text:
    CLEBURNE ST. RY. CO. v. DICKEY.
    (No. 7994.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 13, 1914.
    Rehearing Denied July 4, 1914.)
    1.Street Railroads (§ 57) — Construction —Actions—Question for Jury — Restoring Street.
    In an action for an injury to a pedestrian caused by stepping into a hole in the floor of a bridge, which had been torn up by defendant street railway company, held under the evidence, a question for the jury whether defendant’s failure to restore the bridge to its original condition was negligence.
    [Ed. Note. — For other eases, see Street Railroads, Cent. Dig. 136-143; Dec. Dig. 57.]
    2.Street Railroads (§ 37) — Construction —Restoring Bridge.
    A street railroad, in constructing its track along streets, must restore them to their original condition, so as to not unnecessarily impair their usefulness.
    [Ed. Note. — For ^ther cases, see Street Railroads, Cent. Dig. §§ 103, 105, 126; Dec. Dig. §
    3.Street Railroads (§ 57) — Constructions' — Actions eor Injury— Sufficiency of Evidence — Contributory Negligence.
    In an action for an injury to a pedestrian caused by stepping into a hole in the .floor of a bridge which had been torn up in laying street railway tracks, evidence held to sustain a finding of the jury that plaintiff was not guilty of contributory negligence.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 136-143; Dec. Dig. § 57.]
    4.Afpeal and Error (§ 525) — Assignment of Errors — Bill of Exceptions.
    An assignment complaining of the giving of a special charge could not be considered, where the bill of exceptions did not show that the charge was in fact given, and failed to point out the particulars in which it was objectionable.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2376-2378; Dec. Dig. § 525.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    Action by L. C. Dickey against the Cle-burne Street Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. M. Moore, of Cleburne, for appellant. Walker & Baker, of Cleburne, for appellee.

      For other oases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

The appellee instituted this suit to recover damages of the Cleburne Street Railway Company and the city of Cle-burne .and Daniel Hewitt for injuries received by him at a bridge in the city of Cleburne on the 1st day of April, 1912. At the close of the testimony, the plaintiff dismissed the suit as against Daniel Hewitt. As to the remaining defendants, final judgment was entered in appellee’s favor against the appellant street railway company for damages in the sum of $800 and costs. It was further adjudged that the plaintiff take nothing by reason of his suit against the city of Cleburne, and that the city of Cleburne take nothing by reason of its cross-action against the street railway company and Daniel Hewitt. From the judgment so rendered, the street railway company alone has appealed.

The facts constituting the basis of appel-lee’s action are briefly, but substantially, as follows: Brazos avenue in the city of Cle-burne extends in the general direction of north and south. Olive street extends in the general direction of east and west. The bridge in question had been originally constructed on the south side of Olive street at the point of intersection with Brazos avenue. It was some 32 feet long by 5 feet wide and rested upon two large sills extending east and west on each side of the ditch or drain intended to be covered. Upon these sills cross-supports were placed, upon which heavy pine plank or flooring was laid extending east and west with tlie bottom sills. Later the street railway company was granted a franchise by the city of Cleburne to occupy Brazos avenue, which it did, building its tracks over the bridge mentioned. In building the tracks the street railway company cut the flooring of the bridge some nine feet from its western end and relaid the same under its tracks so that the new flooring extended with the direction of the rails approximately northwest and southeast. In so reconstructing the bridge, however, a part of the west end. was left unfloored; that is, the west edge of the relaid flooring on the north side of the bridge was approximately 12 inches from the end of the sill on the north side, while on the south side of the bridge the west edge of the reconstructed flooring was some 2 feet from the west end of the south sill, thus leaving a triangular space or opening in the west end of the bridge.

On the occasion in question appellee, with the purpose of continuing his journey south along Brazos avenue, crossed Olive street and approached the bridge, entering thereon about midway. There was evidence tending to show that it had been raining and that Brazos avenue on the south side of the bridge was muddy, so that appellee turned to his right when about the center of the bridge, stepped across the railway track, thence in a southerly direction, with the view of stepping upon a grassy plat to avoid the mud and thus gain the sidewalk along the western side of Brazos avenue; that, as he arrived at the southwest corner of the bridge, he stepped off on his right foot, intending it to rest on the flooring of the bridge, and intending with his left foot to reach the grassy plat, but that, in placing his right foot down, it entered the opening in the bridge above described; appellee thereupon fell forward on the bank, and his leg was thrown against the sill in front and up against the flooring of the bridge behind, in which way his leg was broken.

The material questions, we think, are but two: First, was the appellant street railway company guilty of negligence in failing to restore the bridge in question to its original condition ? If so, then was appellee guilty of contributory negligence, as the railway company pleaded, in stepping off the bridge as he did?

The first question, we think, must be answered in the affirmative. Railroads generally are given the right to construct their roads along or across streets and highways, but in doing so are required to restore the stream, water course, or street intersected to its former state or to such state as not to unnecessarily impair its usefulness. See Revised Statutes, art. 6485. This statute in terms is not made to apply to a street railway, but we think it is nevertheless declarative of a sound rule that should be held to apply in the present case, irrespective of the proposition urged by appellee to the effect that the duty to so restore rested upon appellant by virtue of the terms of the franchise granted to it by the city. Thus we find it stated in Mr. Elliott’s work on Railroads, vol. S, § 1092:

“It is generally provided by statute that railroad companies which cross a highway, or lay their tracks therein, must restore it, as far as may be, to its former condition of usefulness and safety, and it is held that this duty rests upon them, even in the-absence of any express statutory requirement. This rule applies to street railways as well as to commercial railroads.”

Numerous cases are cited in the note in support of the text which we approve. The traveling public, and appellee as a member thereof, had the right to make reasonable use of all parts of the bridge in question as originally designed and constructed for their benefit, and of this right appellant must be held to have been affected with notice at the time of its construction of the tracks across it, and we think, under the circumstances of this case, it was for the jury-to say whether or not appellant’s failure to fully restore the bridge to substantially its original condition constituted negligence.

