author: HALL, J.

text:
    WATSON v. RICE.
    (No. 514.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1914.
    Rehearing Denied April 25, 1914.)
    1. Appeal and Error (§ 1051) — Questions Review able — Assignments op Error-Rulings on Evidence.
    Where facts are proved without objection, the admission of improper testimony to prove the same facts cannot form the basis for an assignment of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.]
    2. Appeal and Error (§ 882) — Questions Reviewable — Rulings on Evidence — Objections — Waiver.
    A party who did not object to evidence establishing a fact, and who requested the court to submit a special charge on the point, thereby waived error, if any, in admitting, over his objection, testimony establishing the same fact.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.]'
    3. Evidence (§ 419) — Parol Evidence — Varying Written Instruments — Consideration.
    Parol evidence to show the real consideration for a contract is admissible, though contradicting the recited consideration.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.]
    4. Evidence (§ 441) — Parol Evidence — Varying Written Instruments.
    Parol evidence of the terms and conditions on which a negotiable instrument has been delivered to the payee and of the understanding between the parties is admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig: § 441.]
    5. Evidence (§ 444) — Parol Evidence — Varying Written Instruments.
    A buyer of an interest in a machine, who seeks to recover from the seller the sum paid to bona fide indorsees of purchase-money notes, may prove by parol the agreement under which the notes were given and show that the seller orally agreed to return the notes if the buyer within 90 days expressed dissatisfaction with. his purchase.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944, 2049; Dee. Dig. § 444.]
    •6. Bales (§ 126) — Contracts — Construction.
    Where a contract of sale stipulated that, if the buyer was not satisfied with the transaction at the expiration of 90 days, the seller would repay the buyer the cash paid, and return the notes given for the balance, the buyer was not required to call on the seller for a repayment and a return of the notes before the expiration of the 90 days, provided he became dissatisfied and determined to do so before the expiration of the 90 days.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 313-317; Dec. Dig. § 126.]
    7. Trial (§ 192) — Instructions—Assumption of Fact.
    The court in its instructions may assume a fact established by uncontradicted evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.]
    8. Appeal and Error (§ 1002) — Verdict— Conclusiveness.
    A verdict on conflicting evidence, rendered under proper instructions, is conclusive on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.]
    9. Trial (§> 296) — Instructions—Submitting Issues.
    Where the entire charge fairly submits plaintiff’s case and the facts set up in defense, a charge submitting plaintiff’s case is not objectionable as taking defendant’s contention from the jury and emphasizing the contention of plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    10. Sales (§ 126) — Contracts—Construction — Rights of Buyer.
    Where a contract of sale gave the buyer a specified time in which to express his dissatisfaction, and provided that thereupon the seller would refund the cash paid and return the purchase-money notes, the buyer was not required to express his dissatisfaction before the specified time, though he acquired, before that time, knowledge of the facts entitling him to rescind.
    [Ed. Note. — For other cases, 'see Sales, Cent. Dig. §§ 313-317; Dec. Dig. § 126.]
    Appeal from District Court, Potter County; X N. Browning, Judge.
    Action by W. M. Rice against H. D. Watson. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Synnott & Underwood, of Amarillo, for appellant. Madden, Trulove & Kimbrough, of Amarillo, for appellee.

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

   HALL, J.

This is an appeal from the district court of Potter county, and we quote from appellant’s statement of the nature and result of the suit as follows: “This was a suit for damages for breach of an alleged contract to redeliver notes of the plaintiff. The plaintiff Rice had executed notes to the defendant Watson, aggregating $825, and paid the defendant $185 in cash, and the defendant'negotiated the notes. This suit was brought to recover $185 in cash and the amounts of the notes which plaintiff had to pay by reason of their having been transferred to an innocent purchaser, and he based his cause of action upon an alleged agreement, at the time the notes were executed and the cash paid, by which he claimed the defendant Watson agreed to redeliver the notes to him when the first one became due and repay his cash if the plaintiff Rice was dissatisfied with the transaction and desired the notes returned and the cash repaid.” The case was tried before a jury, resulting in a verdict in favor of the plaintiff Rice for the sum of $1,276.52, and judgment was entered accordingly.

The substance of plaintiff’s amended petition is: That on or about April 20, 1909, the defendant Watson was promoting the sale of machinery and a patent right for making concrete building blocks under what is known as the Ferguson system, and that defendant had procured 14 other parties to sign a certain agreement in writing by which said parties agreed to pay defendant $15,000 for one of the machines for making such blocks, and a certain royalty on all blocks manufactured by them. That thereupon defendant presented such contract to plaintiff and requested him to execute the same as the fifteenth man and pay plaintiff $185 in cash and execute three notes at $275 each, due in 90 days, 6 months,' and 9 months, respectively. The plaintiff alleges that he repeatedly refused to pay such cash or sign the agreement or to execute the notes; that, in order to induce him to do so, defendant represented to plaintiff that this machine would produce a better building material than would brick and produce it much cheaper than brick, and proposed to plaintiff that, if he would execute the papers and notes and pay the cash, then, in the event plaintiff was not satisfied with the transaction at the time the first note matured, defendant would repay plaintiff such cash, with interest, and return to plaintiff his notes; that, relying upon such promise to return the notes and repay the cash, he executed contract and notes and paid $185; that the 90 days intervening between the date of the execution of the papers and the maturity of the first note was given to plaintiff as the time in which he should investigate the merits of the block machines and the material produced thereby and determine whether or not he was satisfied with the same and whether or not he would demand the return of the notes and the repayment of the money. He alleges further that the defendant Watson fraudulently represented the merits of the machine and material produced thereby, and that all of his representations in regard thereto were false; that plaintiff was induced thereby, and by the promise to repay his money and return his notes within 90 days, to consummate the deal; that during the 90 days plaintiff expressed his dissatisfaction and elected to have the notes and money returned to him; that the defendant sold and transferred the notes to a bona fide purchaser; and that plaintiff had been required to pay them. There was prayer for the principal sum of $1,000, with interest and attorneys’ fees provided for in the notes.

The substance of the defendant’s pleading is that the machines and the building material produced by them in all things complied with the representations made by defendant; that the citizens subscribing thereto appointed a committee, of which plaintiff was a member, to test the machine and its products, which was done, and thereafter plaintiff executed said notes and paid the $185; that, at the time said notes were executed and the money paid by plaintiff, defendant was not present and acting and did not make anv representations whatever; that the entire contract was evidenced by the writings contained in the original contract and notes; that, if there was any agreement to release plaintiff from his obligations, the agreement of all the parties was subsequently reduced to writing, and defendant had no notice and knowledge that plaintiff was relying upon any such agreement; that after plaintiff had made another investigation of the machine, and visited various cities for this purpose, and was fully in possession of all the facts, the defendant offered 'to release him from all obligations and surrender to him his notes, which proposal plaintiff refused to accept, thereby ratifying the contract and estopping himself from this suit; that, long after the alleged agreement to release plaintiff, the unconditional promissory negotiable notes were executed; and that thereafter plaintiff assisted in securing a charter for' the company, became its general manager and one of the directors, and continued to be such manager and director until long after the maturity of said first note, by reason of which plaintiff was estopped.

A number of assignments of error were grouped by appellant, urging the general proposition that the parol evidence tending to prove an agreement on the part of Watson to return the notes and money, if appellee should become dissatisfied within 90 days, tends to contradict and vary the terms of the written contract, consisting of the subscription contract and the notes in question, and was inadmissible. The record shows that this evidence was objected to when the ap-pellee Rice was upon the stand, but the witness J. W. Orudgington testified to the same facts without objection on the part of appellant. The testimony, having been admitted, even if improperly done, cannot form the basis for an assignment, if the same facts are deduced from another witness without objection.

Several special charges were asked by the appellant covering this issue, and, if the position of appellant was tenable otherwise, we think it has been waived by not objecting to the testimony from Orudgington and by requesting the court to submit special charges upon the point. And, even if the matter was properly before the court for consideration, we doubt if the appellant’s contention could be sustained.

This is not a suit by the holder of the notes themselves, because appellee Rice has paid them, and his petition has the double aspect of suing for the recovery of his money, based upon the verbal agreement to return the money and notes within 90 days in the event he should become dissatisfied, and also an action for fraud and deceit by reason of false representations alleged to have been made by appellant with reference to the merits of the machine and the value of its products for building purposes. The evidence tends to show that Rice was the last' man who consented to enter into the contract for the purchase of the machines, and that he was induced to enter into it by the promise on the part of appellant to return him his money, with 10 per cent, interest, and his notes, if he should become dissatisfied within the 90 days. The contention on the part of appellee is that such promise was part of the consideration for the execution of the notes and subscription contract; and it is well established in this state that parol evidence is admissible to establish the real consideration for a contract, although it may tend to vary or contradict the recited consideration; and it has further been frequently held that parol testimony is admissible to show the terms and conditions upon which a written instrument and even negotiable instruments have been delivered to the payee, and to show the entire understanding and agreement between the parties. Under this rule it has been held that where one signed a contract, agreeing to take a certain amount of street car advertising from another at a given rate, and delivered it to the latter’s agent, the former could show, in an action on the contract, that the real contract was an oral agreement for a less amount at a lower rate, and that he signed the written contract so that his order might be shown to other prospective customers, without disclosing tliat he had been given a lower rate. Southern, etc., Ad. Co. v. Metripole S. M. Co., 91 Md. 61, 46 Atl. 513.

If Watson had sued upon the notes it is clear that the appellee could have pleaded failure of consideration and interposed the defense that the machine did not fulfill the warranty; and, in our opinion, the appellee’s position is not altered for the worse because he has been forced to pay off the notes and now seeks to recover, basing his action upon fraudulent representations and the agreement above set out. It is held that, if the writing is invalid so that it never had any legal effect, the rule denying the admission of parol evidence has no application, and likewise where its validity is questioned on the ground of fraud. 2 Elliott on Contracts, § 1629. The author quoted further says: “The question usually is as to whether the parol evidence sought to be introduced contradicts or alters the written contract or leaves it to stand unchanged and simply tends to establish an additional collateral agreement. It is often difficult to determine this question, and there is much conflict among the authorities. The form in which the question arises may sometimes be an important factor in determining the admissibility of the evidence, and, referring to leases, it is said that a part of the conflict in the decisions may be explained if we observe that it is one question whether such a collateral agreement may be proved for the purpose of sustaining an action for its breach and a different question whether it may be proved for the purpose of defeating an action on the written lease.” Another writer suggests the following test for determining whether a parol agreement is collaterally admissible: If it interferes with the writing it cannot be proved. If, on the other hand, it relates to a matter beyond the scope of the written contract, the writing does not affect it. In each case it must be determined from the character of the writing and from the circumstances of the ease whether the parol agreement offered to be proved was in regard to a matter which it is reasonable to infer the parties thought settled by the terms of the writing and, if it was, evidence to show it should be excluded. The writing must speak just so far as it is fair to conclude that the parties, acting as reasonable men, and using intelligible language, intended it should speak, and no further. Id. § 1633. “There is also a class of cases in which it is held that parol evidence of a collateral contemporaneous agreement, which assumes the contract as indicated by the writing and undertakes to deal with some contingency or new relation of the parties in the future, that may arise under the written agreement, is admissible.” Id. § 1634. “The general rule-which excludes parol evidence, when offered to contradict or vary the terms, provisions, or legal effects of a written instrument, is subject to many qualifications. Among these qualifications is one to the effect that conditions relating to conditions precedent may be shown by extrinsic evidence. A party who concedes that the instrument evidencing the contract was placed in the possession of the party seeking relief, but claims that the latter took it with the understanding that it was not to go into effect until the happening of some other or further event, and that such event has not transpired, is not considered as one seeking to vary or contradict a written contract, but is one endeavoring to show that no contract between the parties ever in fact came into existence. For this reason evidence of such conditions precedent is held admissible. The cases which so hold merely give recognition to the well-settled rule that an instrument may be delivered by one party to another to take effect on the happening off a contingency, and that, by such collateral agreement, the legal operation of the writing is merely postponed until the happening off the contingency.” Id. § 1636. 'W'e think the-court did not err in admitting the testimony and in overruling the exceptions and submitting the question to the jury. Merchants’ National Bank v. McAnnulty, 31 S. W. 1091; Id., 89 Tex. 124, 33 S. W. 963; Downey v. Hatter, 48 S. W. 32; Pope v. Taliaferro, 115 S. W. 309; Mfg. Co. v. Powell, 78 Tex. 53, 14 S. W. 245; I. & G. N. Ry. Co. v. Dawson, 62 Tex. 262.

The appellee’s allegation was that, if the plaintiff was not satisfied with his contract at the time of the maturity of the first note, then the appellant would relieve him of his obligation and refund the cash payment and return the notes. The proof sustained this allegation. Under this state of the pleadings and evidence, it was not necessary for the appellee to call upon appellant for a return of the notes and repayment of the money prior to the expiration of the 90 days, provided he became dissatisfied and determined to do so before the expiration of said time. The evidence tends to show that, at the time the first note matured, Watson was not in the state, and it further shows that, notwithstanding his agreement, he had transferred the notes to the bank at Shattuck, Okl., within seven days from the date of their execution. In our opinion the court’s charge is not subject to the criticism urged in the thirty-fifth, forty-seventh, fifty-third, and fifty-ninth assignments of error.

The thirty-sixth and thirty-seventh assignments of error complain of this portion of the third paragraph of the charge that if the jury “find from the evidence that defendant, soon after the execution of said three notes, negotiated or transferred said notes to an innocent purchaser before maturity of the first note, thereby placing them beyond his control, and that plaintiff was compelled to pay said notes,” etc., and insists that it assumes that the notes were placed beyond the control of the appellant. . The uncontroverted evidence shows that appellant sold the notes to an Oklahoma bank, which bank in turn sold them to an Amarillo bank for value before their maturity, and without notice of any infirmity existing in them. It is not error for the court in its charge to assume the truth of uncontroverted evidence.

Under the fortieth, forty-first, and sixty-first assignments of error, appellant complains that the court instructed the jury not to consider the question of defendant’s tender to cancel their agreement. If there was error in this charge, it was in assuming that the defendant Watson had made a tender. The evidence fails to show that any such tender as the law requires was made by him at that time, and we think, under the agreement, Rice had the full time stipulated in which to decide whether he would retain his stock or demand a rescission of his subscription. The question of Rice’s knowledge of the conditions and of the truth or falsity of the representations which had been made was properly submitted by the court under conflicting evidence, and has been settled by the verdict of the jury. We think the court correctly refused the instruction requested by appellant upon this issue.

Under the forty-fifth and fiftieth assignments of error appellant insists that the court erred in the fifth and seventh paragraphs of his general, charge, wherein the jury are instructed that if they believe the machines and the materials and the process in manufacturing fail to produce the concrete cement blocks of the class, character, value, durability, and costs of producing, substantially as represented by the defendant and as alleged by plaintiff, and that the failure, if any, to make such blocks was due to unskillfulness in the operation of said machine and preparation of the material, to find for the defendant. The charge is criticised because it takes the defendant’s contention from the jury and emphasizes the plaintiff’s contention. If we read the entire charge, we find that the court has fairly submitted the plaintiff’s case, as well as the facts set up in defense by the defendant upon this question. These assignments are overruled.

The remaining assignments, which relate to the question of ratification and the sufficiency of the charge in other respects, are overruled.' The evidence does not show conclusively that appellee was thoroughly cognizant of the defects and shortcomings prior to the expiration of the 90 days. The express terms of the contract gave him a specific time in which to express his dissatisfaction, and to hold that he should have expressed it sooner, even though he had come into full knowledge of all the facts and circumstances entitling him to rescind, would be to make a new contract for the parties.

The evidence admitted by the court and complained of by the eleventh and nineteenth assignments of error should not have been permitted; but, since the same facts were elicited without objection from other witnesses and at other times during the trial, the error is harmless. The evidence of ap-pellee, to the effect that he had observed certain publications bearing on cement as a building material, and had found no reference in them to the Eerguson system, was properly admitted in rebuttal to the evidence of defendant’s witness James Barron.

The last three assignments, submitted together, go to the sufficiency of the evidence to support the verdict and the judgment. The evidence, taken as a whole,, while sharply conflicting upon the main issues, is sufficient to sustain both theories, of the case insisted upon by plaintiff in the court below.

Upon a review of the entire record, we believe a proper verdict and judgment has been rendered, and such matters as may be deemed irregularities in the conduct of the trial have not affected the determination of the case upon its merits.

We therefore affirm the judgment


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    CALDWELL v. STALCUP et al.
    (No. 587.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 28, 1914.
    On Motion for Rehearing, April 25, 1914.)
    1. Contracts (§ 5) — Constructive Contract —Attorney’s Fees.
    A bank to which notes were indorsed agreed with plaintiff, an attorney, that he should sue on the notes and have for his services the 10 per cent, attorney’s fees stipulated therein, and the bank afterwards transferred the notes pending the suit thereon under an agreement that the transferee should carry out the agreement with plaintiff, who agreed to look to the transferee for payment for his services. The notes were afterwards transferred to defendant, who became a party to the suit; but, before he became a party thereto, he knew that plaintiff had sued on the notes, and of the agreement under which he did so. Defendant procured another attorney to intervene in the suit for him before judgment was rendered, agreeing to credit him with $50 for his services, and the judgment was taken in defendant’s name, instead of in the name of the bank. Held, that defendant was bound, as on a constructive or quasi contract, to pay to plaintiff the attorney’s fees recovered, after allowing defendant a credit for the $50 paid by him to the other attorney.
    [Ed. Note. — Eor other cases, see Contracts, Cent. Dig. § 7; Dec. Dig. § 5.]
    On Motion for Rehearing.
    2. Assignments (§ 48) — Equitable Assignment.
    An agreement between plaintiff, an attorney, and the owners of notes by which plaintiff was authorized to bring suit on the notes in consideration of the 10 per cent, attorney’s fees stipulated for therein operated as an equitable assignment of such attorney’s fees to plaintiff.
    [Ed. Note. — For other cases, see Assignments,Cent. Dig. § 183; Dec. Dig. § 48.]
    Appeal from Potter County Court; W. M. Jeter, Judge.
    Action by R. E. Stalcup against E. W. Caldwell and others. From a judgment for plaintiff, the defendant named appeals.
    Affirmed.
    J. IT. HI Stahl, of Stratford, and Synnott & Underwood, of Amarillo, for appellant. Cooper, Merrill & Lumpkin and Reeder & Dooley, all of Amarillo, and M. Cammack, of Strat-ford, for appellees.

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

   HUFF, C. J.

R. E. Stalcup brought suit in the justice court against National Bank of Commerce, the First National Bank of Stratford, and E. W. Caldwell, for services rendered under a contract in the case of National Bank of Commerce v. W. T. Dortch, in the district court of Sherman county, Tex., on a fee for such services, $211.40, with a credit of $50, leaving balance due of $161.40. The ease was tried in the justice court, in which judgment was rendered, and, from that judgment, appealed to the county court, in which last court judgment was rendered in favor of R. E. Stalcup for the amount sued for against the First National Bank of Strat-ford and E. W. Caldwell, and, in case the bank should pay the judgment, then in its favor over against E. W. Caldwell for the-amount so paid, and in favor of the National. Bank of Commerce from which judgment E. W. Caldwell appeals.

The facts show that T. D. Lipscomb sold toW. T. Dortch a tract of land, and as part consideration took three notes for the sum of $800 each. One of these notes was transferred to Galbraith-Foxworth Company, which company placed that note in the hands of R. E. Stalcup as an attorney to bring suit, which he did. Lipscomb was indebted to the National Bank of Commerce of Amarillo in the sum of $1,500, and as security he transferred the other two notes for $800 each to said bank as collateral security. After the indebtedness of Lipscomb fell due, and the two notes of $800 each held by it were due, that bank delivered the two notes to R. E. Stalcup, the attorney and appellee herein, for the purpose of suit, which he brought. The agreement with the bank, and Stalcup was that he should have the 10' per cent, stipulated for the notes. Afterwards the two suits, one of Galbraith-Foxworth against Dortch and the Bank of Commerce against Dortch, were consolidated and finally prosecuted to judgment, which was rendered in 1913, including the attorney’s fees on all the notes. However, previous to- judgment Lipscomb made arrangements with the First National Bank of Stratford to procure money with which' to pay off the note held by the Bank of Commerce, under an agreement that the Stratford bank should take the collateral notes and suit and hold as collateral to the obligation to it by Lipscomb. The Bank of Commerce consented to so transfer the note-on condition that the Stratford bank should become liable for the attorney’s fees therein, and should carry out its agreement with Stalcup, and that Stalcup would release it from further liability on its contract with him. The Stratford bank assented to this, and Stalcup agreed to look to the Stratford bank. It appears, also, that service had not been obtained in the suit on file, and it was continued for the purpose of service, and by agreement of parties thereto that the cases should be consolidated. It appears that Lipscomb was also indebted to E. W. Caldwell for some amount not shown by the record, and that Caldwell agreed to take the notes and as part payment therefor credit Lipscomb’s account with same, and that he should pay the difference between the account and the value of the notes, which he did, and that money.was paid into the Strat-ford bank on Lipscomb’s indebtedness, and that bank turned over to Lipscomb the two notes; Lipscomb agreeing to protect Stalcup in his attorney’s fees. Caldwell’s testimony is to the effect that at that time he had no notice that suit had been instituted on these two notes. Both notes were past due at the time Caldwell procured them. The evidence is sufficient to warrant tiie court in finding that, before Caldwell made himself a party to the suit then pending, he knew that Stalcup had charge of these notes and had sued thereon. Caldwell’s testimony shows that he employed one Rudolph, who was an attorney, and who was indebted to him, for the sum of $50, to intervene in the suit then pending in his behalf, and that Rudolph should have credit on his account with Caldwell for that amount. Rudolph, before judgment was rendered, appeared for Caldwell and intervened in the suit. Stalcup agreed with Rudolph that he would give Rudolph $50, or credit his fee with $50, the amount Rudolph was to receive, and the judgment was then taken in the name of E. W. Caldwell, instead jof the Bank of Commerce, foreclosing for the amount sued for, together with attorney’s fees on the land. The testimony is sufficient to show that Stalcup never in fact relinquished the control and possession of the notes, and that the Bank of Commerce and the Stratford bank and Lipscomb recognized his right to control these notes.

Under the facts of this case, we think that the agreement entered into between the Bank of Commerce and Stalcup had the effect to transfer him 10 per cent, of the principal and interest due on the notes as attorney’s fees. Suit was brought and prosecuted to judgment under that agreement. The Stratford bank took an assignment of the note and suit with the express agreement that the 10 per cent, should be paid to^Staleup as his compensation. Lipscomb procured the notes retransferred to him under the same agreement. The suit thereon remained on the docket under all the transfers. Caldwell purchased the notes, he says, without actual notice of the suit, but after they were due. The evidence is sufficient to support the finding of the court that long before judgment was obtained he recognized Stalcup as an attorney in the case. Thereafter he had himself made a party to that suit, and a judgment was taken in his name, instead of the name of the National Bank of Commerce, in whose name it had been prosecuted up to that time. Under that suit Caldwell procured judgment for the 10 per cent, as attorney’s fees. These fees, by agreement, and under the service rendered, belonged to Stalcup, and unless, upon some equitable ground, Caldwell is released, he should have paid them over to Stalcup.- The Supreme Court has held that a provision of the kind set out in the notes in question is in the nature of an indemnity against the cost of procuring judgment, and, unless they are shown to be unreasonable or unconscionable, the holder of the notes may recover them. Lanier v. Jones, 104 Tex. 247, 136 S. W. 255; Bank v. Robinson, 104 Tex. 166, 135 S. W. 372. Before Caldwell procured judgment he knew that Stalcup had brought the suit and was prosecuting it. Up to that time he had been out but $50 additional as attorney’s fees. Stalcup gave his account credit for that amount so, if he had no notice of the agreement when he purchased the notes, or when he employed an attorney, he was put upon notice that another attorney had been employed to procure the judgment upon these notes before he took the judgment for the full amount of the stipulated attorney’s fees as his indemnity, when his costs were in fact only $50. This was a fund to which the two banks looked to pay the attorney’s fees, and was the fund for which Stalcup agreed to do the work. We think equity and right is satisfied when Caldwell gets credit for the $50 paid, and that it would not be just for him to appropriate the remainder to his use and leave the Stratford bank to pay this obligation out of some other fund than these fees. Caldwell having appropriated the funds to his use, which, by agreement with parties who then had the right to make the same, belonged to Stalcup, he should be held to pay the Stratford bank in case it has to pay Stalcup. We think this is a constructive or quasi contract (Simpkins on Contracts [3d Ed.] 471) which the law will impose on Caldwell in- order that full justice may be done by all parties.

We believe the trial court has correctly decided this ease, and it will therefore be affirmed.

On Motion for Rehearing.

In view of appellant’s motion for rehearing, we make the following additional finding of fact:

Stalcup testified: “Mr. Galbraith, for the bank, at the time the notes were placed with me, and later Mr. Bynum, in person, contracted to pay me the 10 per cent, provided in said notes as attorney’s fees for making the collection.”

Mr. Bynum, cashier of the National Bank of Commerce, testified: “We agreed to pay Judge Stalcup the 10 per cent, stipulated in the notes as his fees in the matter. We promised to pay Judge Stalcup the 10 per cent, of the notes for his fees; but the First National Bank of Stratford agreed to take our place, and Mr. Stalcup agreed to it, and to look to the Stratford bank for his fees."

The cashier of the First National Bank of Stratford testified: “Our bank agreed with the National Bank of Commerce that we would assume their contract with Stalcup. Lipscomb had agreed all along that he would pay these fees as he was the person in real interest. I was willing that the attorney’s fees should be paid out of the proceeds of the foreclosure, and it was my understanding that the fees were to be paid after the foreclosure was consummated.”

We think, under the agreement of the parties, that Stalcup, as an attorney for the collection of the notes in question, was in effect an equitable assignment of the amount due the attorney for such service. Milmo National Bank v. Convery, 8 Tex. Civ. App. 181, 27 S. W. 822. Caldwell, by virtue of this suit and the services rendered by Stal-cup, in obtaining the judgment, secured 10 per cent, on the amount of the notes, which otherwise he was not entitled to, and which he did not pay for when'he purchased the notes. This 10 per cent, was Stalcup’s under the contract, and any sort of diligence or inquiry on the part of Caldwell, when he purchased these notes, would have given him notice of this assignment. We think the case was properly disposed of, and the motion is therefore overruled.


text:
    BIRD v. LESTER et al.
    (No. 576.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 14, 1914.
    Rehearing Denied April 25, 1914.)
    1. Husband and Wins (§ 119) — Conveyances— Separate Estate.
    A conveyance .by a husband to his wife by a deed reciting' a valuable consideration and duly recorded vested title in the wife as her separate property.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 424-429, 447; Dec. Dig. § 119.]
    2. Specific Performance (§ 116%) —Proceedings — Pleading—Petition.
    A petition for specific performance and for damages if specific performance is impossible, which showed on its face that the vendor did not own the land at the time he contracted to sell, was subject to general demurrer as to the portion seeking specific performance.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 376; Dec. Dig. § 116%.]
    3. VENDOR AND PURCHASER (§ 349) — CONTRACT — BREACH by Vendor — Damages Recoverable-Purchaser.
    A petition seeking damages to the amount of the difference between the contract price and market value, for failure to convey land that defendant did not own when he contracted to sell it, which did not allege fraud or a willful refusal to convey, was subject to general demurrer, as plaintiff was not entitled to recover such damages.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1033, 1039-1042; Dec. Dig. § 349.]
    Error to District Court, Garza County; W. R. Spencer, Judge.
    Action by J. A. Bird against J. P. Lester and others. From a judgment on demurrer for defendants, plaintiff brings error.
    Affirmed.
    See, also, 163 S. W. 658.
    R. N. Grisham, of Sweetwater, for plaintiff in error. J. D. Martin, of Alpine, and Higgins & Hamilton, of Snyder, for defendants in error.

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

   HALL, J.

The plaintiff in error instituted this suit in the district court of Garza county, against defendants in error, J. P. Lester and wife, Loula Lester, and their vendees, H. G. Smith and J. P. Crowley. The petition contains three counts. In the first count plaintiff in error seeks specific performance of a certain contract executed in the name of J. P. Lester, in which the name of Loula Lester was signed “by J. P. Lester,” and reciting that the said Lester had executed a deed of conveyance to a certain section of land described in the contract for and in consideration of the sum of $2,500, paid to the said Lester by the said Bird, as follows: “That whenever the above deed is duly executed and signed by the wife of the party of the first part and returned to the first National Bank of Post City, Texas, the said J. A. Bird, party of the second part, is to pay over to the said bank, for the benefit and credit of the said J. P. Lester, $1,000 in cash and receive from the said bank the above-mentioned deed and the remaining $1,500 to be paid to the said J. P. Lester by the said J. A. Bird, in mares to be delivered at Roswell, New Mexico, on the first day of April, 1913, the same being fifteen mares at $100.00 each, aggregating and making the $1,500 above stated-; and it is hereby agreed by both parties hereto that the said mares are to be cut out of a herd of mares owned by the said J. A. Bird, now located in New Mexico, by C. A. Buchanan, and the said J. P. Lester does hereby agree to accept the cut by the said Buchanan as above stated.” There are stipulations in the contract which we do not deem it necessary to set out. The second count of plaintiff’s petition seeks to recover damages in the event specific performance cannot be decreed. The third count is confusing, and we are not sure what relief plaintiff seeks other than the return of the deed which Lester had signed and which it is alleged was delivered to Lester for the purpose of procuring the signature of his wife thereto, and in the alternative for damages by reason of the failure to return the deed. It is shown in the petition that, after the execution of the contract, Lester and wife conveyed the land in question to H. G. Smith and J. P. Crowley, and both specific performance and damages, is sought against them as vendees. The defendants filed general demurrers, which were sustained by the court, and plaintiff’s assignments of error are based upon this action of the trial court.

Plaintiff’s petition shows that J. P. Lester, prior to the time the contract of sale sued upon was entered into, had conveyed the property to his wife, Loula Lester, by deed reciting a valuable consideration and duly recorded in the deed records of Garza county. The effect of this conveyance was to vest title to the section of land in Mrs. Lester as her separate property. Emery et al. v. Barfield, 156 S. W. 311; Jones v. Humphreys, 39 Tex. Civ. App. 644, 88 S. W. 403; Watts v. Bruce, 31 Tex. Civ. App. 347, 72 S. W. 258; Hardin v. Jones, 29 Tex. Civ. App. 350, 68 S. W. 836. It thus appearing from the face of the petition that J. P. Lester djd not own the property at the time he entered into the contract of sale, that portion of the petition seeking specific perform-anee was subject to general demurrer. Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 120; Sutton v. Page, 4 Tex. 142; Vaughn v. Farmers’ & Merchants’ National Bank, 126 S. W. 690; Hall v. York’s Adm’r, 22 Tex. 642.

The second count of the petition seeking damages alleges the damages suffered by plaintiff to be the difference between the market value or intrinsic value of the land and the contract price declared to be $3,900. There is no allegation of fraud or willful refusal on the part of Lester to convey the property, and plaintiff is clearly not entitled to recover such damages. Clifton v. Charles, supra; Stinson v. Sneed, 163 S. W. 989 (decided by this court, not yet officially reported). No such special damages as plaintiff would be entitled to recover under the authority of Clifton v. Charles, supra, and kindred authorities, were pleaded or prayed for by plaintiff.

We think the trial court did not err in sustaining the general demurrers, and the judgment is affirmed.


author: CONNER, C. J.

text:
    DUBLIN ELECTRIC & GAS CO. v. THOMPSON.
    (No. 7914.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 11, 1914.)
    1. Waters and Water Courses (§ 209)— Water Companies — Contracts—Supplying Water — Sufficiency op Evidence.
    In an action against the proprietor of a water plant, evidence held to show that when its agent told a consumer that he would be furnished water for all purposes, neither party contemplated the furnishing of water for fire protection, and hence it was not liable for its failure to furnish water for such purpose; it appearing that the city government had assumed the burden of fire protection.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 302; Dec. Dig. § 209.]
    2. Waters and Water Courses (§ 206)— Water Companies — Supply to Private Consumers.
    An individual or company authorized to do so may so contract as to incur a liability for damages proximately resulting from a failure to furnish water sufficient. to extinguish fires.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 301; Dec. Dig. § 206.]
    3. Contracts (§ 143) — Construction—Meaning op Language.
    While as a general rule the terms of a contract are to be given their full effect and meaning, the intention of the parties governs, and their situation, the subject-matter, and other circumstances may be looked to in determining the meaning of terms, though not in themselves ambiguous, and a party will be bound by that meaning which he knew the other party supposed the words to bear.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 723, 743; Dec. Dig. § 143.]
    Appeal from District Court, Erath County ; W. J. Oxford, Judge.
    Action by J. N. Thompson against the Dublin Electric & Gas Company. From a Judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    E. E. Solomon, of Dublin, and Templeton, Beall & Williams, of Dallas, for appellant Hickman & Bateman, of Dublin, for appellee.

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

   CONNER, C. J.

Appellee instituted this suit against the appellant to recover the sum of $4,028, the alleged value of a house and its contents claimed to have been destroyed by fire on the 12th day of July, 1911. It was alleged in the plaintiff’s petition that he was a« resident of the town of Dublin and that the defendant was operating a water plant in said town; and, in substance, that the defendant through its manager and agent M. S. Karmany had for a valuable consideration, as stated in the petition, contracted “to furnish appellee all the water he wanted for all purposes at all' times;” that upon the date stated his house caught fire which was discovered by the plaintiff in its incipiency: and that he attached a hose to a hydrant in the yard with which he could and would have extinguished the fire had there been water, but that there was none in the pipes, by reason of which he was unable to extin guish the fire and his house and contents were totally destroyed, to his damage in the amount claimed. The defendant answered by a general denial and- by special answers setting up, first, that the water service contemplated in the contract was for domestic purposes and to be in quantity suitable for such purposes only; that the defendant company was not authorized to enter into a contract for fire protection, nor was it engaged in the business of furnishing water therefor to private patrons; that the agent through whom the plaintiff alleged the contract had been made was.but a local agent and wholly unauthorized to make any such contract as alleged. There were also several other special pleas not necessary to notice. The trial before a jury resulted in a verdict and judgment for the plaintiff J. N. Thompson in the sum, of $2,250, and this appeal has been prosecuted.

Upon the conclusion of the testimony, the defendant requested a peremptory instruction in its favor, and the vital question in this case arises under the assignment to the action of the court in refusing this instruction. There is little or no dispute in the testimony. Substantially it is as follows: It was shown that the town of Dublin in which plaintiff’s premises were located contains about 2,500 people with a city government ; that the appellant company had about 355 customers on its system for the distribution of water, which was furnished through service pipes from one-half to three-fourths inches in size; that the company had a contract with the city for fire hydrants; but that the city had nothing to do with the service pipes. The plaintiff Thompson testified upon the point in question as follows: “X had been on the flat rate all the time.until some time after Karmany took charge of the plant. Don’t know how long X ran without the meter after he took charge, but a good while. By the ‘flat rate’ I mean I just paid $1 a month. I had hydrants on my premises. These hydrants were connected with the water mains. I put the meter on something like a year before the house burned, which was the 12th day of July, 1911. I talked with Mr. Karmany before he put the meter on. I-Ie sent a man up there to put the meter on. Before Karmany put the meter on, I had a talk with him in which conversation he said he was going to put meters on'everybody. He told me that, and I told him I objected to him putting a meter on me. I said: ‘I don’t mind paying you for all the water I use, but don’t want to pay you for measuring it to me.’ What I meant by not wanting to pay him for measuring it to me was that I did not want to pay him 25 cents a month for the meter. Karmany told me that he would charge me 25 cents a month for the meter and I objected. I told him I was willing to pay him for all the water I used, but didn’t think it was right for me to pay him 25 cents a month extra to furnish something to measure water to me, that I thought the company ought to furnish that, and he said he was going to put them on everybody. He said he would put the meter on and charge me 25 cents a month for the meter and 50 cents a thousand gallons for the water. Later on I told him I objected to paying him for the meter rent, and he said I would have to do it or he would cut the water off, and stated to me it was best for me to have the meter on there, and that then I could use all the .water here for any purpose that I wanted to use it for; and he said: ‘Don’t you be uneasy about that, we will have all the water there you want to use for any purpose all the time. You can run it on the ground if you want to.’ I went on and paid for the meter, paying him 25 cents a month for "it, with the expectation of getting all the water I wanted to use, and that is why I did it. I think it was about 12 months after I had that talk until the fire occurred, as well as I remember.”

On cross-examination plaintiff further said: “I had ordinary hydrants at my place. My hydrant was about six feet from my front door, not in front, but kinder to one side. All the hydrants were there when I went there. I had been using them to get water. I had used the water for sprinkling purposes. I had a garden hose. I had a hydrant close to the kitchen door, on the other side. The other hydrant was at the lot. I had no hydrants at all in the house except a regular bathroom hydrant in the bathroom. I went to the back hydrant, beside the kitchen door. That was a hydrant I used for general ordinary purposes about the kitchen. I didn’t use it for irrigation. I 'ran to the hydrant and put my hose on it. I had a 50-foot hose. 1 wanted to get on the building and put the fire out. I had a bucket there, but couldn’t, get any water. I turned the hydrant first, and thought the water would come on. I first went to the hydrant and turned it on. There was no water, and I screwed the hose on so-li the water came on we could put the water on the fire and put it out. * * * X don’t remember what all Karmany said and what he didn’t say. He sent a man up there to-put in the meter. I think it was the day or-the next day that I had the conversation-with Karmany. It was a week or two after I talked to him that he put the meter in himself. I was at the house at the time thfe meter was put in. I went to tell ICarmany about the meter and object to having the meter in there, and told him I wouldn’t pay the rent on it, and he said, ‘You will or I will cut you off from water,’ and said ‘It is better for you to have the meter in there, and you can use it for every purpose you want it for,’ and I said, ‘I want you to understand that I want the water there at all times when I want it for every purpose I want to use it for,’ and he said, ‘There will be plenty of water for any purpose you want to use it for. You can turn it out on the ground if you want to.’ I didn’t say sprinkling or stock water. I didn’t have my mind on fire. I didn’t know but what it was for fire. I didn’t sign any written contract for a meter. I told Karmany I wouldn’t pay the rent on the meter. When I had the last conversation he already had the meter in. He said he would cut me off if I didn’t pay the rent. 1 suppose he meant to take the meter out. My mind wasn’t resting on anything at all. Kar-many said he would have water there for all purposes I wanted to use it for, and will state further he didn’t have it there for all purposes. I said nothing about wanting the water for 24 hours, night and day. He said, ‘It is better for you to have the meter, then you will have water for any purpose you want to use it for.’ He said, ‘At any time you want it.’ * * * It was some time after the house burned that it occurred to me that I had a contract with these people for fire protection.”

M. S. Karmany, the local manager of the appellant company, testified that: “I told him (Thompson) we were having considerable amount of trouble in furnishing water, and my attention had been called to the fact that he was abusing the flat rate, and that it would be necessary for the company to put, on the meter to. protect them, and I explained the rate, that the rate would be 50 cents a thousand gallons and 25 cents on the meter, which made his meter rate ¡¡>1.25. If he used any amount over 2,000 gallons he would pay us at the rate of 50 cents a thousand on the excess. That is the conference between myself and Mr. Thompson. I also stated that he could use • his water for the purpose of sprinkling his lawns and garden or for whatever purpose he wanted to use it in the sprinkling of lawns or gardens or for domestic service and we wouldn’t object to his using it on his garden or lawn or for domestic purposes. I don’t recall his reply to that. I have no authority whatever to make contracts for fire protection on our service pipes. It was not in my mind at the time to do it. Whatever authority I did have I got from Mr. Stichter, the general manager. * * * Beginning on the 1st of June, 1910, and for three months on, we were short on water. At nights we had to cut the valves in the mains to protect ourselves. The plaintiff never did tell me anything at any time in respect to fire protection. The first I ever heard of his making that claim was when 1 was advised by letter from Mr. Solomon, the 15th of this month.”

We should also state that there was evidence tending to show that, on the night before the fire in question, appellee had been watering his yard, and for that purpose had attached the ordinary yard hose to the ordinary yard hydrant and left the hose attached to the hydrant during the night; that early the next morning he discovered the fire which destroyed his house soon after it began and immediately ran to the hose and attempted to turn the water on, but found none, and that had there been any water in the pipes, as was usual, he could and would have put out the fire in time to have saved his property. Regardless of the issue of whether appellant’s general manager, Karmany, was authorized to make any such contract, as alleged by the plaintiff, we are of the opinion that the evidence quoted, which is substantially all there is relevant to the question, is wholly insufficient to sustain the verdict and judgment.

It cannot be denied that an individual or company authorized to so do may contract so as to incur a liability for damages proximately resulting from a failure to furnish water sufficient to extinguish fires. Lottman Bros. Mfg. Co. v. Houston Waterworks Co. (Civ. App.) 38 S. W. 357; Harris & Cole Bros. v. Columbia Water & Light Co., 114 Tenn. 328, 85 S. W. 897. In the cases cited the contract to so furnish water was express, but in the case before us it is not so. It cannot be said that the appellant company expressly contracted to furnish water at times and in sufficient quantities to extinguish fires. The plaintiff himself testified that, at the time of the conversation and agreement upon which he relies as establishing the contract alleged, the word “fire” was not used, nor did he have his mind on that subject. To the same effect was the testimony of Karmany, the local manager. So that the contract, as plaintiff alleges it, is one of inference only from the use of the very general terms that plaintiff was to have water “for all purposes.”

While as a general rule the terms of a contract are to be given their full effect and meaning, yet the ruling object is to ascertain the intention of the parties, and hence their situation, the subject-matter, and other circumstances, may be looked to in determining the meaning of the terms used, although the terms are not in themselves ambiguous, and a party will be bound by that meaning which he knew the other party to the contract supposed the words to bear. San Jacinto Oil Co. v. Ft. Worth Light & Power Co., 41 Tex. Civ. App. 293, 93 S. W. 173. It seems evident to us that the purposes of the parties in mind at the time was that water was to be furnished for all ordinary domestic purposes, and that it was not intended as an agreement that water should be furnished for extraordinary purposes. Neither the service pipes, hydrants, hose, or other circumstance, tends to show that it was ever the purpose of the company, or the expectation of the plaintiff, that the water to be furnished to him should be at times and in quantities sufficient to prevent the destruction of his premises by fire. It seems that the city government had taken upon itself the burden of protecting its citizens, and that it was presumably at least supplied with appropriate hydrants, hose, and other apparatus for that purpose. The fact that the company had contracted with the city for the purpose of furnishing water for fire purposes, and that the residences were provided with no facilities for that purpose, nor charged a rate commensurate with the risk thereby necessarily incurred, seems conclusive, in the absence of express words to the contrary, against the plaintiff’s contention in this case. See Niehaus Bros. Co. v. Water Co., by the Supreme Court of California, 159 Cal. 305, 113 Pac. 375, 36 L. R. A. (N. S.) 1045, and cases therein cited.

In view of what has been said, other questions need not be determined. We conclude that the court should have given the peremptory instruction and that the judgment below should be reversed and here rendered for the appellant.


author: WILLSON, C. J.

text:
    KANSAS CITY SOUTHERN RY. CO. v. CARTER.
    (No. 1248.)
    (Court of Civil Appeals of Texas. Texarkana.
    Feb. 27, 1914.
    On Motion for Rehearing, April 9, 1914.)
    1. Appeal and Error (§ 966) — Discretion of Court — Continuance—Absence of Witness.
    An application for a continuance because of the absence of a witness, who was a nonresident of the state, was not a statutory application under Rev. St. 1911, art. 1918, providing for continuances where testimony cannot be procured from any other source, and article 3649, allowing the taking of depositions, and there■fore the discretion of the court will not be disturbed in the absence of abuse.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3837; Dec. Dig. § 966.]
    2. Appeal and Error (§ 1043) — Review-Harmless Error — Continuances.
    If the court abused its discretion in refusing a nonstatutory application for a continuance, it was not ground for reversal, where the application was based on the absence of a witness, who testified fully on a former trial, which testimony was admitted by agreement and was to the same effect that the application stated he ■would testify.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4115-4121; Dee. Dig. § 1043.]
    3. Master and Servant (§ 145) — Injuries to Servant — Contributory Negligence-Rules — Construction.
    A rule of a railroad that, “where there are no car inspectors, the conductors must, with the assistance of the trainmen,” inspect the cars and see that the doors are closed, imposed on the conductor alone the duty of initiating an inspection, and a brakeman who was injured by an open door had no other duty than to assist the conductor when he initiated an inspection.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 288; Dec. Dig. § 145.],
    4. Evidence (§ 507) — Opinion Evidence-Subjects oe Expert Testimony — Car Door Fastener.
    The testimony of a brakeman that a car door came open because part of the lever used in fastening it had broken off, based on an inspection following an accident resulting from its being open, was a mere opinion upon a matter of which one man could judge as well as another, and did not call for the opinion of an expert.
    [Ed. Note. — For other cases, see Evidence, Cént. Dig. § 2310; Dec. Dig. § 507.]
    5. Appeal a5vd Error (§ 1048) — Review— Harmless Error — Admission oe Evidence.
    While an answer to an interrogatory not calling for expert opinion should be stricken on motion if the answers to cross-interrogatories show it to have been based on opinion and not knowledge, where the facts on which such opinion was based were brought out on oral cross-examination at the trial, any error in overruling a motion to strike the answer was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. § 1048.]
    6. Master and Servant (§§ 276, 278) — Injuries to Servant — Actions—Sufficiency of Evidence.
    Evidence, in an action ,by a brakeman against a railroad company for injuries by being struck by an open car door, held sufficient to support findings that the door struck plaintiff as he claimed, that the fastenings on the door were so defective as to make it probable it would come open, that such defects were due to the railroad's negligence, and that the door was closed shortly before the accident.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 956-972, 976, 977; Dec. Dig. §§ 276, 278.] '
    7. Appeal and Error (§ 837) — Review-Scope and Extent — Evidence to be Considered.
    Opinion evidence on a subject not requiring expert testimony, the admission of which was held harmless, could not be considered by the appellate court in passing on the sufficiency of the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. § 837.]
    On'Motion for Rehearing.
    8. Evidence (J 595) — Personal Injuries— Accidents — Sufficiency of Evidence — Inferences from Evidence.
    Where it could be equally inferred that a car door which struck a brakeman came open because of a defective latch or because it had not been fastened, the jury could not choose the inference that it was because of the defective latch, as an inference of negligence cannot bo adopted unless it is more reasonable than the inference of its absence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2444, 2445; Dec. Dig. § 595.]
    9. Master and Servant (§ 286) — Injuries to Servant — Actions—Questions for Jury.
    It could not be said as a matter of law that, if a railroad was not negligent in failing to in-, spect and repair a defective car door, which came open and struck a brakeman, it was negligent in failing to use due care to close and fasten the door when the train started on its trip.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1Ó17-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.]
    10. Master and Servant (§ 276) — Injuries to Servant — Actions—Sufficiency of Evidence.
    Evidence, in an action by a brakeman for injuries resulting from being struck by an open car door, held insufficient to show that the door came open because of negligence on the part of the railroad.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.]
    Appeal from District Court, Bowie County; I-I. F. O’Neal, Judge.
    Action by C. W. Carter against the Kansas City Southern Railway Company for damages for personal injuries. From a judgment for plaintiff, the defendant appeals.
    Reversed and remanded for new trial.
    See, also, 155 S. W. 638.
    Glass, Estes, King & Burford, of Texarkana, for appellant. Wolfe, Wood & Haven, of Sherman, for appellee.

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

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

   WILLSON, C. J.

This is the second time this cause has been before us. The first appeal was by appellee from a judgment in favor of appellant on a verdict rendered by the jury in obedience to a peremptory instruction of the court. That judgment having been reversed by this court, the cause was tried again at the May term of the district court of Bowie county; the trial resulting in a judgment in appellee’s favor for the sum of $15,000. On the last trial the testimony as to the accident and the cause of same, resulting in the injury to appellee, was not materially different from that heard on the first trial, except in the respect hereinafter shown, in connection with ruling made by this court in disposing of assignments complaining of the action of the trial court in overruling a motion made by appellant to strike out the answer of the witness John Bres to the twelfth direct interrogatory propounded to him. The full statement made in the opinion disposing of the first appeal, which will be found reported in 155 S. W. 638, renders it unnecessary to here make a statement of the case, further than to say that it sufficiently appeared from the testimony that as a result of the accident appel-lee suffered such injury to his neck and back as to produce in him a serious case of paralysis; and it is not contended, if appellee was entitled to recover at all, that the sum found in his favor is excessive.

It is insisted that the court erred ..when he overruled appellant’s .application for a continuance, based on the absence from the court of its witness Dr. T. E. Kittrell, the physician who first saw appellee after he was injured. It appeared from the application that appellant expected to prove by the witness that he saw appellee within a few hours after he was injured, and made a careful examination of his person, and “found no fracture or dislocated vertebra, and no other physical injuries except slight bruises”; and further expected to prove by him that he saw and treated appellee during the two weeks following the time when he was injured, and “made numerous examinations of him,” and at the May term, 1912, of the district court of Bowie county again examined appellee, “and again found no evidence of any physical injury or other condition that could be attributed to physical injury or traumatism.” It appeared from the application that the witness had attended the court and testified at a former trial of the cause, and several times during the two weeks preceding the time when the application was presented had promised appellant’s attorneys to be present when the cause was reached for trial. It further appeared that said attorneys .relied upon the promise of the witness, and did not know until the day before the application was presented to the court that the witness would not be present as he had promised to be. It further appeared from the application that the witness was not present because of illness of a member of his family, which he regarded as demanding his presence at his home. It further appeared that while the witness practiced his profession in both Texarkana, Tex., and Texarkana, Ark., he resided and 'maintained an office in the latter state. It appears from a qualification made by the court to the bill of exceptions presenting appellant’s complaint based on the action of the court in overruling the application that he overruled it because it did not appear therefrom that appellant had used the diligence required of it by law to procure the testimony of the witness. It further appears from said qualification of the bill that the testimony of said witness given at the former trial of the cause was, by agreement, “introduced as evidence on this trial.”

The witness not being a resident of the county where the- trial was had, but instead being a nonresident of the state, it is clear the application was not a statutory one. Articles 3649 and 1918, R. S. 1911. Therefore, before we should undertake to revise the trial court’s action and declare it to have been erroneous, it should appear that he abused the discretion he was entitled to exercise in the matter. Carver Bros. v. Merrett, 155 S. W. 635. If, however, we thought — and we do not — that the court abused the discretion he had about the matter, we would not for that reason reverse the judgment, in the face of the fact that it appears from the statement of facts that the testimony of the witness given on the former trial was introduced as evidence and was before the court and jury for consideration by them. On the former trial the witness seems to have testified fully. His testimony on that trial, as introduced at the last trial, covers more than 16 pages of the typewritten matter in the statement of facts, and is to the effect the application indicated it would have been had he been present and testified again at the last trial. The assignment is overruled.

On the last, as on the first, trial of the case, appellant offered in evidence one of its rules, as follows: “Where there are no car inspectors, conductors must, with the assistance of the trainmen, thoroughly inspect all cars offered, and be sure of their safe condition before taking them. They must see that side doors of empty cars are closed and securely fastened.” It appeared that appellant did not have a car inspector at Myrtis, where the car in question was being switch-1 ed for the purpose of making it a part of the train. With reference to this rule this court, on the former appeal, held that if the testimony presented a question as to its violation by appellee it was one of contributory, negligence on his part, and not one of assumed risk. The correctness of that conclusion is strongly combatted in support of assignments complaining of the action' of the court below, on the last trial, in refusing to give to the jury certain special charges requested by appellant whereby it sought to have issues as to assumed risk based on a violation by appellee, as asserted, of said rule, submitted to the jury. We have not thought it necessary to again consider the question for. the purpose of determining whether the conclusion then reached was correct or not, because, if we should conclude we were wrong, and if it did not appear that the rule had been abrogated, on another ground, not set forth in the opinion on the first appeal, we nevertheless would feel bound to hold that the court below did not err when he refused the special charges. We are of the opinion that the effect of the rule was to impose on the conductor alone an absolute duty to inspect cars and see that the side doors of empty cars were closed and fastened before taking them, and on appellee only the duty to assist him when called upon to do so. The language of the rule is that “conductors, must, with the assistance of the trainmen,” etc. If the purpose had been to impose the duty of inspection, etc., on the conductor and trainmen alike, the language doubtless would have been: “conductors and trainmen must,” etc. In other words, we think the rule imposed on the conductor alone the duty of initiating an inspection, and on the trainmen no other duty than to assist him when he initiated it. Therefore we overrule the seventh, eighth, ninth, twelfth, and twenty-fifth assignments. On the same ground we overrule the tenth, eleventh, thirteenth, and twenty-fourth assignments, based on the refusal of the court to give to the jury certain special charges requested submitting to the jury issues as to contributory negligence on the part of appellee in violating the rule in question.

John Bres was “swing” brakeman on appellant’s local freight train to Shreveport, in which the defective ear was carried to Myr-tis on the day before the accident occurred, and on the same train on its return trip the next day, when said car was again made a part of it. He had been a brakeman on that train during the two years immediately preceding the accident. At the instance of ap-pellee his deposition as a witness was taken March 4, 1912. In reply to the eleventh direct interrogatory he testified: “Just an instant before the door struck Garter, I saw the same standing open for the first time. * * * I did not see the car door fiy open, as I was facing the engineer, until after the engine passed over north passing track switch, and when I turned around the ear was going in on passing track, and I saw one of the east doors standing open just before Carter was struck by said door. All I could say is that the door was right at Garter when I first saw it open; that is, he was struck by the door almost as soon as I saw it standing open.” The twelfth direct interrogatory, propounded to the -witness was as follows: “If you have stated in your preceding answers that said car door was open, can you state what caused the same to come open? If so, please do so.” The witness answered as follows: “This car door came open on account of the door being in bad order, due to the lower or bottom part of the lever with which a refrigerator car door is fastened . being broken off.” Before this, answer was read to the court and jury, appellant objected to it on the ground that it appeared from the deposition of the witness “that he had not been in a position where he could see the car door,” and on the further ground that the answer “was an opinion and conclusion.” The objection was overruled. After-wards, the witness Bres, being present in court, was called by appellant and testified as a witness for it. It appeared that at the time the accident occurred the witness was riding on the pilot of the engine as it moved on the main track towards the station. He testified 'that when the engine passed the switch appellee was at same prepared to throw it so the car following the engine would take the passing track. He then testified that after the engine had passed by ap-pellee at the switch he saw one of the doors on the east side of the car next to the commissary strike him. After the witness had stated that he had not been in a position to see the door before it struck appellee, Mr. Burford, one of the counsel for appellant, asked him this question: “Tell the jury whether or not you had been in a position where you could see the door before it struck Mr. Garter.” The witness replied: “I stated to you before, Mr. Burford, that I had not; that I had never been on the east side of the car at all. I had not looked at the door. I acknowledged that to you and told you that in the other statement — that I didn’t see the door until after Mr. Garter was injured and we were ready to go. Then is when I seen the door. I hadn’t seen or looked at the door before -that time.” Counsel then asked the witness: “I will get you to tell the jury whether or not the door was standing open when you first saw it.” The reply was: “I told you gentlemen that the first time I saw this door anyway open was .when it hit Mr. Carter. I never seen the thing until it had hit him, as quick as he went around a little curve and as he threw the switchstand. I didn’t know what hit him. I couldn’t tell exactly. It was the door, I found out after-wards, is what hit him. I hadn’t seen the door and didn’t know anything about it pri- or to that time.” The examination of the witness was then continued as follows: “Q. You say in your depositions here: ‘Just an instant before the door struck Garter, I saw it standing open for the first time.’ Mr. Bres, you say in answer to the twelfth direct interrogatory: ‘This car door came open on account of the car door being in bad order, due to the lower or bottom part of the lever with which a refrigerator car door is fastened being broken off.’ On what did you base that statement? A. After looking at Mr. Garter when he was hurt, after he was struck by this door, and we got our train coupled and ready to go, I said: ‘Wait until I fix this door; better fix it, it is open, before it hurts some one else.’ I went and closed this door and picked up a handle of some kind and drove it down in this clasp. I suppose it was a foot and a half long, and drove it down in this clasp at the bottom, after closing the doors, and tied it together. Q. Did you notice any part of the lever being gone before that time? A. No, sir; I did not. Q. You went up there close to it? A. I didn’t know there was anything the matter with the car at all. Q. What do you base your statement on in these direct interrogatories that this door came open because the lever was gone? A. I said the' door was jolted open. Q. You said: ‘This car door came open on account of the -door being in bad order, due to the lower or bottom part of the lever with which a refrigerator car door is fastened being broken oft.’ A. Because it will not bold with tbe top lever, sir. Q. How do you know tbe top lever was fastened? A. I don’t know. Q. How do you know but wbat tbe lever was pushed back against tbe car? A. I don’t know that. Q. Wbat makes you tell in tbis deposition that it came open because it was gone? A. If a door is closed with tbis latcb broken it will not stay fastened on any refrigerator car. Q. If tbe door is closed with tbe bottom part fastened, it won’t stay fastened? A. No, sir; it won’t. Q. And that’s why you base your statement on wbat you say there? A. Yes, sir. Q. You don’t know whether it was closed or fastened? A. I don’t know. Q. You don’t know whether tbe door was pushed against tbe side of tbe car or not? A. No, sir; I don’t.” After tbe witness bad testified as just set out above, appellant moved to exclude bis said answer to tbe twelfth direct interrogatory, which also is set out above. Tbe grounds of tbe motion, as stated in tbe bill of exceptions, were as follows: “Tbe answer is an opinion and conclusion of tbe witness, in that be states positively that be never saw tbe door before tbe accident, never went near it, and wasn’t in a position where be could see it; and because be further stated on tbe witness stand that bis answer was based on an opinion formed some time after tbe accident, after be bad finished the work at tbe station, and after tbe car bad been set into tbe train; that from wbat be saw then be concluded that the door came open by reason of a part of a latcb being gone, but that be never saw it prior to tbe accident. That tbe first time be ever noticed tbe door it was standing open.” Tbe court overruled tbe motion, and bis action in tbis respect is assigned as error. In approving tbe bill presenting tbe matter, tbe court qualified it as follows: “Tbe witness John Bres testified that he had been engaged as a brakeman for several years on different roads; that be was familiar with tbe fastenings on refrigerator car doors; that if that portion of tbe apparatus of a refrigerator car door was missing which was missing on the car door which struck Carter, tbe plaintiff, that tbe movement of tbe train would cause tbe same to come open, even though it be fastened at tbe top, because tbe movement of tbe train would cause tbe bottom part of tbe door to swing out, and tbis would pull the fastening at tbe top out; this would be caused by tbe jolt of the train. In tbis case it was shown that tbe front part of the ear bad just gone over the passing track switch; that is, bad started in on tbe passing track. Tbe car was subjected to tbe jolt caused by passing over tbis track. At this instant Bres saw tbe ear door open. Bres examined tbe fastenings on the door, and then be was permitted to testify as shown in this bill.”

From tbe testimony set out it is clear, we think, that tbe witness did not know whether tbe door was closed and fastened or not when tbe car was carried from tbe passing to tbe main track, nor, if it was, when it came open, nor wbat caused it to come open, and that, when be said in reply to the twelfth direct interrogatory that it came open because part of the lever used in fastening it bad been broken off, be was stating bis opinion merely. Tbe statement made by tbe trial judge in connection with bis approval of tbe bill of exceptions indicates that be thought tbe witness bad qualified as an expert, and that as such bis opinion was admissible. But we think the testimony showing tbe way tbe door and its fastenings were constructed indicated that tbe question as to wbat caused tbe door to come open was one which one man of sense was as competent to answer as another, and therefore one that did not call for tbe opinion of experts. Tbe jury in such a ease should be allowed to draw their own conclusions from tbe facts shown by tbe testimony, uninfluenced by tbe opinion of witnesses, expert or otherwise. Shelley v. City of Austin, 74 Tex. 612, 12 S. W. 753.

If it bad appeared from tbe witness’ answers to tbe cross-interrogatories that bis answer to tbe twelfth direct interrogatory, instead of being a statement of a fact within bis knowledge, was a statement of bis opinion merely, there is ample authority for saying bis said answer should, on motion, have been stricken out. Railway Co. v. Ryan, 72 S. W. 72; Railway Co. v. Inman, 134 S. W. 277; Railway Co. v. Renfro, 83 S. W. 21; Landa v. Obert, 78 Tex. 33, 14 S. W. 301. But we are not prepared to say that when it appeared froní tbe oral examination he was subjected to more than a year after be answered tbe interrogatory, that be never saw tbe door on tbe occasion of tbe accident until just before or at the instant it struck appellee, and that bis statement in reply to tbe interrogatory as to wbat caused tbe door to come open was based entirely on an examination be made of it after tbe accident, that bis answer to said interrogatory therefore should have been stricken out. It is unnecessary, we think, to determine whether it should have been stricken out or not; for if it should have been, and if tbe trial, court therefore erred in overruling the motion, it would not follow that tbe judgment for that reason should be reversed; for, as pointed out by appellee, it might very well be said that tbe jury, having before them the facts on which tbe opinion of the witness was based, predicated their verdict on those facts, and not on tbe opinion of tbe witness, and that therefore the ruling on tbe motion, if erroneous, should be treated as harmless. Railway Co. v. Warner, 60 S. W. 442; Railway Co. v. McElree, 16 Tex. Civ. App. 182, 41 S. W. 843; Bond v. Railway Co., 55 Tex. Civ. App. 119, 118 S. W. 867; Rule 62a for tbe government of Courts of Civil Appeals (149 S. W. x).

For the reason just stated, tbe importance of tbe question as to the competency of tbe testimony does not arise on the assignments complaining of the action of the court in refusing to sustain the motion to exclude it. It arises, instead, on assignments we will now consider, which attack the verdict and judgment as not supported by the testimony.

From the allegations in the petition and the charge of the court it appears that the theory on which the recovery was sought and had was that appellant had been guilty of negligence, in that it failed to inspect the car and discover and repair a defect in the fastenings for the doors thereof, in consequence whereof one of the doors came open after the car moved from the passing to the main track and struck appellee as the ear moved back to again take the passing track.

We think it should be said that the testimony was sufficient to support findings, involved in the verdict, that the door struck appellee as he claimed it did; that the fastenings for the door were so defective as to make it probable that the door, if closed, and fastened with same, would come open when the car was subjected to such movement as it was subjected to before the door thereof struck appellee; and that the defective condition of the fastenings was due to negligence on the part of appellant. If it should be said the testimony also was sufficient to support a finding, involved in the verdict, that the door was closed and fastened at the time the car was moved to the main track, we think the assignments now being considered should be overruled; for we think it sufficiently appears that appellee was ' without fault in the matters and it would then appear that the injury he suffered was due' solely and proximately to negligence on the part of appellant, as alleged in the petition.

Therefore, in order to dispose of the assignments last referred to, it is not necessary to do more than to answer this question: Was the testimony sufficient to support a finding that the door was closed and fastened as the car moved from the passing to the main track?

Appellee testified that if the door had been open it would' have struck him as the car passed the switch, while moving from the passing to the main track, and that because it did not then strike him, and because he thought he would have noticed it had it been open, he thought it was not then open. It must, we think, be conceded that this testimony was sufficient to support a finding that the door was closed as the car moved to the main track.

So, the inquiry may be said' to be further narrowed to this question: Was there testimony to support a finding that the door also was fastened at the time this car began its movement from the passing to the main track? If the door was closed and fastened, then the testimony was sufficient to support a finding that because the fastenings were defective it came open after the car passed the switch stand where appellee was standing and before it again passed same as it moved back to the passing track. If the door was not fastened, then it is obvious the defective fastenings had nothing to do with its coming open, and therefore it could not be said that the negligence charged against appellant, in that it failed to discover and repair the defect in the ear, was the proximate cause of the injury appellee suffered.

Looking to the record, the only testimony we find which can be said to be directly to the point is the answer set out above of the witness Bres. to the twelfth direct interrogatory propounded to him. If that answer, construed in the light of the oral testimony afterwards given by him, also set out above, should be treated as a mere opinion of the witness, and therefore not competent as evidence, under the ruling of the Supreme Court in Henry v. Phillips, 151 S. W. 537, we are not authorized to look to it in determining the question now being considered. In that case the Supreme Court held certain testimony admitted without objection to be hearsay and therefore incompetent, and with reference thereto said: “Such incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the record without objection. When the appellate court comes to apply the law to testimony constituting the facts of the case, it can only base its conclusion upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force.”

There being no direct evidence on which a finding that the door was fastened can be based, the question .arises as to whether there was testimony from which an inference that it was fastened properly can be drawn. Appellee insists that such an inference might have been drawn by the jury from testimony showing that the fastenings for the door were so defective that had the door been fastened with same it likely would have become unfastened by the movement the car was subjected to in switching it before the door struck appellee; from testimony showing it was closed when it passed the switchstand as it moved from the passing to the main track; and from the absence of testimony showing that any one saw the door open until the instant before it struck appellee. We agree that from the testimony referred to an inference might have been drawn that the door was fastened, but we think, with as much reason, an inference might have been drawn that it was not fastened. For, certainly, if it might be inferred that the door, though fastened with the defective appliances, came open as it did, it might be inferred that it came open as it did if it was not fastened at all. The question then is: The testimony admitting of an inference either that the door was or that it was not fastened, did tlie jury have a right to choose between the inferences? While not entirely dear about it, it seems to us it should be answered that they had such a right; and especially so, in view of the fact that it sufficiently appeared that the injury to appellee, if not proximately caused by negligence of appellant in failing to use ordinary care to inspect the car and discover and repair the defect in the fastenings for the doors thereof before sending it out from Texarkana, was proximately caused by its negligence in another respect, to wit, in failing to use ordinary care to-close and fasten the doors thereof before it directed that the car be placed in the train at Myrtis. In other words, in the light of the testimony, it seems that the only complaint appellant could be heard to make with reference to the finding of the jury that it was guilty of negligence is that, while it appeared from the testimony it was guilty in one of the respects stated above, it did not appear in which respect it was guilty. We do not think it should be heard to urge such a complaint against the finding.

The assignments not in effect disposed of by what has been said are believed to be without merit, and therefore áre overruled.

The judgment is affirmed.

On Motion for Rehearing.

In reaching the conclusion that the jury had a right to choose between inferences to be drawn from the testimony, we were not unmindful of the rule invoked by appellant in its motion, which denies to a jury such a right where the inference of negligence as charged is not more reasonable than that of the absence of such negligence. But we thought the rule ought not to be applied because it then appeared to us that, if the injury suffered by appellee was not due to negligence in the respect submitted in the court’s charge, it was due to negligence on the part of appellant in another respect, and it seemed to us it would be unreasonable under such circumstances to set aside the verdict and judgment. On further consideration of the matter, however, we are convinced we had no right to say as a matter of law that, if appellant was not guilty of negligence in failing to use due care to inspect the car and discover and repair the defect in the fastenings for the doors thereof, it was guilty of negligence in failing to use due care to close and fasten the doors thereof before it directed that the car be placed in the train at Myrtis. Therefore we now think the rule referred to should have been given effect in disposing of the appeal. It follows that we"think the motion should be granted; and, because the testimony was not sufficient to support the finding of the jury that negligence of appellant in the particular submitted to them was the proximate cause of the injury to appellee, that the judgment should be reversed, and the cause remanded for a new trial. It will, accordingly, be so ordered.


author: JENKINS, J.

text:
    BORSCHOW v. STEPHENSON et al.
    (No. 5312.)
    (Court of Civil Appeals of Texas. Austin.
    March 18, 1914.)
    Vendor and Purchaser (§ 285) — Lien—Enforcement — Rights of Guarantor of Notes — Prorating Security.
    Where defendant guaranteed part of a series of vendor’s lien notes, the whole of which plaintiff declared due upon nonpayment of the second, the judgment foreclosing the lien and finding against defendant on his guaranty need not prorate the proceeds of the sale of the land between the notes guaranteed and the others; plaintiff being entitled to judgment upon the guaranty without resorting to his security, and defendant being protected by the provision requiring the security upon the land to be exhausted before issuance of execution against him.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 800-807; Dee. Dig. §, 285.]
    Appeal from District Court, Mills County; John W. Goodwin, Judge.
    Action by W. H. Stephenson against Max Borschow and another. From a judgment for plaintiff, the named defendant appeals.
    Affirmed.
    E. B. Anderson, of Goldthwaite, and Arch Grinnan, of Brownwood, for appellant. E. B. Hendricks and I. J. Rice, both of Brownwood, for appellee.

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

   JENKINS, J.

The evidence in this case shows that - Cornelius on February 20, 1911, executed his eight promissory notes to appellant, the first for $100, due November 1, 1911, and the others for $300 each, due November 1, 1912, 1913, 1914, 1915, 1916, 1917, and 1918, respectively, interest payable annually; that said notes were given in payment for a tract of land in Mills county, upon which a vendor’s lien was retained to secure the payment of said notes. They provided that the failure to pay either of said notes, or the interest thereon, would, at the election of the holder of such notes, mature all of them. Appellant sold said notes to appellee, making a written transfer thereof, together with the vendor’s lien and superior title, and guaranteeing the payment of the first and second notes; the others being indorsed without recourse. The first note was paid, but the second was not, and appellee elected to treat them all as due, and brought this suit against the maker of said notes and to enforce the vendor’s lien, and also against appellant upon his guaranty of said second note. Judgment was rendered against Cornelius for the debt, interest, attorney’s fees, and costs, foreclosing the lien upon said land, and also against appellant upon his guaranty of said second note, with judg-meni; over in Ms favor against Cornelius for any amount that he might pay upon said judgment.

Appellant assigns error, contending that the proceeds of the sale should have been prorated between said second note and the remainder of said notes, instead of first applying all of such proceeds to the payment of such other notes. We overrule this assignment. Appellant was liable upon his guaranty for any deficit from the sale of said land, and the court rendered a proper judgment in decreeing that the proceeds should first be applied to, the other notes. Hutches v. Threshing Machine Co., 35 S. W. 64; Goddard v. Peeples, 11 Tex. Civ. App. 615, 33 S. W. 314. In fact, the holder of said notes was entitled to judgment against the guarantor upon the failure of the maker of said notes to pay the same, without first resorting to his security upon the land. Walker v. Collins, 22 Tex. 193; 32 Cyc. 97, 98. He was fully protected by the judgment of the court herein, which required the security upon the land to be exhausted before execution should issue against him.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.