author: PHEASANTS, C. J.

text:
    DAVIS v. MOYE.
    (Court of Civil Appeals of Texas. Galveston.
    March 11, 1913.
    Rehearing Denied March 27, 1913.)
    1.Adverse Possession (§ 109) — Release op Rights Acquired — Fraud — Necessity of Reliance on Representations.
    •A representation by the agent of the record owner of land to plaintiff, who had title by adverse possession in order to induce a release of plaintiff’s rights that other squatters on the land had agreed to sign releases, did not invalidate the release where plaintiff testified that he would have executed the release if such representation had not been made, since a party cannot avoid a contract for fraud or misrepresentation, unless he was induced thereby to execute the contract.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 629-635; Dec. Dig. §109.]
    2. Adverse Possession (§ 109) — Release of Rights Acquired — Validity of Assent-Fraudulent Representations.
    Where the attorney for the record owner of land in a conversation with plaintiff, who had title by adverse possession,, was told by plaintiff that he had been living on the place for 20 years, but was also informed by plaintiff that he did not intend or want to take anything from the record owner, a representation by the attorney to induce a release of plaintiff’s rights in consideration of a conveyance of part of the land that, if he did not sign the release, he would lose his home did not avoid the release, since it was but the expression of the attorney’s opinion upon a legal question, and was justified by plaintiff’s statement from which it might be inferred that he was not claiming the land adversely to the record owner.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 629-635; Dec. Dig. § 109.]
    3. Cancellation of Instruments (§ 47)— Actions — Sufficiency of Evidence.
    In an action to cancel a release of his rights by a person having title to land by adverse possession, evidence helé insufficient to show that the execution of the instrument was induced by false and fraudulent representations, or that any advantage of any kind was taken in procuring the release.
    [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 102, 103; Dec. Dig. § 47.]
    4. Judgment (§ 251) — Conformity to Pleadings.
    In an action by a person having title to land by adverse possession to- cancel his release of Ms rights to the record • owner for fraud, where he did not plead that the land was his homestead, a judgment setting aside the release because the land was plaintiff’s homestead, and the instrument not signed by his wife, could not be sustained, even though the evidence showed that the land was his homestead.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.]
    Appeal from District Court, Tyler County; W. B. Powell, Judge.
    Action by Jim Moye against Mrs. C. G. Davis. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    . Joe W. Thomas, of Woodville, for appellant. Harper & Goodwin, of Woodville, for appellee.

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

   PHEASANTS, C. J.

This suit was brought by appellee against the appellant to recover the title and possession of a tract of 160 acres of land on the L. Thunar survey in Tyler county. The petition alleges title in plaintiff under the statute of limitation of ten years. It further alleges that an acknowledgment of tenancy and release to defendant of plaintiff’s claim to all of said land, except a tract of 30 acres thereof, executed on August 22, 1906, was obtained from him by an agent of defendant by “false and fraudulent representations.” The substance of the allegations as to said fraudulent representations are that the agent of defendant, who induced plaintiff to sign the release, and who was a lawyer, told plaintiff that the land upon which he was then living (being the 160 acres in controversy) did not belong to plaintiff, and he could never acquire title thereto by possession; that it belonged to defendant, Mrs. Davis, and that she would take it from plaintiff and leave him without a home in his old age, but that, if plaintiff would sign the acknowledgment of tenancy and release of his claim to all of said land, the defendant would make him a deed to 30 acres, including his improvements; that said agent also told him that other parties, who held possession of other portions of the larger tract of land of which the 160 acres was ■ a part, had agreed to execute similar instruments to that plaintiff was asked to sign; that each and all of these representations were false and were made by said agent for the purpose of deceiving plaintiff ahd inducing him to sign said instrument; that plaintiff was very old, being at that time over 80 years of age, was infirm both in mind and body, was unable to read or write, and was wholly ignorant of his legal rights, and that he relied upon the superior knowledge of said agent, and believing his statements to be true, and that unless he executed said instrument he would - lose his home, was thereby induced to sign said instrument. It is further alleged in said petition that, at the time said instrument was executed, plaintiff had good and perfect title to the land under the ten years’ statute of limitation, but was ignorant of his right and title so acquired, and relied upon the false representations of said agent that he had no title thereto. It is also alleged that said agent told plaintiff that if the other persons in possession of portions of defendant’s said larger tract of land, of which the 160 acres in controversy is a part, did not execute similar releases to the one signed by plaintiff, the instrument executed by plaintiff would not be binding upon' him, .but would become null and void, and that he (plaintiff), when he thereafter discovered that none of said parties had signed any release, considered said release so signed by him as being of no further force or effect, and did not know that any claim was asserted thereunder by the defendant until January 26, 1912, when it was filed for record by the defendant, which was after this suit was brought and the case had been set for trial. The prayer of the petition is for the recovery of the land “and for such other and further' relief, general and special, in law and in equity as plaintiff may be entitled to.”

The defendant’s answer contains general and special exceptions to the petition and a plea of not guilty. Defendant also specially pleaded the execution of said acknowledgment of tenancy and release by plaintiff of his claim to all of said 160 acres of land, except a tract of 30 acres thereof, including plaintiff’s improvements, and tendered plaintiff a deed to said 30 acres duly executed and acknowledged by the defendant. The cause was tried in the court below without a jury, and judgment was rendered in favor of plaintiff for all of the 160 acres of land.

The evidence shows that the defendant has a record title to the L. Thunar 1,280-acre survey. The 160 acres in controversy is a part of the 1,280-acre tract. Plaintiff settled upon this 1,280-aere tract about 25 years before this suit was filed, and has lived thereon continuously since that time. When he went on the place, he built a house, in which he has since lived, and put a small field of 10 or 12 acres in cultivation, and has cultivated it continuously since. While the evidence is conflicting and far from satisfactory on the issue of his claim of ownership and its extent, there is evidence in the record sufficient to sustain the finding of the trial court that he has claimed 160 acres of the landH ever since he settled on it. He had the 160 acres claimed in his petition surveyed in 1901. While it is not shown that he claimed this exact 160 acres prior to that time, as before stated, the evidence is sufficient to show that he claimed 160 acres for more than ten years prior to the 22d day of August, 1906, but no part of the land has been inclosed except the field of 10 or 12 acres. He was married when he went on this land, and his wife has lived there with him continuously since that time. On August 22, 1906, plaintiff executed the following instrument:

“State of Texas, County of Tyler.
“Know all men by these presents that this instrument witnesseth that whereas James Moye, of the county of Tyler, state of Texas, had paid unto Mrs. Camilla G. Davis of Dallas, Texas, the sum of thirty-eight ($38.00). dollars, that the said Mrs. Camilla G. Davis hereby agrees to make unto the same James Moye a good and sufficient deed for' (30) thirty acres of the Lewis Thunar 1,280-acre survey in Tyler county, Texas, said thirty acres to be conveyed so as to begin at the stake on the west boundary line of the said Thunar survey 340 vrs. south of the Sam Bean survey or claim, same being a part of the Thunar survey. Thence south 350 vrs. to a stake for corner. Thence east 475 vrs. to stake for corner. Thence north 350 vrs. to edge of old field sweetgums vrs. S. 45 E. 25 vrs. Thence west 475 vrs. to beginning corner pine 18 inches dis. S. 46 E. 2% vrs. and a pine 20 in. dia. N. 20 E. 5 vrs. And it is agreed and understood that the said James Moye is to release all claim or claims that he has or may have had to any other part of the said Lewis Thunar survey. And that he hereby acknowledges the said Mrs. Camilla G. Davis as the true owner of said survey.
“Witness our hands this 22d day of August, A. D. 1906.
•‘[Signed on other side] Ms
“James X Moye.
mark
“State of Texas, County of Tyler.
“Before me, John W. Wilson, a notary public in and for Tyler county, Texas, on this day personally appeared James Moye, well known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed' the same for the purposes . and consideration therein expressed.
“Given under my hand and official seal this 22d day of August, A. D. 1906.
“[Signed] John W. Wilson,
“Notary Public, Tyler County, Texas.”

In regard to the execution of this instrument, plaintiff testified as follows: “It waS just this way: I always tries to tell the truth; he come there and come up to the gate on his horse, and there was nobody there but me. I was there sick, and he stepped on the gallery and hailed and I told him to come in, and he come in and he got to talking to me about this land, and he said it was Madam Davis’land, and that he was a lawyer, and we had no right to that land; he said she didn’t tell me to go on that land,, and I had no right to go on it and it belonged to her, and, after he told me that, I was always afraid of white folks anyhow, that put a fright on me and I was afraid I would be without a home in my old age, but he told me, he said, ‘If you sign this here, Mrs. Davis will give you a deed to 30 acres, including your home;’ and he said all the others agreed to sign, and, if they don’t do it, this here will go blank. That has been five years ago.”

In answer to the question of whether he would have signed the instrument if Mr. Wilson had not told him that other squatters on the land had agreed to sign one, plaintiff replied: “Yes, sir; he told me if I did not sign this instrument I would be without a home.” He further testified on cross-examination : “I made this statement to Mr. Wilson. I said, ‘Now, Mr. Wilson, me and rqy wife is getting old, and if Mrs. Davis will take this away from me I will be satisfied if she will let us have a little home here, about 30 acres, if they take' it around from the improvements. I ask you to get me a home. If you would give me 30 acres and any one else could have the balance.’ It was not my intention nor I didn’t want to take anything from Mrs. Davis, if it come out it was her land; all I wanted was a little home. Well, Mr. Thomas, I would not be satisfied with a deed to 30 acres after I havei had to have so much trouble. 1 wouldn’t be satisfied with that now after it has gone this way. That was my offer that T would accept 30 acres. I got discouraged as soon as I found out these others didn’t sign, and found out he didn’t never come back, or send a letter to. me in two or three weeks. I didn’t know of his moving off to Catulla about that time, and I haven’t seen him any since that time. * * * Mr. Wilson didn’t say anything harsh to me; he treated me nice; he treated me as nice as people generally treat any one. Mr. Wilson appeared to be a gentleman and talked all right, he didn’t use any harsh words; he didn’t abuse me, or use any force; he came to me on business and stated his business, and he presented the instrument and I signed it; then he left; he didn’t offer to do me any personal violence; nor he didn’t tell me he would do me any personal viplence, nor anybody else would; there was nothing of the kind said.”

Wilson was a lawyer and had been employed by a son of Mrs. Davis to look after her lands. His testimony as to the circumstances under which the instrument was executed is as follows: “I. was present when he signed and executed said instrument, and I am pretty sure his wife or some woman living with him was also present. Jim Moye did not read over the instrument because he could not read; at least he stated he could not. I read over the instrument very carefully and .explained very carefully to Jim Moye just what the instrument was before he signed it and before he acknowledged it. I told him that the instrument he was signing was an acknowledgment by him that he did not own the land, but that it gave him a chance to buy and retain the land described in said instrument for his home. I positively did not represent to him the instrument was a power of attorney. No misrepresentation was made to Jim Moye; no force was used; nor threats made; in fact, nothing was done to mislead him or to induce him to sign this instrument. T asked- Jim Moye if he owned ■the land he was living on, and he said no that he did not own it, but that he had intended to buy it at one time, but that he had been unable to get a deed made to him for the land. He stated that he had been living on the land for 20 yeárs and that he' had been advised by certain white men that, if he would claim the. land, he could hold it. I asked him if he thought it would be right to take some' one else’s property in that way when he had not paid for it, and he said th|it he did not think it would be right, and that he only wanted to do what was right. He further stated that he would be willing to buy the land and pay a reasonable price for it, but that - he was getting so old that he could not make the money to buy 160 acres now; then I proposed to him that he buy 30 acres to include his improvements, and as described in the instrument attached to the interrogatories marked Exhibit A. The result of my proposition was that I wrote out said instrument and he signed it and acknowledged it.”

Under an appropriate assignment of error, appellant assails the judgment on the ground that the evidence is insufficient to show that the execution of the contract and release above set out was obtained by fraud or false representations; and since, by the express terms of said instrument, plaintiff released to defendant his claim to all of the land, except the 30 acres therein described, he was only entitled to a judgment awarding him title to said 30 acres.

We think this assignment should be sustained. The only statements made by Wilson to plaintiff which, according to plaintiff’s testimony, were not true were the statement that other squatters on defendant’s land had agreed to sign releases, and the statement that, if plaintiff did not execute the release, he would be without a home. Plaintiff testified that he was not influenced by the first statement to execute the release, and that he would have executed it if this statement had not been made. It is elementary that fraud or misrepresentation must be relied upon by the party who seeks to avoid his contract on that ground; and, unless he 'is induced by such misrepresentation to execute the contract, the validity of the contract is not affected thereby.

The statement .that, unless plaintiff signed the contract, he would lose his home was but the expression of Wilson’s opinion upon a legal question. If he knew at that time that plaintiff had been living on the land and claiming it as his own for more than ten years, as a lawyer he must have known that plaintiff had acquired a title and was in no danger of losing his home. Plaintiff testified that he told Wilson he had been living on the place for 20 years, but it does not appear that he informed him that he had been, during all of that time, claiming the land adversely to Mrs. Davis, but, on the contrary, the inference from his statement that he “did not intend or want to take anything from Mrs. Davis” is that Wilson understood' that he had not been claiming adversely to the defendant; and, such being the casé, the representation by Wilson that plaintiff had no title and that Mrs. Davis could take all of the land from him was fully justified.

It appears from the testimpny of both plaintiff and Mr. Wilson that plaintiff fully understood the contract and knew what he was doing when he signed it We think this evidence falls far short of establishing the allegations of plaintiff’s petition that the execution of this instrument was produced by “false and fraudulent representation” on the part of defendant’s agent, or of showing that any advantage of any kind was taken of him in the procurement of said release. The sufficiency of the instrument as a release of all claim or title to all of the land, except the 30 acres, is not questioned.

The trial court held that this instrument was void because the property was, at the time of its execution, the homestead of plaintiff and his wife, and the instrument is not signed by the wife. We think it is a sufficient answer to this contention that the issue of homestead was not raised by the pleadings. The validity of the release was not attacked on this ground; and, there being no pleading to support the finding that the property was a homestead, a judgment based on such finding cannot be sustained, notwithstanding the evidence may be sufficient to support a finding that plaintiff had acquired title by limitation before the execution of said release, and the property was at that time his homestead.

It follows from what we have said that the judgment of the trial court should be reversed and judgment here rendered for appellant for all of the 160 acres of land, except the tract of 30 acres described in the release before set out and the deed tendered plaintiff by defendant and which should be adjudged to plaintiff. Judgment of this court will be rendered and entered in accordance with these conclusions.

Reversed and rendered.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    HOUSTON ELECTRIC CO. v. GLEN PARK CO.

    (Court of Civil Appeals of Texas. Galveston.
    March 11, 1913.
    Rehearing Denied April 3, 1913.)
    1.Appeal and Error (§ 165) — Decisions Review able — Orders Granting Injunctions.
    Where within 15 days after the entry of an order granting a temporary injunction a party files the transcript on appeal in the Court of Civil Appeals and duly complies with the other requisites of appeal, such as giving bond, etc., the right of appeal becomes a fixed right and cannot be defeated by any effort he may make to have the injunction dissolved in the court below.
    [Ed. Note. — Eor other .cases, see Appeal and Error, Cent. Dig. §§ 995-1001; Dec. Dig. § 165.]
    2. Appeal And Ebkob (§ 837) — Review — MATTERS OCCURBING PENDING THE APPEAL.
    In the determination of an appeal from an order granting a temporary injunction made on plaintiff’s verified bill alone, defendant’s an--swer thereafter filed cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3272, 3274-3277, 3289; Dec. Dig. § 837.]
    3. Street Railroads (§ 57) — Operation — Enjoining Abandonment.
    Where, in consideration of the dedication of certain streets, an electric railway company agreed to construct and continuously operate thereon an electric road, and thereafter did construct and for a time operated such road, the landowner could enforce the contract by an injunction restraining the abandonment of the line on such streets and was not limited to an action for damages for its breach, where it did not appear that the operation of such line would prevent the company performing its duties to the public.
    [Ed. Note. — For other cases, see Street Railroads, Gent. Dig. §§ 136-143; Dee. Dig. § 57.]
    4. Specific Performance (§ 75) — Contracts for Continuous Acts.
    As a. general rule which has been somewhat modified with regard to contracts relating to the operation of railroads, a court of equity will decree specific performance only when it can dispose of the matter by a decree capable of present performance, and will not decree performance of a contract continuous in its nature, involving skill, personal labor, or cultivated judgment, nor where through want of appropriate means and instrumentalities it is unable, while pursuing its ordinary modes of administering justice, either to render a decree or to enforce the decree when made. ,
    [Ed. Note. — For other cases, see Specific Performance, Cent Dig. § 210; Dec. Dig. § 75.]
    5. Street Railroads' (§ 57) —: Temporary Injunctions — Comparative Injury to Parties.
    Where a bill to enjoin the discontinuance of a street car line, in violation of an agreement with plaintiff’s grantor to operate such line in consideration of the dedication of certain streets, showed that serious damage would result to plaintiff and his grantees from the discontinuance, while it did not appear that damage would result to the company by continuing the operation, a temporary injunction would be sustained under the rule that the comparative inconvenience which might arise from granting or withholding the injunction may be considered.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 136-143; Dee. Dig. § 57.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Action by the Glen Park Company against the Houston Electric Company. From an order granting a temporary injunction, defendant appeals.
    Affirmed.
    Baker, Botts, Parker & Garwood, of Houston, for appellant. Thos. H. 'Stone, of Houston, for appellee.

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

      Writ of error denied by Supreme Court.

   McMEANS, J.

On the petition of the ap-pellee, Glen Park Company, the judge of the Fifty-Fifth judicial district of Harris county, in chambers, granted a temporary injunction, the nature and purpose of which will hereinafter more fully appear.

Plaintiff in its petition alleged, in substance:

“(1) That about 1906 the Houston Electric Company was desirous of extending its Montgomery Avenue line westwardly across a branch of White Oak bayou to connect with another of its lines known as the Houston Avenue line. That for a space of about a mile between the termini of th^se lines there were no cross streets or roads.
“(2) That at the time the Houston Electric Company by its officials agreed to and contracted with H. E. McGregor, who then owned the land, or the greater portion thereof, lying between said streets through and across which said electric company desired to project its line, as aforesaid, that if the said H. E. McGregor would dedicate streets to the public use of the citizens of Houston and to it, so that said Houston Electric Company could, under its franchise from the city of Houston, project and extend its line of street railway fr.om Montgomery avenue westwardly to Houston avenue, that in consideration of the convenience and advantage accruing to said Houston Electric Company it would continuously maintain and operate thereafter a line of railway as proposed and agreed through the cross streets and over the streets which were to be dedicated by the said H. F. McGregor for this purpose, the prime consideration being the benefit to the Houston Electric Company for the easement over said street or streets under its franchise from the city of Houston, and the consideration moving to the said H. E. McGregor to make said dedication of streets being the increased value that would accrue to his said property adjacent to said streets to be dedicated and the increased salable value of the same for subdivision purposes into lots and blocks for the purpose of sale because of the car service.
“(3) That in pursuance of the agreement so made, McGregor, then the owner of the property through which the line was to be projected, executed a dedication deed which is set out in full in plaintiff’s pleading, dedicating a certain strip of land described in the deed as a street. The following portions of the deed are material in the present inquiry: ‘Know all men by these presents: That I, H. E. McGregor, of Harris county, Texas, for and in consideration of the benefits to be derived from the extension of the street railway through my property, hereby dedicate to the public and the city of Houston a street fifty feet wide across what is known as the Puls Homestead in the John Austin grant, Harris ' county, Texas. The purpose of this deed is to furnish a right of way to the Houston Electric Company, its successors and assigns, subject to the terms and conditions of its franchise from the city of Houston, and ^.subject also to said street or strip being used as a street for street purposes. (Then follows a detailed description of the strip of land dedicated.) All of which is shown by the maps and plats attached hereto, to which reference is made as a part of this dedication. From the above-described street the following described portion is reserved by the grantor for use for decorative purposes and as a street railway waiting site which site is more particularly described as follows: (Then follows description of the site referred to.) In case such reservation above described shall not be used for street railway waiting station, or maintained as grounds for decorative purposes, then such reservation shall revert to the grantor.’ This deed was formally executed and filed for record in the deeds records of Harris county,. Tex., in April, 1906.
“(4) That thereafterwards, in pursuance of said understanding and agreement, the company did construct a line of street railway along the street described in the foregoing deed, and has continued to operate same until this date.
“(5) That is was agreed between the parties, namely, Houston Electric Company and H. E. McGregor, at the time said agreement was entered into, that said company would operate a loop line running out Montgomery avenue, thence through and along the property dedicated by the said H. F. McGregor, thence northwardly along Montgomery avenue, or road, and down Houston avenue to Washington street, and on and into the heart of the business district of the city of Houston, sending cars completely around said loop. That said Houston Electric Company has not for some time observed this agreement made with said H. F. McGregor, but has been operating a shuttle line or connecting line from Montgomery avenue across to Houston Avenue road or street, making it necessary for passengers to transfer twice in getting from points on and adjacent to Montgomery avenue to points on and adjacent to Houston Avenue street and Houston avenue.
“(6) That on or about the 1st of March, 1911, H. F. McGregor, by deed, a portion of which is set out in plaintiff’s petition, conveyed the lands owned by him in this vicinity, and affected by this agreement, to the plaintiff, Glen Park Company. The deed copied is an ordinary deed of conveyance, with covenants of warranty, except as to the portion of same used as streets, which are excepted from the warranty. That part of the deed which recites the consideration is not copied.
“(7) Plaintiff alleges that a part of the consideration actuating it to purchase and acquire the land in the aforesaid deed from H. F. McGregor was the agreement and contract made and substantially pet out between the company and McGregor, with respect to the construction, maintenance, and operation continuously of a line of street railway as hereinbefore described.
■ “(8) Plaintiff alleges that it is advised that the Houston Electric Company has applied to the city of Houston for permission to discontinue the operation of cars between the Montgomery Avenue and Houston Avenue lines, and across the McGregor property, and the city of Houston has granted the company the permissive right to so discontinue operation along this line, and to remove the track from the street dedicated by McGregor, and that the company is about to remove said track.
“(9) That the contract between the company and McGregor was and is a property right of the plaintiff company, which succeeded to the property theretofore owned by McGregor in the purchase of the same, and is the successor in interest to the terms and conditions and obligations of Houston Electric Company to .said H. F. McGregor by virtue of said contract made between them as aforesaid.
“(10) Petitioner avers that, aside from the contract obligations of the Houston Electric Company to maintain this line, if the company is permitted to discontinue same, the residents contiguous thereto will be greatly inconvenienced by virtue of its discontinuance.
“(11) That in pursuance of its rights under said contract made between the said H. F. McGregor and the said Houston Electric Company, whereby the said Houston Electric Company agreed continuously to operate a street railway line westwardly connecting the Fifth, First and Sixth wards as aforesaid, to which rights of the said H. F. Mc-Gregor this defendant succeeded by virtue of the purchase of said land, and as part of the consideration paid therefor, your petitioner has subdivided and sold lots and blocks, being a portion of said land which was benefited by the extension of said line of street railway as, agreed- upon by the said Mc-Gregor and Houston Electric Company. That it is not possible at this time for said parties so purchasing said lots to join in this petition, but said parties will later make themselves parties to this suit, and this petitioner now brings this suit for the benefit of itself and those who have succeeded to portions of the land by purchase from it, which land was purchased by it from the said H. F. Mc-Gregor, and that each and all of said parties are entitled to and have a property interest .in said contract with Houston Electric Company requiring it continuously to operate said line of street railway from Montgomery avenue through and along Boundary street W-estwardly to Houston Avenue street, or road, as agreed and contracted -by it, said Houston Electric Company, with the said H. F. McGregor.
“(12) Petitioner avers that, if the, Houston Electric Company is permitted to discontinue the line and tear up the track on said street, it and other purchasers similarly situated, who are entitled to the benefit of the contract between McGregor and the company, will suffer great and irreparable damage, for which plaintiff has no adequate relief at law, and for the prevention of which an injunction is prayed.
“(18) Wherefore, premises considered, plaintiff prays for the issuance of an injunction temporarily restraining the defendant, Houston Electric Company, its officers, agents, servants, employés, or other persons, from discontinuing the operation of street cars under regular schedule with reasonable frequency upon, along, and over Boundary street, Glen Park avenue, running westwardly from Montgomery avenue to Houston avenue, or road, connecting with the old Highland Park line, now commonly known and designated as the Woodland Heights or Houston Avenue line, and from tearing up or removing the rails, poles, wires, and other property of said Houston Electric Company constructed along, upon, and over and now in use on said Boundary street, Glen Park avenue, and Montgomery street, North street, but that the said Houston Electric Company, its officers, agents, servants, or employés, or other persons charged therewith, be commanded to continue to operate and to propel street cars over, along, and upon said three streets last named, giving reasonable service and running cars with reasonable frequency thereon, and that said Houston Electric Company be cited to answer this petition, and that upon a hearing hereof said injunction or temporary restraining order be continued and made permanent, both general and special, legal and equitable, as it may be entitled to have in the premises, for which it will ever pray.”

The petition was duly sworn to, and upon its being presented to the judge he entered an order granting a temporary injunction in the terms of the prayer, and a writ of injunction was issued in accordance with said order and served upon the defendant. From this order the defendant, Houston Electric Company, has duly prosecuted this appeal.

The writ of injunction- was issued and served on December 27, 1912. On January 6, 1913, the regular January term of the Fifty-Fifth district court of Harris county convened, and on the second or appearance day thereof, the defendant, Houston Electric Company, filed an answer to plaintiff’s bill, presenting demurrers and an answer upon the merits, and the filing of this answer was called to the attention of the court and counsel for plaintiff, and defendant’s counsel asked that the demurrers be then heard. This was objected to by the plaintiff’s counsel, urging in support of his objection that, under a rule adopted by and in force in that court, demurrers could be heard only on Saturdays, and upon said objection being urged the court declined to hear the demurrers at that time. The defendant then, without waiting, for its demurrers to be heard, because to do so would carry the time beyond the 15 days within which the law requires the transcript on such appeals to be filed in the Court of Civil Appeals, perfected its appeal at once to this court.

We are met in limine -with a motion filed by appellee, Glen Part Company, to dismiss the appeal herein on the ground that the appellant by filing in the district court its answer, consisting of demurrers and special pleas in bar which were also in the nature of a motion to dissolve, had waived the right conferred upon it by the statute to appeal from the order granting the temporary injunction.

We are of the opinion that the motion should be overruled, and it has been so ordered. The statute gives the unqualified right of appeal from an order granting a temporary injunction. The only limitation thrown, around the appellant is as to the time in which the record on appeal must be filed in the appellate court The law gives him 15 days from the date of the entry of record of the order granting the injunction within which to file the transcript on appeal in the Court of Civil Appeals, and when he has done this, after duly complying with the other requisites of appeal, such as giving bond, etc., the right of appeal becomes a fixed right. and cannot be defeated by any effort he may make to have the injunction dissolved in the court below. Jeff Chalson Townsite Co. v. McFaddin, 56 Tex. Civ. App. 611, 121 S. W. 717; Young v. Dudney, 140 S. W. 806.

Another question raised by the parties in their briefs is this: The appellant asserts that the appeal in this case must be determined upon the questions of law presented in plaintiff’s bill for injunction and. the defendant’s answer, while, on the other hand, the the appellee contends in effect that as the order granting the injunction appealed from was made upon the plaintiff’s verified bill alone, and as the defendant’s answer was not filed until after the injunction was granted, and therefore was not before the judge whqn the order was made, this court cannot consider the defenses presented in the answer in passing upon the questions presented'here. This matter has been passed upon by the appellate courts of this state, and is settled favorably to the contention of appellee. Jeff Chaison Townsite Co. v. McFaddin, supra; Young v. Dudney, supra. This brings us to a consideration of the appeal upon the merits.

Appellant contends that the plaintiff’s bill for injunction is insufficient in law and subject to general demurrer, because the alleged contract with McGregor to continuously operate the line of street railway in question was not one which could be enforced by injunction, but that for a breach of such contract McGregor or his assigns could only complain in an action for damages.

Plaintiff alleged, in substance, that the Houston Electric Company agreed with H. E. McGregor that if the latter would dedicate the strip of. land for a- public street for the use of the citizens of Houston, so that the electric company could, under its franchise from the city, project and extend its lines of street railway from Montgomery avenue westwardly to Plouston avenue, that in consideration of the convenience and advantage accruing to the electric company it would continuously maintain and operate thereafter a line of railway as proposed and agreed, over the streets to be dedicated for this purpose, the prime consideration being the benefit to the electric company for the easement over the street under its franchise from the city, and the consideration moving McGregor being the increased value that would accrue to his land adjacent to said street, and the increased salable value of same for subdivision purposes into lots and blocks for the purpose of sale because of the car'service; that in pursuance of this agreement the.deed of dedication had been made and recorded; that thereafter in pursuance of. said agreement the electric company did construct a line of street railway along the ■ street and has continuously operated the same to the date of filing the petition; that afterwards McGregor conveyed to plaintiff the land through which said street ran; that a part of the consideration actuating plaintiff to purchase was the contract made between Mc-Gregor and the defendant with respect to the construction and continuous operation of a line of street railway over said street; that the contract between McGregor and the defendant was and is a property right of plaintiff to which it had succeeded in the purchase of the land; that plaintiff is the successor in interest to the terms, conditions, and obligations of the defendant to McGreg- or; that in pursuance of the rights acquired by McGregor under said contract with defendant to which plaintiff succeeded by virtue of its purchase of the land, and as a part of the consideration therefor, the plaintiff had subdivided and sold lots and blocks, being a portion of the land which was benefited by the extension of the line of street railway as agreed upon by McGregor and the defendant; that this suit is brought for the benefit of plaintiff and those who have succeeded to portions of the land by purchase from plaintiff; that each and all of said parties are entitled to and have a’ property interest in said contract with defendant requiring it to continuously operate said line of street railway; that defendant had acquired permission from the city of Houston to discontinue the operation of cars over said line on said street and to remove its track therefrom; and that the defendant was about to remove its track, etc.

The general rule seems to be that a court of equity will decree specific performance only when it can dispose' of the matter in controversy by decree capable of present, performance. Ordinarily it will not decree a party to perform in specie a contract con-tin-uous in its nature or one that involves skill, personal labor, or cultivated judgment; for in such cases, if performance be decreed, the case must continue in court, and the court must from time to time determine whether the contract is being performed in accordance with the decree, or whether the skill and cultivated judgment are applied or the personal labor performed. Nor will specific performance be decreed if through want of appropriate means and instrumentalities the court is unable, while pursuing its ordinary modes of administering justice, either to render a decree or to enforce the decree when made. Marble Company v. Ripley, 10 Wall. 356, 19 L. Ed. 955; 6 Pom. Eq. § 757. Thus among those cases wherein it has been held the court cannot enforce its decree are contracts for personal service and contracts whose performance would be continuous, especially if their performance involve skill, judgment, and technical knowledge, and would require protracted supervision and direction. In Carrico v. Stevenson, 135 S. W. 260, it was held that it was clear that the court could not properly compel appellant to- perform his part of the contract, which the appellee sought to have specifically enforced, because it not only involved personal service by him, but the character of the work to be done; that is, the clearing of about 25,000 acres of land, which by the terms of the contract was to extend over a considerable period of time, with many complicated provisions regarding the details of the work, would require of the court such supervision of the work to be done by appellant as it could not properly undertake.

But in late years certain exceptions to the general rule above stated have been recognized and adopted. In 6 Pomeroy, Equity Jurisprudence, § 761, it is said: “The general doctrine that equity 'will not decree specific performance of a contract requiring continuous acts, especially if those acts involve skill, judgment, and technical knowledge, has been broken into, of late years, by an important exception in favor of certain contracts relating to the operation of railroads. In analogy to the cases mentioned in the last section, where the company, in consideration of the conveyance of lands to it, was compelled to comply with its agreement to erect certain structures for the grantor’s benefit, its reasonable agreement to maintain a station on the land conveyed for the plaintiff’s convenience, and to stop trains thereat, will be enforced, if that is consistent with the company’s larger duty to operate its road so as to promote the public convenience. But the exception has taken a much wider scope than this. Trackage and operating contracts between railroads, of the utmost complexity,, have recently been the subject of decrees of specific performance, although in making their decrees the courts have conceded that they would be called upon from time to time to alter and adopt to changing circumstances their regulations for the carrying of the de-: erees into effect during a long period of years.”

It may be stated, in this connection, that there is nothing alleged in plaintiff’s petition, the allegations of which must, upon this appeal, be taken as true, to show, or from which it may be inferred, that the continuous operation by defendant of the line of' street railway upon the street in question is at all inconsistent with the larger duty it owes to operate its railway system so as to better the public convenience.

In Taylor v. Florida E. C. Ry. Co., 54 Fla. 635, 45 South. 574, 16 L. R. A. (N. S.) 307, 127 Am. St. Rep. 155, 14 Ann. Cas. 472, the Supreme Court of Florida held that where the owner of a hotel conveys land to a railroad company upon which to construct its main line, a spur track, and depot, under an agreement by the railroad company to maintain the spur track and depot to a point near the grantor’s hotel, and to' operate all its regular passenger trains upon the spur track to the depot during certain seasons of the year; and it appeared that a controlling consideration for the conveyance was the maintenance of the spur track and depot thereon and the operation of passenger trains over the spur to the depot, which would be peculiarly beneficial to the grantor’s hotel property and business; and extensive improvements of the hotel property were made upon the faith of the agreement to maintain the spur and depot and to operate the trains as stated — such agreement may be specifically enforced in equity, unless such enforcement will directly, materially, and injuriously affect the rights of the general public. Atlanta & W. R. Ry. Co. v. Camp, 130 Ga. 1, 60 S. E. 177, 15 L. R. A. (N. S.) 594, 124 Am. St. Rep. 151, 14 Ann. Cas. 439, was a suit to compel specific performance of a contract to maintain a station at a particular point. The court said: “Such a contract is enforceable against the railroad company so long as it is possible for the company to discharge the duties owed by it to the public, and, at the same time, discharge the duties incumbent upon it by the contract. Whenever the time arrives that it is hampered in the discharge of its duties to the public by its undertaking under the contract to establish the station, the station may be abandoned, notwithstanding the contract, as it is to be presumed that the parties to the contract entered into the same with full knowledge of the duty of the railroad company to subordinate private interests, under contracts made by it, to the public rights, whenever there is a conflict between the same. But in a given case it is incumbent upon a railroad company, before it could be discharged from a contract to locate a station, 'to establish satisfactorily that there has arisen such a conflict between its public duties on the one hand, and its duties under the contract on the other, that it is impossible for it to discharge the former without entirely abandoning the latter.” See, also, Lawrence v. Saratoga L. Ry. Co., 36 Hun (N. Y.) 467; Lindsey v. Great Northern Ry. Co., 10 Hare, 664; Hood v. N. E. Ry. Co., L. R Eq. 666; City of Tyler v. St. L. & S. W. Ry. Co., 99 Tex. 491, 91 S. W. 1, 13 Ann. Cas. 911; Lone Star Salt Co. v. Texas Short Line Ry. Co., 86 S. W. 362, and authorities cited.

No conflict between the duties the defendant owed the public and its obligation to perform the alleged contract with plaintiff is shown in plaintiff’s petition, which is the only pleading to which we may look in dé-ciding this appeal, and we are therefore constrained to overrule the proposition of appellant under consideration.

By its second proposition appellant contends that the prayer for injunction was insufficient in law and subject to general demurrer because the plaintiff showed no privity of contract with the defendant or any valid assignment of the alleged contract with McGregor which would authorize it to maintain this suit.

This proposition raises a question of much difficulty. It is true that the petition, after alleging the contract and the execution by McGregor of the deed of dedication, further alleges that the rights- acquired thereby by McGregor were property rights, and that the plaintiff had succeeded to them by virtue of its purchase of the land. These allegations are not allegations of fact, but conclusions of law, based solely on plaintiff’s purchase of the land from McGregor. The habendum clause in the deed from McGregor to plaintiff is as follows: “To have and to hold' the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said Glen Park Company, its successors and assigns forever.”

Conceding that the petition sufficiently shows that McGregor had an enforceable right to have the defendant continuously operate a line of street railway upon the street in question as long as he owned the land, did this right pass to plaintiff by the execution of the deed to it' by McGregor? If so, it was because the right was an appurtenance under the clause above quoted. Just what fights, privileges, and easements pass as an appurtenance has often been the subject of judicial discussion. In Hills v. Miller, 3 Paige (N. Y.) 254, 24 Am. Dec. 218, Bostwiek, the owner of a tract of land, conveyed the same to Miller, and at the same, time entered into bond conditioned that a certain triangular piece of land across the street and belonging to Bostwiek should never be built upon by Bostwiek or any one claiming under him. Six years afterwards Miller conveyed, the tract purchased by him to Hill. Hill alleged that Miller, had told him of the land, and that the keeping of the triangular lot free from buildings was the inducement to him to buy. Eight years thereafter, the trustees of a church, desiring to enlarge their building bordering on the triangular tract, obtained a deed to 12 feet thereof from Miller and the heirs and representatives of Bost-wick, then deceased, and proceeded, against Hill’s objection, to extend the building. Hill, to prevent this, sued out an injunction. In deciding the case the court says: “If such a privilege (to have the triangular lot remain free from building) did increase the value of the property or render its possession more desirable, either in reference to its present or future use for village lots, the legal presumption is that the purchaser took that privilege into account in deciding upon the expediency of taking the property at the price he concluded to give. The complainant is therefore equitably entitled to the benefit of the stipulation in the bond, so far as is necessary to secure him the privilege, as an appúrtenant to that part of the premises.” The following cases bear more dr less directly upon the point under discussion: Toyaho Creek Irr. Co. v. Hutchins, 21 Tex. Civ. App. 274, 52 S. W. 105; Kamer v. Bryant, 103 Ky. 723, 46 S. W. 16; Fayter v. North, 30 Utah, 156, 83 Pac. 742, 6 L. R. A. (N. S.) 410; Sloan v. Glancy, 19 Mont. 70, 47 Pac. 334; Spencer v. Kilmer, 151 N. Y. 390, 45 N. E. 865.

But we think we can rest our decision of this case upon the rule of “balance of convenience.” This rule, as stated in 1 Joyce on Injunctions, § 25, is: “Where the rights of the parties are at all doubtful, the court applied to for an injunction should look at the balance of convenience, and act upon the consideration of the comparative inconvenience which may arise from granting or withholding the injunction.” “In this connection,” says the author, “it is said in a recent case: ‘In a doubtful case, where the granting the injunction would, on the assumption that the defendant ultimately will prevail, cause greater detriment to him than would, on the contrary assumption, be suffered by the complainant, through its refusal, the injunction should usually be denied. But where, in a doubtful' case, the denial of the injunction would, on the assumption that the complainant ultimately will prevail, result in greater detriment to him than would on the contrary assumption be sustained by the defendant through its allowance, the injunction usually should be granted. The balance of convenifence or hardship ordinarily is a factor of.controlling importance in cases of. substantial doubt existing at the time of granting or refusing a ..preliminary injunction.’ ” This rule is quoted with approval by this court in Jeff Chaison Townsite Co. v. McFaddin, Wiess & Kyle, 56 Tex. Civ. App. 611, 121 S. W. 720, and applied in Matagorda Canal Co. v. Markham Irr. Co., 154 S. W. 1176. In the McFaddin Case, after quoting the -rule, it is said: “And it has been held In this connection that damage to others, not parties to the suit, may be considered in a doubtful ease.”

The injunction applied for in this case will not have the effect to change or restore a status, but to continue the status as it was at the date the injunction was granted. There is nothing in the petition from which it can be inferred that damage will result to the defendant by the continuance of the operation of the line of street railway over the street in question during the interval between the granting of the injunction and a trial of the case on the merits, while it is clearly inferable that serious damage would result to the plaintiff and its vendees should the operation of the railway be discontinued during said time. Again, it seems to us that the application of the rule above - stated would not only not result in harm to the defendant, but might result directly to its benefit, in this: In case the injunction had been denied, and defendant had proceeded, at great expense, to remove its track, and after-wards, on final trial, it should be held that the injunction was improperly denied, and under a mandatory order of the court appellant should be compelled to rebuild its track and to resume the operation of its street cars thereover, here damages would not only result to the plaintiff and to its vendees due to the suspension of operation, but would directly result in great cost to defendant in the removal and restoration of the track which should not have been disturbed in the first place.

We have examined the other propositions urged by appellant for a reversal and have concluded that none of them presents reasonable grounds for disturbing the order appealed from, and the judgment granting the injunction is affirmed.

Affirmed.


author: DUNKLIN, J.

text:
    SOWDER et al. v. NORTH TEXAS STATE BANK.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 15, 1913.
    Rehearing Denied April 19, 1913.)
    Subrogation (§ 14) — Discharge ox Obligations.
    Where a purchaser of personal property, as part of the consideration, paid off a chattel mortgage intending to discharge it, he is not, where another chattel mortgagee sought to subject the property to his lien, entitled to be subrogated to the lien of the original mortgage; it having been discharged with intention to release the lien.
    [Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 35-39; Dec. Dig. § 14.]
    . Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    Action by the North Texas State Bank against R. C. Sowder and another. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    W. P. Ellison and M. M. Park, both of Dallas, and Mike E. Smith, of Ft. Worth, for appellants. R. J. Rhome and Spoonts, Thompson & Bar wise, all of Ft Worth, for appellee.

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

   DUNKLIN, J.

This appeal is by Charles Hodges and R. C. Sowder from ,a judgment rendered against them in favor of the North Texas State Bank for a conversion of certain personal property upon which the bank claimed a lien. The ease was tried without a jury and the trial judge has filed findings and conclusions as follows:

“(1) On September 29, 1909, the defendant Sowder made, executed, and delivered to the plaintiff bank his promissory note in writing in the sum of $4,000 due six months after-date, with interest at the rate of 10 per cent, per annum from maturity of note, providing for an additional amount of 10 per cent, on principal and interest as attorney’s fees if the note should be sued on and placed in the hands of an attorney for collection. On October 15, 1909, the said Sowder executed another note to the said bank in the sum of $2,000 due in 60 days from date, bearing 10 per cent, interest from maturity, and having the same provision as to attorney’s fees as the note above. That on March 3, 1910, there was paid on the $2,000 note the sum of $1,500. That on March 26, 1910, there was paid on the $4,000 note above the total sum of $245. The total amount of principal, interest and attorney’s fees due at the date 'of the judgment (March 9, 1912) is $887.03 on the $2,000 note, and $4,944.72 on the $4,-000 note. It was admitted that the attorney’s fees on the note were recoverable as a part of the debt. All securities have been sold by plaintiff and applied as credits on the two notes, leaving a balance as above stated.
“(2) Contemporaneous with the execution of the $4,000 note and as a part of the transaction, defendant Sowder made, executed, and delivered .to plaintiff bank a chattel mortgage lien for the purpose of securing said note on certain barber shop fixtures, supplies, and equipment then owned by said Sowder, situated' in the city of Dallas, Dallas county, Tex., and which was known as the Southland Hotel Barber Shop in said city of Dallas. That this mortgage was forthwith filed and deposited with the county clerk of Dallas county, Tex., for registration, said mortgage being a valid one, and registered in Dallas county on September 23, 1909, and that the said bank loaned to the said Sowder the $4,000 represented by said note, which was paid to said Sowder in cash, and that as a part of the transaction in which the $2,000 note above mentioned was given to said Sowder, made, executed, and delivered -to the plaintiff bank on October 15, 1909, a chattel mortgage lien on eer-tain, barber shop fixtures and equipment .situated in the city of Dallas, Dallas county, Tex., and being known as the Wilson Building Barber Shop in said city, and said mortgage lien so given was forthwith registered by said plaintiff bank in the office of the clerk of the county court of Dallas county, Tex., to wit, on October 16, 1909, so as to constitute a valid mortgage. That said $2,-000 note represented- a loan of that amount paid by the plaintiff to the said Sowder in cash. Said .mortgages, as aforesaid, each provided that if the indebtedness therein described is paid at or before its maturity then the instrument is to be void, but in case the indebtedness is not paid at its maturity, or if the property be removed, then the holder of the indebtedness is authorized to seize and take the property into his possession wherever it may be found, which .the mortgagor binds himself to deliver and the mortgagee is authorized to sell, convey, and deliver the property to the purchaser at such sale, and said mortgages provide for either public or private sale, and with or without notices; then the proceeds of such sale shall be applied to the payment of the note described, and of the surplus to the mortgagor, or at the election of the holder of the note, such surplus shall be paid on any other liability or indebtedness held by the holder of the note secured and owed by the mortgagor. And I find that the defendants Lapham and Hodges had both actual and constructive notices of the existence of said mortgages executed by the said Sowder in favor of the said plaintiff, and at the time they became the purchasers of the property. Said mortgages contained covenants of general warranty as to title. Plaintiff did not know of any liens on said property when it made the loans, but after investigation believed its liens were first and only-liens, and, so believing, made the loans on the strength of the mortgages.
“(3) I find that on or about February 10,. 1910, the defendants Ohas. Hodges and T. B. Lapham purchased the property in the two barber shops above mentioned, and on which plaintiff bank had a lien as aforesaid, at the total price of $1.0,053.50 and took proper conveyances thereof from said Sowder, and have since that time continued in the possession of the said property as aforesaid, claiming to own and hold the same as owners thereof by the purchase from said Sow-der, and in repudiation of the liens thereon of plaintiff bank, and not recognizing said liens of said bank, nor any right of said bank to or in said property. That the property known as the Southland Hotel Barber Shop, at the time of the purchase and conversion thereof by the said defendants Hodges and Lapham, was of the value of $6,500. That the property known as the Wilson Building Barber Shop purchased by said Hodges and Lapham, on said date, and when converted, was of. the value of $7,000. That a large portion of the fixtures of each said shops has been taken therefrom and disposed of by the defendants Lapham and Hodges and without the knowledge or consent of plaintiff, and shipped out of Texas by said defendants.
“(4) That the said property was paid for by the said Hodges and Lapham when purchased from Sowder as aforesaid in this way:. Said Hodges and Lapham agreed to. pay to S. Loveless the amount of a certain note executed by Sowder to Loveless of date October 28, 1909, in the principal sum of $4,500, which, with interest and attorney’s fees added at the date of the purchase by Lapham. and Hodges from Sowder, aggregated $5,204.-70. This amount was secured by chattel mortgage lien given by Sowder to Loveless-on the Wilson Building Barber Shop, which note and mortgage was dated October 28,. 1909, but which mortgage was not registered with the clerk of the county court of Dallas-county until November 8, 1909. Defendants-Lapham and Hodges agreed to pay, and. did pay, an indebtedness in the sum of $3,848.65-then owed by the said Sowder to the First State Bank of Dallas. This indebtedness-was made up of two items, to wit: $1,125, which was the principal sum of $1,025 and $100 interest, and secured by chattel mortgages lien on the Wilson Building Barbershop, but given and recorded subsequent to-the Loveless lien and subsequent to the lien in favor of the plaintiff bank. The other-.item was $2,731.35, and represented the principal sum of $2,600 and interest in the sum-of $131.35. This $2,600 note so held at that time by the First State Bank of Dallas was a. note that had been executed by one P. Q-. ■Cameron to one T. J. Addison on July 12,. 1909, and secured by chattel mortgage lien’ given by the said Cameron to the said Addison at said time on the Southland Hotel Barber Shop, and which • said chattel mortgage lien was forthwith registered with the-county clerk of Dallas county, Tex., and was-a valid and subsisting lien on said -property up until its payment to said bank as hereinafter shown, and until that time was the-superior lien on said property as between it and the said lien of the said plaintiff bank as aforesaid. The difference between the aggregate of the aforesaid sum so paid out by Lapham and Hodges, and the total purchase-price of the property, has never been finally settled as between the said Lapham and' Hodges and said -Sowder; but the said Lapham. and Hodges had charged up against the said Sowder certain amounts in the -way of taxes on said property, unpaid bills, etc., in the sum exceeding the difference between the amounts paid out by Lapham and Hodges add the amounts agreed by them to be paid for said property, and which said amounts Lapham and Hodges agreed to pay at the-time of the making of their trade with Sow-der on or about February 10, 1910.
“(5) I find that there was presented to Lap-ham and Hodges at the time of their par-chase from Sowder of said property a forged release of the liens of the plaintiff bank as aforesaid. Said Sowder also, at the time of said train, represented to Lapham and Hodges that said liens were paid off, and that there were no incumbrances against said property other than the ones that said Lapham and Hodges- agreed to pay off and did pay off a part of the purchase money for said property. But the agreement between Hodges and Lapham, on the one side, and Sowder, on the other, as well also as between these parties and Loveless and the First State Bank of Dallas, was that the said amount should be paid off, and discharged and canceled, and there was no agreement or understanding that the Loveless lien or the First- State Bank liens should be transferred or assigned or kept alive. Said Loveless and said First State Bank executed releases at the time of the payments to them of their liens, and reciting the payment in full of their debts respectively, and that it was the intention of all parties to said transactions that said debts would be paid, fully liquidated, and discharged. I find further that Lapham and Hodges believed the statements made by said Sowder as to the said incumbrances, and relied on the same; that they had an attorney to examine the records of Dallas county, and who reported to them that there were no liens against the property except the ones of the First State Bank and the Loveless lien, and said Lapham and Hodges also relied on the release of the liens of plaintiff bank as being genuine and not forged, but such release was forged and not genuine.
“(6) I further find that on September 15, 1909, S. Loveless owned the Wilson Building Barber Shop; that he on that date entered into a written contract with defendant Sow-der to sell him the shop, and Sowder then paid the sum of $500 to Loveless as part of the purchase money, with the understanding that the balance of the purchase money was to be paid in cash by October 1, 1909; that Sowder did not appear on October 1st, and the matter was carried along until the 28th of October, when the trade was comsum-mated, and, instead of paying the entire balance due in cash, Sowder executed to Loveless his note for $4,500, the total consideration to be paid by Sowder to Loveless being $7,000. The note so given by Sowder to Loveless was secured by chattel mortgage lien on the Wilson Building Shop. But this mortgage was not registered with the county clerk of Dallas county until the 9th of November, 1909, and this note and lien is the one referred to as having been paid off and discharged by Lapham and Hodges at the time of their purchase from Sowder as before herein stated.
“Conclusions of Law.
“1. I conclude as a matter of law that the lien of the plaintiff bank on the Wilson Building Barber Shop is superior to that created by the lien given by Sowder to Loveless on October 28, 1909, for the reason that the Loveless lien was not registered for 12 days after the same was given but held by him.
“2. I conclude that Hodges and Lapham are not entitled to resist the lien of the plaintiff bank o.n the Southland Hotel Barber Shop by reason of having paid off the $2,600 with interest to the First State Bank, for the reason that it was the intention and the agreement of all the parties to that transaction to pay off and discharge that indebtedness and lien, and, such being true, there was no subrogation in favor of Lapham and Hodges as to said lien and indebtedness.
“Judgment is therefore now entered in favor of plaintiff bank against the defendant Sowder for the entire amount due on said note, and against the defendants Lapham and Hodges as -for conversion of the mortgagee’s property and to the extent of $5,831.75, together with interest thereon in favor of the plaintiff as against the defendant R. C. Sowder at the' rate of 10 per cent, per annum, and together -with interest on said sum in favor of the plaintiff as against the defendants Charles Hodges and T. B. Lapham at the rate of 6 per cent, per annum.”

Many assignments of error are presented to the conclusions of fact and law so found; but, after a careful examination of the record, we are of the opinion that the findings of fact are supported by the evidence and that the conclusions of law and the judgment rendered are correct

•We therefore overrule all assignments of error, adopt the finding and conclusions of the trial court, and affirm the judgment.


author: RASBURY, J.

text:
    TEXAS MIDLAND R. R. v. MONROE.
    (Court of Civil Appeals of Texas. Dallas.
    March 29, 1913.
    Rehearing Denied April 19, 1913.)
    1. Negligence (§ 65) — '“CONTRIBUTORY Negligence” — What is.
    “Contributory negligence” is such an act or omission on the part of the person injured amounting to an ordinary want of care as, concurring or co-operating with the negligent act of the wrongdoer, is the proximate cause or occasion of the injury complained of.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 83, 94; Dec. Dig. § 65.

    For other definitions, see Words, and Phrases, vol. 2, pp. 1549-1547; vol. 8, p. 7617. J
    2. Oabriebs- (§ 337) — PASSENGERS—INJURIES TO PASSENGEES — CONTBIBUTOET NEGLI--GENOE.
    A passenger, who asked the'conductor for permission to see the latter’s automatic pistol, and who took the pistol, which was subsequently returned to the conductor, is not guilty of negligence per se, and his act does not preclude a recovery for injuries sustained in consequence of the conductor causing the pistol to be discharged.
    ÍEd. Note. — For Other cases, see Carriers, Cent. Mg. § 1387; Dec. Dig. § 337.]
    3. Carriers (§ 346) — Passengers—Injuries to Passengers — Contributory Negligence.
    A passenger asked a conductor for permission to see his automatic pistol. The conductor handed the pistol to the passenger, and the conductor on receiving it again demonstrated the safety attachment, and while so doing he pulled the trigger, causing the pistol to discharge, injuring the passenger. The conductor pulled the trigger under the misapprehension that he had removed the cartridges. Held, that the passenger was not guilty of contributory negligence, but that the accident was the result of the conductor’s negligence.
    [Ed. Note. — For other cases, see Carriers, Cent Dig. § 1401; Dec. Dig. § 346.]
    4. Carriers (§ 337) — Injuries to Passengers — Contributory Negligence — Assumption oe Risk.
    A passenger, who subjects himself to a known danger arising from the negligence of the conductor, or one reasonably to be expected, is guilty of contributory negligence, and he does not assume the risk incident thereto.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1387; Dec. Dig. § 337.]
    5. Carriers (§ 323) — Injuries to Passengers — Assumption oe Risk.
    The rule of assumed risk does not apply between carrier and passenger unless it be the risks of accidents not arising from the negligence of the carrier.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1346; Dec. Dig. § 323.]
    6. Carriers (§ 283) — Injuries to Third Persons — Liability op Master.
    A conductor, who, in anticipation of trouble with passengers who had in the past insisted on riding without paying their fare, armed himself with a pistol with a view of enforcing the rules of the carrier, acted within the scope of his employment, and he was chargeable, in the exercise of a high degree of care, with the duty of protecting the passengers from all danger that might reasonably result from his use or handling of the pistol, and where he was negligent in handling the pistol, resulting in injury to a passenger, the carrier was liable, though the passenger requested the conductor to exhibit the pistol for inspection.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1119-1124, 1140, 1141; Dec. Dig. § 283.]
    Appeal from District Court, Hunt County; R. L. Porter, Judge.
    Action by J. H. Monroe against the Texas Midland Railroad. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Henry C. Coke, of Dallas, Dashiell, Crum-baugh & Coon, of Terrell, and S. W. Marshall, of Dallas, for appellant. Looney, Clark & Leddy, of Greenville, for appellee.

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

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

   RASBURY, J.

Appellee sued appellant for damages for personal injuries alleged to have been received on the cars of appellant at the hands of appellant’s conductor while the conductor was exhibiting his pistol to appellee and another passenger, and which he negligently discharged, thereby wounding ap-pellee in the leg and causing him the injury and suffering claimed in his pleading. The appellant pleaded that if appellee was injured he contributed thereto for the reason that said pistol when discharged was being exhibited to appellee upon his specific request that the conductor demonstrate its mechanism; and further that the appellee assumed the risks incident to such demon-tration. By supplemental petition appellant alleged that if he did request appellee to demonstrate the mechanism of the pistol, which was denied, he nevertheless was unaware that the pistol was loaded, while the conductor by the exercise of reasonable care could have ascertained such fact, and that his failure to do so and the pointing of this pistol toward appellee was negligence. The case was tried by jury, and verdict was for appellee for $3,000, followed by judgment of the court accordingly, from which the appeal is taken.

The material facts upon which the suit is based disclose that appellee is a traveling salesman and at the time of his injury was a passenger upon appellant’s cars en route from Greenville to Cooper; that when ap-pellee boarded the cars at Greenville, Ed Riley, of that place, also became a passenger; that appellee and Riley desired to discuss some business matters and one or the other asked permission of the conductor on the train to enter the rear coach of the train which was locked and contained no passengers, which was granted and the coach door unlocked by the conductor; that some time after appellee and Riley entered the coach the conductor also entered, and whereupon appellee either inquired of the conductor concerning an automatic pistol which appel-lee knew the conductor owned, or the conductor inquired of appellee if he had bought for his own use a similar one (appellee testifying that the conductor introduced the subject of the pistol, while the conductor and Riley testified that appellee did so); that the conductor, who was armed with the pistol in anticipation of trouble with passengers who had refused to pay fare, informed appellee he did have the pistol; that either appellee or Riley requested permission to see it, and whereupon the conductor, who at this point was on his knees in the seat immediately in front of Riley and appellee, took the pistol from his pocket and handed it to appellee, so the conductor and Riley testify, but which is disputed by appellee, who testified that he handed it to Riley; that the conductor either before handing the pistol to appellee or Riley, or after receiving same back from them, thought he had removed the clip containing the cartridges or had attempted to do so ; that after the examination by appellee and Riley, the conductor, according to appellee’s testimony, volunteered to demonstrate how the safety on the pistol, which was an “automatic,” operated, while, according to tire conductor and Riley, appel-lee inquired of the conductor how the “safety worked,” and whereupon the conductor, according to Riley, and which' the conductor does not dispute, with the pistol in his hand, said, “When the safety is in this position you can’t fire it,” and pulled the trigger to show it would not snap, and then remarked, “When it (the safety) is not in position— ” but before finishing the sentence the pistol exploded and injured appellee. Appellee’s version of the accident is that the conductor merely remarked, “Here is the way she works,” and then the explosion resulted, while the conductor’s theory is that, while his finger was on the button which “worked” the safety, his hand slipped, and he accidentally pulled the trigger. It is conceded by all the witnesses that the most that was requested or volunteered was a demonstration of the safety, and that the operation or demonstration of the safety is wholly disconnected with the trigger of the pistol, and that the mechanism which works the safety does not and cannot fire the pistol.

The first assignment of error asserts that the court erred in refusing to submit to the jury that if appellee requested the conductor to demonstrate the operation of the safety upon the pistol and appellee was injured while such demonstration was in progress, such request would constitute contributory negligence and bar a recovery by appellee. The court below did decline to submit to the jury the issue of contributory negligence. “Contributory negligence in its legal significance is such an act or omission on the part of plaintiff, amounting to an ordinary want of care, as, concurring or cooperating with the negligent act of the defendant, is the proximate cause or occasion of the injury complained of.” 29 Cyc. 505. Again, “by contributory negligence is meant some negligent act or commission on the part of the plaintiff, which, concurring or co-operating with some negligent act or commission on the part of the defendant, is the proximate cause of the injuries complained of by the plaintiff.” Railway Co. v. Casseday, 92 Tex. 525, 50 S. W. 125; Martin, Wise & Fitzhugh v. Railway Co., 87 Tex. 117, 26 S. W. 1052; Railway Co. v. Anchonda, 33 Tex. Civ. App. 25, 75 S. W. 557. Under the rule quoted and supported by the cases cited, and the refusal of the court below to charge on contributory negligence, our duty narrows to ascertaining whether the testimony discloses any facts or circumstances from which the jury could have found .that the alleged negligence of appellee did contribute to his injury. We think there was no negligence on the part of appellee in asking to be shown the pistol. The taking in hands of a pistol cannot be said to be ipso facto negligence. The daily use of dangerous agencies, such as electricity, is attended with danger, and when properly installed it cannot reasonably be said that its use is negligence per se. The accident complained of here illustrates what we are trying to say when it is considered that the pistol, loaded as it must have been, passed through the hands of both appellee and the witness Riley without resultant trouble back into the possession of the conductor. This we think disproves the claim that it was negligence to ask the conductor to merely exhibit the pistol, since, if this had ended the matter, no injury would have resulted. Then did the request of ap-pellee, as testified to by the conductor, to show him how the safety worked, constitute negligence on the part of appellee? We take the view of the trial court that it did not. The safety, as we gather from the testimony, has nothing whatever to do with the process of firing the pistol, but, on the contrary, is an attachment to prevent it. Appellant’s conductor in his testimony makes clear the fact that demonstrating the safety attachment is not an act of negligence when he states that the pistol could not be fired when the safety was up, and says that, presuming the pistol was not loaded, he pulled the safety down, remarking, “All you got to do in order to cut down is to pull the trigger,” which he did, and whereupon the gun exploded. It is clear that the conductor intended to pull the trigger when he did; in fact, he frankly says as much, but did so under the misapprehension that he had removed the cartridges from the cylinder or clip. He also says he could have demonstrated the use of the safety without pulling the trigger, meaning, we presume, by moving it “up” and “down,” to use his expression; but, evidently intending to demonstrate how the firing mechanism also worked, he pulled the safety down while the pistol was cocked and remarked ■ that all that was necessary to do in order to “cut down,” meaning, we presume, to shoot, was to pull the trigger, which he did. Hence the negligence, as we see it, was the pulling of the trigger when the pistol was loaded, and not the operation of the safety as requested by appellee. That the operation of the safety in no sense contributed to the negligence of the conductor in pulling the trigger is, we think, clear. If the conductor had pointed the pistol in ap-pellee’s direction, knowing it to be loaded, and fired, it would not be contended that appellee in any sense contributed to his injury by'the request that he demonstrate the working of the safety. The only difference in the situation we have described and the one disclosed by the evidence in the instant ■case is that here the conductor thought he had removed the cartridges from the cylinder of the pistol, but had negligently failed to do so. While it was an unfortunate accident and wholly unintended by the conductor, nevertheless it-cannot be said that what he did was due to any negligence of the ap-pellee. It follows that we are of opinion that the assignment should be overruled.

The second assignment of error advances the proposition that the court erred in refusing to submit to the jury the issue that appellee assumed the risk of being shot when he requested the conductor to operate the safety for his instruction. In reference to-this assignment it is sufficient to say that if the appellee subjected himself to a known danger arising from the negligence of appellant’s conductor, or one reasonably to be expected, when he requested the conductor to •operate the safety Upon the pistol, it would ■be contributory negligence rather than an assumption of the risk incident thereto. Railway Co. v. Patillo, 45 Tex. Civ. App. 572, 101 S. W. 492.

Further, it may be safely said that the rule of assumed risk has no application between carrier and passenger unless it be “the risks of all accidents not arising from •any negligence of the defendant.” Herring v. Railway Co., 108 S. W. 977. Hence, in our opinion, and in consonance with what we have said in reference to appellant’s -first ■assignment of error, the evidence did not .authorize the submission of the issue of assumed risk.

The third assignment of error asserts that the court below erred in refusing to charge the jury that, when the conductor was demonstrating the safety attachment of the pistol at the request of the appellee, he was acting without the scope of his employment, and that as a consequence the appellant was not liable for the resultant accident and injury to appellee.

It is settled law in this state that carriers of passengers are not responsible for wrongs done to passengers by servants acting in their own interest and not in that of the employer. Railway Co. v. Bush, 133 S. W. 245, 32 L. R. A. (N. S.) 1201. It is •equally well settled that it is also the duty ¡of the .carrier to protect its passengers, in so far as it may be done by the exercise, of a high degree of care, from the violence and insults of its servants, other passengers, and strangers. Railway Co. v. Luther, 40 Tex. Civ. App. 517, 90 S. W. 44. The facts in the instant case, however, are dissimilar to any we have been able to find in any case from -our own courts. The accidental shooting of appellee was not an assault or violence in the sense that those terms are ordinarily used in the adjudicated eases. It does-appear,'however, that the conductor, in anticipation of trouble with passengers who had in the past insisted upon riding in appellant’s ■ cars without paying the fare therefor, armed himself with a pistol, and that when he did •so it was to enforce the rules and regulations of appellant, and that he was to that extent acting within the scope of his employment. We also think that when he thus armed himself he was charged in the exercise of a high degree of care with the duty of protecting his employer’s passengers from all danger that might reasonably result from his use or handling of the pistol in the same manner that he is required to protect them in all other respects. The evidence sustains the charge of negligence in the handling of the pistol, and, since the conductor was armed with the pistol in order to protect himself in the discharge of the duties of his employment, it results as a corollary that such negligence shall be attributed to his employer, unless, as appellant sought to have the court below- instruct the jury, the shooting was an accident not arising from any negligence of the appellant and the risk of which appellee assumed. As stated at another place in this opinion, the testimony was not of such character as, in our opinion, to" bring the acts of the conductor within the rule stated. For the reasons stated above, the third assignment will also be overruled.

The judgment of the court below is affirmed.


author: CONNER, C. J.

text:
    McGAFF v. SCRIMSHIRE.
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 1, 1913.
    Rehearing Denied March 22, 1913.)
    1. Appeal and Eeeob (§ 548) — Questions Reviewable — Suppiciencx ox Evidence — Statement op Facts.
    •In the absence of a statement of facts, assignments raising the insufficiency of the evidence to support the judgment must be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    2. Dandlobd and Tenant (§ 209) — Obligation op Tenant — Subleasing—Defect.
    A tenant who makes a sublease is not thereby released from his obligation to return the property, on the expiration of the lease, in as good condition as he received it, ordinary wear and tear alone excepted, where the landlord did not consent to the sublease, or where the sublease was not made with any agreement on the landlord’s part that the tenant should he released.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 832-834;. Dec. Dig. § 209.]
    3. Landlobd and Tenant (§ 160) — Failuee to Retubn Property on Expiration op Lease — Damages.
    Where a tenant, obligated to return the property on the expiration of the lease in as good condition as he received it, ordinary wear and tear alone excepted, received the possession of an engine worth $400, and the engine, when returned by him, .was worth $300 less, the landlord was damaged in the amount of the depreciated value.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent Dig. §§ 612-626; Dec. Dig. § 160.]
    Appeal from Tarrant County Court; Chas. T. ■ Prewett, Judge.

      Action by W. B. Scrimshire against O. P. McGafiC. Erom a judgment for plaintiff:, defendant appeals.
    Affirmed.
    Morris Rector and Poulter & Johnson, all of Et. Worth, for appellant. Baskin, Dodge & Eastus, of Ft. Worth, for appellee.

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

   CONNER, C. J.

We hardly think it neces-ary to discuss appellant’s assignments specifically, believing as we do that a general disposition will be sufficient.

There is no statement of facts, and it is therefore clear that all assignments urging the insufficiency of the evidence to support the judgment must be overruled, for the reason that we have no means of determining, other than from the court’s findings, what the evidence was. v

There is no basis in the court’s findings of fact for the contention that, inasmuch as appellant had leased the premises in controversy to Pittinger, the former must be released; for nowhere in the findings does it affirmatively appear that appellee consented to such sublease of the premises, nor does it appear in such findings that the sublease was made with any understanding or agreement on appellee Serimshire's part that appellant was to be released from the original obligation alleged and shown to return the property upon the expiration of the lease in as good condition as he received it, ordinary wear and tear alone excepted.

Nor can it be said from the court’s findings that it does not sufficiently appear that appellee was damaged, or that the amount of the damages is not sufficiently specific. The court finds that at the time of the delivery to appellant of the engine in controversy it was of the reasonable market value of $400, but that at the date of its return it was of a reasonable market value of $300 less. It necessarily follows as a legal consequence that appellee was damaged, and damaged in the amount of the depreciated value as found by the court; it being a well-recognized principle that “Id certum est quod certum reddi potest.” This certain damage so found by the court was within the appellant’s contract, and for which he was therefore liable.

No other suggestion requiring discussion occurs to us, and the court’s conclusions of fact and law are therefore adopted, and the judgment is affirmed.


author: REESE, J.

text:
    McKNIGHT v. LANGE MFG. Co. et al.
    (Court of Civil Appeals of Texas. Galveston.
    April 4, 1913.)
    1. Principal and Surety (§ 100) — Building Contract — Change of Terms — Discharge of Surety.
    Where a contract in the construction of a building provided that plaintiff should pay the subcontractor 85 per cent, of the estimates as the work progressed and retain 15 per cent, to secure fulfillment of the contract, and before any work was done the subcontractor informed plaintiff that he was financially unable to do the work, and plaintiff thereupon agreed to make advancements for necessary material and pay weekly pay rolls, which advancements exceeded the contract price, such substituted agreement constituted a material alteration in the contract, to the prejudice of the subcontractor’s sureties, and discharged them from liability.
    [Ed. Note. — For other cases, see Principal and Surety,. Cent. Dig. §§ 152-165; Dec. Dig. § 100.]
    2. Principal and Surety (§ 100) — Discharge oe Surety — Alteration of Contract-Defenses.
    Where the terms of payment to a subcontractor were materially changed, the fact that excessive payments made to the subcontractor pursuant to such change were necessary to enable him to complete the work, and that it would liave been otherwise impossible for him to have done so, was immaterial.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 162-165; Dec. Dig. § 100.]
    Appeal from District Court, Washington County; Ed. R. Sinks, Judge.
    Action by J. F. McKnight against the Lange Manufacturing Company and others. Judgment for plaintiff for a part only of the relief demanded, and he appeals.
    Affirmed.
    W. W. Searcy, of Brenham, for appellant. ■Mathis, Buchanan & Rasberry, of Brenham, for appellees.

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

   REESE, J.

J. F. McKnight, having a contract for the erection of a city hall building in the city of Taylor, entered into a contract with Wm. Lange, who did business under the name of the Lange Manufacturing Company, for furnishing the material and doing certain of the work on said building. At the same time the said manufacturing company, with Robert Striekert and J. S. Williams as sureties, executed a bond to McKnight in the penal sum of $600 for the faithful performance of the work by Lange Manufacturing Company. Alleging a breach' of said contract and bond, by which he-was damaged in the sum of $653.90, McKnight instituted this action in the district court against the manufacturing company and Striekert and Williams, in which he seeks to recover the entire amount of the principal and $600, the amount of the bond, of the sureties. The case was tried with a jury. The court instructed the jury to return a verdict for the sureties (on the ground that they had been discharged by a material change in the contract by agreement between the plaintiff McKnight and the Lange Manufacturing Company without the consent of the sureties), and submitted the issue of liability of the manufacturing company. The jury returned a verdict for the sureties, as directed, and against the manufacturing company for $300. The plaintiff made a motion for a new trial, which was overruled, and prosecutes this appeal, wherein he complains of the judgment in favor of Strickert and Williams, the sureties. The only question presented by the appeal is the correctness of the peremptory instruction to the jury to return a verdict in favor of Strickert and Williams, the- sureties, which' depends upon the proposition ■ that, under the undisputed evidence, -thfere' had been such a material change in .the contract, by agreement between appellant and thevLange Manufacturing Company, without the consent of the sureties, as to discharge and release them from liability on the bond. 1; •

By.the terms of the contract between appellant and Lange, appellant was .to pay $1,800 for the work, payments to be made on semimonthly estimates; 85 per cent, of such estimates to be paid then and 15 per cent, to be paid on the completion of the work and cpmpliance with the terms of the contract. The bond was in the usual form, in the penal sum of $600, conditioned that the Lange Manufacturing Company should comply with the terms of the contract. No question is made on this appeal by appellees that there was a failure on the part of the Lange Company to comply with their contract. The undisputed evidence shows that, within two weeks of the time Lange began the work, he came to appellant and told him he was not financially able to carry on the work unless appellant would agree to pay off his labor and pay for material as it arrived. This was the substance of the matter. Me-Knight testified: “At the beginning of the work Mr. Lange told me that he was wholly unable to proceed financially with the work; that, instead of paying him his part of the terms 'of the contract (that is, 85 per cent, semimonthly for the work as it advanced and was .carried on), I had to meet the ‘order notify’ shipments, pay freight and other expenses, and pay the pay roll weekly, and X agreed with him that I would do that. That was after work had been commenced; after the contract and bond had been entered iñto. I met these drafts or ‘notify order’ goods.” The witness made a statement by items of the money so paid by him, from which it appeared that he paid to Lange in this way more than the entire contract price of the work. The statement referred to shows a total of $2,453.90, but some of this was for deductions which he had to make on account of faulty materials furnished by Lange and faulty work done, and some of it for money paid for work which he had to have done, on'account of Lange’s default; but, deducting all of this, the statement shows that appellant largely overpaid Lange the contract price under the agreement aforesaid. In his amended petition it is alleged that the amount so paid out for freight, “order notify” goods, labor, etc., was $2,050.-96. This was the amount that in fact he was bound to pay as the work progressed under the new agreement. Appellant testified that the payments amounted to more than 100 per cent, of the contract price. The result of this new agreement was that, when the work was completed, there was nothing due of the contract price. Under the original contract, for the performance of which the sureties stood bound, 15 per cent, of the contract price was to be retained until the contract was fully performed; that is, $270 wbuld have been held by appellant to induce a faithful compliance with the contract.

Under all the authorities in this state, and the great weight of authority elsewhere, we think the change in the contract referred to released the sureties. Appellant not only paid for the work in a manner not warranted by the contract, but bound himself to do so as soon as the work began. The sureties had a right to rely upon payments being made in accordance with the contract. It would have been distinctly to their advantage to have the 15 per cent, retained by appellant as an additional security for the performance of the work. This provision was as much for the indemnity of the sureties as for appellant. 6 Cyc. 82; Finney v. Condon, 86 Ill. 78; Gray v. School District of Norfolk, 35 Neb. 438, 53 N. W. 377.

In this state we think the case of Ryan v. Morton, 65 Tex. 258, is exactly in point, and the opinion in this case has been uniformly followed and approved in this state. Clark v. Cummings, 84 Tex. 614, 19 S. W. 798; Durrell v. Farwell, 88 Tex. 107, 30 S. W. 539, 31 S. W. 185; Lonergan v. Trust Co., 101 Tex. 79, 104 S. W. 1061, 106 S. W. 876, 130 Am. St. Rep. 803; Sanders v. Hambrick, 16 Tex. Civ. App. 462, 41 S. W. 884.

In First National Bank v. Fidelity Dep. Co., 145 Ala. 335, 40 South. 415, 5 L. R. A. (N. S.) 418, 117 Am. St. Rep. 45, 8 Ann. Cas. 241, will be found an interesting review of the authorities from other states. See, also, Wehrung v. Denham, 42 Or. 386, 71 Pac. 136; County of Glenn v. Jones, 146 Cal. 518, 80 Pac. 697, 2 Ann. Cas. 764; Backus v. Archer, 109 Mich. 666, 67 N. W. 914; Evans v. Graden, 125 Mo. 72, 28 S. W. 440.

Appellant cites in support of his contention that the sureties were not discharged, Meyers v. Wood, 26 Tex. Civ. App. 591, 65 S. W. 673; McKenzie v. Barrett, 43 Tex. Civ. App. 451, 98 S. W. 231; American Surety Co. v. San Antonio Loan & Trust Co., 98 S. W. 396; and Dallas Homestead & Loan Association v. Thomas, 36 Tex. Civ. App. 268, 81 S. W. 1041. We have examined these authorities carefully and cannot see that they are applicable to the case here presented. The two latter cases refer to changes in the plans of the building made under the direction of the architect as provided in the contract. In McKenzie v. Barrett it was held that overpayments unintentionally made on account of the mistake of the architect in the estimates did not release the sureties. There is an expression in the opinion of Meyers v. Wood which, upon a cursory reading, might seem to support appellant’s contention; but a careful reading of the paragraph discloses that it is not applicable to this case. The point arose upon a general demurrer to the answer and cross-bill of the owner seeking to recover of the sureties, and it is stated that this cross-bill declares that the provision for the reservation of part of the contract price was a right exclusive to the owners, and which they might exercise or not as they saw fit It was simply held that a general demurrer to this plea by the sureties was improperly sustained. This is as far as the opinion goes.

It is true that it appears that the payments made by appellant to Lange were applied to the completion of the work, and it is possible that, if they had not been made, Lange would not have been able to complete the job. But the contract, to meet such contingency, provided that appellant should have the election to take charge of the work and finish the same, charging all expenses to Lange. Appellant met the contingency of Lange’s inability to proceed with the work, not in the way provided in the contract, but by changing the terms of the contract as to the terms of payment. We think it is therefore no answer to the plea of the sureties that they were discharged by this overpayment ; that such overpayments were for the purpose of enabling Lange to proceed with the work.

We conclude that the trial court did not err in instructing the jury that the sureties were released. This disposes of the appeal. We find no errors, and the judgment is affirmed.

Affirmed.