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    FIRST NAT. BANK OF PARIS et al. v. LYON-GRAY LUMBER CO. et al.
    (No. 1702.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 22, 1917.
    Rehearing Denied April 26, 1917.)
    1. Mechanics’ Liens <@=>108 — Right to Lien —CONTRACTOR’S MATERIALMEN.
    Const, art. 16, § 37, giving materialmen liens on buildings, and articles made or repaired by them, or for material furnished, is inapplicable to one furnishing material to a contractor.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 140, 141.]
    2. Mechanics’ Diens <@=>5 — Construction op Constitutional Provisions.
    A constitutional provision creating involuntary liens is not entitled to liberal construction, and the claimant must bring himself within its 'clear intent.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 3, 5.]
    3. Mechanics’ Liens <@=>118 — Proceedings— Necessity oe Notice.
    Under Rev. St. arts. 5621, 5623, giving ma-terialmen mechanics’ liens, and requiring the giving of notice to the owner and filing with county clerk, the provisions regarding notice are mandatory.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 161.]
    4. Mechanics’ Liens <@=>113(2) — Amount — Limitation.
    A contractor’s materialman is entitled to a mechanic’s lien only to the amount that the owner owed the contractor when the material; man notified him that material was being furnished pursuant to Rev. St. art. 5623.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 148.]
    5. Fixtures <s=^9 — Contractor’s Incorporation op Elevator in Building — Right op Mortgagee Against Owner.
    Where the seller retained an unrecorded chattel mortgage on an elevator furnished the contractor, which was incorporated in a building he was constructing under a contract, and the owner of the building completed it upon the contractor’s default, the mortgagee could not recover the elevator or its purchase price from such owner.
    6. Mechanics’ Liens <@=>111(1) — Material-men — Installments Due Contractor — Amount op Liability.
    A statutory provision limiting the owner’s liability on mechanic’s lien claims to the contract price does not prevent the materialman from enforcing a lien on installments due the contractor, although nothing was due him when the building was completed, and the owner had expended more than the contract price in finishing the work after the contractor quit.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 144.]

      7. Mechanics’ Liens <&wkey;315 — Indemnity Against Lien — Liability on Bond.
    Where a contractor’s surety guaranteed the owner against mechanics’ liens, the surety is liable, although the owner made payments to the contractor with knowledge of outstanding, unpaid claims.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 658.]
    Appeal- from District Court, Lamar County; A. P. Dohoney, Judge.
    Mechanic’s lien action by the Lyon-Gray Lumber Company against the First National Bank of Paris and J. T. Finn, in which various parties intervened, and in which the United States Fidelity & Guaranty Company was made a party defendant. From a judgment fixing the rights of the various parties, the First National Bank of Paris, the United States Fidelity & Guaranty Company, and certain lien claimants appeal.
    Affirmed as modified.
    Crane & Crane and Seay & Seay, all of Dallas, Hunt, Myer & Teagle and John Charles Harris, all of Houston, and Burdett, Connor & Dailey, Park, Moore & Hardison, and Long & Wortham, all of Paris, for appellants. Harris & Harris, of Houston, and Head, Dillard, Smith, Maxey & Head, of Sherman, for appellees.
   HODGES, J.

On. the 18th. day of February, 1914, the First National Bank of Paris, Tex., entered into a contract with J. T. Finn for the construction of a six-story building on a lot owned by the bank. Finn was to furnish the necessary labor and material, and to receive a consideration of $111,231.-63. The contract provided that the bank should have the privilege of adding a full basement at a further cost of $7,200. By the addition of the basement, which was after-wards called for, and some other extra features agreed upon, the contract price of the structure when completed would have amounted to the sum of $122,493.04. The contract also provided that payments were to be made, to Finn in semimonthly installments to the extent of 80 per cent, of the value of the labor and material put into the building, upon estimates furnished by the supervising architect. In order to secure the faithful performance of this contract, Finn executed a bond in the sum of $55,615.81, with the United States Fidelity & Guaranty Company as surety. The conditions of this bond were that Finn, the contractor, would faithfully and satisfactorily construct the building in accordance with the plans and specifications, and would hold the bank harmless against all claims for labor performed or material furnished, and against all claims and demands of any person that might arise directly or indirectly from the prosecution of the work. Finn began the construction of the building about March 1, 1914, and continued till February 9, 1915, when he signified to the bank his inability to complete his contract. The bank then, acting under a clause of its contract which authorized it to do so, took charge of the work of construction and completed the building according to the specifications, at an additional cost of $21,050.38. Prior to the abandonment of the contract by Finn the bank had paid him, on estimates furnished by the architect and for material furnished by Finn’s account with the consent of his surety, the sum of $116,-422.8'4, of which $18,687.21 was a part of the reserved fund. These payments, added to the amount expended by the bank in com.pleting the building, made an aggregate of $137,473.72, or $14,979.68 in excess of the contract price.

In January, 1916, the Lyon-Gray Lumber Company, a private corporation, began this suit against the bank and Finn, the contractor, to recover the principal sum of $12,-433.98, and $355.80 as interest, and to foreclose a lien upon the building and lot for material furnished to Finn and used by him jn the construction of the building. It was alleged by the Lyon-Gray Lumber Company that due notice had been given to the bank, and an itemized account filed in the office of the county clerk of Lamar county as required by statute. The bank answered, and specially pleaded its contract with Finn for the erection of the building at a stipulated price, the inability of Finn to complete the building, the taking over of the construction by the bank under the terms of the contract, and the completion of the building at the excess over the contract price. A number of other parties who claimed liens by reason of having furnished material to Finn for the construction of the building intervened, among whom were the following, who are parties to this appeal: The Atlanta Terra' Cotta Company, H. S. Bettes Hardware Company, the Christopher & Simpson Iron Works Company, W. F. Dulaney & Sons, the Electric Appliance Company, the Gilbert Manufacturing Company, the Ingram Mill Work Company, the Texas Power & Light Company, the Otis Elevator Company, the Texas Glass & Paint Company, the Trussed Concrete Steel Company, the Wichita Emails Brick & Tile Company, and the Lecoutour Bros. Stair Manufacturing Company. The United States Fidelity & Guaranty Company, which will be hereafter referred to as the surety company, was made a party defendant at the instance of the' bank. The ease was tried 'before the court without a jury, and judgment rendered against the bank as follows: Judgment in favor of Lyon-Gray Lumber Company for $13,557.16; in favor of E. B. Ingram for $3,790.07; .in favor of H. S. Bettes Hardware Company for $300.95; in favor of W. F. Dulaney & Sons for $781.35; and in favor of the Christopher & Simpson Iron Works Company of $396.15. In each instance there was a foreclosure of the lien upon the property. The two parties last mentioned secure judgments for only a part of their claims. Judgment was rendered in favor of the bank against all of the other parties intervening and claiming liens for labor and material furnished. Judgment was also rendered in favor of the bank over against the surety company for the sum of $14,979.68 and for the amount awarded against the bank in favor of the materialmen above referred to. Appeals have been perfected by the surety company, the bank, and all the lien claimants who failed to obtain judgment for the amount sued for.

In addition to the facts previously stated, we gather the following from the findings filed by the trial court: Under the terms of a verbal agreement with Einn, the Lyon-Gray Lumber Company sold him material used in the construction of the bank building. Those sales and deliveries were upon different dates between March 1,1914, and November 9th following. Notices were served upon the officers of the bank as the material was delivered to Finn; and on the 28th of January, 1915, the Lyon-Gray Lumber Company filed in the office of the county clerk of Lamar county an itemized account of its claim as required by statute. There was then due it from the contractor the sum of $12,789.7S, including some accrued interest. On November 17, 1914, Finn gave the Lyon-Gray Lumber Company an order upon the bank for the payment of the sum of $12,656.-28, that being the amount then due, and directed that it be paid as follows: $4,656.28 out of the estimate due December 1st; $4,000 out of the estimate due December 15th; and $4,009 out of the estimate due January 1, 1915. •This order was presented to the cashier of the bank and filed by him, but was not formally accepted. -After the delivery of that order the bank p'aid Finn $11,785.13, none of which was a part of its 20 per cent, reserved fund. From March 28, 1914, to December 30th following the bank paid to Finn, upon estimates furnished at different times by the architect, the aggregate sum of $97,785.13. On the several dates when material was delivered to Finn by the lumber company and notice served on the bank it had in its hands due Finn, under the terms 0¾ the contract, funds considerably in excess of the claim held by the Lyon-Gray Lumber Company.

W. F. Dplaney & 'Sons sold to Finn, between September 7, 1914, and November 25th following, hardware amounting to the sum of $5,352.57; but notice of the sales was not given to the bank till December 17, 1914. Between December 17th and 29th of the same year other material was sold to Finn by Dulaney & Sons amounting to- about $350, and ■notice thereof given to the bank. Christopher & Simpson Iron Works Company sold Finn material between the dates of September 3, 1914, and December 22d following, amounting to $2,944.77, and on the last date above mentioned a written notice was served upon the bank. At the time notices were served by W. F. Dulaney & Sons and the Christopher & Simpson Iron Works Company the bank had in its hands and due Finn the sum of $1,177.50. Both of the above-named creditors filed their accounts in the office of the county clerk within the time prescribed by the statute. E. B. Ingram sold to Finn material aggregating $3,790.07. H. S-. Bettes Hardware Company sold- him material amounting to $300.95. Each of these last-named creditors gave timely notice to the bank, but failed to file their accounts in the office of the county clerk. Some 'of the remaining parties to this appeal failed to comply with any of the provisions of the statute, and others gave notice at a time when there were no funds in the hands of the bank due Finn under the terms of his contract.

It appears from the conclusions of law filed by the trial court that the judgment rendered in favor of the Lyon-Gray Lumber Company is based upon a finding that the lumber company had fully complied with all the statutory requirements for fixing and securing its lien upon the building at a time when there were funds in the hands of the barde due Finn in excess of the claim of the lumber company; that the judgments in favor of W. F. Dulaney & Sons and of the Christopher & Simpson Iron Works Company for a part only of the sums claimed by them were tints limited, because only $1,177.-50 were in the hands of the bank at the time it was served with notice by those claimants. It further appears that'the judgments in favor of H. S. Bettes Hardware Company and E. B. Ingram were based upon the conclusion that compliance with the statute as to filing itemized accounts in the office of the county clerk was not required in order to fix and secure their liens.

Most of the assignments of error presented by the parties claiming liens upon the building for material furnished may be disposed of by deciding the following questions of law:

(1) Did those who sold to Finn, the contractor, material used by him in the construction of the bank’s building, have ma-terialmen’s liens under the provisions of the Constitution? (2) Were those claimants required to comply with all the provisions of the statute as to giving notice to the owner and filing itemized accounts in the office of the county clerk in order to fix and secure liens against the building?

The lack of harmony in the rulings heretofore made by the courts of this state in analogous cases has enhanced the inherent difficulties of answering those questions. The case of Bassett v. Mills, 89 Tex. 162, 34 S. W. 93, involved the right of one who had furnished material to a subcontractor to claim a lien upon the lot on which the building constructed stood. The Supreme Court held that such a lien was given by the act of 1899 then in force. It was stated in the opinion that the language of the Constitution was broad enough to include as lienholders those who held claims for material furnished to a subcontractor, as well as claims for material furnished to the original contractor. We have not' found any reiteration of that holding by the Supreme Court, or any decision by it in which this ease is cited as authority upon that proposition.

Berry v. McAdams, 93 Tex. 431, 55 S. W. 1112, was a suit by McAdams, who had furnished lumber to Berry, the contractor, to construct a building for Housewright, Swayze & Co. McAdams had-given the owners prompt verbal notice of his claim, and ha'd complied with other statutory requirements. The Court of Civil Appeals, being in doubt as to the proper determination of the questions of law involved, due to conflicting rulings by other courts, certified to the Supreme Court the following questions: (1) Did Mc-Adams have a lien under the terms of the Constitution which could not be defeated by a settlement between Berry, the contractor, and the owners after they received notice of McAdams’ claim? (2) Did the fact that Mc-Adams had no contract with the owners prevent him from asserting such lien? (3) If the lien existed, was it subject to the right of the owners, after actual notice of the claim, to settle with Berry, and thus defeat the lien before the expiration of the time allowed by statute for filing and recording the account and giving notice in writing?

The Supreme Court answered that the giving of written notice as required by statute was an indispensable requirement for fixing the lien. In the course of the opinion Justice Brown said:

“The appellant (Berry) claims that the Constitution gives no lien to persons who do not contract with the owner of the property. On the. other hand, it is insisted by appellee that a lien is given by the Constitution in favor of all classes of materialmen and laborers, which attaches independently -of any statutory provisions. That question was decided, as to claims of subcontractors, in Horam v. Frank, 51 Tex. 401, with which there is apparent conflict in the utterances of later cases; but it is not necessary for us to decide the question.”

Strang v. Bray, 89 Tex. 525, 35 S. W.. 1054, was a suit against an owner by the original contractor for the balance due upon the contract price. The contractor had not complied in any respect with the statutory requirements except in bringing his suit within four months after the indebtedness accrued. The Supreme Court held that the contractor’s lien attaehe'd under the terms of the Constitution, and was not lost by his failure to tecord the contract, or hill of particulars, as required by the statute. From this ruling it follows that liens created by the Constitution are complete without reference to the statute, an'd that the statutory requirements as to notice and the filing of contraéis and itemized accounts in the office of the county clerk need not be observed where no rights of third parties are involved. If notice to third parties is the only purpose which those statutory requirements are intended to serve in the enforcement of constitutional liens, the failure to observe them cannot be invoked by one who has actual notice of all the facts. In Berry v. McAdams the owner had actual notice of the unpaid claim of a creditor who had supplied the contractor with material; but the court held' that actual notice was, under that state of facts, not sufficient, and the statute must be complied with. That ruling, when considered in connection with the language used in Strang v. Pray, appears to support the conclusion that the claimant in Berry v. McAdams had only a statutory lien; for if one holder of a constitutional lien may disregard the statute, it is difficult to see why another should not exercise the same privilege under similar conditions.

If the case of Bassett v. Mills had established a precedent which the Supreme Court thereafter fully approved, the question certified in Berry v. McAdams presented a seasonable opportunity for such a holding. The failure of Justice Brown to cite that case instead of one apparently in conflict with it, and the reference to the question as still unsettled, indicates either a disinclination to follow the ruling announced in Bas-sett v. Mills or that it was not regarded as authority upon that proposition. On the other hand, in the case of Beilharz v. Illings-worth, 62 Tex. Civ. App. 647, 132 S. W. 106, decided by the Court of Civil Appeals of the Fifth District, in which a writ of error was refused, and the case of Texas Builders’ Supply Co. v. Beaumont Construction Co., 150 S. W. 770, it is directly held that one who furnishes niaterial to a contractor is entitled to a lien under the terms of the Constitution, and that full compliance with the statutory requirement in filing an itemized account in the office of the county clerk was not necessary where the rights of subsequent purchasers were not involved. But in the case of First Baptist Church v. Carlton Lbr. Co., 173 S. W. 1179, a contrary ruling was announced by this court, and a writ of error was refused by the Supreme Court. Other conflicting cases might be referred to, but these, we think, are sufficient to disclose the discord among the courts.' Under these circumstances, we therefore feel at liberty to discuss the application of the Constitution to claims of this character as, in some respects, an original question.

Section 37 of article 16 of that instrument is as follows:

“Mechanics, artisans and materialmen, of every class, shall have a lien upon the buildings and articles ma‘de or repaired by them, for the value of their labor done thereon, or materia] furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

Omitting all superfluous language regarding materialmen, the section quoted would read:

“Materialmen of every class shall have a lien upon the buildings and articles made or repaired by them for the value of the material furnished therefor.”

The first and logical inquiry is, who is a materialman within the meaning of the language quoted? Is it the contractor who owns and controls the material at the time it is appropriated in the construction of the building made or repaired, or does the term also include one who sells to the contractor material which is subsequently used for that purpose? A contractor who, in compliance with his obligation to do so, buys and furnishes the necessary material used in a building which he has agreed to construct for a fixed price, is, undoubtedly, a furnisher of material within the meaning of the Constitution, and is entitled to the lien there provided for. Strang v. Pray, supra. If the material then belongs to the contractor, it is of no importance that it has not been paid for, as that fact alone cannot affect his title or dominion over the property. It is the ownership of the material at the time it is incorporated into the building which makes the contractor a materialman, and the debt created by such appropriation is that which the Constitution intended to secure by the lien given. The dealers from whom the contractor purchases the material which he thus applies do not occupy that legal status. By selling to the contractor they parted with whatever title they held, and conferred upon the contractor an unrestricted dominion over the property. He might then use it for any purpose he saw proper, or sell it again without making any use of it. Such dealers are under no obligation to the owner to furnish any material, and could not be held responsible by him for a failure to do so or for any defect in that which they delivered to the contractor. The legal status they occupy toward the building or its owner is radically different from that of the contractor who has engaged to furnish material. If that legal relation was required in order to constitute the contractor a materialman within the meaning of the Constitution, then one who does not occupy that status,-or one substantially the same, is not entitled to the rights which attend that relation. Some assistance may be obtained in the solution of this question by an inquiry into the purposes for which the liens -mentioned in the Constitution are created. Manifestly it was to secure the payment of a class of debts for which the owner of the property incumbered might justly be held responsible. Rooking to the language of the Constitution alone, the presumption would be that the debts contemplated are those which originate from the furnishing or appropriation of the material in the process of construction or repair. To such a debt the lien becomes an incident. The two originate simultaneously, grow out of the same transaction, and expire at the same moment. But no such conditions attend the debt of the contractor incurred in the purchase of material from a dealer; for there can be no semblance of a lien as long as the material remains isolated and unincorporated in the building, and there is no obligation on the part of the contractor to make that use of it. The existence of the lien in such an instance, therefore, must depend, not upon any contract, but upon the election of the contractor to make that particular use of his material. Moreover, if such dealer acquires a lien by this appropriation of the property, then we have two possible liens, securing two separate and distinct debts, resulting from the sale and appropriation of the same material. If there may be two- distinct Irens resulting from the successive ownership of the same material, why is it not possible to have three, and evén more? The statute gives a lien to those who furnish material under or by virtue of a contract with either the owner or the contractor. But the language of the Constitution is not so broad. The right of one who supplied material to a contractor to claim a constitutional lien depends solely upon an enlarged use of the word “furnished.” If it is proper to say the material is furnished -when delivered to the contractor, the lien follows. But if it is not furnished till appropriated in the building, then the dealer is not a furmsher who may claim the lien. The fact that the dealer’s lien must depend upon such appropriation tends to make that transaction the legal test of whether or not a thing has been furnished. If there is no furnishing till such appropriation occurs, it logically follows that the party who then owns the property and controls the appropriation is the one who is the furmsher or materialman.

The use of the words “every class,” in referring to mechanics, artisans, and material-men in whose favor liens are created, has been relied on as enlarging the beneficiaries mentioned so as to include some who would not otherwise fall within that description. Those words refer to mechanics and artisans as well as to materialmen. It is well known that mechanics and artisans are usually classified according to the character of material they handle or the work they perform. They may be divided into carpenters, brickmasons, plumbers, painters, etc., each performing a distinct class of service on buildings. The words “every class” do not make any workman a beneficiary of the lieu who cannot, according to the accepted standards, be properly classed as a mechanic, or an artisan. The same rule of construction may with equal propriety be adopted in considering the application of those words to- materialmen. If these may be separated into distinct classes, the grouping should be arranged, not by their status as creditors, but by the character of the material which they furnish. One may furnish lumber, another brick or stone, a third steel or iron, and a fourth paints and varnishes. The words “every class” cannot include any one who is not a furnisher of some character of material. They are used in order to make it certain that all who do furnish any character of material are included.

There is other language in this article of the Constitution which appears to harmonize with these conclusions. It is said that the parties referred to “shall have a lien upon buildings and articles made or repaired by them.” By dropping the pronoun “them,” the meaning of this extract would not be substantially altered by reading it thus: “shall have a lien upon buildings and articles made or -repaired by such mechanics, artisans, or materialmen.” This clearly restricts the liens in favor of mechanics and artisans to those buildings or articles with, which they have some contractual connection. There is no good reason why a similar restriction should not apply to the material-men who are favored with such liens. It is true that a materialman is not eo nomine either a builder or a repairer, but a builder or repairer may by his contract become a materialman as to the building or article which he undertakes to make or repair. One who merely sells material to a contractor, to be used by him in the making or repairing of the building or article sought to be incumbered, takes no part in that work himself, has no contractual relation to it, and therefore does not come within that interpretation of the meaning of the Constitution. There is no occasion for holding that those who sell material to a contractor are entitled to liens, in order to give proper effect to the language of the Constitution. Its terms and purposes may be fully satisfied by limiting the liens to those who own and control the material when it passes directly to the dwner of the incumbered property or by incorporation into his building. Provisions by which involuntary liens are created have no special claim on the liberality of court in applying the general rules of construction. One who lays claim to such a lien must bring himself within the terms, or the clear intention, of the law relied on.

Counsel for some of the dealers who sold material to Finn, the contractor, argue with much force that a lien created by the Constitution cannot be defeated by any contract to which such lienholder is not a party. They contend that such liens are incumbranc-es which continue in force till released or till tire debts they secure are satisfied. They insist that it is immaterial that the owner owes the contractor no part of the contract price; that the lien exists independently of that condition. If this argument is correct, it furnishes a reason which forbids a too liberal extension of the constitutional lien; for if one who sells material to a contractor may ac-. quire such a paramount right, then the owner would in every instance be at the mercy of those who extend credit to the contractor. The practical abridgment of the right of contract which such conditions would make possible is enough to justify a construction which confines the liens to those who cannot make so disastrous a use of them.

For the reasons stated, we feel disposed to adhere to the ruling made in the case of First Baptist Church v. Carlton Lumber Company, before referred to. We therefore conclude that none of the parties who sold material to Firm acquired a lien under the terms of the Constitution, but that they must rely upon a compliance with the provisions of the statute. Article 5621 of the Revised Civil Statutes provides for a lien in favor of those who furnish material for a building under and by virtue of a contract with the owner, his agent, or the contractor. Article 5623 provides, as a condition for fixing and securing such liens that the party, furnishing the material to a contractor shall file an itemized account of his claim in the office of the county clerk within 90 days after the indebtedness shall have accrued. It also requires those who furnish material to a contractor to give written notice to the owner of the building, or his agent, that such material has been furnished. Parties claiming liens under those provisions of the' statute must show that they have complied with the foregoing requirements, not only in respect to giving the notice to the owner, but also in filing contracts or itemized accounts in the office of the county clerk. Berry v. McAdams, supra ; U. S. & Mex. Trust Co. v. Western Supply Co., 109 S. W. 377; Gilmer v. Wells, 17 Tex. Civ. App. 436, 43 S. W. 1058.

It appears from the facts found by the court that the Lyon-Gray Lumber Company complied with all of the above statutory requirements; that notice had been given at a time when the bank had in its hands funds belonging to Fpm more than sufficient to satisfy the claim held by the lumber company. It also appears that W. F. Dulaney & Sons and the Christopher &’ Simpson Iron Works complied with the terms of the statute. But the court found that at the time they served notice on the bank it had in its hands only $1,177.50 due Finn upon his construction contract. Judgments in favor of those two creditors against the bank were correctly entered in the court below. The failure of the Bettes Hardware Company and E. B. Ingram, for whom similar judgments were rendered, to file their accounts in the office of the county clerk, was sufficient to defeat their claims to liens, and they were not entitled to the judgments recovered by them against the bank.

The Otis Elevator Company is not here asserting a materialman’s lien, but is claiming rights under the terms of its contract made with Finn at the time it sold him the elevators furnished. It insists that it is now entitled to a return of those elevators or to payment of the balance due upon its claim for their purchase price. The facts show that in May, 1914, the Otis Elevator Company entered into a contract with Finn whereby it agreed, in consideration of the sum of '$7,000, to furnish and install two elevators in the bank building. This contract provided, among other things, that the Otis Elevator Company was to retain title to and possession of all machinery, implements, and apparatus furnished by it. Payment was to be made in specified installments. This contract was not filed for record in the office of the county clerk of Lamar county until March '31, 1915. It was then that the bank had its first notice of the lien now claimed by the ■elevator company. On the 9th day of Febru■ary, 1915, at the time Finn abandoned his -contract, the elevator company had not fully completed the installation of the elevators. 'They were, however, in place, and the machinery was firmly fixed and bolted in place so as to become a part of the realty. The elevators had been included in all estimates theretofore furnished by the architect, and payments to Finn were made upon those estimates. After Finn abandoned his contract ■and turned over the building for completion to the bank, the latter requested the elevator company to finish the installation of the elevators, but it refused to do so unless the hank would pay the balance due on the purchase price. This the bank declined to do.

The contract of the elevator company with Finn was merely a mortgage given to secure the payment of the contract price of the elevators. The position of the bank at the time it took over the building was substantially that of a purchaser without notice. The elevators had been sold to Finn and were incorporated into and became a part of the hank’s building under the terms of its original contract with Finn. By such incorporation, whatever rights Finn had in the elevators as personalty passed to "the bank, just as did the lumber, brick, and other material of which the building was composed. Counsel for the elevator company argue that under its contract with Finn the elevators retained their character as personalty, although in fact attached to the building; that the transformation of personalty into realty is controlled by the intention of the parties. That proposition may he correct when all the parties interested concur in the contract of severance; but in this instance the bank, who owned the realty to which the elevators were ■attached, and who became the assignor of the elevators by the attachment, was not a party to that compact, and its rights cannot be affected by the agreement between Finn and the elevator company. We think the court ■correctly disposed of that claim. Peck-Hammond Co, v. Walnut Ridge Dist., 93 Ark. 77, 123 S. W. 771; Allis Chalmers Co. v. City -of Atlanta, 164 Iowa, 8, 144 N. W. 346, 52 L. R. A. (N. S.) 561, Ann. Cas. 1916D, 910.

It is contended by the bank and the United States Fidelity & Guaranty Company ■that, under the statute which provides that the owner shall in no event be liable to lien-holders for more than the contract price of the building, the bank could not be held responsible upon any of the claims for which judgment has been rendered against it. This proposition is based upon the finding of the court that nothing was due the contractor after the building was finished, and that the bank had expended $14,979.68 in excess of the contract price in its completion. The record shows that, under the terms of his contract with the bank, Finn was entitled to be paid in semimonthly installments during the progress of construction, to the extent of 80 per cent, of the value of the labor and material put into the building. These payments were to be made upon estimates furnished by the architect. When those estimates were furnished at the intervals provided for, a definite portion of the contract price became due and payable to Finn. This the bank had no legal right to withhold. The rule is well settled that, when a specified sum of money is payable in installments, each installment as it becomes due constitutes a distinct cause of action for which suit may be maintained when payment is refused. Raeke v. Br. Asso., 17 Tex. Civ. App. 167, 42 S. W. 774; Davidson v. Hirsch, 45 Tex. Civ. App. 631, 101 B. W. 269; Lorillard v. Clyde, 122 N. T. 41, 25 N. E. 292, 19 Am. St. Rep. 470. A creditor for material furnished to Finn could, by a compliance with the statutory requirements, subject such of the installments as were due to the payment of his debt. The possibility that Finn might thereafter fail in the completion of his contract, and the bank be compelled to take over and finish the building at a cost in excess of the contract price, did not affect Finn’s right to demand payment of the installments as they became due. As long as Finn was not in ■ default he had a right to those payments as they accrued, and to this right a diligent creditor might become substituted by a compliance with the statutory requirements. The rights of the Lyon-Gray Lumber Company, W. F. Dulaney <& Sons, and Christopher & Simpson Iron Works Company must be determined by the conditions existing at the time they fixed their liens. If there was then any part of the contract price due to Finn, their right to have it applied to the payment of their claims could not be defeated by the bank’s withholding payment in violation of its contract with Finn. Baumgarten v. Mauer, 60 S. W. 451; Lonergan v. Trust Co., 101 Tex. 80, 104 S. W. 1061, 106 S. W. 876, 22 L. R. A. (N. S.) 364, 129 Am. St. Rep. 803.

The surety company contends that it is not liable on its bond for the amount of the judgments rendered against the bank on the claims of the materialmen, because the facts show that the bank had notice of these claims at a time when it might have protected itself against them; that, instead of pursuing the proper course, it continued to make payments to Finn. It is insisted that such conduct on the part of the bank absolved the surety company from its obligation to indemnify the bank against that class of claims. The liability of the surety company must be determined by the provisions of its contract of indemnity. By that agreement it not only guaranteed that Finn would furnish the labor and material and construct the building according to certain plans and specifications, but that it would indemnify and hold harmless the bank against all claims for labor done or performed and material furnished, and against all other claims or demands whatsoever made by any person, firm, or corporation against or on account of the work of construction that might arise, directly or indirectly, from the prosecution of the work. It has been definitely determined that written notice to the owner that a creditor for material holds a claim against the contractor is essential to the creation of a lien upon the owner’s property to secure the payment of such claim; hence there can never be a lien upon a building in such cases except under conditions where the owner has the opportunity to protect himself by paying the money to the lien claimant instead of to the contractor. It follows, therefore, that no condition can arise where the owner may not protect himself, if he chooses to do so, against any such claims. Hence, if we attach any significance to the conditions of the bond where it undertakes to hold the owner harmless against liens, it can refer only to those which the owner knowingly foregoes his right to settle and trusts their payment to the contractor. If the owner is not protected against that class of claims, then that feature of the bond is of no value whatever. The contractor by his bond expressly bound himself to deliver the building unincumbered by such liens, and the surety company guaranteed that he would perform that undertaking. The contention of the surety company we think is without merit, and the court properly held that it was liable for all sums for which judgment should be rendered against the bank.

Upon the whole case we conclude that the judgments in favor of the Lyon-Gray Lumber Company, W. F. Dulaney & Sons, and the Christopher & Simpson Iron Works Company against the bank should be affirmed, as well as the judgment allowing no recovery by other parties to the suit. We are further of the opinion that the judgment in favor of the Bettes Hardware Company and E. B. Ingram against the bank should be reversed, and judgment here rendered that those parties take nothing by their suit; that the judgment in favor of the bank against the surety company should be so reformed as to limit its recovery to the amount of the judgment awarded against it in favor of the Lyon-Gray Lumber Company, W. F. Dulaney & Sons, and the Christopher & Simpson Iron Works Company. In all other respects the judgment will be affirmed.
      ^£s»For other cases see same topic and KEY-NUMBER in ali Key-Numbered Digests and Indexes

      <&wkey;>For other oases see same topic and KEY,-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: LEVY, J.

license: Public Domain

text:
    ANDERSON v. WALTERS.
    (No. 1812.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 19, 1917.)
    Brokers <@=»88(9) — Action for Commissions —Instructions—Adoption op Act.
    Plaintiff’s evidence going only to show an express agreement to pay a commission on an exchange of land, and defendant not only denying any employment hut stating that he supposed plaintiff’s services were furnished to the other party to the exchange, thei’e was nothing to warrant a charge on adoption or ratification; so that the charge making it necessary to a return of verdict for defendant that it be found that there was no express contract of employment, “and” that defendant did not “adopt plaintiff’s act in finding a buyer for his property,” was bad.
    [Ed. Note. — For other cases,' see Brokers, Cent. Dig. § 127.}
    Appeal from Delta County Court; J. N. Viles, Judge.
    Action by W. G. Walters against C. E. Anderson. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    The suit is by appellee, a real estate agent, to recover of appellant $500 as commissions for effecting a sale or exchange of certain real estate belonging to appellant. The petition predicates a recovery upon an express contract to pay 5 per cent, of the value of the property as commissions, and, in the alternative, upon the reasonable value of the services rendered in effecting the sale or exchange of the property. The defendant pleaded denial of any contract or employment, and denied that he accepted any services from the plaintiff relative to the exchange of the property. The jury verdict was in favor of the appellee for $200.
    According to appellee’s evidence, some tirpe about September 15, 1915, aiipellant came to him and asked him if appellee could help him to trade some of his town property for lands in the country or farm lands, and agreed to pay appellee a commission of 5 per cent, in case he could effect such a trade; that about this time he wrote one Louis Gould, of Sulphur Springs, in answer to an advertisement in the Dallas News, with a view to effecting a trade for appellant; that Gould was representing Mr. Abies, the owner of some land in Lamar county sought to be exchanged, and in response to appellee’s letter Gould and Abies came to Cooper to see appellee in regard to the proposed trade; that upon their arrival in Cooper appellee brought about a meeting between them and appellant; that the next day he accompanied appellant to Paris, where they were met by Gould and Abies, who had gone there the night before, and they all went together to inspect Abies’ land; that they then came back to Cooper and looked over appellant’s property, after which a deal was consummated between appellant and Abies in which appellant’s brick house in Cooper, which he valued at $10,000 was exchanged for Abies’ 500 acres of land in Lamar county. Appellee claims that in this deal he represented appellant and Gould represented Abies, and that he is entitled to a commission of $500 for his services.
    Appellant denied that he had ever at any time placed any oí ’¿is property in appellee’s hands for sale or trade, or that he agreed to give him a commission for helping to sell or trade any of his property. He testified that some timg in September appellee asked him if he would consider trading any of his property in Cooper for some Pecos Valley land near San Antonio; that he replied he might consider making a trade for some of said land, and would get his son-in-law to go down and look at it, but that nothing came of this proposition; that a few weeks after-wards he met appellee and some other men uptown one day, whom appellee introduced as Gould and Abies, and said they wanted to trade some lands they had for town property ; that before Gould and Abies left for Paris that night Abies asked him to go out and look at the land; that he asked appel-lee if he was going to Paris the next day, and he said he was, and asked appellant to go also; that he and appellee went to Paris the next morning, where they were met by Gould and Abies, and they all went out and looked at Abies’ land; that appellee did not go as his agent, and he thought appellee was representing Abies in attempting to make the trade; that all of the parties came back to Cooper on the afternoon train, and on the same evening they looked at some of his property, and finally a trade was made exchanging Abies’ 500 acres of land in Lamar co'unty for appellant’s brick house in Cooper ; that appellee appeared to he representing Abies in the trade. He further testified that about two months afterwards appellee asked him if he did not owe him something for helping to make the trade with Abies, and upon his replying in the negative appellee said somebody ought to pay him something; that some time afterwards he saw appellee just before starting to Sulphur Springs, and appellee asked him to see Gould and tell him to send him some money for helping to make the trade with Abies. Appellant further testified as follows:
    “I would not have traded my house for the land at even exchange if I had been owing a commission on the deal, but I had no idea that Walters was expecting me to pay him anything. I had no talk with Walters after Abies and Gould came over here about him helping me to make the trade, and said nothing to him about paying him any commission in case I made the trade.”
    Newman Phillips, of Cooper, for appellant. I. B. Lane, of Cooper, for appellee.
   LEVY, J.

(after stating the facts as aibove). In order to return a verdict for the defendant, the court’s charge required the jury to find that there was no express contract of employment between the plaintiff and the defendant, “and” that defendant did not “adopt the plaintiff’s act in finding a buyer for his property.” The appellant contends that the charge was error under the facts of the case. Appellee’s evidence goes to show an express contract to pay 5 per cent, commissions on the value of the property of the defendant. The appellant denies that he ever placed his property in appellee’s hands for sale or trade, or that he ever agreed to give him a commission for helping to sell or trade his property. And appellant’s evidence further goes to show that he did not know that appellee was undertaking to represent him in the exchange, but supposed and believed that appellee’s services were furnished to Abies to suable him to make the exchange of Ms property.

In view of the evidence, it is believed that the charge complained of was error in requiring the jury to also find, before they were authorized to return a verdict for the defendant, that the defendant did not “adopt plaintiff’s act in finding a buyer for his property.” The evidence does not warrant a charge upon the question of adoption or ratification, and it is believed that this error should cause a reversal of the case because the verdict of the jury was, in effect, a finding ux>on an implied contract.

The judgment is reversed, and the cause remanded.
      <S=cEor other oases see same topic and KEY-NUMEEH. in all Key-Numbered Digests and Indexes


author: WILLSON, O. J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. WILLIAMS.
    (No. 1800.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 26, 1917.)
    Appeal and Error <§==>1026 — Reversal — Harmless Error.
    The Court of Appeals will not reverse for error not reasonably calculated to cause, or which did not probably cause, the rendition of an improper judgment.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4029, 4030.]
    Appeal from District Court, Wood County; R. M. .Smith, Judge.
    Action by J. O. Williams against the'Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Dinsmore, McMahan & Dinsmore, of Green-ville, and Chas. C.- Huff, of Dallas, for appellant. Campbell & Mansell, of Alba, and B. F. Cathey, of Quitman, for appellee.
   WILLSON, O. J.

To enable the consignees thereof to unload it appellant placed a ear loaded with lumber on one of its side tracks in Alba. While appellee, an employé of the consignee of the lumber, was on the inside of the car assisting another employé of the consignee in unloading it, one of appellant’s trains collided with the car, throwing lumber therein against appellee, and injuring his person. The collision was due to negligence on the part of employes of appellant in charge of the train, and the negligence was the proximate cause of the injury to ap-pellee. The appeal is from a judgment in his favor for $1,500.

In two of the assignments in its brief appellant complains of the action of the court in overruling its special exceptions to parts of appellee’s petition, and in the other three of the action of the court in overruling its objection thereto and admitting as evidence certain testimony offered by appellee. We have given to each of the assignments the consideration it deserves, and have reached the conclusion that,-if the court erred in either of the rulings complained of, the error was not one reasonably calculated to cause or which probably did cause the rendition of an improper judgment in the case.'

Therefore the judgment is affirmed.
      <fe»Fov other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEW, J.

text:
    OGBURN ORCHARD CO. v. BOZEMAN et al.
    (No. 1796.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 12, 1917.)
    Schools and School Distbicts <§=j37(5)— Creation oj? Disteict — Validity.
    Though the order of the commissioners’ court attempting to transfer 1,000 acres from school district No. 44, to No. 51, was void as the former contained less than nine square miles, it was validated by Acts 33d Leg. c. 129 (Vernon's Sayles’ Ann. Civ. St. 1914, art. 2815).
    [Ed. Note. — Eor other cases, see Schools and School Districts, Cent. Dig-. § 67.]
    Appeal from District Court, Wood County; R. M. Smith, Judge.
    Suit by the Ogbum Orchard Company against R. ®. Bozeman and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Upon the groundl that it would be compelled to pay taxes wrongfully levied on its land, the appellant sought by its suit to enjoin the issuance and sale by the commissioners’ court of certain schoolhouse bonds previously voted for that purpose in school district No. 44 of Wood county. The case was tried before the court, resulting in a judgment for the defendants. The trial judge made the following findings of fact and conclusions of law:
    “I find that the Merrimac school district No. 44 of Wood county was materially changed, resurveyed, defined, and re-established, by order of commissioners’ court of date May 12, 1909, containing 3,333 acres of land, including the 1,000 acres of the E. Rehorse survey of land in question in this cause.
    “I find that the Ogburn school district was created by order of commissioners’ court of Wood county of date 13th day of May, 1910, containing 5,778 acres which did not include the 1,000 acres of the E. Rehorse survey of land in controversy in this cause.
    “I find that on July 30, 1910, an election was held in the Ogburn district No. 51 for the issuance of school bonds, which resulted in favor of the issuance of the bonds, and that the territory included in said district at the time of the election and issue and sale of said bonds did not include the. 1,000 acres of the E. Rehorse land in controversy.
    “I find that about April, 1912, the commissioners’ court of Wood county made an order taking the 1,000 acres of the said Rehorse survey out of the Merrimac school district and placing same in the Ogbum school district, and that the boundaries including the said 1,000 acres of the Rehorse survey were recorded in the record of ‘School District Boundaries’ of Wood county, following and on same page as the original boundaries of the Ogbum district and over the same date as the former boundaries of the Og-burn district and over the same date as the former boundaries, May 13, 1919.
    “I find that at same time, about April, 1912, the boundaries of the Merrimac district were entered, leaving out the 1,000 acres of the Re-horse survey, on same page of ‘Record of School District Boundaries’ as the original boundaries of the Merrimac and over the same date as original boundaries of said district, May 12, 1909.
    “I further find that on June 7, 1912, the commissioners’ court of Wood county, Tex., entered an order on its minutes rescinding its former order of about April, 1912, taking the 1,000 acres of the said survey out of the Merrimac district, and by said order of June 7th placed said 1,000 back into the said Merrimac district.
    “I find that on September 18, 1915, an election for the issuance of school bonds was held in the Merrimac school district, including the 1,000 acres in its territory, which resulted in the issue of said bonds enjoined in this cause; that the minutes of the commissioners’ court of Wood county, containing the order transferring the 1,000-acre Rehorse survey from the Merrimac district to the Ogbum district, and the subsequent order rescinding this order, were never signed by the county judge of Wood county when these orders were made by the commissioners’ court.
    “I find further that part of the town of Ogburn is situated on the 1,000-acre Rehorse survey ⅛ controversy, and that a large part of said Re-horse survey is nearer the Ogbum schoolhouse than it is the Merrimac schoolhouse.
    “Conclusions of Law.
    “That any question as to legal status of district No. 44, as defined and re-established by the order of May 12, 1909, has been settled in favor of the said district by subsequent validating acts of the Texas Legislature.
    “That the order of the commissioners’ court of Wood county attempting to transfer the 1,000-acre Rehorse survey from said district No. 44 to Ogburn district No. 51 was void for the reason that it undertook to transfer territory from a district that contained less than nine square miles of territory, and that it is therefore immaterial as to whether or not the rescinding order referred to above was void on account of irregularities. That the 1,000-acre Rehorse survey in controversy is in district No. 44, and not in district No. 51. That district No. 44 is a legal and valid district. That the election held in said district No. 44 in September, 1915, for the issuance of bonds, was in all things a legal and valid election, and that the injunction heretofore granted in this cause should be dissolved, and it is so ordered.”
    R. B. Howell, of Winnsboro, and Harris & Britton, of Quitman, for appellant. M. D. Oarlock, of Winnsboro, for appellees.
   LEW, J.

(after stating the facts as above). School district N6. 44, known as the Mer-rimac school district, and school district No. 51, known as the Ogbum school district, are contiguous school districts in Wood county. The appellant is the owner of a 1,000-acre tract of land on the E. Rehorse survey, and claims that the said land is located in the Ogburn school district No. 51, while the ap-pellees contend that the said tract of land is located in Merrimac school district No. 44, and that same is subject to taxation in the latter district. The question entirely depends, it is thought, upon whether or not the order of the commissioners’ court transferring the said tract of land from said district No. 44 to the said district No. 51 was void. It is believed that it should be so held, as the trial court did, and for the reasons given by the trial court. Whatever of irregularities and vagueness existed in the order of the commissioners’ court creating sehood district No. 44, the Acts of 1913, p. 259, validated the same, for the act provides:

“Provided, that all school districts in this state heretofore laid out and attempted to be established by the proper officers of any county, and heretofore recognized by said county authorities as school districts of said county, are hereby validated in all respects, as though they had been duly and legally established in the first instance.”

It follows that appellant’s land would not be subject to taxation except in school district No. 44.

The other assignments do not present error such as would require reversal of the case.

Affirmed.
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author: HODGES, J.

text:
    MARSHALL TRACTION CO. v. HARRINGTON.
    (No. 1738.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 10, 1917.
    Rehearing Denied May 3, 1917.)
    1. Street Railroads @=90(1) — Injuries on Track — Negligence—Notice.
    Where the street where defendant street railroad’s car struck plaintiff’s buggy was so narrow that plaintiff’s buggy and a wagon ahead of him were in very close proximity to the tracks and one could not pass the other without going on the tracks, the situation was such as to put the motorman on notice that a dangerous collision might occur.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190, 191, 193.]
    2. Street Railroads @=390(1) — Injuries on Tracks — Negligence — Anticipation oe Particular Result.
    To charge a street railroad with liability for injuries to plaintiff when its car struck his buggy, it was not necessary that the motorman should have been able to anticipate the particular result that followed when he drove the car in such a situation that he was charged with notice that a dangerous collision might occur.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190, 191, 193.]
    3. Damages @=132(2) • — Personal Injuries— Excessive Verdict.
    Where plaintiff sustained painful injuries to •his shoulder, which might be permanent, verdict for $1,046 was not excessive.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. § 373.]
    4. Trial @=315 — Quotient Verdict.
    In a personal injury case, where the jury agreed that each should state in writing the amount of damages he thought plaintiff was entitled to recover, and that the sum of the amounts should be divided by 12, which was done, but the jurors thereafter further discussed the result, and finally agreed upon such amount as the verdict, the verdict was proper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740-742.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by A. Harrington against the Marshall Traction Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    F. H. Prendergast, of Marshall, for appellant. S. P. Jones, T. P. Harte, and M. Harold, all of Marshall, for appellee.
   HODGES, J.

This appeal is from a judgment in favor of the appellee for $1,046 as damages resulting from personal injuries.

The evidence shows that the appellant owns and operates a street car line in Marshall, Tex. The appellee, plaintiff below, alleged that while 'driving along West Grand avenue one of appellant’s cars collided with his buggy, threw him out, and caused the injuries sued for. He testified that he left Marshall in his buggy going west; that he overtook a twot-horse wagon loaded with meal and flour, driven by two negroes. The street at that point runs east and west. The car line is’ in the middle of the street, and he and the other vehicle were on the north side of the street car track. He was riding in his buggy 12 or 15 feet behind the wagon. The street was very narrow, leaving no room for one vehicle to pass another without crossing the street car line. He saw the street car approaching, and when it got within about 40 yards of the wagon in front of him the mules became frightened and “began to dash around” and backed the wagon onto the track in front of the street car. The car struck the left hind wheel of the wagon, knocked some of the sacks of flour and meal off, and made his horse back. In doing so the left hind wheel of the buggy went on the track, was struck by the car, and he was thrown out and injured. There was other evidence tending to show that the car approached the mules at a rapid rate of speed, and that the motorman in charge made no attempt to check the speed until it was too late to avoid the collision.

The court charged the jury as follows:

“You are instructed that if the employés of the defendant saw, or by the exercise of ordinary care could have seen -or discovered, that the mules pulling the wagon in front of the plaintiff had become frightened, and that the said mules were causing the wagon to be backed upon the plaintiff at a time when by the exercise of ordinary care the said employés could have stopped the car and prevented the injury to the plaintiff, and if you find that a person of ordinary care situated as the employés of the defendant were situated would have stopped the car, and if you shall further find that the said team backed upon the plaintiff and caused the plaintiff’s horse to back his buggy upon the street car track, or so near thereto that the car struck the same and threw the plaintiff from the buggy and injured him, the plaintiff will be entitled to recover against the defendant such damages as he sustained thereby, unless you should find in favor of the defendant under other portions of this charge.”

The substance of the objection urged to this charge is that the fright of the mules was not sufficient to notify the appellant’s motorman that the plaintiff was imperiled. The facts show that the street where the accident occurred was so narrow that the vehicles were in very close proximity to the car as it passed, and the evidence tended to show that the mules were badly frightened by the approach of the car. The situation was such as to put the motorman on notice that a dangerous collision might occur. It was not necessary that he should anticipate the particular result that followed; it was enough for him to know that his ear was causing, or liable to cause, a dangerous situation which would probably result in an injury to some one or more of the parties involved.

The seventh paragraph of the court’s charge is objected to upon the ground that it is unsupported by the evidence. This objection we think is untenable.

A number of special charges were requested and. ref used. These have been examined, and we approve the rulings complained of.

It is contended that the verdict is excessive. The evidence tended to show that the appellee sustained painful injuries to his shoulder, which might be permanent. We cannot say that the jury overestimated his damage.

Objection is also made to the conduct of the jury in arriving at their verdict. The bill of exception upon which the appellant relies shows ■ that the jurors agreed that each should state in writing the amount of damages he thought the plaintiff was entitled to recover, and that the sum of these amounts should be divided by 12. This was done, and after the result was obtained the jurors further discussed the result and finally agreed upon that amount. These facts do not bring the case within the rule where such verdicts are set aside as having been improperly arrived at.

The judgment is affirmed.
      t£=}For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    YATES MERCANTILE CO. et al. v. FARMERS’ GUARANTY STATE BANK OF JACKSONVILLE.
    (No. 1750.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 22, 1917.)
    Appeal and Ebbor ®=c499(4), 501(4) — Scope op Review — Record—Preservation op Exceptions.
    Where the record contains no objections nor exceptions to the charge, assignments of error predicated upon the giving thereof cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2298, 2304.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by the Farmers’ Guaranty State Bank of Jacksonville against the Yates Mercantile Company and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    W. J. Townsend, Jr., of Jacksonville, for appellants. B. D. Dashiell, of Jacksonville, and Perkins & Perkins, of Rusk, for appel-lee.
   HODGES, J.

This suit was filed in the court below by the appellee against the appellants, seeking a judgment for §100 with interest and attorney’s fees on a promissory note. The note was executed by E. T. Yates and W. B. Yates as principals, and its payment was guaranteed by the appellants and other parties who did not appeal. At the conclusion of the evidence, the court below gave a peremptory instruction directing a verdict for the plaintiff for the full amount sued for. The assignments of error present different reasons why that instruction should not have been given.

The record contains no objections nor exceptions to the charge, and for that reason the assignments cannot be considered. Pearce v. Supreme Lodge, 190 S. W. 1156; Thorne v. Dashiell, 189 S. W. 987; Ry. Co. v. Wheat, 173 S. W. 974; Needham v. Cooney, 173 S. W. 979; Ry. Co. v. Feldman, 170 S. W. 133; Donaldson v. McElroy, 184 S. W. 1100; Commonwealth, etc., v. Bryant, 185 S. W. 97,9; McCall v. Roemer, 186 S. W. 409.

The judgment will be affirmed.

WILLSON, C. J., did not sit in this case.


author: WILLSON, C. J.

text:
    ST. PAUL FIRE & MARINE INS. CO. v. McMILLAN.
    (No. 1785.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 26, 1917.
    Rehearing Denied May 17, 1917.)
    Insurance <&==>74^-Authority of Agent.
    A letter from general agents of a fire insurance company stating, in response to inquiry from an insurance broker, the terms on which they would write certain insurance, held not to give such broker power to write the insurance stated and extend credit for the payment of the premium.
    [Ed. Note. — Eor other cases, see Insurance, Gent. Dig. §§ 99, 100.]
    Appeal from District Court, I-Iuut County; Wm. Pierson, Judge.
    Action by Claud McMillan against the St. Paul Eire & Marine Insurance Company. Prom judgment for plaintiff, defendant appeals.
    Reversed and rendered. .
    In his petition appellee, who was the plaintiff below, alleged that he was the owner of a dwelling house and its contents, consisting of furniture, etc., situated on his farm about three miles from Greenville; that on November 30, 1912, “he made application to” appellant “through its agent, J. M. Massay, at Greenville, for insurance on his property against loss by fire, as follows :■ On the said residence, $750; on the contents thereof, $500; and on a certain barn and contents situated on said premises, the sum of $1,250 for a period of 3 years” ; that the application was forwarded by Massay to Cravens & Cage, appellant’s general agents at Houston, who instructed Massay to notify appellee that appellant would not insure the barn and its contents, but would insure the dwelling house and its contents “for a period of 12 months at a certain rate of premium,” if appellee desired such insurance; that “thereupon and thereafter” he told Massay that he desired the insurance, and that Massay on behalf of appellant, and having authority to act for it, agreed to insure the property and did insure it against loss by fire; that thereafterwards the dwelling house and its contents “were totally destroyed by fire within the terms of said contract of insurance.” And he then further alleged as follows:
    “That, by reason of the premises, the defendant became obligated and bound to pay this plaintiff his aforesaid loss to the extent of $1,-250. Plaintiff says that by reason of the premises a valid contract of insurance was entered into between plaintiff and defendant by reason of plaintiff’s assent to the counter proposition of the said Cravens & Cage; that if in fact a policy was not written, then it was the duty of the said Massay or the said Cravens & Cage to have written said policy, and their failure to do so was because of their own neglect and no fault of this plaintiff, and in equity they should be and are held to owe this plaintiff the same liability as if said policy had been written, or that if they did not write said policy, then plaintiff has been damaged by their negligence in not so doing to the amount of the loss sustained by him because of such negligence which is the said sum of $1,250.”
    The answer of appellant consisted of a general and special exceptions to the petition and a denial of the allegations therein.
    On special issues submitted to them the jury found: (1) That Massay had “authority to bind” appellant with reference to insuring the property; (2) that Massay at appellee’s request agreed “to issue or cause to be issued a policy of fire insurance” on the dwelling house and its contents “with the defendant company”; (3) that appellant during the negotiations between appellee and Massay held the latter out “as having authority from ⅞ to make contracts of insurance for .it or in its name” ; (4) that Massay informed appellee at the time the latter signed the application for the insurance that he (Massay) “had no authority to issue a policy of insurance on plaintiff’s property, but that such policy could be issued only at the Houston office of the company”; (5) that Massay had authority from appellant “to bind it to issue a policy of fire insurance without payment of premium in advance, and that Massay agreed “to issue or cause to be issued a policy without the prepayment of the premium; (6) that the reasonable cash value of the dwelling house was $750, and that of the household goods destroyed $400; (7) -that a few days before the fire occurred appellee told Mas-say “in substance to insure his house and contents in accordance with the proposition in Cravens & Cage’s letter to Massay” ; that “Massay agreed thereto”; and that “there was sufficient time, by the exercise of reasonable and proper diligence, for Massay to have notified Cravens & Cage of such acceptance, or instructions by plaintiff, and for them to have issued the policy and sent it to Greenville before the fire occurred.”
    On the findings made by the jury the court rendered judgment in favor of appellee against appellant for $1,150, and interest thereon from the date the fire occurred.
    E. G. Senter, of Waco, for appellant. H. L. Carpenter and W. A. Shields, both of Greenville, for appellee.
   WILLSON, C. J.

(after stating the facts as above). It is not necessary to determine whether the testimony was sufficient to show a complete contract on the part of Massay to insure appellee’s dwelling house and its contents against fire or not; for the testimony was wholly insufficient to show that Massay, if he did so contract, acted for or was authorized to act for appellant Therefore we think the trial court erred when he refused appellant’s request to peremptorily instruct the jury to find in its favor.

It appeared without dispute that Cravens & Gage, doing .business in Houston, were general agents for appellant in Texas. It further so appeared that while Massay and his partner, Murphy, were insurance agents in Green-ville, at the time Massay took appellee’s application for the insurance and sent it to Cravens & Cage, neither he nor his firm was then the agent, or had ever been, of appellant, or had or ever had any authority whatever to act for it in any way. It is' plain, therefore, that when Massay took the application and sent it to Cravens & Cage, he had no authority to act for and did not act for appellant, but, instead, acted for appellee. In other words, in doing that he was appellee’s, not appellant’s, agent. Eor anything to the contrary' appearing in the record, there had never heen any communication of any character between Massay or his firm and appellant or its general agents Cravens & Cage before the latter received from Massay & Murphy a letter transmitting appellee’s application, as follows:

“Greenville, Texas, 11/30/12.
“Cravens & Cage, Houston, Texas — Gentlemen:
“Re Claud McMillan Application.
“Not knowing whether you would write a dairy barn, this is submitted, and if you care to write it please advise before doing so, this is good business of its class.
“Yours truly, Massay & Murphy.”
Up to this point in the transaction there is no pretense in the evidence that Massay acted for any except appellee. The contention, on the part of appellee is that the letter Cravens & Cage sent in reply to the one set out above conferred upon Massay authority to act for appellant in concluding with him a contract for the insurance. That letter was as follows:
“December 4, 1912.
“Messrs. Massay & Murphy, Greenville, Texas — Gentlemen:
“Application of Claud McMillan.
“Replying to your favor of the 30th .ultimo, we beg to advise that we shall be glad to write a three year policy on Mr. McMillan’s dwelling and furniture, but we cannot write a policy for that length of time on his dairy barn. By a reference to the basis schedule, you will find that dairy barns are rated under the mercantile schedule, and therefore a term policy cannot be written upon a frame risk. We shah be glad to insure the dairy barn for one year at a time, at a rate to be promulgated by Mr. Rimlet (which will be approximately $3.64). Awaiting you advices, we remain,
“Yours very truly, Cravens & Cage.”

It will be noted that Massay & Murphy in their letter to Cravens & Cage did not ask them to issue a policy to appellee. On the contrary, Cravens & Cage were told, in effect, not to issue such policy before they heard further from Massay & Murphy. The plain and only purpose of the letter was to ascertain if appellant would issue such a policy in compliance with the application accompanying the letter, if appellee, after being advised that it would and of the terms on which it would issue same, should wish it to do so. Cravens & Cage in the letter they sent in reply merely furnished Massey & Murphy the information they asked for. The látter were told that appellant would not issue a policy insuring the dwelling house and furniture and the barn for a term of three years in compliance with appellee’s application, but, if advised that same was desired, would issue one insuring the dwelling and furniture for a term of three years, and the barn for one year. The Cravens & Cage letter having been written merely for the purpose of furnishing Massay & Murphy information they wished for appellee’s benefit, and going no further, we think it should, not be construed as conferring upon Massay & Murphy any authority whatever to act for appellant. Certainly, if it conferred any such authority on them, it was only to communicate to appellee the fact that appellant would not issue to appellee a policy in conformity with his application, but, if he desired it and requested it to do so, would issue to him on payment of the premium it charged therefor a policy insuring his dwelling house and furniture for a term of three years and his barn for one year. Plainly, if the letter should be construed as conferring only the authority on Massay & Murphy, they could not bind appellant by a contract to insure the property. And if the letter should be construed as also authorizing Massay & Murphy to act for appellant in communicating to it the fact that appellee did not desire insurance on the barn at the rate indicated in the letter, but did wish insurance on the dwelling house and barn, it would still appear that they were lacking in authority they must have had before they could bind appellant as appellee claimed they had. For authority of an agent merely to receive and communicate to his principal would not empower the agent to accept the offer and thereby bind the principal. Nor would the conclusion be different if the letter should be construed as a proposal on the part of appellant, through Massay & Murphy, to appellee to issue a policy on either his dwelling house, furniture, and barn, or on the dwelling house and furniture alone. For the proposal should be construed as conditioned on the payment then, and not at some time in the future, of the premium charged on the policy. The evidence showed conclusively that appellee never paid nor tendered the premium to Massay & Murphy. The contention was that Massay at the time he agreed to insure the property impliedly waived the payment of the premium and impliedly agreed that appellee might pay same at some time in the future. Authority possessed by a special agent to bind his principal for a consideration then paid to insure property would not empower the agent to bind his principal to insure for a consideration to be paid at some time in the future.

The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against- appellant.
      (S=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SCHAFF v. COMBS.
    (No. 1775.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 3, 1917.)
    Railroads ©^278(1) — Contributory Negligence-Accident Near Station.
    Where plaintiff attempted to cross defendant’s railroad tracks near a station about midnight in front of an approaching freight train, but tripped when nearly across, he was guilty of contributory negligence as a matter of law. although he supposed the train was a passenger train which would slow up and he might have crossed in safety had he not tripped over spike left projecting by defendant.
    [E'd. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 891-894.]
    Appeal from District Court, Hopkins County; Wm. Pierson, Judge.
    Action by W. T. Combs against C. E. Schaff, receiver. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Appellant’s tracks at Como ran east and west. Its depot was on the south side of the tracks, and about 200 feet east of Main street, which ran north across the tracks. At about 12 o’clock of the night of October 27, 1915, appellee, having purchased a ticket entitling him to be transported to Winnsboro on one of appellant’s passenger trains then about due, was at its depot in Como. Desiring a drink of water, he went from the depot to a well on the north side of the tracks. While at the well he heard a train whistle, and immediately left the well, walking toward the depot, along the sidewalk on the west side of Main street. While so walking he saw a freight train (which he, however, at the time believed to be the passenger train he expected to take) approaching the depot from the west. When lie reached the point where the street crossed over appellant’s right of way and tracks, he undertook to cross “angling” from the west side of Main street over it and the tracks crossing it to the east side of the street. Walking rapidly, or trotting, he had crossed over a side track, when, stepping over the north rail of the main line track, his foot struck “something” which caused it to turn, throwing him forward to the ground. Before he got entirely clear of the track, the train passed, some part of it striking and mashing toes of his left foot so that a part of one of them had to be amputated. Appellee did not know what it was his foot struck, or that he stepped upon, that caused him to fall; but he said “it seemed to be stationary” and was situated near the east edge of the street and on the south side of, and 12 or IS inches from, tlie north rail of appellant’s main line track. He knew, he said, that his foot did not strike the rail as he stepped over it. 1-Iis witness Carroll testified that before the time of the accident he noticed an iron spike which had been driven into a tie projecting upward about 8 inches above the ground at a point 4 or 5 inches south of the north rail of the main line track, and 4 or 5 feet east of the east edge of the street. Carroll further testified that several days after the accident he again noticed the spike, and that it “looked like it had been creened south some — bent a little.” In his petition appellee alleged that appellant was guilty of negligence in leaving the spike projecting above the ground as it did, and that the spike was the thing he stepped upon which caused him to fall. He further alleged as negligence on the part of appellant that at the time of the accident it was operating the train at a rate of speed prohibited by an ordinance of the town of Como, but he offered no evidence in support of the allegation. Appellant’s answer consisted of a general demurrer, general denial, and pleas of contributory negligence on the part of appellee. The appeal is from a judgment in favor of the latter for $1,500.
    Dinsmore, McMahan & Dinsmore, of Green-ville, and Chas. C. Huff, of Dallas, for appellant. C. E. Sheppard and H. E. Pharr, both of Sulphur Springs, for appellee.
   WILLSON, C. J.

(after stating the facts as above). “Ordinarily,” said the Supreme Court in Sanches v. Railway Co., 88 Tex. 117, SO S. W. 431, “negligence is a fact! to be found or inferred from the testimony; but, where from the testimony on the issue of negligence no inference but negligence can be drawn, it becomes a question of law, and the court may instruct the jury that negligence has been established.” Appellant insists, and we agree, .that the facts of this case brought it within the exception to the general rule recognized in the Sanches Case, in that no other inference than one of negligence on the part of appellee reasonably could be drawn from the testimony; and further insists, and we agree, that the trial court therefore erred when he refused to instruct the jury to find in its favor, on the ground that it appeared that appellee was guilty of contributory negligence barring a right he otherwise might have had to recover of appellant damages on account of the injury he suffered. It seems from the testimony that appellee was at a point only 30 or 40 feet from the edge of appellant’s right of way when he saw the train approaching. He was then walking rapidly toward the crossing. “Seeing the train was coming in and getting intolerably close,” he said, “I peartened up. I don’t know whether I was walking fast or trotting across to get across the track.” The only excuse he gave for his reckless act in attempting to cross in front of it as he did was that he thought the train was “slowing down” as it approached the crossing. 1-Iis testimony indicates he so thought because he assumed the train was- the passenger train, which, he said, customarily “slowed down” by the time the engine got to the crossing. “I reckon,” he said, “it was imagination with me, thinking it was a passenger train, that I thought the train was pulling down.” Notwithstanding appellee thought the train was “slowing down,” his testimony clearly indicates he also thought it nevertheless was moving at such a rate of speed as to require him to race with it if he beat it to the point where he expected to cross the track in time to cross safely over same. That he beat it to the point by a very narrow margin is indicated by testimony showing that when, falling, he “pitched forward and fell right across tlie track,” some part of the train struck and mashed toes of one of his feet. We do not think there was ground for disagreement between reasonable minds as to the nature of his act. It was plainly hazardous to attempt as he did to cross in front of á moving locomotive as close as the testimony indicates the one in question must have been to him, and an act that an ordinarily prudent person under the circumstances shown by the testimony would not have been guilty of. Railway Oo. v. Abendroth, 55 S. W. 1122; 3 Elliott on Railroads, § 1168.

“The general rule,” says Mr. Elliott, “is that it is negligence for a traveler to attempt to cross closely in front of an engine or train which he sees or knows is approaching the crossing, for a person who knows of clanger is under an obligation to refrain from incurring it and endeavoring to avoid it upon a calculation of chance. Where a train is at such a distance as that an ordinarily prudent man would, without hesitation, attempt to cross the track, it may be that there is no negligence. But where an attempt to cross in front of an approaching train is voluntarily made upon a nice calculation of chances, the person making the attempt will be regarded as negligent if he undertakes to proceed upon the assumption that he has correctly calculated the chances of crossing in safety and is thereby injured.”

That appellee would have won in the race be ran with the train, and have gotten safely across the track, as he testified he would, but for negligence on the part of appellant in leaving the spike projecting up from the crossing, causing him to fall, we think is of no importance in determining the nature of his act. The attempt to cross as he did would have been a perilous one had there been no obstruction of any kind on the crossing, and the fact that he might have succeeded in crossing without hurt to himself had he not fallen would not render his attempt less hazardous, viewed as it should be from his standpoint at the time he acted.

The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant.
      «=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LITTLE SANDY HUNTING & FISHING CLUB et al. v. BERRY et al.
    (No. 1797.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 19, 1917.)
    1. Forcible Entry and Detainee <§=>48 — Authority op Club — Caretaker to Bring Forcible Detainer.
    That one was keeper of the premises of a hunting and fishing clnb, and that it was his duty to “look after and attend to” the club property, did not impliedly authorize him to institute forcible detainer suit against, and evict, one who for some time had been living on the club premises.
    2. Sheriffs and Constables <§=>128 — Wrongful Dispossession — Indemnity.
    One who, after instituting a forcible detain-er suit, executes an indemnity bond demanded by the constable as a condition upon which he would execute the process by evicting defendant in the suit, becomes liable for damages for the eviction, if it is unlawful, as a party to the unlawful act of the constable.
    [Ed. Note. — For other cases, see Sheriffs and Constables, Cent. Dig. §§ 136, 260-263.]
    3. Trespass <§=>27 — Wrongful Dispossession.
    Where one has lived for several years on land, he cannot lawfully be forcibly evicted therefrom by the owner, although he is but a trespasser thereon, and the true owner is entitled to the possession.
    [Ed. Note. — For other cases, see Trespass, Cent. Dig. §§ 53, 59-63.]
    4. Damages <§=>91(1) — Exemplary Damages.
    Exemplary damages are allowable only when there is misconduct, or malice, or what is equivalent thereto, and a tort committed by mistake in the assertion of a supposed right, or without any actual wrong intentions, and without such recklessness or negligence as evinces malice or conscious disregard of the rights of others, will not warrant the giving of damages for punishment.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 193-198.]
    5. Forcible Entry and Detainer <§=>48 — Wrongful Dispossession — Exemplary Damages.
    Where the keeper of a hunting and fishing club in good faith instituted a forcible detain-er suit against a trespasser on the club property, and secured his eviction, believing the process lawful, he was not liable in exemplary damages.
    Appeal from District Court, Wood County; R. M. Smith, Judge.
    Action by Aaron Berry against the Little .Sandy Hunting & Fishing Club and others. From judgment for plaintiff, certain defendants appeal.
    Judgment in part reversed and rendered, and in part reformed and affirmed.
    The suit was by appellee Berry against appellee G. E. Wright and appellants Joe Holmes and the Little Sandy Hunting & Fishing Club, a corporation. In his petition Berry alleged that on April 1, 1912, he and his brothers, Tom, Frazier, and Green, owned 34 acres of the James Hamblin survey, in Wood county, and that he was then residing with his family in a dwelling house on same. He further alleged that on that day the hunting and fishing club, “acting by and through its general manager,” Holmes, and “its officer and director,” Wright, “requested and demanded and employed one Mooney to go to the home and premises of said plaintiff there to eject, dispossess the plaintiff from his home and premises, and to remove and throw out of the house upon said above-described land the household goods and effects of the plaintiff,” and that Mooney did so, to his (Berry’s) actual damage in the sum of $275. He further alleged that in having Mooney to so eject him from the dwelling house and premises the hunting and fishing club and Wright and Holmes acted maliciously and became liable to him for the sum of $2,000 as exemplary damages. It does not appear from the record that Wright answered the petition. The answers oí the hunting and fishing club and Holmes consisted of general denials and of pleas which it is not necessary to detail. The trial of the case resulted in a judgment that Berry take nothing as against Wright, hut that he recover of Holmes and the hunting and fishing club $25 as actual damages, of Holmes $100 as exemplary damages, and of the hunting and fishing club $225 as exemplary damages. Both Holmes and the hunting and fishing club have appealed.
    It appears from the record that the 34 acres of land claimed by Berry was part of a tract of 1,065 acres, on which was a lake, which the Little Sandy Hunting & Pishing Club had had inclosed, and which it used for club purposes. Holmes was an employé of the hunting and fishing club. It was his duty, he said, “to look after everything and attend to the club property and the lake and all of its belongings.” Wright, who was president of the hunting and fishing club at the time Berry was evicted, testified that Holmes “wa's the keeper of the lake and keeper of the clubhouse, attending to it.” Without any authority from the hunting and fishing club to do so, further than such as might be implied from his duty to look after the property, Holmes on March 29, 1912, commenced a forcible detainer suit against Berry in the justice court. Berry and his family then occupied, and for a long time prior thereto had occupied, a dwelling house on the 34 acres, and had and were then, and on April 1, 1912, when they were forcibly evicted therefrom by Mooney, using the premises as their home. Mooney was the constable, and in evicting Berry and his family acted in pursuance of the command in void process, directed to him as constable, issued by the justice of the peace in the forcible detainer suit. It appears that in a suit between one Giles and Berry’s father to try the title to and for possession of the 1,065-acre tract, which included the '34 acres, judgment was, on April 24, 1909, rendered in favor of Giles. It further appears that' Giles, by a deed dated October 31, 1910, conveyed the 1,065-acre tract to the hunting and fishing club. And it further appears that Berry did not claim title to nor right of possession of the 34 acres, other than as an heir of his father, who died in 1911.
    Jones & Jones, of Mineóla, for appellants. M. D. Oarlock, of Winnsboro, for appellees.
   WILLSON, C. J.

(after stating the facts as above). [1] The judgment, so far as it is against the hunting and fishing club, is without evidence to support it. It did not appear that Holmes was authorized by the club to institute the forcible detainer suit against Berry, or that any one authorized by the club to act for it in the matter ever knew anything about' the institution of the suit, or the eviction of B.e.rry by virtue of the process issued in it, until after April 6, 1912, when Holmes had the justice of the peace to dismiss the suit. We do not think authority on the part of Holmes to act for the hunting and fishing club could be implied from the fact that he was the keeper of the lake and clubhouse, - or from the fact that as such keeper it was his duty to “look after everything and attend to the club property and the lake and ¿11 of its belongings.” The institution of such a suit was not within the scope of any authority Holmes had to act for the club. 2 C. J. 851. Had it appeared that Berry had recently before the institution of the forcible . detainer suit, and while Holmes was acting for the club in looking after the property, become a trespasser on it, there might have been a question as to whether it was within the scope of Holmes’ authority, as keeper for the club, to act for it in evicting him. But it appeared that Berry had been occupying the dwelling house and using the 34 acres of land since the death of his father- in 1911 and during many years before that time.

We think the judgment is not erroneous so far as it is in favor of Berry against Holmes for $25 as actual damages. The latter, after instituting the forcible de-tainer suit, by the execution of an indemnity bond demanded by the constable as a condition upon which he would execute the process in his hands by evicting Berry, became a party to the unlawful act of the constable, and as such liable to Berry for the consequences thereof to him. While we agree with Holmes that it appeared that the hunting and fishing club was the owner of the 34 acres of land and entitled to the possession thereof, and that Berry was in the attitude of a trespasser thereon, we do not agree that if would have been lawful for the club, or that it was lawful for him (Holmes) on its behalf, to forcibly evict Berry from the land. The law as determined by the courts of this state is to the contrary of such a contention. Sinclair v. Stanley, 69 Tex. 718, 7 S. W. 511; Baker v. Cornelius, 6 Tex. Civ. App. 27, 24 S. W. 949; Crawford v. Thomason, 58 Tex. Civ. App. 561, 117 S. W. 181. But we think the judgment, in so far as it is in Berry’s favor against Holmes for exemplary damages, was unauthorized. Such damages are allowable “only when there is misconduct and malice, or what is equivalent thereto. A tort committed by mistake, in the assertion of a supposed right, or without any actual wrong intentions, and without such recklessness or negligence as evinces malice or conscious disregard of the rights of others, will not warrant the giving of damages for punishment where the doctrine of such damages prevails.” 2 -Suth. on Dam. 1095; Jacobs v. Crum, 62 Tex. 401; Anderson v. Larremore, 1 W. & W., § 949. Holmes was not present when Mooney. evicted Berry. He had noth-tag to do with, the wrong to Berry other than to agree, by the bond he executed, to indemnify Mooney against any liability he might incur in serving the process in his hands. The testimony indicates that Holmes, in executing that bond, acted in good faith, believing the process was lawful and authorized the eviction of Berry. The justice of the peace who issued the process testified:

“I got out the papers myself. Holmes had nothing to do with getting them out. Holmes merely asked me to get out the proper papers for a forcible entry and detainer suit or proceeding, and he never either issued any papers or served any papers. Such papers as were issued, I issued them and turned them over to my constable to serve. I exercised my judgment as justice of the peace in getting out what papers were got out, and Holmes told me what he wanted done. He told me he wanted possession of the house and the property, and I did the best I could in following the statute to select a remedy to get possession of the property for Holmes. He did not say whether it should be by this process or that process, but that was a matter left to me.”

Mooney, the constable, testified:

“Neither Holmes nor any of them told me to put him (Berry) out. I told him I was going up there to do that work, and he said that was what they made that bond for. I did not tell him that I was going to put him out. I just told him that I was going to serve those papers. I don’t know whether Holmes ever saw any of those papers but this bond. I had not fixed up that bond. Mr. Toney (the justice of the peace) had fixed it up, and I had carried it down there. Now, whether Mr. Holmes had ever saw any of the rest of the papers — he did not after I got them. I did not tell him what I was going to do. He was sick that day and lying on the bed.”

In so far as the judgment is against the hunting and fishing club, it will be reversed, and judgment will be here rendered that Berry take nothing against it. In so far as the judgment is against Holmes, it will be so reformed as to deny Berry a recovery of anything as exemplary damages, and to award him a recovery of $25 as actual damages, and, as so reformed, will be affirmed.
      ©=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes