations the defendant, P. G. Lovenskiold, did, by the execution and delivery of said instrument, bind himself personally, and by reason of the foregoing allegations did become and is personally liable on said, stock subscription contract for the entire balance due thereon to this plaintiff, and this plaintiff is entitled to a personal judgment against the said P. G. Lovenskiold for the entire balance due thereon.”

All of tbe requisites as to tbe execution, and delivery and other essentials bad been fully alleged as to the executor and they were applied to appellant personally.

None of the assignments of error are well taken, and tbe judgment will be affirmed.
      ig==>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: STRONG, J. PHILLIPS, C. J.

text:
    FT. WORTH & R. G. RY. CO. v. KEITH.
    (No. 27-2656.)
    (Commission of Appeals of Texas, Section A.
    Feb. 19, 1919.)
    1. Trial >⅜=>295(7) — Instructions — Construction as a Whole.
    In an action for death of a person who, after having alighted from defendant’s train, boarded it again, and immediately tried to get off to get to another train, whereby he was killed, instructions construed as a whole held not erroneous as requiring as a prerequisite to a verdict for defendant that the' jury find both that deceased left the train without being induced to do so by the porter, and that he was guilty of contributory negligence in so doing.
    2. Trial ⅞=>228(1) — Submission of Issues— Issue Pleaded Conjunctively.
    Where the facts constituting the alleged contributory negligence are pleaded conjunctively, no affirmative error will arise in submitting the issues in that form.
    3. Appeal and Error >8=3216(3) — Reservation op Objections — 'Instructions.
    Where the defect in an instruction is one of omission, the case will not be reversed in the absence of a request below for an instruction supplying such omission.
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by Martha A. Keith against the Ft. Worth & Rio Grande Railway Company for wrongful death. Judgment for plaintiff was affirmed by the Court of Civil Appeals (163 S. W. 142), and defendant brings error.
    Affirmed in accordance with the recommendation of the Commission of Appeals.
    Andrews, Ball & Streetman, of Houston, and Marshall Ferguson, of Stephenville, for plaintiff in error.
    J. B. Keith, of Stephenville, and R. L. Car-lock, of Ft. Worth, for defendant in error.
   STRONG, J.

This is an action by Martha A. Keith against the Ft. Worth & Rio Grande Railway Company for damages on account of the death of her adult son, Edward W. Keith, alleged to have been caused through the negligence of defendant company. The judgment of the lower court was for plaintiff, which was affirmed by the Court of Civil Appeals. 163 S. W. 142.

On the night of his death, Edward W. Keith took passage at Ft. Worth, Tex., on defendant’s passenger train for Stephenville, his home. When the train reached Steplicn-ville, Keith was asleep and did not know that the train had passed tlie station until it had reached a point about a mile beyond Stephenville. A heavy rain was falling, and, at the suggestion of the conductor, lie decided he would go on to Harbin, a distance of some eight miles, where the train on which he was riding would meet a north-bound passenger train, upon which he could return to Stephenville. Upon reaching Harbin, Keith alighted from the train and was informed by the porter that the north-bound train was on the siding. He thereupon started in that direction and the train from which he had departed resumed its journey. Being unable to sqe the north-bound train, Keith reboard-■ed the south-bound train while in motion, and in an effort to immediately again alight therefrom was killed.

The contention of plaintiff was that Keith reboarded tbe south-bound train for tbe purpose of continuing passage thereon, and that he was commanded, directed, and induced by defendant’s porter to leave, the train while in motion. The defendant’s theory of the case was that, after reboarding the train, Keith discovered the north-bound train on the siding, whereupon he voluntarily and over the protest of the porter attempted to leave the train while in motion, and that in so doing he was guilty of contributory negligence.

The trial court, in charging the jury, made plaintiff’s right to recover dependent upon the alleged negligent conduct of the porter in directing and influencing Keith to leave the train at the time he was killed.

In submitting the issue of contributory negligence, tlie court charged the jury as follows:

“If you believe that the said Keith, at the time he attempted to leave the said train at Harbin on the .west side thereof, when he fell and sustained the injuries which caused his death, left the said train voluntarily, while the said train was moving at the rate of speed shown by the evidence, and without being prompted or urged so to do by the defendant’s porter, or over the protest or effort on the part of said .porter to prevent him from doing so (if you find that the said porter did protest against his leaving the said train at.said time, or attempted to prevent him from doing so); and if you further believe that the said Keith under all the circumstances then surrounding' him in attempting to leave the said train on tlie west side thereof failed to exorcise for his safety the care and prudence that persons of ordinary care and prudence would have exercised under the same or similar circumstances, thfen your verdict will be in favor of the defendant.”

It is insisted that this charge is erroneous because, when considered in connection with the clause, “unless you find in favor of defendant under other instructions given you in this charge,” in paragraph 5 of tlie charge, it requires as a prerequisite to a verdict for defendant that the jury find both that Keith left the train without being induced to do so by the porter, and that lie was guilty oí contributory negligence in so doing.

Tlie portion of paragraph B of the charge, necessary to a clear understanding of the question presented, is as follows:

“ * * * you believe from the evidence that the said Keith in leaving said train at said time and place was induced to do so by the acts and words of said porter at said time, if you find that the said porter did use words or acts at said time reasonably calculated to induce the said Keith to leave said train at said time and place, and that the said Keith would not otherwise have done so, and you further find that the said Keith in leaving the said train at said time, considering all the circumstances surrounding him, exercised ordinary care, and you further find that as a result of the attempt of the said Keith to leave the said train at said time and place he stumbled or slipped and fell under the wheels of said train, and sustained injuries which caused his death, and if you further find that said porter in causing or inducing the said Keith to leave said train on the west side thereof, at the time he was killed, if you find that he did cause or induce the said Keith to do so, when viewed in the light of all the surrounding circumstances, was guilty of negligence, as that term is defined in this charge, and if you further believe that such negligence, if any, was the proximate cause of the death of the said Keith, then, if you so find and believe, you will render a verdict in favor of the plaintiff for the damages, if any, sustained by her by reason of the death of her son, Edward W. Keith (unless you find in favor of the defendant under other instructions given you in this charge).”

We do not think the charge subject to the criticism urged. The several provisions of the charge must be construed in connection with the charge as a whole, and also in the light of the pleading. Defendant did not plead that deceased was guilty of contributory negligence in leaving the train at the suggestion of the porter. The plea was that deceased left the train voluntarily and over the protest of the porter, and that he was guilty of contributory negligence in so doing. The charge on this issue is substantially in the language of the plea. It is well established that where the facts constituting the alleged contributory negligence are pleaded conjunctively, no affirmative error will arise in submitting the issue in that form. Railway v. Hill, 95 Tex. 620, 69 S. W. 136; Railway v. Mohrmann, 46 Tex. Civ. App. 1, 93 S. W. 1090. In paragraph 5 of the charge, the jury was required to find both that the porter was negligent, and that deceased was not, in order to find for plaintiff. Hie charge on contributory negligence does not affirmatively instruct the jury to find against defendant, unless they should find both that the porter was not guilty of negligence, and that deceased was; nor does it have this effect when considered in connection with paragraph S of the charge.

The proposition stated in the charge is, that if the porter was not guilty of negligence, and that deceased was, defendant would be entitled to a verdict. This is not an erroneous statement of law. The defect in the charge is one of omission, and in the absence of a request to submit the defenses disjunctively, no affirmative error is shown. Railway v. Hill, supra; Railway v. Brown, 78 Tex. 397, 14 S. W. 1034; Parks v. Traction Co., 100 Tex. 225, 94 S. W. 331, 98 S. W. 1100; Railway v. Haberlin, 104 Tex. 55, 183 S. W. 873; Kirby Lumber Co. v. Williams, 159 s! W. 313.

We have examined the other assignments, and believe no error is shown by any of them.

We are of opinion that the judgments of the Court of Civil Appeals and that of the trial court should be affirmed.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals Is adopted and will be entered as the judgment of the Supreme Court.
      <®55»Fov other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: SADLER, J. PHILLIPS, C. J.

text:
    SECURITY TRUST CO. OF HOUSTON v. ROBERTS et al.
    (No. 40-2694.)
    (Commission of Appeals of Texas, Section B.
    Feb. 19, 1919.)
    1. Appeal and Error €=150(1) — Parties Entitled to Allege Error — Transferees.
    Appellant, which was in possession of the property under some character of conveyance or transfer, or by reason of some process, had the right to protect its possession and claim by questioning validity of plaintiff’s laborer's lien, and by seeking relief from judgment foreclosing lien.
    2. Master and Servant €=82(5) — Lien — Perfectin g — ‘ ‘Accrued . ’ ’
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5644, 5645, affidavit and account for laborer’s lien must be presenter and filed within 30 days from the date the debt, under the original contract, becomes collectable and enforceable, and agreement between employer and em-employé for extension of time of payment does not extend time for perfecting lien, the word “accrued” as used in the latter article meaning original maturity date.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accrue.]
    3. Master and Servant €=82(5) — Lien on Realty.
    Where plaintiff sought to fix his laborer’s lien only against certain machinery specifically described in his affidavit, he would acquire no lien on realty, there being nothing in affidavit to indicate whether machinery was attached to realty.

      4. Appeal and Erkok <®=»79(1) — Final Judgment.
    Judgment foreclosing laborer’s lien against all defendants is final, although it failed to dispose of certain parties against whom plaintiff sought only to foreclose lien.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Suit by L. H. Roberts against R. E. Tra-bue, doing business under the name of the ^Carthage Ice & Light Company, and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (166 S. W. 12), and the Security Trust Company of Houston brings error.
    Reversed and remanded.
    Baker, Botts, Parker & Garwood, of Houston, for plaintiff in error.
    Brooke & Woolworth, of Carthage, for defendants in error.
   SADLER, J.

L. H. Roberts brought this suit in the district court of Panola county to recover from R. ,E. Trabue, owner of 'and doing business under the name of the Carthage Ice & Light Company, to recover $853.88, being a balance owing under a contract of employment as a mill operator and laborer in said ice and light plant, and to foreclose a laborer’s lien against Trabue, the lee & Light Company, the Security Trust Company, Thos. D. Bonner, as receiver, and J. L. Norman, on certain machinery, house, and lot designated as the ice and light plant.

Roberts had been in the employ of Trabue, working at a planing mill, and on July 1, 1911, Trabue owed him $772.61 for labor in the planing mill. On that date they entered into a contract ■whereby Roberts was to work at the ice and light plant, keeping the machinery in repair, assisting in making ice, and doing general work as a laborer in connection with and in said plant, at a salary of $900 per year, to be due and payable at the end of the year. Under this contract he worked at the ice and light plant until about the 15th day of February, 1913, when he was prevented from further working by reason of the Security Trust Company taking possession of the ice and light plant under a conveyance or transfer or under some character of process. On February 28, 1913, Roberts prepared in duplicate an affidavit and account against Trabue under articles 5644 and 5645, Vernon’s Sayles’ Statutes. One copy was delivered to Trabue, and it is alleged that the original was filed with the county clerk of Panola county, but there is nothing in the statement of facts to show such filing.

In this affidavit it is alleged that there was a balance due of $853.88, which accrued on the 1st day of January, 1913, and on the 15th day of February, 1913, but that Roberts agreed with Trabue that payment of said amount should be made on February 1, 1913, and in the affidavit he sought to fix a laborer’s lien on certain machinery in the ice plant, being one engine, two boilers, and one alternator. In the petition he alleges that on July 1, 1912, the amount due for the preceding year for labor in the ice and light plant was, by agreement between himself ana Trabue, extended so as to fall due on July 1, 1913, and the evidence supports this allegation. Under an agreement made on July 1, 1911, Roberts was to run an account in a store owned by Trabue, and this account for purchases was to be applied as follows: First paying the $772.61, and then being applied upon the other indebtedness due to him by Trabue by reason of his labor, in the ice plant. The evidence showed that on July 1, 1912, Trabue owed Roberts some amount on tlie salary for 1911-12, which was extended so as to fall due July 1, 1913, and also that some amount accrued January 1, 1913. The court gave judgment for the debt, and a foreclosure of the laborer’s lien on the machinery and real property. The Court of Civil Appeals affirmed the judgment (166 S. W. 12), and the cause is before us on writ of error.

Opinion.

We are presented with two questions for decision: First, whether the Security Trust Company is in a position to contest plaintiff’s asserted lien against the property involved. The Court of Civil Appeals held that it was not. It appears from the pleading, the conclusion of fact, and the judgment of the court that the Security Trust Company was in possession of the property, holding same under some character of conveyance or transfer or by reason of some process. It clearly appears that the Security Trust Company had such possession of the property as made it advisable, if in fact it was not necessary, for plaintiff to make it a party to the suit and seek a foreclosure against it. Its possession was antagonistic and in opposition to plaintiff’s asserted lien. Judgment was rendered against it, foreclosing the lien on the property which was in its possession. In virtue of this judgment, its possession of the property and its claim thereto was jeopardized by plaintiff’s asserted lien and the judgment of the court. Such being the position occupied by the Security Trust Company in this litigation, it should not be deprived of its right to protect its possession and claim by calling in question the validity of plaintiff’s lien and by seeking-relief from the judgment of the court.

The next question presented is with reference to the validity of the lien asserted by the plaintiff. On account of the very uncertain condition of the pleadings and evidence as shown by this record, it is difficult to arrive at a satisfactory conclusion upon the pleadings and facts.

Suffice it to say that it appears from the record that the amount of the salary for the year ending July 1, 1912, and which accrued on that date, was by agreement extended so as to fall due July 1, 1913. It is further apparent from the affidavit to the account, and by which plaintiff sought to fix his lien, that some part of the $853.88 sued for accrued — that is, became due — January 1, 1913, and that this was by agreement extended to mature February 1, 1913. It is not clear from the pleadings or the proof just what these amounts are.

The plaintiff claimed, sought to fix and to foreclose, the statutory laborer’s lien by virtue of articles 5644 and 5645, Vernon’s Sayles’ Statutes. To do this he relies upon the presentation to Trabue of a duplicate account and affidavit, and the filing of the original thereof with the county clerk of Panola county, February 28, 1913. In this account and affidavit he states “that said indebtedness accrued on the 1st day of January, 1913, and on the 15th day of February, 1913, but affiant agreed with the said Trabue that payment of the same should be made on the 1st day of February, 1913.”

Article 5644, supra, gives the lien, and article 5645 prescribes the method by which the lien shall be fixed. In the latter article it is provided that, in order to' fix the lien, duplicate accounts of the services, with the amounts due, shall be made, and “one of the aforesaid duplicate accounts, within thirty days after said indebtedness shall have accrued,” shall be presented to the debtor. “The other of the said duplicate accounts shall, within the time hereinbefore prescribed, be filed with the county clerk of the county in which said service was rendered, and shall be recorded by the county clerk in a book kept for that purpose.” It is further provided in the same article that the claimant “shall have six months within which to bring suit to foreclose the aforesaid lien.” Article 5648 provides: “The lien created by this chapter shall cease to be operative after six months after the same is fixed, unless suit is brought within said time to enforce such lien.”

Under our view, in order to fix the lien the affidavit and account must be presented and filed within 30 days from the date the debt under the original contract becomes a collectable and enforceable demand. The amount which Trabue owed Roberts on July 1, 1912, under the contract, was on that date an enforceable demand and had accrued. Roberts had 30 days from that date in which to fix his lien. He did not do so, but agreed to an extension of payment to a definite period, to wit, July 1, 1913, and did not file his affidavit until after the expiration of the 30 days from the date of the original accrual of the claim.

With reference to whatever amount may have accrued on January 1, 1913, ho did not within the 30 days fix the lien to secure that amount, but agreed to an extension of time of payment on that amount to February 1, 1913. He then undertook to fix his lien after the expiration of 30 days from the original date of the accrual of such amount as may have been due January 1, 1913.

The word “accrued,” as used in this statute, means the original maturity date of the amount owing as same is fixed in the original contract, and has reference to the first ves-titure of the right to demand and enforce payment, and not to any date of extension beyond the statutory period in which the lien must be fixed. It may be said that the extensions were not enforceable. If they were not enforceable, then clearly the effort to fix the lien comes too late. If the agreements for the extension in this case are Rinding, then clearly they carry the debt beyond a period in which-the lien could be fixed, and thereby the right to fix the lien is lost. It appears that the court probably went upon the theory that the lien could bo fixed by filing suit; but that is not the provision of the statute. The statute prescribes the method by which the lien can be fixed, and then it gives six months from that date^in which to file the suit for foreclosure. If no suit is filed within six months from the date of fixing the lien, then it is lost. We believe that our conclusions are clearly sustained by the following authorities: Neblett v. Barron, 104 Tex. 111, 134 S. W. 208; Lip-poncott v. York, 86 Tex. 276, 24 S. W. 275; Bassett v. Brower, 74 Tex. 554, 12 S. W. 229; Cameron v. Marshall, 65 Tex. 9 ; Westinghouse Air Brake Co. v. Kansas City Southern Ry. Co., 137 Fed. 26, 71 C. C. A. 1; Cut-cliff v. McAnnally, 88 Ala. 507, 7 South. 331; Lane & Bodley Co. v. Jones, 79 Ala. 156; and E’lenniken v. Liscoe, 64 Minn. 269, 60 N. W. 979.

We will not undertake to discuss these cases, but they support the view here held.

In this case the court forecloses the lien against the real property. Without discussing the extent to which the statute goes in giving the lien on such property, we are of the opinion that the plaintiff has no lion on the real property involved in this litigation. The lien is fixed by pursuing the provision of the statute. In the effort to do so the plaintiff sought only to fix his lien against certain machinery specifically described in his affidavit, lie did not therein assort- or essay to fix a lien on the real property. There is nothing in his affidavit to indicate whether this machinery was attached to the soil in such manner as to become a part of the realty. The affidavit presumably treats it as personal property.

It is asserted that the judgment rendered is not final because it fails to dispose of certain parties to the suit. As to these parties plaintiff sought only to foreclose his lien, and we are of opinion that the judgment foreclosed the lien as against all the defendants in the suit, and is therefore final.

On account of the uncertainty of the pleadings in this cause, we suggest that the trial court ought to require the parties to replead, that it may be definitely ascertained just what issues are presented for determination by the court.

We recommend that the judgments of the Court of Civil Appeals and of the district court be reversed and the cause remanded.

PHILLIPS, C. J.

The judgment as recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission.
      <S^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gz=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes