author: BRADY, Special Judge.

text:
    COOPER GROCERY CO. v. EPPLER et al.
    (No. 5900.)
    (Court of Civil Appeals of Texas. Austin.
    April 10, 1918.)
    1.Guaranty <§=27 — Contract — Construction.
    The rule that a guaranty of another’s account is to be strictly construed means merely that the liability of the guarantors is not to be enlarged or extended beyond the terms of their contract, and the rule itself is not to be applied until the legal effect and scope of the undertaking has been determined, a matter which must be ascertained as in any other case of contract.
    2. Guaranty <®=27 — Contract — Construction.
    The true rule as to the construction of a guaranty is to give the instrument the effect which will accord best with the intention of the parties, as manifested by the terms of the guaranty, taken in connection with the subject-matter to which it relates.
    3. Guaranty <§=36 (2) — Reincorporation — Intention.
    Where a mercantile company was incorporated for 10 years, and large stockholders in it guarantied payment of its accounts, the guaranty to continue until revoked by the guarantors, and, at the expiration of the 10 years, a new company was chartered, taking over the assets of the old, the guaranty cannot be limited, without regard to the intention of the parties, to the debts of the old company, though the old company was authorized to do business in two cities, while the new company's charter authorized it to transact business only in one of the two, and though the purpose clause of the old company’s charter was limited to retail business, while" the new company was given the privilege to do both wholesale and retail business.
    4. Guaranty <§=92(1) — Intention oe Parties —Question oe Fact.
    In an action on a guaranty of the accounts of a mercantile corporation, the intention of the parties as to whether the guaranty should continue as to the accounts of a new corporation which took over the assets and business of the first was a question of fact.
    5. Guaranty <§=90 — Action—Evidence—Intention.
    In an action against stockholders in two mercantile companies, the second of which succeeded and took over the assets of the first, incorporated for 10 years, on their guaranty of the accounts of the first company, though not pleaded or relied on as a basis for plaintiff’s cause of action, testimony of plaintiff’s vice president and manager as to the refusal of plaintiff to extend the indebtedness unless defendants, the alleged guarantors, would consent to the extension, and letters relating to the indebtedness of the mercantile company after the procuring of the new charter, were admissible as tending to shed light on the intention of the parties as to whether the guaranty should cover the accounts of the new company, the controlling issue, and the practical construction they placed upon the contract.
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    'Suit by the Cooper Grocery Company against W. R. Eppler and others. Judgment for defendants, and plaintiff appeals.
    Reversed and remanded.
    Davis & Cocke, of Waco, for appellant. 8. W. Bishop, of Gorman, for appellee W. R. Eppler. J. B. McEntire, of Gorman, for ap-pellee Mrs. T. L. Gates.
   BRADY, Special Judge.

This suit was instituted by the Cooper Grocery Company, appellant, against W. R. Eppler and Mrs. T. L. Gates, administratrix of the estate of T. L. Gates, deceased, appellees, upon certain indebtedness due appellant by the Eppler Mercantile Company. This indebtedness was represented by two notes, one for $883.03, dated' July 1, 1914, and the other for $2,626.70, dated October 1, 1914, and also by an account for $185.86; all bearing 10 per cent, interest from date, and providing for 10 per cent, attorney’s fees, but subject to credits aggregating $1,325.40. A portion of these credits were paid in. the fall of 1914, before the Eppler Mercantile Company went into bankruptcy, and the remaining credits represent dividends in bankruptcy.

The appellant based its suit against appel-lees upon the following written guaranty:

“In consideration of the sale of any kind of merchandise by the Cooper Grocery Company to the Eppler Mercantile Company, I, we, or either of us hereby guarantee unto them and their assigns, unconditionally, the payment of any indebtedness of said the Eppler Mercantile Company now existing from the said the Ep-pler Mercantile Company-to the said the Cooper Grocery Company, now residing and doing business in the city of Waco, county of McLennan, state of Texas, not exceeding the sum of six thousand no/100 dollars, and any indebtedness created on this day or hereafter, until notice in writing; and I, we, or either of us consent to any extension of payment made, or hereafter made, and waive notice thereof, and waive the necessity of protest, notice, and suit in all cases between said parties, and consent that the form of said indebtedness may be changed from account to note, bill, or other commercial paper; and I, we, or either of us agree to pay interest at the rate of 10 per cent, per annum from date agreed upon by said purchasers, and 10 per cent, attorney’s fees if said debt is placed in the hands of an attorney for collection; and I, we, or either of us further guarantee that said indebtedness shall be paid in Waco, McLennan county, Texas, and we waive' the right to be sued elsewhere.
“In testimony of which I, we, set my, our, hands at Gorman, Texas, on the 3d day of August, 1908. W. R. Eppler. “T. L. Gates.”

In its amended petition appellant pleaded that, at the time of the execution of said guaranty by W. R. Eppler and T. L. Gates, the Eppler Mercantile Company was indebted to appellant to a considerable amount, and had continued to be so indebted up to the time of its insolvency in bankruptcy in- December, 1914, when it was adjudged a bankrupt and ceased doing business; that the Ep-pler Mercantile Company was first organized as a Texas corporation January 9, 1900, with its corporate life limited by its charter to 10 years; that after the lapse of 10 years the stockholders decided to continue and extend the corporation for the period of 20 years, and to this end dissolved the corporation and extended the same by procuring a new charter instead of amending the old charter; that in pursuance to this plan a new corporation was organized on January 10, 1910, with a capital stock of $50,000, which capital stock, under the new charter, was made up entirely of asséts of the corporation as first organized, and was paid by goods, wares, and merchandise, credits, and debits of said corporation as it existed on January 10, 1910, and that the stockholders-under the new charter were the same as the stockholders under the old, and that the new capital stock represented the holdings of the stockholders under the old charter, and the new stock was issued to them in proportion to their several holdings. Appellant further alleged that the incorporation of the Eppler Mercantile Company in January, 1910, was but an extension and continuation of the corporation as originally formed, and that such was the purpose and intention of all the parties interested therein; that appellant commenced business with the Eppler Mercantile Company after its organization in 1900, and continued to do business with it until its bankruptcy in 1914, and had no knowledge of the taking out of the new charter for such company, but sold goods to the company during that entire period under the belief that it was the same concern that it had commenced to do business with, which was well known to appellees, who were active in the management of said business under both charters; that acting upon this belief, without any notice to the contrary, and relying upon said guaranty, appellant continued to sell a large amount of goods to said corporation, up to the date of its bankruptcy. These are all the material facts alleged in appellant’s petition which it is deemed necessary to here state.

Appellees answered by pleading several special exceptions, which were all overruled by the trial court, and by general denial. The case was tried without a jury and judgment rendered for appellees, to which appellant excepted. Motion for new trial was filed, overruled, exception taken, and the case brought to this court for revision.

At the request of the appellant, the trial court filed findings of fact and conclusions of law as follows:

“Findings of Fact.
“(1) That the Eppler Mercantile Company first filed its application for charter, and was chartered on January 8, 1900, to do a general retail mercantile business at Gorman, Texas, and Cisco, Texas, with a paid-up capital of $10,000, and chartered for a period of ten years.
“(2) That the charter granted the Eppler Mercantile Company set out .in paragraph 1 expired by operation of law on January 8, 1910, and said corporation was by operation of law that day dissolved.
"(3) That after the dissolution of the Eppler Mercantile Company as above herein described, to wit, on January 21, 1910, another corporation was chartered under the name of the Eppler Mercantile Company of Gorman, Texas, said charter providing that the life of the corporation should be for a period of twenty years, with a capital stock of $50,000; said charter providing that said corporation should do a wholesale and retail business at Gorman, Texas.
“(4) That said corporation chartered on January 21, 1910, became a bankrupt in the year 1914, and at the time of said bankruptcy it was indebted to the Cooper Grocery Company in the sum as alleged by plaintiff.
“(5) That all debts created by or owing by the Eppler Mercantile Company charter January 8, 1900, to the Cooper Grocery Company had been fully paid and satisfied prior to the date of the filing of this suit.
“(6) That the Cooper Grocery Company and W. R. Eppler and T. L. Gates on the 3d day of August, 1908, entered into a written contract as follows: [Being the guaranty set out in the foregoing statement.]
“(7) That the effect of the contract set out in paragraph No. 6 was a guarantee upon the part of T. L. Gates and W. R. Eppler guaranteeing the debts of the corporation the Eppler Mercantile Company which was chartered on January 8, 1900, and was dissolved by operation of law, January 8, 1910.
“(8) That the Cooper Grocery Company, plaintiff, had knowledge, through its representatives, of the organization of the Eppler Mercantile Company of Gorman, Texas, incorporated January 21, 1910, and the dissolution of the Eppler Mercantile Company incorporated January 8, 1900, and dissolved January 8, 1910.
“(9) That T. L. Gatesi died in the spring of 1914, and that Mary J. Gates, his surviving wife, subsequently, and in the year 1914, duly qualified as community administratrix upon the estate of the said T. L. Gates and herself.
“(lO) That the indebtedness herein sued upon was made by the Eppler Mercantile Company, which was chartered January 21, 1910, and was owing to it by the Cooper Grocery Company at the date of its bankruptcy.
“(11) That all of the assets owned and belonging to ■ the Eppler Mercantile Company which was chartered January 8, 1900, and was dissolved January 8, 1910, and prior to its dissolution, was conveyed to T. L. Gates, trustee. And after the organization of the new Eppler Mercantile Company of Gorman, Texas, chartered January 21, 1910, T. L. Gates transferred the assets that had been transferred to him to the new corporation the Eppler Mercantile Company, and said assets constituted the assets of the new corporation incorporated January 21, 1910. And that the stockholders in said new corporation were the same as the stockholders in the old corporation at the date of its dissolution, and that stock in said new corporation were issued to stockholders of the dissolved corporation in proportion to their holdings in said old corporation dissolved, and that the interval between the dissolution of the old corporation on January 8, 1910, and the organization of new corporation on January 21, the business was continuous, but during said interval the business was actually operated through T. L. Gates.
“(12) That the Eppler Mercantile Company of Gorman, Texas, chartered 1910, was not a continuation of the corporation the Eppler Mercantile Company which was chartered January 8, 1900, and was dissolved January 8, 1910, but that said corporation chartered January 21 was a new corporation, incorporated with a different capital stock, for a different period of time and for different purposes, and that' the plaintiff, the Cooper Grocery Company, had notice of these facts.
“Conclusions of Law.
“Applicable to the foregoing findings of fact the court submits the following conclusions of law:
“(1) That a contract of guaranty, as set out in the findings of fact, must be strictly construed.
“(2) That the guaranty, as set out in the findings of fact, and upon which the defendants are sued, cannot operate to bind the defendants, or either of them, for the payment of the debts of the Eppler Mercantile Company of Gorman, Texas, chartered January 21, 1910, for the reason that said guaranty was executed for the purpose of guaranteeing the debts of another and different corporation, to wit, the Eppler Mercantile Company, as chartered January 8, 1900, and dissolved by operation of law January 8, 1910, and for that reason the defendants, or either of them, are not bound or obligated to the plaintiff in any sum whatsoever.”

We adopt the trial court’s findings of fact with the exception of the seventh and twelfth findings, which we regard as substantially conclusions of law and not of fact.

Appellant’s first, second, and third assignments of error, and the propositions thereunder, substantially raise the question and present the proposition that the Eppler Mercantile Company incorporated January, 1910, merely extended and continued the old corporation chartered in 1900, instead of creating a new and independent corporation, having no legal relation to the old; and that therefore, the guaranty of appellees, as a matter of law, applied to the indebtedness of the Eppler Mercantile Company incorporated January, 1910, and sued upon in this case. This proposition is earnestly denied by appellees, and is at direct variance with the conclusion reached by the trial court, as shown in the conclusions of law copied in the foregoing statement. While there is much respectable authority upholding this contention of appellant, yet, in the view we have taken of this case, we deem it unnecessary to decide this interesting and ‘more or less perplexing question. It is our opinion that, whether the corporation last chartered be regarded in strict legal effect as a new corporation distinct from the old, or merely an extension and continuation thereof, the proper disposition of this case depends upon the intention of the parties as to the legal effect and scope of the guaranty in question.

The trial court, in the conclusions of law, ‘announced the rule that a contract of guaranty, such as set out in the findings of fact, must be strictly construed, and concluded that the guaranty sued upon, as a matter of law, was limited in its application to the debts of the Eppler Mercantile Company chartered January 8, 1900, and dissolved by operation of law January 8, 1910, and did not extend to the debts of the corporation chartered January, 19101 While the rule is sometimes stated that such a guaranty is to be strictly construed, this means nothing more than that the liability of the guarantors is not to be enlarged or extended beyond the terms of the contract they have made. Besides, the rule itself is not to be applied until the legal effect and scope of the undertaking has been determined, and this must be ascertained • as in any other case of contract.

The true rule, we think, is announced in 20 Oye. p. 1439:

“The rule of construction having the support of the weight of authority is to give the instrument that effect which will best accord with the intention of the parties, as manifested by the terms of the guaranty, taken in connection with the subject-matter to which it relates.”

As expressed by Justice Stayton in Tobler v. Willis, 59 Tex. 81:

“It is true that a guarantor is entitled to Stand upon the terms of his contract, for it is the only source of Ms liability. Contracts of guaranty, however, are to be construed as are other contracts; the object in all eases, being to ascertain the real intention of the parties.”

In Gardner v. Watson, 76 Tex. 29, 13 S. W. 40, Justice Gaines said:

“There is no special rule by which we can determine whether a contract of guaranty is a continuing' one or not. Guaranties, like other contracts, must be construed so as to give effect to the intention of the parties, and, if upon their face the intention be doubtful, resort may be had to parol evidence of the situation and surroundings of the parties in order to solve the difficulty.”

To the same effect is Smith v. Montgomery, 3 Tex. 204.

Erom these authorities it is manifest that the scope and effect of the guaranty here involved, especially its application to the debts of the Eppler Mercantile Company, after the taking out of a new charter in 1910, must rest upon the intention of the parties. This guaranty was admittedly a continuing one, limited as to amount, but unlimited as to time, and with the privilege expressly reserved to the grantors to recall it at any time upon written notice. By the terms of the instrument, the guarantee is described as the Cooper Mercantile Company, and the principal debtor for whom the guarantors stood good as the Eppler Mercantile Company, and it is nowhere expressly stated therein that the guaranty is limited to the debts of the corporation chartered in January, 1900, or to the life of said corporation, as prescribed in the charter. Fairly construed, in the light of the situation and Hie relation of the parties, the subject-matter of the contract, and the course of dealing, as hereinafter indicated, we think the guaranty in question might well be held to be a contract guaranteeing the indebtedness of the Eppler Mercantile Company, as the business concern known by that name, until revoked by the guarantors, regaruiess of the mere form of corporate change, and the legal fiction of a separate, artificial entity, at reast until shown that the parties intended the instrument to have the more limited effect. It would be paying too much regard to form and too little to substance to hold, as a matter of law, as did the trial court, that this guaranty must be restricted to the debts of the Eppler'Mcrcantile Company, incorporated January, 3900, and terminated with its dissolution, without reference to the intention of the parties. It is shown by the trial court’s conclusions of fact, or by the facts in the record, or both, that appellees were large stockholders in the corporation, both under 'the old and new charter, and that they were active in the business. Appellees were active in the reorganization of the company, and were named as directors in the new charter; and the stock subscribed in the new company by T. L. Gates and W. R. Eppler amounted to considerably more than half the entire new capital stock. The record further shows that W. R. Eppler was president, and T. L. Gates secretary and treasurer, of the Eppler Mercantile Company at the time of the dissolution, and that thereafter T. L. Gates was president and manager of the company under the new charter.

The business was run on in the same old way after the new charter was procured, and was never closed between the interval of the dissolution of the old company and the chartering of the new, and the store was managed just as before. The new company took over all the assets of the old company. It is an undisputed fact that the new company was chartered because the term of the corporation was about to expire, or had just expired, under the old charter, and no new capital seems to have been contributed to the new company. The Eppler Mercantile Company continued to do business with appellant after the taking out of a new charter just as before, and there seems to be little dispute that appellant relied upon its guaranty after the organization of the new company, and when the indebtedness sued upon arose, and that appellees never undertook to give appellant notice in writing of their purpose or desire to terminate the guaranty.

Under these circumstances, we think it clear that the guaranty cannot be limited, without regard to the intention of the parties, to the debts of the old Eppler Mercantile Company. For these reasons, we think the trial court erred in so concluding, and that the judgment must be reversed, especially in view of the error committed by the trial court, in our opinion, in excluding certain testimony hereinafter indicated.

We are not unmindful that the trial court found that the old company was authorized to do business at Gorman and Cisco, Tex., while the new company’s charter only authorized it to transact business at Gorman; also that the old company’s purpose clause was limited to the retail business, while the new company was granted the privilege of doing both wholesale and retail business. These findings are supported by the evidence. But we do not think these considerations weigh sufficiently to require us to construe the contract as applicable alone to the debts of the old corporation. As we have said, the instrument admits of the construction that the parties intended the guaranty should cover the debts and guarantee the •credit of the business known as the Eppler Mercantile Company, as a mercantile establishment and business concern, without regard to its mere corporate form or its status as an artificial creature of the law. Therefore the intention of the parties will prevail over the mere changes in corporate organization or form, if such was -their intention, and that is a question of fact to be determined upon another trial.

We do not feel inclined, however, to reverse and render this case for appellant, because we cannot say that all the facts were elicited ■below bearing upon the intention of the parties as to the effect, operation, and application of the guaranty; and, further, because tlie trial court made no express finding of his conclusions upon what the parties intended. Since we have held that this contract may be well construed as intended to apply to the debts incurred by the Eppler Mercantile Company to the Cooper Grocery Company, in the business and as the business concern operated by that name, and not necessarily confined to the corporation chartered January, 1900, and limited to the term named in its charter, we think full opportunity should be given to develop this case so as to show what the parties intended. The situation and relation of the parties, the object of the guaranty and course of business dealings, and the practical construction of the parties are prime elements in the criterion of intent which must finally determine this case. Therefore .the case will be reversed and remanded for further proceedings consistent with the views herein expressed.

Appellant complains of the alleged error by the trial court in refusing to permit the witness J. R. Milam, vice president and manager of appellant, to testify to the refusal of the appellant to extend the indebtedness of the Eppler Mercantile Company to appellant, unless appellees, the guarantors, would consent to the extension; and also because of the exclusion of certain letters which it is claimed tended, under the circumstances, to show the intention of the parties, and the practical construction of appellees that their guaranty continued to protect the debts of the Eppler Mercantile Company to appellant. These questions are presented by the fourth, fifth, sixth, and seventh assignments of error. This testimony and these letters relate to the indebtedness of the Eppler Mercantile Company after the procuring of the new charter, and, while they are not pleaded or relied upon as a basis for appellant’s cause of action, we think the testimony was admissible, and was improperly excluded. Such testimony, at least, tends to shed light upon the intention of the parties, their common .understanding, and the practical construction that they placed upon the contract in its operation. In view of another trial of the case, however, we suggest the record indicates that a stronger predicate for the introduction of secondary evidence might he laid, although we are of the opinion that the failure to produce original testimony was sufficiently accounted for 'by appellant.

Eor the reasons above indicated, the judgment is reversed, and the cause remanded for trial in accordance with the views expressed in this opinion.

Reversed and remanded.

Associate Justice JENKINS, being disqualified, did not sit in this case, and 1-Ion. JOHN W. BRADY was appointed and acted in his stead.
      cg^For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    SCHUTZE et al. v. DABNEY et al.
    (No. 5901.)
    (Court of Civil Appeals of Texas. Austin.
    April 4, 1918.
    Rehearing Denied April 15, 1918.
    On Motion to Reform Judgment, May 22, 1918.)
    1. Contracts <⅜=206 — Provision for Attorney’s Ebbs — Accrual of Liability.
    Where a contract for the payment of money provides for the reasonable attorney’s fees “when incurred,,” such fees are incurred when it becomes necessary to place the claim in the hands of attorneys for collection.
    2. Mechanics’ Liens <®=>1 — Street Improvements — “Mortgage Lien” — “Mechanic’s Lien’ ’ — “Pledge.’ ’
    Where a contract for paving, excavating, and guttering a street provided that the contractor was granted a mechanic’s lien on the premises to secure the payment of the contract price, the lien provided for was a “mechanic’s lien,” and not a “mortgage lien,” there being no clause of conveyance in the contract, a mortgage and a mechanic’s lien being different, a mortgage being created by contract, while a mechanic’s lien is created by law, although arising out of contract, nor was the contract a “pledge-of land,” since “pledge” applies to personalty, and not to land.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Mechanic’s Lien; Mortgage; Pledge.]
    3. Boundaries <§=>20(3) — Conveyance of Land Bordering on Highway.
    While a conveyance by an individual of land bordering• on a public highway in the absence of provisions to the contrary conveys title to the center of the highway if the grantor owned such land, where the state or municipality owns the land and makes a conveyance calling for a highway, the fee to the highway is not conveyed, and the grantee cannot grant a- valid; mechanic’s lien thereon to a contractor to secure payments under a contract for street improvements.
    4. Homestead <§=>146 — Exemption—“Ecr'Ceb Sale.”
    A lien in a contract for street improvement to secure payment to the contractor covering a homestead and given by a widow, if construed as a mortgage, is invalid, since Oonst. art. 16, § 50, excepts homesteads from forced sales, and provides that no mortgage, trust deed, or other lien thereon shall be valid except for purchase-money or improvements, there being no power of sale in the contract, and foreclosure of a mortgage by decree of court, and not under a power, being a forced sale within the constitutional provision.
    [Ed. Note. — For other definitions, see Words- and Phrases, Eirst and Second Series, Forced Sale.]
    On Motion to Reform Judgment.
    5. Appeal and Error <§=>1232 — Supersedeas Bond — Prosecution of Appeal “with Effect” — Reversal.
    An appeal is prosecuted “with effect” within the meaning of a supersedeas bond where it is ' prosecuted successfully, and appellant succeeds in reversing the judgment in a material part, such as the enforcement of the lien in a suit on a contract to pay money, although the entire judgment is not reversed.
    Appeal from District Co-urt, Travis County; Ireland Graves, Judge.
    Suit by L. M. Dabney and others, trustees, etc., against Mrs. Annie Schutze and others.

      From a decree for plaintiffs and foreclosure •of a lien, defendants appeal.
    Affirmed in part, and in part reversed and remanded, and judgment reformed on motion.
    Geo. S. Dowell, of Houston, and R. E. Co-fer, of Austin, for appellants. Brooks, Hart & Woodward, of Austin, for appellees.
   Findings of Fact.

JENKINS, J.

The following map and the notations thereon will aid in understanding the issues involved herein:

The state of Texas, as the successor of the Republic of Texas, was formerly the •owner of all of the land shown on said map, and is still the owner of the 40 acres shown thereon as “College Hill,” the same being now the campus of the State University.

On October 28, 1848, the state of Texas, by letters patent, granted to Louis Horst 59 acres of land, including blocks 22½, 35, and 36, shown on said map, and other blocks to the west, describing same by block numbers, as shown on said map, and not otherwise. On March 28, 1849, the state of Texas patented block 49 to S. G. Haney.

The appellant is the owner by mesne conveyances from Louis Horst of lot 34 in said block 36, described in such conveyances by lot and block numbers. The appellant executed the following contract:

“The State of Texas, County of Travis.
“Mrs. Annie Schutze, owner of all of lot No. 34 in block 36, div. D, fronting 70 feet on the west side of Guadalupe street, in the city of Austin, Tex., known as No. - and described as follows: * ⅜ * in consideration of the improvement of said street, including paving, guttering, and curbing the same by virtue of a resolution adopted by the council of said city, and the contract and specifications therefor adopted by said council, upon the completion of said improvements in front of said premises and their acceptance by the city, do promise to pay Texas Bitulithic Company or its assigns whatever sum shall be ascertained to be the pro rata share of the costs of said improvements in front of said premises, according to the front-foot rule under the terms of said resolution and contract not to exceed the sum of - dollars ($-), being three hundred fifteen and 55/ioo dollars ($315.55) for paving, excavating, and guttering, and —- dollars ($-) for the construction of concrete curbs in front of said premises, and being at the rate of $5.5078 per front foot for said paving, including excavating and guttering, and $- per front foot for curb. But, if the frontage of said premises on said street shall be ascertained to exceed the amount above stated, then the cost of improvements in front of said excess shall be paid for to said company at the rates per front foot above stated.
“The amount due hereon shall be paid as follows: All cash at the option of the undersigned or $-30 days after said improvements have been completed in front of said premises, and accepted by the city, and the balance in four equal installments on or before one, two, three, and four years respectively after such acceptance at the rate of 7 per cent, per annum, payable annually, together with reasonable attorney’s fees thereon and all costs of collection if incurred.
“If default shall be made in the payment of any installment of principal or interest when due, at the option of said company or other legal holder hereof, the whole amount then unpaid hereon shall at once become due and collectible.
“And in consideration of said improvements to and upon said premises and the fact that thereby the value thereof will be enhanced in excess of the cost, -, the undersigned, do hereby expressly grant unto Texas Bitulithic Company and its assigns a mechanic’s lien upon said premises, to secure the payment of indebtedness herein mentioned, and --- do hereby consent that the said council of Austin may levy a special assessment against the said property and the owner thereof for an amount ascertained to be the proportionate share chargeable against the same as herein provided.
“It is agreed that the acceptance of said improvements by the city shall be conclusive between the parties hereto of the proper performance of the contract therefor, and in consideration hereof, and of the extension of the time of payment of the said assessment hereby granted, the said assessment by the city and all proceedings with reference thereto are hereby expressly ratified and confirmed, and any errors or invalidity therein are hereby waived.
“It is expressly understood this obligation is not conditioned upon the improvement of said street before all property abutting thereon, but same may be omitted before the property of any owner or owners who shall not make satisfactory arrangements with said company for the payment of his or their proportion of the cost of such improvements. This obligation shall be deemed cumulative and independent of such proceedings as said city council may take or cause to be taken to assess and secure the payment of the cost of such improvement upon said premises or its owner, and any payment made to the city under such proceedings shall operate as a credit and shall be indorsed hereon.
“Witness our hands this the 31st day of January, A. D. 1914. Mrs. Annie Schutze. “A. 0. Schutze.”

The work was done as by said contract required. Appellant owes appellees, as the assignees of the account, the amount for which judgment was rendered herein. The amount of the attorney’s fee for which judgment was rendered is reasonable, if any attorney’s fee is recoverable under the contract. At the time of the execution of the contract sued upon, and prior thereto, and at the time of the trial hereof, appellant was a widow, residing upon lot 34 with her minor children, as her homestead.

The case was tried before the court without a jury, and judgment was rendered against appellant for the amount due on said contract, together with 10 per cent, attorney’s fee, and with foreclosure of lien on said lot 34.

The court also found that A. O. Schutze had no interest in the case.

Opinion.

It is the contention of appellant that the judgment was erroneous in awarding attorney’s fees, for the reason the contract does not state any contingency upon which attorney’s fees might become due. ■ With this we do not agree. The agreement was to pay reasonable attorney’s fees, “if incurred.” We think this means if legally incurred; that is to say, if it should become necessary to 'place the claim in the hands of attorneys for collection. Such necessity arose in this case by reason of the failure of appellant to pay when due.

The judgment was for the foreclosure of a lien on the premises involved. It does not state whether the lien is a mechanic’s lien or a mortgage lien. In its conclusion of law filed herein the court states that the ap-pellee has a mortgage lien which he is entitled to have foreclosed. The contract calls it a mechanic’s lien. The appellee in his petition calls it a mechanic’s lien; and we think the lien provided for in the contract is a mechanic’s lien.

Appellee argues that the lien mentioned in the contract had all of the elements of a mortgage, in that “it shows the intention of the parties to pledge land as security for debt, with a defeasance upon the payment of the debt, and with the right of redemption and foreclosure.”

Though a mechanic’s lien and a mortgage have in common the element of security for debt, they are not the same thing. They are recognized by the Constitution and laws of this state as being different things. “Mortgage” was a term well understood before the adoption of our Constitution and statutes. Though a mortgage does not in fact convey title, except as security for debt, it does to that extent convey title. A mortgage in form possesses all of the requisites of a deed, with the additional clause of defeasance.

In the excerpt from appellee’s brief above set out the contract sued on is referred to as a “pledge of land.” Pledge applies to personal property, and not to land; also, that it is a pledge with “a defeasance,” and with “the right of redemption.” “Defeasance” and “redemption” imply a conveyance, and there is no clause of conveyance in the contract here involved. It is no reply to say that these distinctions are technical. But, aside from these, there is this substantial difference between a mortgage and a mechanic’s lien: In a mortgage the lien is created by contract; a mechanic’s lien is created by law. It arises out of a contract which provides for the debt, but the lien is given by statute. Guaranty Co. v. Cash, 99 Tex. 555, 91 S. W. 781; Lambert v. Williams, 2 Tex. Civ. App. 413, 21 S. W. 108.

The distinction between a mortgage and a mechanic’s lien is important in the instant case, in that, if the appellant owns the street in front of lot 34 to the center of such street, the homestead question aside, the appellee has a mechanic’s lien thereon. Lewis v. Paving Co., 184 S. W. 680; Waples v. Ross, 141 S. W. 1027. On the other hand, if the fee in the street does not belong to appellant, no mechanic’s lien exists under the contract. A mechanic’s lien cannot be created by contract on land other than that upon which the improvements are made. Guaranty Co. v. Cash and Lambert v. Williams, supra.

Did the conveyance from the state to Horst convey the fee to the center of the street, in front of the blocks, as shown on the map set out in the statement of facts? If so, the mesne conveyance from- Horst to appellant conveyed such title to appellant, and the street which was improved in front of lot 34 is a part of said lot. If not, it is a parcel of land distinct from lot 34, and belongs, not to appellant, but to the state of Texas, or to the city of Austin, if by its charter it has acquired the state’s right therein.

It is a general rule of law, too well established to require citation of authority, that a conveyance by an individual to land bordering on a public highway, in the absence of an explicit statement in the deed to the contrary, conveys title to the center of such highway, provided the grantor at the time owned such land. This, however, is only a rule of construction, and may be rebutted by apt language to the contrary in the conveyance. 4 R. O. L. p. 78; 9 O. J. 198. The reasons for this rule, stated in numerous opinions, are summed up in G. J. p. 197; the first two .of which are as follows:

“(1) The absence of any purpose to be served in the retention by the grantor of a narrow strip of land conveyed, or the absence of any practical use to him for the strip of land; (2) the immediate interest of the vendee therein, and its direct and substantial value to him.”

The force of these reasons will be readily perceived where the highway is abandoned subsequent to the conveyance. For similar reasons, it has been held that, where the owner of land lays out a highway on the border of and wholly on his land, a conveyance by him, calling for such highway, will convey the fee to all of the highway. Healey v. Ba-bitt, 14 R. I. 533; Re Robbins, 34 Minn. 99, 24 N. W. 356, 57 Am. Rep. 40; Taylor v. Armstrong, 24 Ark. 102.

The reasons for this rule, however, do not apply when the government, state or municipal, owns the land, and makes a conveyance calling for a highway. It is the duty of the government to maintain such highway — a duty which is not imposed upon an individual owning land contiguous thereto. Accordingly it is held that, where a government owns land, including a highway, and conveys the same, calling for such highway, such conveyance does not convey the fee to any portion of the highway, in the absence of language showing such intent. McDonald v. Kummer, 56 Colo. 160, 137 Pac. 51; Graham v. Stern, 168 N. Y. 523, 61 N. E. 891, 85 Am. St. Rep. 694; Haberman v. Baker, 128 N. Y. 253, 28 N. E. 370, 13 L. R. A. 613; Dunham v. Williams, 37 N. Y. 251; 4 Am. & Eng. Enc. of Law, 812, 813; 5 Cyc. 907 ; 9 C. J. 204.

We quote from Graham v. Stern, supra, Mr. Justice Gray speaking for the court, as follows:

“It is altogether the sounder proposition, in my opinion, that the grant of property, bounded by, or upon, a city street, derived from the public authorities, in the absence of any more definite description, arrives only to the line of the street, inasmuch as in legal intendment, the street was held as, and should remain, a public highway. This principle was applied to the ownership of lands, which formerly formed a part of the public lands of the United States, and which bordered upon a stream declared a highway by act of Congress. See Railroad Co. v. Schurmeir, 7 Wall. 272-287 [19 L. Ed. 74]; Yates v. Milwaukee, 10 Wall. 497-504 [19 L. Ed. 984].”

This principle prevails in Texas as to streams declared by law to be navigable. Austin v. Hall, 93 Tex. 597, 57, S. W. 563.

We know of but one case in Texas involving the issue as to whether a grant by a government bordering on a highway extends to the center thereof, and that is the ease of Mitchel v. Bass, 26 Tex. 372; and 33 Tex. 265. As that case was decided under principles of the civil law, it has no application to the instant case.

Construing the law as we do, that the grant from the state of Texas to Louis Horst did not convey title to any part of Guadalupe street, we hold the contract sued upon does not constitute a valid mechanic’s lien on lot 34.

If, however, the instrument sued on is a mortgage, and the patent from the state to Louis Horst conveyed title to the center of Guadalupe street, does such mortgage create a valid lien on appellant’s homestead? The contention is that it does, by reason of the fact that she was a widow at the time she executed such instrument.

Our present Constitution (article 16, § 50) excepts homesteads from forced sales. A like provision was contained in the Constitution of 1845 (article 7, § 32). Construing this provision of that Constitution, the Supreme Court of this state, in Sampson v. Williamson, 6 Tex. 102-110 (55 Am. Dec. 762), held that a foreclosure of a mortgage by decree of court was a forced sale, and for that reason a mortgage) without power of sale on a homestead was void. This decision has never been overruled or modified, and is the law in this state.

In the case above cited it was said:

“A mortgage depending for its enforcement on judicial process would be ineffectual, because a sale under such process would be forced [sale]. But a sale under a power in a mortgagee or trustee would be voluntary; and the assent of the wife would give as much validity to such mortgage as to an absolute and immediate sale.”

This distinction wast recognized in Jordan v. Peak, 38 Tex. 429, decided before the adoption of the present Constitution. In numerous other cases arising since the adoption of the present Constitution it has been held that a deed of trust on a homestead executed by an unmarrried person is valid. Lacy v. Rollins, 74 Tex. 568, 12 S. W. 314; Smith v. Von Hutton, 75 Tex. 626, 13 S. W. 18; Watts v. Miller, 76 Tex. 13, 13 S. W. 16; Hensel v. Building Ass’n, 85 Tex. 215, 20 S. W. 116; Kiolbassa v. Raley, 1 Tex. Civ. App. 169, 23 S. W. 253; Kidwell v. Carson, 3 Tex. Civ. App. 327, 22 S. W. 534; Davis v. Converse, 46 S. W. 910; Lee v. Mortgage Co., 25 Tex. Civ. App. 481, 61 S. W. 134; Echols v. Mercantile Co., 38 Tex. Civ. App. 65, 84 S. W. 1082; Spencer v. Schell, 107 Tex. 44, 173 S. W. 867. In each of the cases above cited the lien was created by a deed of trust with power of sale. All of these cases seem to have followed Lacy v. Rollins, supra. That case discusses the effect of the words, “No mortgage, trust deed, or' other lien created by the husband, whether alone or together with the wife, shall ever be valid,” etc., and holds that a deed of trust executed by an unmarried man is valid. Whether or not such decisions are correct when confined to deeds of trust which are voluntary conveyances we are not called upon to decide in the instant case, for the reason that the contract herein sued upon is not of that character.

If it should be held that the reasons stated by Judge Gaines for the decision in Lacy v, Rollins will' apply also to a mortgage without power of sale, we are not impressed either with the reasons there given, or the conclusion reached. We do not think that learned judge intended they should be so applied.

Judge Gaines stresses the idea that the homestead exemption is for the benefit of the wife. Such is evidently one of its beneficent purposes. But we do not see why the framers of the Constitution should have been careful to protect a wife while she has the assistance and counsel of a husband, and should have withdrawn that protection as soon as death had deprived her of such assistance and counsel, and left her to struggle alone to support herself and her fatherless children. We use the word “withdrawn” advisedly; for under the former Constitution and decisions thereunder the homestead was exempt from forced sale, whether it was that of a married or unmarried person.

The present Constitution, in reference to homestead exemptions, reads as follows:

“Art. 16, § 50. Homestead Exemptions — In-cumbrances — Pretended Sales. — The homestead of a family shall be, and is hereby, protected from forced sale, for the payment of all debts except for the purchase money thereof, or a .part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon, and in this last case only when the work and material are contracted for in writing, with the consent of the wife given in the same manner as is required in making a sale and conveyance of the homestead; nor shall the owner, if a married man, sell the homestead without the consent of the wife, given in such manner as may be prescribed by law. No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of de-feasance shall be void.”

The Constitution of 1845 protected, the homestead from forced sale, but did not con-' tain anything with reference to exceptions, mortgages, deeds of trust, or other liens. Why were those words added to the present Constitution? The explanation is found in the following language used by Judge Gaines in Lacy v. Rollins, supra, 74 Tex. 568, 569, 12 S. W. 314, 315:

“The provision in reference to mortgages and other liens is not found in any previous Constitution, and the construction had been that the mere exemption from forced sale did not preclude the husband and wife from giving a valid mortgage on the homestead, provided it contained a power of sale, and did not require the interposition of the courts to aid in its enforcement. Sampson v. Williamson, 6 Tex. 102 [55 Am. liec. 762]; Jordan v. Peak, 38 Tex. 429. The ruling was unsatisfactory to many of the legal profession, and the framers of the existing Constitution evidently considered that it was not in accordance with the general policy of the exemption laws to permit it to be incumbered by a deed in trust or mortgage with a power of sale.”

In other words, it was the purpose of the framers of the Constitution, ánd evidently of the people who adopted it, to extend the protection to the homestead beyond what had previously been accorded it. With this purpose in view, did they in fact deprive owners of a homestead, if unmarried, of an immunity which they had theretofore enjoyed? What is the added language with reference to liens on homesteads? It is:

“No mortgage, trust deed, or other lien on the homestead shall ever be valid, except,” etc.

A mortgage by an unmarried person is not one of the exceptions. We are sustained in the construction which we here give to article 16, § 50, of the Constitution, supra, by the rule that, where an exception is intended to apply to a general statement, it should be indicated by apt words such as, “except,” “provided,” etc., and also by the rule that, when exceptions follow words of general import, no exception is presumed to be intended, except those named. We think the additional words “whether such mortgage, trust deed, or other lien shall have been created by the husband alone, or together with.his wife,” were intended only to emphasize the idea that no lien on the homestead, however and by whomsoever executed, should ever be valid. If, however, we adopt the construction suggested by Judge Gaines, and substitute “except” for “whether,” then, by what appears to us to be a strained construction, it might be said that the whole added clause had reference only to mortgages executed by husbands; and, as an unmarried person is not a husband, it does not relate to such persons. But if the whole clause-with reference to mortgages, etc., be nullified as applied to unmarried persons, that clause which excepts a homestead from-forced sale still remains, and, while deeds-of trust might be valid, mortgages without power of sale would not be.

The most plausible ground upon which Lacy v. Rollins, and the decisions which follow it,' can be based, may be deduced from the following language used in that case (74 Tex. 569, 570, 12 S. W. 314, 316):

“Our laws left persons sui generis and unmarried free to make such voluntary disposition as they saw proper of their own property.”

The power to convey includes the lesser power to incumber, unless such power be restricted by law. Hence it is argued that, as there is no restriction upon an unmarried person to voluntarily convey his homestead, there is no restriction upon his executing thereon a deed of trust, which is a voluntary conveyance. But this reason does not apply to a mortgage without power of sale, a foreclosure of which is a forced sale, which is inhibited by the Constitution. There has never been a time in this state when a husband and wife could not voluntarily sell their homestead. On the other hand, there has never been a time since the adoption of the Constitution of 1845 when a husband and wife could subject their homestead to forced sale by executing a mortgage thereon. Hence it is apparent that the power to sell does not, under our Constitution, include the power to incumber, if such incumbrance involves a forced sale.

In making this statement, we are not unaware of the fact that it has been held in this state that an unmarried man can mortgage his homestead, and that the same will be enforced by process of law. But such decisions were made without due consideration, and do not correctly announce the law. The cases here referred to are Harle v. Richards, 78 Tex. 80, 14 S. W. 257; Moore v. Poole, 25 S. W. 802; and McGee v. Tinner, 61 Tex. Civ. App. 347, 129 S. W. 867.

The criticisms of I-Iarle v. Richards in Lee v. Mortgage Co., Strong v. Elder, and in Spencer v. Schell, supra, indicate that the learned commissioner who wrote tile opinion in Harle v. Richards did not give proper consideration to the provisions of our Constitution in reference to homestead exemptions. This is further indicated by the fact that the authorities therein cited are not applicable to the facts of that case, and do not sustain the decision.

In quite a number of the cases hereinbe-fore cited wherein was involved the issue as to the validity of a deed of trust executed by an unmarried person the expression is used that an unmarried person may execute a valid mortgage on his homestead, meaning a mortgage with a power of sale, but not calling attention to that fact. It was such expressions as these, used without qualification, none being necessary as applied to the. facts of such cases, which lead this' court into error in Moore v. Poole,, supra. Prom an examination of the record in that case we have ascertained that no brief was filed by appel-lee. There was nothing in appellant’s brief to call the attention of the court to the distinction between a mortgage with power of sale and a mortgage without such power.

We have not had the opportunity of examining the record in McGee v. Tinner, supra, but from reading the opinion we apprehend that it was decided under lite circumstances as Moore v. Poole. But, however this may be, we think it clear that a forced sale of a homestead under a mortgage, whether executed by a married or an unmarried person, is inhibited by the 'Constitution of this state.

For each and all the reasons stated herein, the judgment of the trial court is affirmed in so far as it decrees an indebtedness by appellant to appellee, and reversed and here rendered in favor of appellant in so far as it decrees a foreclosure of a lien of any character upon the premises in controversy. "

Affirmed in part, and in part reversed and rendered.

On Motion to Reform Judgment.

On a former day of this term judgment was entered herein against the sureties on the appeal bond. This, we think, was erroneous.

The bond is a supersedeas bond in the ordinary form, conditioned that the appellant should prosecute her appeal with effect and perform the judgment of the Court of Appeals. The word “and” in the bond should be read “or.” Robinson v. Brinson, 20 Tex. 438; Railway Co. v. Stanley, 76 Tex. 418, 13 S. W. 480; Surety Co. v. Koen, 49 Tex. Civ. App. 98, 107 S. W. 938; Mills v. Hackett, 1 White & W. Civ. Cas. Ct. App. § 846; Sullivan v. McFarland, 1 White & W. Civ. Cas. Ct. App. § 1199 ; Worley v. Hudson, 2 Willson Civ. Cas. Ct. App. § 26.

To prosecute an appeal “with effect” means to prosecute it successfully. Michael v. Ball, 8 Tex. Civ. App. 406, 27 S. W. 949. An appeal is prosecuted successfully if there-, by the appellant succeeds in reversing the judgment'in a material part. It is not necessary that the judgment should be reversed in every part. Blair v. Sanborn, 82 Tex. 686, 18 S. W. 159.

In the instant case a material part of the judgment was the enforcement of the lien against the appellant’s homestead. She could not suspend this part of the judgment without appealing and giving a supersedeas bond. The bondsmen bound themselves that she would prosecute her appeal “with effect.” This she did when she secured a reversal of the judgment enforcing such lien.

The motion to reform the judgment is granted; and the judgment of this court, in so far as it is against the sureties on the appeal bond, is set aside.

Motion granted, and judgment reformed.
      <£u»For oclier ca.ces see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    GRAY v. COLORADO SOUTHERN RY. CO. et al.
    (No. 7598.)
    (Court of Civil Appeals of Texas. Galveston.
    May 22, 1918.
    Rehearing Denied June 13, 1918.)
    1. Carriers <©=>308 — Carriers oe Passengers —Liability oe Intermediate Carriers.
    The Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595), making all carriers receiving property for transportation in interstate commerce liable for loss or damage to the property, did not apply where a railroad sold ticket to passenger covering three railroad lines and one bus line controlled by such carrier, and the passenger was injured while on the bus line; only the initial carrier was liable, the subsequent carriers being liable only for their own negligent acts.
    2. Carriers <©=>308 — Injuries to Passengers — Connecting "Carriers — Liability oe Initial Carrier.
    Whore initial carrier sold passenger ticket on three lines of railroad and on one bus line, and passenger was injured while riding in the bus, the driver of which was employed for such purpose by such carrier, the passenger’s husband had a cause of action against the initial carrier for such injuries.
    Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.
    Action by J. L. Gray against the Colorado Southern Railway Company and others. Judgment dismissing the action, and plaintiff appeals.
    Reversed and remanded.
    W. C. Gray, of Palacios, and W. C. Carpenter and Linn & Austin, all of Bay City, for appellant. Terry Cavin & Mills and John G. Gregg, all of Galveston, for appellees.
   LANE, J.

This suit was brought by J. L. Gray, appellant, against the Colorado Southern Railway Company, a railway corporation in the state of Colorado, the Gulf, Colorado & Santa Fé Railway Company, and Y. Schill, the owner of a bus which he uses in transferring passengers from the depot of one railway to another, in the city of Bay City, Tex., to recover damages for personal injuries alleged to have been sustained by appellant’s wife by falling from the transfer bus of said. Scliill, while she was being transferred from the depot of the Gulf, Colorado & Santa Eé Railway Company at Bay City to the depot of the Galveston, Harrisburg & San Antonio Railway Company, situated in said city.

After filing his original petition, appellant, Gray, filed his amended petition, and dismissed his suit as against the Colorado Southern Railway Company, and in said amended petition he alleged, among other things:

“That said Gulf, Colorado & Santa Eé Railway Company is a railroad corporation chartered and existing under and by virtue of the laws of the state of Texas, and operates a line of its railroad through Matagorda county, Tex., and maintains an office and having a local agent at Bay City, in said county, in the person of W. J. Warner; and that the defendant V. Schill also resides in Matagorda county, Tex., and that both of said defendants are common carriers for hire. And, for cause of action against said defendants, plaintiff alleges that on the 7th day of August, A. D. 1910, his wife, Mrs. Nannie Gray, being desirous of traveling from Boulder, in the state of Colorado, to Palacios, in the state of Texas, purchased from the Colorado Southern Railway Company a ticket. Said ticket entitled her to first-class passage over its own and connecting-lines from the said city' of Boulder to the said city of Palacios. That in selling said ticket the Colorado Southern Railway Company was acting- as agent for its connecting lines and carriers. That it transported her from Boulder to the city of Denver in the state of Colorado, and then delivered her to the Atchison, Topeka & Santa Eé Railway Company, which transported her over its line to its junction with the defendant Gulf, Colorado & Santa Eé Railway Company at Et. Worth, Tex., at which point it delivered he» to the said last-named. defendant. That in selling the said ticket the said Colorado Southern Railway Company bound each of its connecting carriers to transport safely the said wife of plaintiff over its respective lines of railway and deliver her safely to its next connecting carrier. That the last carrier that was to transport her was the Galveston, Harrisburg- & San Antonio Railway Company from Bay City, Matagorda county, Tex., to Palacios, in said county. That while the line last named intersects the line of the Gulf, Colorado <& Santa Eé Railway Company at Bay City, yet they maintain separate stations, and passengers holding tickets over both of said lines have to he conveyed or transferred from one station to the other by conveyances or means other than railway cars. That, in purchasing the ticket aforesaid, plaintiff’s wife purchased and paid for, and there was attached to and made a part of said ticket, a coupon entitling her -to a transfer or transportation from the station of the said Gulf, Colorado & Santa Eé Railway Company to the station of the Galveston, Harrisburg & San Antonio Railway Company at Bay City. That he is informed and believes, and so believing charges, that the said Gulf, Colorado & Santa Eé Railway Company has an arrangement, and so had at the time hereinafter mentioned, with the defendant V. Schill, whereby the said Y. Schill was to transfer all passengers holding transfer tickets or coupons from its station in Bay City to the other railway stations in said city, and paid him therefor. That passengers over its said lines of railway holding transfer coupons are obliged and compelled to take the conveyance furnished by the said Y. Schill, or pay another fare to some other person to transfer them. That by reason of such arrangement said Y. Schill became and was-an employé or agent of the said Gulf, Colorado & Santa Eé Railway Company, and that because of this relation the said defendant railway company was and is bound in law to see that the said V. Schill provide the safest mode of conveyance, or the safest vehicles in which to make said transfers, and to exercise a high degree ot-eare in transferring its passengers from its station to the other stations in the said Bay City.
“Plaintiff further shows to the court that the defendant Y. Schill was, at and before the date of the injury complained of, the agent and em-ployé of the defendant Gulf, Colorado & Santa Eé Railway Company, and said Schill was at the time of the injury engaged in the performance of the duty of transferring and transporting plaintiff’s wife under said contract of said railway company from its.depot to the depot of its connecting carrier at Bay City, Tex., in the line of travel contracted for. That said contract of transfer from depot to depot was a separate contract of the said Gulf, Colorado & Santa Eé Railway Company in furtherance of its contract to deliver said pa'ssengers to its connecting line, the Galveston, Harrisburg & San Antonio Railway, at Bay City, Tex., and in fact and in law occurred upon defendant’s line. That said injury occurred by reason of the negligence and want of care of the said agent and employé of defendant Gulf, Colorado & Santa Eé Railway Company, in the performance of said contract, and said defendant cannot limit its liability for injuries occurring through the negligence of its said agent and em-ployé. Plaintiff would further show that his said wife made the trip in safety from the said city of Boulder to the said city of Bay City, and that upon alighting- from the train of defendant Gulf, Colorado & Santa Eé Railway Company, at the latter place, she inquired of defendant’s agents for the vehicle to transfer her to the station of the Galveston, Harrisburg & San Antonio Railway Company, and was directed to take the autobus of defendant V. Schill, which was then standing in the yards of the said defendant railway company; whereupon she presented her ticket, entitling her to be transferred, to the chauffeur, or driver of said bus, who tore off the said coupon and retained it, and directed plaintiff’s wife to enter said bus. The plaintiff’s said wife entered the autobus of said Y. Schill as directed.”

Plaintiff also alleged that the bus of V. Schill was defectively and negligently constructed as a conveyance for passengers, and that the driver thereof was negligent in driving the same and that by reason of said defective construction and negligent driving plaintiff’s wife was thrown from said bus and seriously injured, to plaintiff’s damage in the sum of $5,000.

Upon request of plaintiff, Gray, Y. Schill was dismissed from the cause.

The defendant Gulf, Colorado & Santa Eé Railway Company demurred generally to plaintiff’s petition, which was sustained by the trial court, and the cause was thereupon dismissed.

By the first assignment of error it is, in substance, insisted that the court erred in sustaining the general demurrer of the Gulf, Colorado & Santa Fé Railway Company, and in holding that plaintiff’s petition showed no cause of action; because the ticket issued and sold by the Colorado & Southern Railway Company, the initial carrier, to plaintiff’s wife, constituted a joint and several contract of all the transportation lines named therein, and entitled her to safe passage over all of said lines, including the bus line of Y. Schill, from Boulder, Colo., to Palacios, Tex., and that under what is known as the Car-mack Amendment to the act of Congress regulating carriers of interstate commerce (volume 3, U. S. Annotated Statutes, p. 297), all of the transportation lines over which appellant’s wife passed under her said contract were and are jointly and severally liable for any and all damages suffered by her by reason of the negligence of any one or of all of said companies while she was being carried under said contract.

While we have reached the conclusion that the court erred in sustaining the general demurrer for reasons hereinafter stated, we cannot sustain the contention that any of the lines called for under the contract, except the Colorado & Southern Railway Company, are liable for any damages suffered by plaintiff’s wife, except such as were suffered by the negligence of the respective companies.

,The Carmack Amendment, supra, among other things, provides that any common carrier, railroad, or transportation company, subject to the provisions of the same, which shall receive property for transportation from a point in one state or territory to a point in another state or territory, shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it, or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, when transported on a through contract of carriage. It further provides, however, that nothing therein shall deprive any holder of such contract of any remedy or right of action which he has under the law as it existed at the time of the passage of said act. It further provides that the common carrier, railroad, or transportation company issuing such contract shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained the amount of such loss, damage, or injury as it may be required to pay to the owner of such property.

While it is unquestionably true that the Colorado Southern Railway Company, the initial carrier, is liable for such injuries as were suffered by plaintiff’s wife, none of the intermediate carriers are liable for any injuries not caused by its own negligent or wrongful act. Hudson v. Chicago, St. Paul, M. & O. Ry. Co. (D. C.) 226 Fed. 38. There is, however, nothing in the Carmack Amendment which prevents liability from attaching to the intermediate or final carrier against whom negligent default of the contract of carriage, or injury to the property could be established by proper evidence. T. W. Newborn & Co. v. Louisville & N. Ry. Co., 170 N. C. 205, 87 S. E. 37; Tradewell v. Chicago Ry. Co., 150 Wis. 259, 136 N. W. 794; Atlantic Coast Ry. Co. v. Thomasville, 13 Ga. App. 102, 78 S. E. 1019.

By the second, third, and fourth assignments appellant, in varying forms, insists that the court erred in sustaining the general demurrer to his petition, because it was substantially alleged in said petition that the defendant Gulf, Colorado & Santa Fé Railway Company, as a party to the contract of carriage, had obligated itself to safely carry and deliver plaintiff’s wife to the Galveston, Harrisburg & San Antonio Railway Company at its depot in Bay City, Tex., and in undertaking to carry out its contract it had employed the bus of the defendant V. Schill as one of its facilities to complete its contract; that it had made a private contract and arrangement with the defendant Schill to transfer its through passengers from its depot to the depot of its connecting carrier at Bay City; and that in performance of this contract said Schill was the agent and em-ployé of said defendant Gulf, Colorado & Santa Fé Railway Company, who was at such time in charge of plaintiff’s wife as its passenger under her said contract, and was performing its duty undertaken by it under said contract, and that said bus so employed by said railway company to transfer plaintiff’s wife from its depot to that of its connecting carrier was defectively constructed, was unsafe for the transportation of passengers, and was carelessly and negligently driven by the driver thereof in such manner as to throw plaintiff’s wife from same to the ground, and thereby causing the injuries complained of.

These assignments must be sustained. We think the petition alleges a cause of action. If it be true, as is alleged by plaintiff, that V. Schill, in his undertaking to transport appellant’s wife from depot to depot, was the employé and servant of the Gulf, Colorado & Santa Fé Railway 'Company, and that said bus line was one of the instrumentalities used by said railway company in carrying out its contract, and that while being so transported plaintiff’s wife was injured through the negligence of said railway company or its servants, said railway company would be liable for such damages as were caused to appellant’s wife by its said negligence.

For the reasons pointed out the judgment of the trial court is reversed and the cause is remanded for trial on its merits.

Reversed and remanded.
      ©=5For other cases see same topic and KEY-NUMBER in all Itey-Numbered Digests and Indexes


author: HODGES, J.

text:
    PARIS & MT. P. R. Co. v. BRIDGES et al.
    (No. 1970.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 23, 1918.
    Rehearing Denied May 2, 1918.)
    1. Railroads ⅞⅜=412(1) — Injuries to Animals — Maintenance oe Pence.
    It is not negligence for a railroad company to remove a portion of the fence inclosing its right of way unless the remaining portion thereby makes the situation more dangerous for stock running at large.
    2. Railroads <&=443(6) — Injuries to Animals — Evidence.
    In an action against a railroad company for the death of a mule which had strayed onto the right of way because of the removal of a fence, evidence held insufficient to-show negligence.
    Appeal from Red River County Court;- R. J. Williams, Judge.
    Action by J. H. Bridges and others against the Paris & Mt. Pleasant Railroad Company. Prom a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    J. M. Burford, of Mt. Pleasant, for appellant. George Morrison, of Clarksville, for appellees.
   HODGES, J.

This appeal is from a judgment in favor of the appellees for the value of a mule killed upon the appellant’s right of way. The owner testified that he fed the animal at night on May 2,1917, and “turned it out to graze.” He found it next morning about 8 o’clock dead and lying near the end of a trestle on appellant’s roadbed. The testimony showed that a part of the fence which inclosed the railway right of way had been removed, and that the animal had entered through that opening some time during the night. Tracks found on the roadbed and about 40 feet south of the trestle indicated that the mule was running north toward the trestle. 1-Iair and blood were found on the ties. The mule’s legs were skinned and its neck broken, but no other abrasions discovered. There was evidence which warranted a finding that some time early on that night one of the appellant’s freight trains passed that point going north. The case originated in the justice court, and the pleadings of the plaintiff were oral. Prom the claim filed and the citation issued the cause of action seems to be founded upon the removal of the fence and in frightening the animal, causing it to run over the trestle.

It is not negligence for a railroad company to remove a portion of the fence inclosing its right of way, unless th'e remaining portion thereby makes the situation more dangerous for stock running at large. There is no evidence that any such dangerous situation was produced in this instance. The condition of the body did not indicate that the mule had been struck by a locomotive. It may be that it was frightened by an approaching train and caused to run over the trestle, but that fact alone does not show liability on th'e part of the appellant. It can only be held responsible for negligence in causing such an- injury. Evidence of the animal’s first appearance on the railway track showed that it was only 40 feet from the trestle and about 70 feet from where its body was found. The circumstances under which the mule went upon the track and was injured are not shown.

The evidence is insufficient to show negligence, and the judgment will be reversed, and the cause remanded.


author: GRAVES, J.

text:
    BAKER-HANNA & CO. v. KEMPNER.
    (No. 7607.)
    (Court of Civil Appeals of Texas. Galveston.
    June 6, 1918.)
    Corporations <©=3503(2) — Venue—Privilege —Statute—“Cause oe Action.”
    A suit against a corporation for the breach of a contract for the sale of cotton under a contract, subject to “Galveston class and weights,” on the ground that the drafts attached to the bills of lading and paid by plaintiff exceeded the contract price, was maintainable in Galveston county under Rev. St. 1911, art. 1830, subd. 24, as at least that part of the cause of action arose in that county; “cause of action” comprehending the agreement between the parties, its performance by one, and its breach by the other.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Cause of Action.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Suit by Mrs. Eliza Kempner against Baker-Hanna & Co. Defendant’s plea of privilege to be sued in Hardeman county overruled, and it appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, and Decker & Decker, of Quanah, for appellant. Williams & Neethe, of Galveston, for ap-pellee.
   GRAVES, J.

This appeal is from an order overruling a plea of privilege. The appellee sued appellant, a private corporation having its domicile in Hardeman county, Tex., in the district court of Galveston county, alleging the breach of a contract for the sale of 200 bales of cotton by appellant to appellee, in that it had collected from her in Galveston, through drafts drawn on her there, with bills of lading attached, something over $800 in excess of the agreed price for the cotton, which sum she sought to recover. Appellant interposed its plea of privilege to be sued in Hardeman county, which the court overruled, and it has appealed.

The cotton was shipped in two lots of 100 bales each. The contract price for the first shipment being 20⅛ cents per pound, that of the second 17¾ cents, the whole being subject to “Galveston class and weights.” Contemporaneously with the shipment, and pursuant to provisions in the contract for that procedure, appellant drew the drafts from Quanah upon appellee in Galveston for certain sums, attaching the bills of lading covering the cotton, which were presented to and paid by her there, such payment being necessary, under the terms of the shipment, to give her possession of the. cotton. “Galveston class and weights” could only be ascertained by grading and weighing the cotton in Galveston after its arrival there. Mrs. Kempner alleged and proved that such was done in this instance, and that, when so classed and weighed, the value of this cotton failed by the sum sued for to equal the aggregate amount she had advanced thereon in paying the drafts. Appellant concedes the contract to be as averred, including its provision that the transaction was to be governed by Galveston class and weight, and admits drawing the drafts substantially as charged. We think the suit was maintainable in Galveston county under subdivision 24 of the Revised Statutes, article 1830, for the reason that at least part of the cause of action declared upon arose in that county.

It has been often held that “the cause of action” comprehends the agreement between the parties, its performance by the one and its breach by the other. Here it clearly appears, we think, that appellant breached this contract in Galveston county by collecting from appellee there upon the drafts a larger amount than the value of the cotton represented by the bills of lading. While the drafts were deposited in a bank at Quanah, it actually collected from Mrs. Kempner in Galveston a sum which she alleged, and the proof showed, was in excess of that justly due appellant under the terms of its contract to accept for the cotton what it brought at the agreed price according to Galveston clasts and weights. In these circumstances, we think a cause of action for recovery of such excess arose in the county where it was collected.

Hie case of Planters’ Cotton Oil Co. v. Whitesboro Cotton Oil Co., 146 S. W. 225, cited and relied upon by both litigants here, where the facts were quite similar to those of this case, we think substantiates the conclusion here stated.

Finding no error, the judgment of the court below is affirmed.

Affirmed.
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author: WILLSON, O. J.

text:
    FLORENCE v. BELT.
    (No. 1930.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 19, 1918.
    Rehearing Denied May 2, 1918.)
    Master and Servant <§=>201(1) — Injuries to Servant — Concurring Negligence.
    A master is liable to his employé for injury resulting from master’s negligence concurring with that of a fellow servant.
    Appeal from District Court, Upshur County ; J. R. Warren, Judge.
    Action by Golden Belt, by next friend, against M. C. Florence. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    In July, 1916, appellee, then 15 years of age suffered injury to his person as a result of the falling of a log upon him while he was working in a sand pit assisting other employes of appellant in removing sand therefrom and loading same on railway cars. On the theory that the injury he suffered was due to negligence on the part of appellant, appellee sued him and recovered the judgment for $375 from which the appeal is prosecuted.
    The pit, it seems, was about 10 feet deep. Sand was removed from it iri a conveyer which moved over an inclined track to cars on the railroad, distant about 60 feet. The conveyer was drawn from the pit to the cars by a horse by means of a rope which passed from the conveyer through a pulley over the railroad to the horse. It was the practice to release the rope from the horse -when the conveyer was unloaded. It (the conveyer) would then, of its own momentum, roll down the inclined track to the bottom of ■the pit. As the conveyer would so roll, the rope, because of slack in it due to its release from the horse, would drag on the ground at the edge of the pit, causing sand to fall therein. To prevent this a log, with knots on it, 10 or 12 feet long and weighing about 100 pounds, had been placed near the edge of the pit, so that the rope would drag on it instead of on the ground.
    At the time the accident occurred appellee was in the pit to assist one Clifton and one Martin in loading the sand into the conveyer. One Danner was at the cars to dump the sand from the conveyer into the cars, and one Lambert was looking after the horse.
    In his petition appellee alleged that he was only 15 years of age and had never worked in a sand pit; that when employed he was placed by appellant “under the direction of Ben Clifton, the pit foreman and agent of defendant, who was in charge of said work”; that it was in compliance with Clifton’s direction that he went into the sand ■ pit to assist in loading sand into the conveyer provided for that purpose; and that the appliances for moving the conveyer from the pit to the cars on the railroad were, and were known by appellant to be, and were not known by him (appellee) to be, unsafe. He further alleged that “a big knot was tied in the rope,” which caused the rope to catch on the log and drag it to the edge of the pit, when it fell into same.
    By the court’s charge the jury were not authorized to find in appellee’s favor unless they believed appellant was negligent in that lie permitted the knot to be and remain in the rope.
    Briggs & Florence and Leslie Florence, all of Gilmer, and Simpson, Lasseter & Gentry, of Tyler, for appellant. T. H. Briggs, J. ⅜. Barnwell, and Stephens & Sanders, all of Gil-mer, for appellee.
   WILLSON, O. J.

(after stating the facts as above).

Three of the 16 assignments are predicated upon instructions given to the jury, and 13 upon the action of the court in refusing to give instructions requested by appellant.

If the instructions given were erroneous in the particulars pointed out in the first and second assignments, obviously, we think, the errors were not of a nature requiring a reversal of the judgment. And so if they were erroneous in the respect complained of in the third assignment, for the error was one of omission merely.

On the theory that there was no testimony on which to base a finding that he had been guilty of negligence as charged by appellee, appellant asked the court to instruct the jury to find in his favor. It was not error to re-’ fuse the request. There was testimony warranting the finding made by the jury that appellant was guilty of negligence in permitting the knot to be in the rope, and testimony which would have authorized a finding that appellant also was guilty of negligence in failing to warn appellee of the danger he incurred in going into the pit to work as he did.

To accomplish the purpose for which the log was used it was necessary to place it near the edge of the pit; and to keep the log from falling into the pit because of the caving of sand as the work progressed it was necessary to move it back from time to time. On the theory that there was testimony which would have authorized a finding that the falling of the log into the pit was due to negligence on the part of fellow servants of appellee in failing to move it back, appellant requested the court to instruct the jury to find for him if they believed:

(1) That he had “committed the task of loading the sand into the car and looking after the rope and other appliances used in doing the work to his employes at the pit, and they had failed to use ordinary care to move the log back or securely fasten it;” or
(2) “That Lambert, who drove the horse, negligently permitted the log to get too near the edge of the pit, or the rope to get caught on the log or pull it into the pit;” or
(3) That Danner, who unloaded the sand from the conveyer, into the car, “saw the rope was going to drag the log into the pit, and could have stopped the car in its descent into the pit in time to have kept the rope from dragging the log into the pit, if it did, and that he negligently failed to stop the car and the rope jerked the log off into the pit;” or
(4) That the failure to move the log back was a proximate cause of the accident and that such failure “was the fault of the fellow servant.”

■ We think it was not error to refuse to so instruct the jury, and therefore overrule the assignments numbered 4, 5, 6, and 7. If it should be conceded that tlie testimony made an issue as to negligence vel non on the part of a fellow servant, it nevertheless would have been error to give the• instructions refused; 'for they would have authorized the jury to find against appellee if they believed one oí the men working- with him was guilty of negligence as specified, notwithstanding they also believed appellant was guilty of negligence in permitting the knot to be in the rope, and that his negligence in this respect was a proximate cause of' the injury to ap-pellee. It is settled — so well so that authority showing the fact need not be cited — that the employer is liable to his employs for injury resulting to him from his (the employer’s) negligence concurring with that of a fellow servant

Nor do we think the court erred when he refused to give to the jury appellant’s special charges numbered 3, 4, 7, 8, 13, 17, 18, and 23. The court we think in his main charge and in special charges given at appellant’s request sufficiently instructed the jury as to the matters covered by the refused charges.

The judgment is affirmed.
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author: HIGGINS, J.

text:
    DUTTON v. GULF, C. & S. F. RY. CO. et al.
    (No. 850.)
    (Court of Civil Appeals of Texas. El Paso.
    May 16, 1918.
    Rehearing Denied June 13, 1918.)
    1. Appeal and Error <§=>1062(5) — Immaterial Issues — Obstruction of Highway.
    In suit for damages for obstruction of public road by erection of railroad station across the road, but not seeking to compel removal of obstruction, where the jury found that plaintiff has sustained no damage by reason of the obstruction, the issue of the abandonment of the road prior to the obstruction became immaterial.
    2. Appeal and Error <§=>882(12) — Invited Error — Instructions.
    Plaintiff could not complain of instruction which did not materially differ from a special charge which she requested; the error, if any, being invited.
    Appeal from District Court, McCulloch County; J. O. Woodward, Judge.
    Suit by M. C. Dutton against the Gulf, Colorado & Santa Fe Railway Company and another. From judgment for defendants, plaintiff appeals.
    Affirmed.
    Shropshire & House, of Brady, T. C. Wilkinson, of Brownwood, and F. M. Newman, of Brady, for appellant. Terry, Cavin <⅞ Mills, of Galveston, Sam McCollum, of Brady, and Lee, Lomax & Smith and Lockett & Rowe, all of Ft. Worth, for appellees.
   HIGGINS, J.

Mrs. M. C. Dutton owned 160 acres of land upon which the city of Brady was in part located. Brady • creek ran east and west through the tract. The portion south of the creek was subdivided into lots and blocks. All or a portion of the land north of the creek was also subdivided into lots and blocks. In 1910, the Gulf, Colorado & Santa Fé Railway Company desired to extend its line from Lometa to Brady, and Mrs. Dutton conveyed to said company a strip of land 300 feet wide for right of way and depot grounds, said strip being situate north of Brady creek and extending from the east line of her land to the west line thereof.

At one time the Brady-Brownwood public road extended from Brady north to Brown-wood and crossed Brady crsek at the west boundary line of Mrs. Dutton’s land at a ford. This road ran upon and along the west side of Mrs. Dutton’s land. When the railroad built into Brady, it built its depot directly across said old road, just north of the ford, and completely obstructed the same. The depot was situate upon the 300 feet strip conveyed by Mrs. Dutton as aforesaid. This suit was brought by Mrs. Dutton, alleging that the obstruction of said road had diminished the value of her property in the sum of $15,000, for which amount she sought judgment.

In response to special issues, the jury found that the Brady-Brownwood public road as described above had been abandoned by the traveling public at the time the depot was erected; further, that the erection of the depot over and across the road had not lessened or diminished the value of Mrs. Dut-ton’s property. Upon such findings judgment was rendered in favor of the Santa Fé Railway Company and its codefendant, the Ft. Worth & Rio Grande Railway Company, and Mrs. Dutton appeals.

Error is assigned to the submission of the issue of whether or not the Brady-Brown-wood road had been abandoned by the traveling public at the time of the erection of the depot. It is asserted that the evidence is insufficient to raise the issue. The depot was built just north of Brady creek where the road crossed the creek. The evidence shows that in 1894 a bridge was built across the creek about two blocks west of the ford. The commissioners’ court thereafter ceased to work the old road at the ford, and the traffic was diverted from the ford to the bridge and the ford crossing at that point was no longer used.

An examination of the statement of facts discloses that there is evidence of an abandonment by the traveling public of the road at the ford from the time the bridge was built, and there was therefore no error in submitting the issue. Furthermore, Mrs. Dutton was not seeking to compel the removal of an obstruction from a public road, but simply to recover damages alleged to have been caused by the same. The issue of abandonment therefore became immaterial in viéw of the further finding that she had sustained no damage by reason uf the obstruction.

A number of assignments complain of the charge wherein the jury was instructed with reference to offsets against the damage claimed by Mrs. Dutton. If the charge be objectionable, it is not subject to the particular objections urged. Furthermore, it does not materially differ from a special charge requested by plaintiff, and the error, if any, was therefore invited.

The remaining assignments complain of rulings on evidence. We think they present no reversible error.

Affirmed.

WALTHALL, ,T., did not sit, being absent on committee of judges assisting the Supreme Court.
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author: HARPER, O. J.

text:
    WOFFORD v. HERNDON.
    (No. 851.)
    (Court of Civil Appeals of Texas. El Paso.
    May 16, 1918.)
    1. Trial @=>260(1) — Instructions—Repetition.
    Refusal of requested instructions sufficiently covered by the main charge is not error.
    2. Appeal and Error @=>219(2) — Scope op Review.
    The court’s refusal to make certain special findings of fact should have been raised by request for special charges to be given to the jury,
    3. Appeal and Error @=>1170(1) — Harmless Error.
    Where the only errors disclosed are technical, the judgment will not be reversed, in view of rule 62a (149 S. W. x).
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Action by Miles Wofford against W. C. Herndon. Judgment for plaintiff in part, and he appeals.
    Affiriped.
    Snodgrass, Dibrell & Snodgrass, of Cole man, for appellant. Critz & Woodward, oi' Coleman, for appellee.
   HARPER, O. J.

This suit was instituted by appellant in justice court to recover the amount of a note for $138.87, executed by Pedillo Leño and W. C. Herndon, and to recover the balance due by Herndon upon open account of $24.61. From the judgment in justice court appealed to county court and there tried to a jury and upon verdict for $64.46, judgment was entered for appellant from which it is here for review.

The first two assignments and the sixth complain of certain testimony admitted over appellant’s objection. In these we find no error. The third to the seventh complain of refusal to submit certain special charges requested. In this there was no error, because sufficiently covered by the main charge. The fourth and fifth complain of the court’s refusal to Itself make certain special findings of fact. These questions should have been raised by request for special charges to be given to the jury for their findings.

If any of the assignments, suggest error, they are merely technical, and not such as should reverse the cause. Rule 62a (149 S. W. x).

Affirmed.

WALTHAEL X, did not sit, being absent on committee of judges assisting the Supreme Court.
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author: RAINEY, C. J.

text:
    HARDY BUGGY CO. v. PINCKARD & SANDERS.
    (No. 7977.)
    (Court of Civil Appeals of Texas. Dallas.
    June 1, 1918.
    Rehearing Denied June 29, 1918.)
    Appeal and Error <s=^907(3) — Absence op Statement op Pacts — Presumption That Evidence Sustains Judgment.
    Where the record presents no statement of facts showing the evidence upon which the court bases its judgment, it must be presumed _ there was sufficient evidence to sustain the action of the court.
    Error from District Court, Dallas County; E. B. Muse, Judge.
    Suit by the Hardy Buggy Company against Pinckard & Sanders and others for foreclosure of a, mortgage, in which Blair & Hughes, a corporation, intervened, asking foreclosure of a mortgage prior to plaintiff’s, judgment for intervener, and plaintiff brings error, and intervener moves to dismiss the writ of error.
    Motion sustained.
    Short & Peild, of Dallas, for plaintiff in error. Spence, I-Iaven & Smithdeal and W. J. Rutledge, Jr., all of Dallas, for defendants in error.
   RAINEY, C. J.

Appellant, Hardy Buggy Company, brought this suit against Pinckard & Sanders, a partnership, and the Farmers’ Mercantile Company, a corporation, with W. C. Dickson, as president, and Guy Corn-well, as secretary and treasurer, to recover on two promissory notes to foreclose a. chattel mortgage. The petition alleged, in effect, that plaintiff was a corporation duly incorporated under the laws of Kentucky and domiciled in Paducah, said state; that it sold to Pinckard & Sanders, doing business in Garza, Denton counts', Tex., a lot of buggies, for which they executed their notes, and plaintiff reserving title to said buggies until paid for; that they associated one E. M. Roberts with them as a partner, which copartnership was incorporated under the name of the Farmers’ Mercantile Company, which corporation assumed the said notes. Plaintiff prayed for a writ of sequestration for a foreclosure of its mortgage and general relief.

Intervener, Blair & Hughes, a Texas corporation, by leave of the court, filed a plea ¡of intervention, alleging an 'indebtedness against the defendants and foreclosure of a mortgage which was alleged to he prior to the mortgage of plaintiff, denied the plaintiff’s lien, and asked for ⅝ foreclosure of their mortgage. Dickson filed an answer, but was not present at the trial, and judgment entered against him. The other defendants failed to answer, and judgment by default was entered against them. As between plaintiff and defendants issues were submitted to a jury and anwers returned upon which the court rendered a judgment in favor of inter-vener, and plaintiff presents this appeal.

A motion to dismiss the writ of error was made by Blair & Hughes Company, on the ground that the Hardy Buggy Company was a foreign corporation, and not entitled to maintain this suit, as it did not have a permit to do business in this state.

The judgment of the court below, among other things, recites:

“And it further appearing to the court.from-the undisputed testimony that the plaintiff, Hardy Buggy Company, is a foreign corporation under the law of the state of Kentucky having its residence and domicile in said state, in the city of Paducah, in the county of McCracken, and it further appearing toithe court from the undisputed evidence that on November 5, 1912, the date on which the contract made by plaintiff with defendants was executed, upon which plaintiff bases cause of action, the said plaintiff did not have a permit to transact business in the state of Texas, as required by the laws 9f the state of Texas, and at the close of the evidence in this case the intervener presented its motion to dismiss the suit of the plaintiff, Hardy Buggy Company, the ruling of the court upon said motion being withheld until after the jury had returned in court its verdict and then discharged, which said motion is as follows: ‘Now comes the intervener at the close of the evidence in this case and makes known to the court that the undisputed evidence shows that the plaintiff, Hardy Buggy Company, is a foreign corporation incorporated under and by virtue of the laws of the state of Kentucky, and that said corporation did not obtain a permit to transact business in the state of Texas until the 14th day of February, 1914, as is manifest from said permit introduced in evidence in this case, and the undisputed evidence shows that the contract upon which the plaintiff bases its cause of action is dated November 4, 1912, as is manifest from said contract which has been introduced in evidence. Therefore the plaintiff, a foreign corporation did not have its permit authorizing it to do business in the state of Texas at the date the cause of action asserted in its petition arose." And by chapter 26, title 25, arts. 1315, 1318 (Vernon’s Sayles’ Ann. Civ. St. 1914), said corporation cannot maintain this suit in ■ this court on account of its failure to obtain said permit as provided by law. ⅜ ⅜ * ’ It is therefore considered, ordered, and adjudged by the court that the suit of the plaintiff, Hardy Buggy Company, be, and the same is hereby, dismissed ; that &e plaintiff, Hardy Buggy Company, take nothing herein.”

The motion to dismiss the writ of error was held up for consideration until the submission of the main ease, which has been submitted.

"We find from the record that no statement of facts has been filed showing the evidence upon which the court based its judgment in this respect; therefore we will have to presume there was sufficient evidence to sustain the action of the court, and the motion to dismiss the writ of error is sustained.
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