Can it be said that appellee was guilty of contributory negligence as a matter of law? Appellee testified in substance, in addition to what we have already stated, that he had often crossed the bridge in question before, but never since the construction of the street railway across it, and that he did not know of the V-shaped opening in the west end of the bridge; that, in attempting to avoid the mud and stepping as he did, he did not have in mind any change of the construction in the flooring on the bridge; that when he stepped off on his left foot, intending to place his right on the floor of the bridge, as above stated, he had his eye upon the grassy plat and thus was misled. We do not feel that, under such circumstances, we would be authorized to set aside the verdict of the jury which, under the court’s charge, was to the effect that appellee was in the use of ordinary care for his own safety. See St. L. & S. W. Ry. Co. v. Smith, 49 Tex. Civ. App. 1, 107 S. W. 638; G., C. & S. F. Ry. Co. v. Gasscamp, 69 Tex. 545, 7 S. W. 227; Ringelstein v. City (Civ. App.) 21 S. W. 634.

Several other questions are presented, but we think it unnecessary to more than briefly notice them. It is insisted that there is a variance between the proof and allegations relating to the opening in the west end of the bridge that we have attemped to describe, but we think the allegations as a whole were sufficiently descriptive of the-fault intended to be complained of, and that appellant could not have been reasonably-misled.

The charges of the court, general and! special, we think sufficiently and fairly presented the issues to the jury, and we find no» error as presented in tlie action of the court in giving or refusing special charges. In some instances the substance of some of the special charges requested by appellant was otherwise given, and some of the assignments going to the giving or refusal of special charges are without sufficient support For instance, error is assigned to the giving of plaintiffs special charge No. 1. The bill of exception supporting this assignment, omitting formal parts, reads:

“Be it remembered that on the trial of this cause the plaintiff requested the court to charge the law, as contained in special charge No. 1. in substance and effect that if the plaintiff, while traveling across the bridge or culvert in controversy, was without knowledge of any defects, if any existed in it, he had the right, under the law, to presume that it was reasonably safe for the purpose of travel, to which charge the defendant street railway company, by and through its attorney, excepted and here and now tenders its bill and prays that the same be allowed as a part of the record in this cause.”

It is apparent that the bill fails to show that the charge complained of was in fact given by the court, and wholly fails to point out the particulars in which the charge was objectionable, as should have been done. See Cleburne St. Ry. Co. v. H. P. Barnes (No. 7995) 168 S. W. 991, by this court and not yet officially published. Nor do we find cause for just complaint on appellant’s part on the ground that, under the evidence, the city of Cleburne was also liable.

We conclude that on the whole the evidence supports the material allegations of appellee’s petition and that the judgment must be affirmed.

SPEER, J., not sitting.


source: Caselaw Access Project

author: SPEER, J.

license: Public Domain

text:
    GUITAR v. COMMERCIAL NAT. BANK OF ABILENE et al.
    (No. 7966.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 23, 1914.
    Rehearing Denied July 4, 1914.)
    Appeal and Error (§ 1001) — Review — Findings.
    A verdict of the jury based on sufficient evidence will not be disturbed on appeal.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3922, 3928, 3934; Dec. Dig. § 1001.]
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    Action by John Guitar against the Commercial National Bank of Abilene and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    S. P. Hardwicke, of Abilene, for appellant. Scarborough & Hickman, J. M. Wag-staff, and D. M. Oldham, Jr., all of Abilene, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J.

John Guitar, as plaintiff below, sued the Commercial National Bank of Abilene, the First State Bank & Trust Company of Abilene, J. M. Porter, Bruce E. Oliver, and J. C. Russell, alleging, in substance, that on September 4, 1909, he and the Commercial National Bank of Abilene entered into the following agreement:

“Abilene, Texas, Sep. 4, 1909.
“This agreement entered into by and between the Commercial National Bank of Abilene and John Guitar, Jr., of Abilene, Texas, witnesseth: That the Commercial National Bank of Abilene, Texas, agrees to have the proceeds of a $9,000.00 note of John Guitar, Jr., placed to the special account of J. C. Russell and Bruce E. Oliver, trustees, and that all of the said proceeds be used in purchasing stock of the Commercial National Bank of Abilene, Texas, owned by W. M. Lacy. And that all said stock be reissued in the name of J. C. Russell and as soon as issued to be indorsed in blank by J. C. Russell and said stock to be held by the Commercial National Bank for said trustees and to secure John Guitar, Jr., and that said stock be sold from time to time to desirable parties by said bank and all proceeds to be placed to the credit of said trustees and to be applied by said trustees and bank to the payment of said note for $9,000.00, and that said note for $9,-000.00 is dated September 4th, 1909, and due February 1, 1910, with interest from maturity.
“Commercial Natl. Bank of Abilene, Tex.
“[Signed] J. C. Russell, Cashier. [Seal.]”

The plaintiff alleged that in accordance with this agreement he executed his note for $9,000, and that the Commercial National Bank realized on that note and came into possession of the proceeds thereof; that instead of placing the proceeds of the note to the special account of J. C. Russell and Bruce E. Oliver, trustees, and instead of using the proceeds thereof by purchasing the Lacy stock and having the same reissued in the name of J. C. Russell and holding of the same by the bank for said trustees, the Commercial National Bank converted the proceeds to its own use. He further alleged that about April 15, 1913, the defendant First State Bank & Trust Company of Abilene took over the properties and assets of the Commercial National Bank and agreed to pay all of 'its liabilities. The defendants pleaded that the execution of the note by the plaintiff was not an accommodation to the Commercial National Bank, but to J. C. Russell individually, and that said note was delivered to Russell, not by reason of the contract declared upon by plaintiff, but by reason of another instrument executed on the same day as follows:

“State of Texas, County of Taylor:
“Whereas, I have this day executed to J. C. Russell of Abilene, Texas, one note for $9,000.-00 payable to the order of said Russell at Abilene, Texas, due February 1st, 1910, dated September 4th, 1909, with which to purchase stock of the Commercial National Bank of Abilene, Texas, which said Russell is to hold and sell to other parties and apply the proceeds of said sales of stock to the payment of said note; and whereas, the said J. C. Russell to secure me and hold me harmless from the payment of said note at its maturity, has executed and delivered to me his certain note for like amount due and dated as the above note, payable to my order, and indorsed by J. N. Porter and Bruce E. Oliver: This is to show that I hereby agree to return to said Russell the said note executed by him upon the payment of the note executed by me to be paid to J. C. Russell, and hereby agree to hold harmless the said Russell, Porter and Oliver by reason of the execution of said note to me in case the said note executed by me is paid and satisfied by J. C. Russell.
“Witness my hand this 4th day of September, 1909. [Signed] John Guitar, Jr.”

At the time the above instrument was delivered to the plaintiff J. C. Russell executed to John Guitar his note for $9,000 indorsed by J. N. Porter, Bruce E. Oliver, and O. A. Lanius, all of whom were directors of the Commercial National Bank, as follows:

“$9,000.00.
“Abilene, Texas, September 4th, 1909.
“February 1st, 1910, without grace after date for value received we, I, or either of us, promise to pay to the order of John Guitar, Jr. at the Commercial National Bank in the city of Abilene, Texas, nine thousand dollars for value received, negotiable and payable without defalcation or discount, with interest at the rate of ten per cent, per annum from maturity until paid and ten per cent, attorney’s fees if sued upon, or placed in the hands of an attorney for collection. The makers and all indorsers hereof severally waive presentment for payment, protest and notice of protest.”
“[Signed] J. C. Russell.
“Due February 1st, 1909.
“Post Office, Abilene, Texas.”

The defendants alleged that the contract and the note above set out were the basis and consideration for which the plaintiff executed his $9,000 note to the said J. C. Russell. The cause was submitted to the jury on special issues, and upon the findings returned thereto judgnient „was entered for the defendants, and the plaintiff appeals.

Following are the special issues submitted:

“1. Was the execution and delivery by John Guitar of his $9,000 note to J. C. Russell on September 4, 1909, an accommodation to the Commercial National Bank of Abilene, or an accommodation to J. C. Russell individually?”

To this the jury answered, “To J. C. Russell.”

“2. Was the instrument signed under the corporate name and seal of the Commercial National Bank, which was dated September 4, 1909, and which was declared on by the plaintiff in this suit, any part of the consideration for the note which John Guitar executed and delivered to J. C. Russell on September 4th?”

To this the jury answered, “No.”

“3. Did John Guitar accept the $9,000 note signed by J. C. Russell, J. N. Porter, and Bruce E. Oliver, together with the second instrument offered in evidence signed by said Guitar of date September 4, 1909, in lieu of and as a substitute for the said instrument theretofore signed under the corporate name and seal of said Commercial National Bank, or did he accept same as additional security?”

To this the jury answered, “Yes.”

The defendants also asked the following special issue to be submitted:

“You will determine from the evidence which instrument was the basis of the execution and delivery of the $9,000 note by John Guitar to J. C. Russell.”

This was submitted, and the jury replied, “The second one or last one.”

Appellant, in effect, attacks these findings, as being unsupported by the evidence, but the evidence complained of in the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth assignments, all of which are overruled, when taken in connection with the direct testimony of appellee Russell, abundantly supports the jury’s finding to the effect that the contract pleaded by appellees, and not that pleaded by appellant, formed the basis of appellant’s-note. If this be true, then of course appellant could not recover in this case independently of other defenses urged by appellees. The assignments enumerated above, complaining of the admission of evidence, are overruled because we are of the opinion the testimony objected to was relevant and material to the vital issue submitted to be determined by the jury.

There is no error in the judgment, and it is affirmed.


author: CONNER, C. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. DICE.
    (No. 7988.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 30, 1914.)
    1. Carriers (§ 357) — Carriage of Passengers — Ejection of Passenger — Person on Wrong Train.
    Where a passenger’s ticket called for a station which was not a regular stopping place for the train upon which he was riding, the conductor, using no more force than necessary, had the right to eject Mm at the last stopping place before reaching the point called for, if he did not offer to pay fare to the next regular stopping place.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1419,1433; Dec. Dig. § 357.]
    2. Carriers (§ 381) — Carriage of Passengers — Action for Wrongful Ejection— SUFFICIENCY OF EVIDENCE.
    In an action for the wrongful ejection of a passenger at the last regular scheduled stop preceding that for which the ticket called, defended on the ground that the point called for by. ticket was not a regular stop, evidence held to show that the conductor had authority in his discretion to accept the ticket to the point called for therein and then cash fare to the next stopping place beyond, notwithstanding the rules declared the ticket good only to the last stopping place before reaching such point.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1473-1476, 1479-1482; Dec. Dig. § 381.].
    3. Carriers (§ 384) — Carriage of Passengers— Action for Wrongful Ejection — Instructions.
    In an action against a carrier for wrongful ejection of a passenger, a requested charge that defendant’s servants had a right to call a peace officer to eject the passenger at the last regular stop preceding the point called for by ticket, and defendant would not be liable if such officer used no unnecessary force, was properly refused, because ignoring plaintiff’s right to recover if he offered to pay his fare to the next regular scheduled stop.
    [Ed. Note. — For other cases, see Carriers,. Cent. Dig. §§ 1497-1500; Dec. Dig. § 384.]

      4. Trial (§ 252) — Instructions — Application to Evidence.
    In an action for wrongful ejection of a passenger, an instruction to find for plaintiff if defendant’s servants procured a peace officer to arrest him, he having violated no criminal law, and defining “arrest” as the use of such restraint as to control his freedom of movement or action, was misleading, since, under such instruction, the use of any force would be an arrest rendering defendant liable, while the evidence did not show that more force than necessary was used.
    [Ed. Note. — For other cases, see Trial, Cent Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    5. Carriers (f 381) — Action for Wrongful Ejection — Sufficiency of Evidence.
    In an action for wrongful ejection of a passenger, evidence held not sufficient to raise the issue of the use of unnecessary force.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1473-1476, 1479-1482; Dec. Dig. § 381.]
    Appeal from District Court, Clay County; P. A. Martin, Judge.
    Action by R. J. Dice against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Garnett & Garnett, of Gainesville, for appellant. A. H. Carrigan, of Wichita Falls, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CONNER, C. J.

Appellee instituted this suit in the district court of Clay county to recover actual damages in the sum of $1,000 and exemplary damages in the further sum of $5,000, for an alleged wrongful ejection from one of appellant’s trains at Temple, on or about the 31st day of December, 1911. The trial resulted in a verdict and judgment in appellee’s favor for $250, from which judgment this appeal has been prosecuted.

Appellee’s testimony, in substance, was that he purchased a ticket at Wichita Falls, Tex., on the line of the Ft. Worth & Denver City Railway for Holland, Tex., a point on appellant’s line of railway south of Ft. Worth; that when he arrived at Ft. Worth he was directed to enter the train upon which he did take passage and was informed that it was the proper train bound for Holland; that some time later, and before his arrival at Waco, he was informed by the auditor and conductor of appellant’s train that it was not scheduled to stop at Holland and that he would be required, under the rules of the company, to alight at the last regular stop of the train before passing Holland, which was Temple. It further appears that appel-lee insisted upon continuing his journey to Holland, but that' when the train in question arrived at Temple it was met by a peace officer, who, appellee testifies, entered the train at the instance of the trainmen and arrested him and took him therefrom and prevented his returning thereto. Appellee testified in this connection that finally, and before his ejection from the train, he agreed to pay and tendered to the conductor or auditor the regular fare from Holland, appellant’s destination, to Bartlett, the next station beyond. This, however, was explicitly denied by both the conductor and auditor.

Among other things, the court charged the jury that:

“Under-the reasonable rules and regulations of the railway company, its agents and servants in charge of said train had the legal right to eject the plaintiff from said train at Temple, Tex., provided that they used no more force than was reasonably necessary to accomplish that purpose, and provided further that he did not offer to pay his fare from Holland to Bartlett.”

The converse of the proposition was also charged; that is, the jury were instructed that, if the plaintiff did not offer to pay fare from Holland to Bartlett, then the defendant’s agents had the legal right to eject him at Temple, and that if this had been done without unnecessary force they would find for the defendant. We think under the circumstances the charges were correct. See Railway v. Hassell, 62 Tex. 258, 50 Am. Rep. 525; Railway v. Townsend, 45 Tex. Civ. App. 616, 101 S. W. 455. Indeed, there is no objection to these charges on appellant’s part, save that it is insisted under a number of assignments of error that it was immaterial whether or not appellee offered to pay his fare from Holland to Bartlett; the contention being that under the rules and regulations of the company, which were shown upon the trial, they had no authority to take appellee beyond Temple unless appellee should pay his fare from Temple to Bartlett. Appellant therefore assigns error to the limiting words in the charge above quoted, viz., “and provided further that he did not offer to pay fare from Holland to Bartlett.”

The formal rules and regulations offered are as insisted upon by appellant, and the criticism of the charge would be well taken, perhaps, save for the further testimony on the part of the conductor and auditor. The conductor, among other things, testified that the rule was not to stop at Holland, or any other station, unless it was marked as a stop for that train, and that he did not have any authority to accept appellee’s ticket any further south than Temple.

“But if he had tendered the ticket to Holland and then 20 cents cash fare from Holland to Bartlett (as appellee testified he did tender), we would have accepted his ticket to Holland and the cash fare on to Bartlett and have violated the rules of the company to that extent. * *

The auditor testified, among other things:

“If plaintiff had been going beyond Temple on this train, he should have paid his fare out of Temple on to Bartlett; but, as a matter of trying to help him, we offered to take his fare from Holland to Bartlett. We should have collected fare from the last regular stop of this train to the next regular stop. The rules of the company did not authorize us to collect his fare from Holland to Bartlett; but, when we are employed by the company, they tell us to use our discretion in • Cases of that kind. The plaintiff did not offer me his fare from Holland to Bartlett; if he had done so, I would hare deviated from the rules of the company and carried him to Bartlett to save any trouble.”

It may be said to thus appear, if the testimony of the conductor and auditor is to be accepted, that the material issue was whether or not appellee tendered his fare from Holland to Bartlett, and that his failure to do so was the real reason under the rules for his ejection at Temple. The testimony quoted tends to show that appellant’s agents were clothed with the discretion to accept appel-lee’s fare as tendered, and thus permit him to get off at Bartlett as he desired to do. •Other evidence indicated that this was the more convenient course for appellee to take, and he,'being lawfully on the train and having offered to pay the fare, if he did so, would be entitled to continue the journey as a passenger to Bartlett; the rules under such circumstances not being a legal obstacle. All assignments therefore involving this question are overruled.

Appellant assigns error to the action of the court in refusing the following special charge:

“Gentlemen of the jury, I charge you that, in ejecting plaintiff at Temple, defendant’s agents and servants in charge of said train had the right to call to their aid any assistance which was reasonably necessary for that purpose, and the mere fact that the conductor, or other authorized servants, called to their aid the peace officer, Smith, and used his services in having plaintiff to leave said train, would not of ilself render the defendant liable in damages to plaintiff, unless said officer used greater force than was necessary to eject plaintiff. Now, if you find from the evidence that said officer used no more force than was necessary to eject plaintiff, then you will find for the defendant.”

We approve the charge in the main, but think it was properly rejected for the reason that it ignores appellee’s right to recover in event he offered to pay his fare from Holland to Bartlett.

The following clauses of the court’s charge are also objected to:

“You are instructed that the defendant’s agents and servants in charge of the train had no right to procure the arrest of plaintiff, he having violated no criminal law, and if you believe from the evidence that the officer Smith arrested him, and that said arrest was made by the direction of the defendant’s agent or servants, then you will find for the plaintiff.”
“An ‘arrest’ by an officer is the act of taking a person into the personal custody of such officer, placing him under such restraint as to prevent his freedom of action. An arrest may be accomplished either by words or acts, or both words and acts. It is an arrest if the officer, as such, places a person under such restraint as to control his movements and actions.”

We are of the opinion that the charges quoted were misleading and erroneous under the circumstances of this case. The conductor, among other things, testified, in substance, that appellee’s manner when informed that he must leave the train was a little aggressive; that appellee stated,, among other 'things, “that this train- might not be in the habit of stopping at Holland, but that that was one night it was going to stop here”; and that from the circumstances he thought it best to secure the assistance of an officer in event of trouble in an effort to eject appellee; and that he had therefore wired the agent at Temple to have an officer at the train. The auditor testified, among other things, to the effect that when the train arrived at Temple he got off at the platform with the brakeman, and that the officer came up and asked where was the gentleman who refused to get off of the train, and the brakeman pointed appellee out to him. He further testified:

“I was standing inside the door, and the officer went in and asked him if he was the gentleman that refused to get off at Temple, and Dice (appellee) said he was going to Holland. The officer' told him this train did not stop at Holland, and he would have to get off at Temple. The officer asked Dice if that was his hat and grip there, and he replied that it was, and the officer said, ‘Well, get it and let’s get off of the train.’ So Dice picked up his hat, coat, and grip and walked off the train without any force or anything threatened to be used on him. When he got off on the ground, Dice insisted on being arrested and having a charge preferred against him, and the officer told him, ‘No,’ all he wanted to do was to get him off the train, and was not going to arrest him, but said to him, ‘If you don’t quit making so much noise, I will arrest you for disturbing the peace.’ I got back on the train then, and Mr. Dice attempted to get back on the train. When he left the train at Temple, he was not touched in any way, shape, form, or manner; nobody laid their hands on him at all.”

The brakeman testified, among other things, substantially that:

“When we got to Temple, I was discharging the passengers that got off there, and the officer came up to me, and says, ‘Where is that desperate character?’ I says, T have no desperate character that I know of;’ and he says, ‘Well, that man that won’t get off the train here.’ I said, ‘He is inside, and, just as soon as I get these passengers off, I will take you in there.’ The passengers got off, and I goes in the car, and I says to Mr. Dice, ‘This is Temple, and I am going to ask you again to get off the car or pay fare from Holland to Bartlett;’ and he says, T refuse to get off this train until I reach my destination — Holland.’ I says, ‘Officer, this is the man.’ The officer says, ‘Get your hat and grip and coat and come with me.’ That is all the officer said to him, and Mr. Dice says, ‘All right, I am arrested,’ or something like that, and he walked off the train, and the officer got off the train, stuck his hands in his pockets, and started off, and Mr. Dice wanted him to arrest him, and the officer said: ‘No, I won’t arrest you. I have got no authority to arrest you. All I have done is to take you off that train, and you are off the train now.| There were women, babies, and children’ riding in the car right in front of Mr. Dice, and, if some of the trainmen had gone in there and grabbed that fellow up, he might have struck him; that is exactly what he looked like he would do. I was actually afraid of him. He was a bigger man than I am, and his eyes looked as big as my fist. I think that if either of the men engaged in running that train had attempted to put him off that he would have fought us. I believe if I had attempted to take him off he would have knocked me down. I thought the smoothest way to get him off was to get an officer to get him off. After Dice came off with the officer, he wanted to get back on the train and go on to Holland, and I prevented him from getting back on, because I knew X had an officer standing there, and I says: ‘You cannot get on this train for Holland. You can get on. here provided you show transportation or pay the train auditor to Bartlett, or any other place where this train is destined to stop.’ Dice turned to the officer, and says: ‘Why, I am arrested now. What is the charge?’ But the officer did not arrest him, but said, ‘I will arrest you if you don’t quit making so much noise.’ ”

The peace officer testified, in substance, as follows:

“When, upon reaching the train, I asked Foster, the brakeman, where was that bad man, he said, ‘He is right back here, and I want him off this train.’ I walked up to this man, and I says, ‘You will have to get off this train;’ and he says, ‘Well, I have paid for this ticket to Holland;’ and I says, ‘X cannot help that, they tell me to take you off of the train;’ and I says, ‘Pick up your grip and come on and get off.’ lie says, ‘Are you an officer?’ and I said, ‘Yes, sir.’ I don’t know positively which one went out ahead, but there were two men between me and this plaintiff, Dice, here, and we stepped off the steps, and Dice says to me, ‘Now you have got me arrested, what are you going to do with me?’ I says to Foster, ‘Do you want me to make a complaint against this man for anything?’ And Foster says, ‘No, I just wanted him off of the train;’ and I says, ‘You are not arrested.’ Dice was standing right there by me on the platform at that time, and he says, ‘Well, you have got me arrested, why don’t you put me in jail?’ I says: ‘You are not arrested; you are at liberty to go anywhere you want to. I have nothing more to do with you.’ Dice said something about getting back on the train, but the train was fixing to leave, so I went and caught a hack and went on to town. Dice did not start to get back on the train, but he said something about getting back ¡ on there, and one of the boys said something to i him; but I did not understand what it was. I did not take hold of Mr. Dice and pull him out of his seat, and take hold of him by bis arm, or put my hand on his back, or push him out of the train. I never touched that man from that time to this. I never put my hands on that man at all. I was a peace officer at that time, but I did not put my hands on this man, either in the car or going out of the car, or on the platform there.” i

Appellee testified, relating to the question under consideration, among other things, as follows:

“I do not know whether I would have resisted if the auditor and conductor had undertaken to put me off. My mind was not made up on that. I don’t know what I would have done. 1 don’t know whether I would have resisted them or not. I did refuse to get off at Temple, but my mind was not made up as to whether I would have fought the auditor and conductor if they had undertaken to put me off there. I don’t know whether I would have given them the best I had in my shop or not. I don’t know what I would have done. I don’t know whether I would have resisted them or not. I would not have gone off willingly. The reason I would not get off at the request of the persons in charge of the train and then went off at the request of the peace officer was because I was placed under arrest. I do not know whether I would have gone off without being placed under arrest or noh I went off quietly for the peace officer. I did not get off at the request of the persons in charge of the train, although they requested me two or three times to get off the train.”
“When I went off the train with the peace officer, we stopped about four or six feet'from the steps,_ something like that, and the train was standing there all the time, and I asked what I was arrested for, and the train auditor said that I was arrested for refusing to get off the train; the train auditor was then standing on the steps. I attempted to get back on the train while the peace officer had me by the left arm, and he maintained his hold on my arm from the time I got down off the train. If he had turned me loose and the train auditor had not been in any way, I would have boarded the train again. I asked the peace officer to let me board the train and told him I had a ticket to ride that train, and the train auditor said, ‘You are not going to get on here.’ * * * If I had gotten on the train again and they had undertaken to put me off, I don’t know what I would have done. I don’t know whether I would have fought them or not. I cannot tell you whether it is my best impression that I would have fought them or not. I cannot tell you what I would have done. I don’t know whether I would have resisted them or not. If the policeman had let me go and the auditor had not obstructed the way, I would certainly have boarded that train again. * * * I am exactly six feet tall.”

To our minds the evidence did not raise the issue of the use of more force than was reasonably necessary to induce appellee to leave and remain off of the train at Temple. It is undoubtedly true, as the court instructed the jury, that appellant’s employés, in the absence of a tender by appellee of fare from Holland to Bartlett, had the right to eject him from the train at Temple, using all force reasonably necessary for that purpose. Under the court’s charge, however, even the lawful force that was permissible would authorize a finding that appellee was arrested, in which event the jury were specifically instructed to find for the plaintiff, thus entirely ignoring the issue of appellant’s right to eject appellee in event the jury should fail to find with him on the issue of whether or not he had tendered the fare from Holland to Bartlett.

We conclude that the judgment should be reversed because of error in the court’s charges, and that the cause should be remanded for a new trial.


author: DUNKLIN, J.

text:
    FUNK v. HOUSE et al.
    (No. 7956.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 25, 1914.
    Rehearing Denied May 23, 1914.)
    1. Appeal and Error (§ 882) — Rulings on Evidence — Right to Allege Error.
    Defendant was not entitled to assign error o», appeal on the admission of evidence substantially the same as other evidence given by defendant himself without objection.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]
    2. Appeal and Ebbob (§ 1053) — Review-Rulings on Evidence — Prejudice.
    Where, in a garnishment proceeding against the owner of a building to recover on a debt for work and materials furnished the contractor, the court charged that the fact that plaintiff did work on defendant’s building, which was satisfactory to him and was received and enjoyed by him, would not authorize a verdict against him for the value of the work, hut the jury must find that defendant owed the contractor a balance under the contract, defendant was not prejudiced by the admission of evidence that plaintiff furnished the contractor material and labor to complete the house with defendant’s knowledge, and that such work and material was accepted by and satisfactory to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178-4184; Dec. Dig. § 1053.]
    3. Trial (§ 194) — Instructions—Construction — Weight of Evidence.
    Where, in garnishment proceedings against the owner of a building for work and materials furnished the contractor, the court submitted the issues whether the building had been completed in accordance with the contract, and, if not, the amount required to do so, the jury being charged that they were the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony, a further instruction that if the contractor failed to construct the house exactly in accordance with the contract, but the same could be made to conform thereto, then defendant would only be entitled to withhold from the price an amount sufficient to remedy the defects was not objectionable as on the weight of the evidence, and implying that the building could be made to comply with the contract for a less sum than the amount withheld.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.]
    4. Contbacts (§ 285) — Building Contract— CONSTRUCTION — ARCHITECTS — ARBITRATORS.
    A provision in a building contract authorizing the owner to retain 20 per cent, of the contract price, to be paid on satisfactory completion and acceptance of the entire work after the expiration of 15 days from final completion, and that such 20 per cent, should be held by the owner as a security for the faithful completion of the work, and might be applied, under the direction of the architect, in liquidation of any damages under the contract, implied only that, in case the owner had to complete the building, the completion should be under the direction of the architect and the damages determined by the amount required to so complete it, and did not make the architect the arbiter of the amount of damages for the contractor’s failure to complete the building according to the contract, or authorize the architect to direct the application of the balance held by the owner to the satisfaction of such damages.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1290, 1291, 1303, 1304; Dec. Dig. § 285.]
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    B<< zj j 1 t o.ll ® d &c M.O g't Pl-BCf CD P C CD PJ-T*- r < ' » 2.p*t s-ge* Vi 2 P 2 5 á B c o c ££ § I t likely assert any claim to a balance of the contract price for which the owner had been garnisheed at the instance of a labor and material claimant, any error in an instruction that, notwithstanding G.’s undisclosed agency, any balance owing by defendant would be considered a debt due G. and subject to plaintiffs’ garnishment, if G. was held out to plaintiffs by defendant as the real contractor, and if plaintiffs were thereby induced to extend credit to him, was harmless.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.]
    7. Contbacts (§ 285) — Building Contract-Abandonment— Authority of Architect.
    A provision of a building contract for the withholding of 20 per cent, of the price until 15 days after completion, declaring that such sum should be held by the owner as security for the faithful completion of the work, and might be applied under the direction of the architect in liquidating any damages sustained by the owner,. did not constitute an agreement that any estimates by the architect of the damages sustained by the owner because of the contractor’s breach should be binding on the parties.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1290, 1291, 1303, 1304; Dec. Dig. § 285.]
    8. Contracts (§ 284) — Building Contract-Failure to Perform — Balance of Price.
    Where the owner of a building under construction took over the work as authorized to do under the contract, by which he was also entitled to retain a part of the price to secure performance, an instruction that he was not liable for any balance, unless the building was completed to the satisfaction of the architects and accepted by them, was properly refused, since the contractor’s breach could not deprive him of the right to such balance of the price as might remain after the owner had completed the building according to the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1292-1302, 1308-1310, 1312-1316, 1326-1338, 1340-1342, 1344-1346, 1350, 1351; Dec. Dig. § 284.]
    9. Appeal and Error (§ 1067) — Review— Instructions — Prejudice.
    Where the court charged that an owner of a building, by taking possession and moving into it, could not be held to have accepted the building as finished in accordance with the construction contract, and would still be entitled to claim damages for the contractor’s breach, if any, he was not prejudiced by the court’s refusal of a requested charge that no payments by the owner as the work progressed could be construed as an acceptance of any defective work done on the building.
    [Ed. Note. — For other eases, see Appeal and Error, Gent. Dig. § 4229; Dec. Dig. § 1067.]
    10. Trial (§ 129) — Argument of Counsel.
    Where, in an action by a materialman to recover a balance due on a building contract from the owner, counsel argued that the jury should find for the owner because there was_ a clause in the contractor’s bond protecting plaintiffs and giving them a right to collect their claim from the contractor and his bondsman, argument in reply that plaintiffs knew nothing of the bond until the trial of the suit, and that the owner ought not to be permitted to secrete the bond until the trial and then defame plaintiffs because they did not sue on it, was not erroneous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 310; Dec. Dig. § 129.]
    11. Trial (§ 129) —
    Argument of Counsel.
    Where, in an action to recover a balance due on a building contract, defendant’s counsel in argument read a clause from the contract providing that all controversies as to the meaning of specifications should be referred to the architect for settlement, and contended that, if the contractor was in doubt as to any of the specifications, he should have referred the same to the architect for instructions, argument in reply that it was the duty of the owner or the architect to constantly supervise the work to discover deviations from the plans and specifications and to call the contractor’s attention to the same, and because that was not done plaintiffs could not recover, was not objectionable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 310; Dec. Dig. § 129.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Suit by J. T. House and others against P. C. Funk, garnishee. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    R. E. Carswell, of Decatur, for appellant. McMurray & Gettys, of Decatur, and H. B. Lobdell, of Bridgeport, for appellees.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes'

   DUNKLIN, J.

A written contract was entered into by J. W. Gregg, contractor, and Dr. P. C. Funk, owner, by the terms of which the contractor agreed to build a house for the owner for a consideration of $3,379.65, and to furnish the labor and material therefor. The contract provided that the work was to be done under the supervision and to the satisfaction of the architects, Waller & Fields, or their superintendent, who prepared the plans and specifications for the building. It was further stipulated in the contract that 80 per cent, of the contract price should be payable for labor and material used in the building upon certificates of the superintendent, itemized statements to be furnished by the contractor to the superintendent as a basis for such certificates, and the remaining 20 per cent, of the contract price was payable 15 days after the completion and acceptance of the entire work.

The owner paid 80 per cent, of the contract price under the stipulations above mentioned. House & Son furnished to Gregg, the contractor, labor and material which were employed in the construction of the building and for which Gregg paid nothing. In a suit instituted by them, they recovered a judgment against Gregg for such labor and material in the sum of $209.38 and costs of suit aggregating $5.

The present suit was a garnishment proceeding instituted by House & Son against Funk, as garnishee, to subject any balance due by the garnishee to Gregg, under the contract, to the payment of that judgment, and, from a judgment in favor of the plaintiffs against the garnishee for $214.68, the garnishee has appealed.

In his answer, after denying any indebtedness to Gregg, the garnishee alleged specially the contract between himself and Gregg for the construction of the house, the . payment by the garnishee of 80 per cent, of the contract price, further alleging that Gregg had failed to complete the house in accordance; with the terms of the contract and had abandoned the same; that the garnishee had been forced to the necessity of taking charge of the work for the purpose of completing the same according to the terms of the contract, and had done so; that, according to the terms of the contract, the garnishee had a right to retain 20 per cent, of the contract price as security for the faithful completion of .the house and to be applied under the direction of the architect; that the garnishee had been damaged in a sum in excess of the balance of the contract price, which had been estimated by the architect as the amount due the garnishee for such breach of the contract by Gregg. He further alleged that Gregg had no interest in the building contract; that, in executing the same, he had done so merely as the agent of the J; J. B. McCullar Lumber Company; and that, if the garnishee owed any sum under the contract, the same was due to such company and not to Gregg.

The answer of the garnishee was controverted by plaintiffs, who alleged that they had good reason to believe, and did believe, that Funk was indebted to Gregg in the sum of at least $700 for labor and material furnished and done in the construction of the building, about $309 of which was furnished by the plaintiffs to Gregg with full knowledge and notice to Funk at the time.

Gregg also filed a controverting affidavit in which he claimed Funk was indebted to him under the contract in a sum in excess of $700; that he (Gregg) had completed the contract according to its terms; that he did not abandon the building before the work was completed; and that, if any certificate had been given by the architect that the building was not completed according to the contract and the full contract price not earned, the same was given as the result of a fraudulent conspiracy betwéen the architect and Funk for the purpose of defeating the collection of such balance of the contract price.

The garnishee addressed a special exception to the allegation in plaintiffs’ petition that they had furnished to Gregg $309 worth of work and material, which were used in the erection of the building, with full knowledge of the garnishee; the ground of exception being that by such allegations plaintiffs were attempting to set up an original cause of action in themselves against the garnishee. The court overruled this special exception, and also overruled the garnishee’s objection upon the same ground to the testimony of the plaintiff J. T. House that he did furnish Gregg material and labor for completing the house, amounting to $309, with garnishee’s knowledge, and that such work and material so furnished were satisfactory to the garnishee and accepted by him. Those rulings are made the bases of appellant’s first and second assignments of error. The pleading to which the exception was addressed was a reply to the issue tendered by the garnishee that Gregg had no interest in the contract, but that, in making the same, he acted merely as the agent of the McCullar Lumber Company, in whom alone the right to recover any balance due on the contract was vested.

It appears that testimony substantially to the same effect as that of the plaintiff referred to already was given by the garnishee himself, without objection.

We are of the opinion further that, if there was any error in the rulings now under discussion, the same were rendered harmless, in view of the special instruction, given to the jury at garnishee’s request, that the fact that plaintiffs did work on garnishee’s dwelling, which was satisfactory to him and received and enjoyed by him, would not authorize a verdict against him for the value of the work, and that, before a verdict could be rendered in plaintiffs’ favor, the jury must find from a preponderance of the evidence that the defendant owed Gregg a balance under the contract, and in view of the further instruction given in the court’s main charge substantially to the same effect.

Error has been assigned to an instruction given by the court to the jury that if Gregg failed to construct the house exactly in accordance with the terms of the contract, but that the same could be made to conform to such contract, then Funk “would only be entitled to withhold out of the contract price whatever amount would be sufficient to remedy all defects in construction and material and make the building conform substantially to the terms and stipulations of the contract.” Appellant insists that the instruction was upon the weight of the evidence in that it was calculated to impress the jury with the idea that the court was of the opinion that the building could be made to comply with the contract for a sum less than has been withheld out of the contract price of the building. In other instructions contained in the court’s charge, the issues whether or not the building had been completed in accordance with the terms of the contract and the amount required so to do if it had not been so finished were plainly submitted to be determined by the jury, who were further told that they were the exclusive judges of the credibility of the witnesses and of the weight to be given to the testimony. In view of such instructions, we are of the opinion that, if the instruction criticised could be held subject to the interpretation suggested, it is not probable that it resulted in any harm to appellant.

The contract with Gregg provided that the balance of 20 per cent, pf the contract price should be paid “on satisfactory completion and acceptapce of the entire work after the expiration of 15 days,” and that such balance of 20 per cent, “shall be held by owner as security for the faithful completion of the work and may be applied under the direction of the architect in the liquidation of any damages under this contract.” Another criticism presented to the instruction above noted is that the same ignored those two stipulations in the contract. Appellant apparently construes the stipulation last quoted as an agreement on the part of the contractor and owner that the architect should be the arbiter to determine the amount of damages to the owner for a failure of the contractor to complete the building according to the terms of the contract and as authorizing the architect to direct the application of such balance withheld by the owner to the satisfaction of such damages. We are of the opinion that the stipulation cannot properly be so construed. Read in, the light of the language “shall be held by the owner as security for the faithful completion of the work,” the language “may be applied under the directions of the architect in the liquidation of any damages under this contract” means no more than that, in the event the necessity should arise for the owner to complete the building himself, the completion of the same should be under the direction of the architect, and the damages determined by the amount required to so complete it.

Furthermore, the contract contained another stipulation reading as follows:

“It is also agreed that if the contractor shall at any time refuse or neglect to furnish the, proper material or workman or otherwise fail or refuse to comply with the plans and specifications, such failure being certified to by the architect,, the owner shall be at liberty (after three days’ written notice to the contractor) to provide the proper material and workman and deduct the cost from the money then due, or to become due, the contractor, or for sufficient reasons to terminate the employment of the contractor and take charge of the premises and all material thereon-, and complete the building according to plans and specifications, charging the expense to the contractor.”

And it was expressly pleaded by the garnishee that it bad become necessary for him to take charge of the work for the purpose of completing the house according to the terms of the contract, and that he had done so. This clearly shows that the garnishee elected to avail himself of the remedy given by the stipulation last quoted. It also appears from the evidence that the appellant did take charge of the house for the purpose of completing the same under the direction of the architect, who further directed him to apply the balance withheld from the contract price to payment for labor and material necessary tó so complete the work and pay over any excess remaining of such balance to the contractor. When appellant elected to take charge of the house upon Gregg’s breach of the contract, the contract was thereupon terminated. If the amount necessary to complete the house was less than the amount withheld by appellant, then appellant owed Gregg the difference.

Gregg testified that in making the contract he acted as agent for the MeCullar Lumber Company, for whom he was working át a salary of $60 per month, and that he had no personal interest in the contract. He further testified that he never told Funk of such agency until after Funk had called on him to complete the house. No testimony was introduced tending to show that Funk had any knowledge of such agency prior to this information given him by Gregg, and appellant insists that, in the absence of such evidence, the court erred in instructing the jury substantially that, notwithstanding Gregg’s undisclosed agency, any balance owing by Funk under the contract would be considered as a debt due Gregg and subject to plaintiffs’ writ of garnishment, if Gregg was held out to plaintiffs by Funk as the real contractor, and if plaintiffs were thereby induced to extend credit to him for labor and material furnished in the construction of the house. Having authorized Gregg to make the contract in his own name, and thus to hold himself out as a principal, any judgment rendered against Gregg would clearly be binding on the MeCullar Lumber Company, Gregg’s principal. Furthermore, no evidence was introduced tending to show that the MeCullar Lumber Company was asserting, or would likely assert, any claim to the balance of the contract price. Accordingly the error, if any, in the court’s instruction on the issue of estoppel was harmless. For the same reason there was no error in refusing appellant’s requested instruction that, if Gregg, in making the contract, did so as the agent of the MeCullar Lumber Company, a verdict should be rendered in favor of the appellant. See O’Brien v. Mayer, 143 S. W. 240.

Error has been assigned to the refusal of two requested instructions, one of which was in effect that the estimates given by the architect were presumed to be correct, and that, in determining whether or not Funk was indebted to Gregg, such estimates should be considered as true and correct, unless plaintiffs had shown them to be erroneous by a preponderance of the evidence, and that the architect giving such estimates had acted fraudulently in making the same, and that Funk knew of such fraud. The other requested instruction was that such estimates of the architect were presumed to be correct until plaintiff showed them to be incorrect by a preponderance of the evidence; said instruction omitting the issue of fraud in the architect in giving such estimates. Appellant invokes the following stipulation in the contract, which has been quoted already, as warranting the instructions requested, namely:

“It is agreed by the parties that 20 per cent of the contract price should be held by the owner as security for the faithful completion of the work and may be applied under the direction of the architect in liquidation of any damages under this contract”

In support .of this contention appellant cites Kilgore v. Baptist Educational Society, 89 Tex. 468, 35 S. W. 145. The contract involved in that case was a building contract, in which the owner and the contractor had expressly agreed that the owner should pay the contractor as the work on the building progressed according to the estimates of the architect, whose estimates were by the terms of the contract made binding upon the owner. The court held that the jury should have been instructed that the estimates given Were presumed to be correct, in the absence of any showing that the architect, in giving them, acted fraudulently. We are of the opinion that the stipulation now under, discussion cannot properly be construed as an agreement that any estimates by the architect- of the amount of damages sustained by the plaintiff by reason of Gregg’s breach of his contract should be binding upon the parties, and hence the decision cited is not applicable.

There was no error in refusing another requested instruction in effect that a verdict should be returned in favor of the garnishee unless the building was completed to the satisfaction of the architects and accepted by them. While Gregg contracted so to do, he could not be deprived of the right to recover such balance of the contract price as might remain after Funk should complete the building as he had undertaken to do.

There was no reversible error in refusing appellant’s requested instruction that no payments made by Funk for work done on the building could be construed as an acceptance by him of any defective work done on the building. At appellant’s request the jury were told that the fact that the defendant took' possession of the dwelling and moved into it could -not be construed as an acceptance of the building as finished in accordance with the contract, and that he would still have a right to claim damages for the breach of the contract by Gregg, if any. Furthermore, the contract containing a stipulation substantially to the same purport as the requested instruction was read in evidence to the jury.

Counsel for plaintiffs in his closing address to the jury stated substantially that plaintiffs knew nothing of the bond given by Gregg to Funk for the completion of the building until the trial of this suit; that Funk could recover on the bond; and that he ought not be permitted to put the same in his pocket, until the trial, and then defame plaintiffs because they did not sue on the bond. • Error has been assigned to this argument, and also to the refusal of the court to give appellant’s requested instruction to the jury to disregard it. In approving the bill of exception, the court states that the argument so made by plaintiffs’ counsel was in reply to an argument by appellant’s counsel that the jury should find for Funk because there was a clause in the contractor’s bond protecting plaintiffs and giving them the right to sue and collect their claim from Gregg and his bondsmen. In view of this, explanation by the trial judge, the assignments of error based upon the argument are overruled.

Assignments are also presented to the further argument by counsel for appellee and to the refusal of a requested instruction to the jury to disregard the same. According to that argument, it was the duty of Punk or the architects to constantly supervise the work as it proceeded for the purpose of discovering any deviation from the plans and specifications and to' call Gregg’s attention to the same, and, because the same was not done, plaintiffs should recover in this cause. In explanation of the failure to exclude the argument upon appellant’s exception thereto and to give the requested instruction, the trial judge stated in the bill of exception that counsel for appellant, in his argument to the jury, read parts of the contract, and especially that clause stipulating that all controversies relative to the meaning of the specifications should be referred to the architect for settlement, and contended that, if Gregg was in doubt as to' any specifications, he should have referred the same to the architect for instructions. Appellant’s counsel having thus invited a discussion of stipulations wholly foreign to any issue to be determined by the jury, and the argument of appellees’ counsel being based substantially upon the same stipulations, and as the instruction given by the court to the jury negatived the materiality of the stipulations so discussed to the rights of either party to the controversy in this suit, the assignments now under discussion are overruled.

We are of the opinion further that the judgment is supported by the testimony, and, as we have found no error in the record, it is affirmed.