author: HARPER, O. J.

text:
    KANSAS CITY, M. & CO. RY. CO. OF TEXAS v. CLIETT.
    (No. 895.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 5, 1918.)
    1. Cabkiees <§=3228(1) — Carriage oe Live Stock — Evidence oe Loss.
    To entitle a shipper of live stock to recover for negligent delay which caused loss in weight, he must show the difference between the market value of the animals on arrival, and what would have been the market value if promptly delivered.
    2. Carriers <§=>213 — Carriage oe Live Stock — Hours oe Service Act.
    A carrier cannot justify 17 hours’ delay, on the theory that it was complying with the federal law, prohibiting the working of a train crew more than 16 hours at one time, for it will be presumed that a railroad company has more than one crew.
    Error from Pecos County Court; Howell Johnson, Judge.
    Action by Pred Cliett against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded for new trial.

      H. S. Garrett, of San Angelo, and Williams & Jackson, of Ft. Stockton, for plaintiff in error.
    W. A. Hadden, of Ft. Stockton, for defendant in error.
   HARPER, O. J.

Fred Cliett brought this suit against the Kansas City, Mexico & Orient Railroad Company for damages to a shipment of sheep and goats alleged to have been occasioned by negligent delay in delivering to their, destination; as a consequence, they wasted away in flesh and weight. The exact negligence charged and by the court submitted is that plaintiff was required to and did load them at Ft. Stockton, and that they were left standing there about 17 hours without food and water.

The defendant answered by general denial and specially that there were not a sufficient number to require a special train; that they were hauled out on the first one leaving Ft. Stockton; that plaintiff knew when he loaded them that the first train to leave Ft. Stockton had to go to Alpine and return before his shipment could start to its destination; that the only delay was occasioned on account of the observance of the 16-hour law, on account of which the train was laid out upon its return trip from Alpine.

On the verdict of a jury, the court rendered judgment for $250, from which it comes here for review upon writ of error.

The case must be reversed upon the ground that there is a total absence of evidence of market value of the sheep and goats at Kansas City — their destination. The only evidence of value is what is designated in the statement of facts as ‘‘the account of sales of my sheep and goats at Kansas Gity, which show the respective weights of the sheep and goats and the price per pound for which they sold.” No one swears that this was the market value. So, for all this record discloses, this may have been less than the market value. In order for appellee to be entitled to a judgment, he must affirmatively show the difference between the market value on arrival and what would have been their market value had they been promptly' delivered, for, having arrived upon a different market day, the price upon that day may have been sufficiently in excess of the former day as to offset any loss in weight, if any, by reason of unreasonable delay.

There is nothing in appellant’s assignments and propositions that there was no evidence that 17 hours’ delay in going to and returning from Alpine was unreasonable; and, likewise, because the laws of the United States prohibit the company from working a train crew more than 16 hours at one time and in obedience to this law, the crew handling this train having served its 16 hours, that by law the train had to stop to give them the required rest provided under this law. It will be presumed that the company may have more than one crew; that whilst one crew is resting, another may be carrying on the work.

But if, upon another trial, there should be testimony to the effect that there were no delays in the transportation of the stock other than was specifically required by law, then the question should be submitted as an affirmative defense. Because there is no evidence of value upon which to predicate a measure of damages, the cause is reversed and remanded for a new trial.
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source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    GULF, C. & S. F. RY. CO. v. ROSENTHAL DRY GOODS CO.
    (No. 377.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 6, 1918.
    Rehearing Denied Dec. 11, 1918.)
    1. Carriers ⅞¾> 134 — Loss ox Goods — Evidence.
    Proof that goods were securely packed when delivered to steamship company, and the container was identified by marks placed thereon, and was delivered to the carrier in apparent good order, nothing about the box indicating that it had been tampered with, met the requirement that plaintiff, to recover for loss of goods; must establish delivery of the goods to the carrier.
    ¾. Carriers <§=>134 — Loss ox Goods —Evidence.
    The requirement that the consignee to recover for loss of goods must show that they were delivered to the carrier does not require the proof to be such as to shut out every possibility of error, but requires only such proof as will convince a reasonable man.
    3. Carriers <§=>60 — Delivery ox Goods — Expect ox Receipt.
    A receipt taken by a carrier for goods is prima facie, but not conclusive, proof of delivery.
    4. Evidence <§=>433(11) — Parol—Receipt by Mistake.
    Where consignee sued for loss of goods, and the earner produced a receipt, the consignee was properly allowed to show that the receipt was inadvertently given when the goods were not delivered.
    Appeal from Jefferson County Court; D. P. Wheat, Judge.
    Action by the Rosenthal Dry Goods Company against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    F. J. & O. T. Duff, of Beaumont, for appellant.
    Lipscomb, Gordon & Lipscomb, of Beaumont, for appellee.
   BROOKE, J.

This is an action brought by appellee against appellant and a transfer company for the value of certain items of dry goods alleged to have been delivered to the appellant for transportation at Galveston, Tex., and either lost or converted by appellant or the transfer company. The suit originated in the justice’s court, and on appeal to the county court there was a judgment in favor of the transfer company, of which no complaint is made, and judgment for appellee against appellant, from which this appeal is perfected.

Appellee purchased the goods in controversy from H. B. Claflin & Co. in August, 1914. They were properly packed and delivered in good order by that company to the Mallory Steamship Company for transportation by water from New York City to Galveston, and reached Galveston about September 12th. The box in which the goods were packed was properly marked for identification with weight, character of goods, and other notations thereon. The goods reached Galveston in what is known as a bulk shipment with other goods, and were consigned by H. B. Claflin '& Co. to themselves, and at that point their agent broke up the shipment, consigning the various portions to their final destination, and the particular box in controversy was thus handled, and by him delivered to appellant about September 12, 1914, consigned to appellee at Beaumont. The testimony shows the items placed in the box at the time it was delivered to the Mallory Steamship Company, and their value, and it also shows that the box was in good condition when delivered to appellant, and receipted for by it as in apparent good order and condition, but the box is not shown to have been opened or its contents examined after leaving New York. Appellant specially pleaded in its answer delivery of the goods in controversy by it to the Merchants’ Transfer Company at Beaumont, which company was duly authorized to receive and receipt for same by appellee, and specially pleaded written receipt given by the transfer company for the said goods. The authority of the transfer company to execute the receipt Was not disputed by appellee, and the receipt itself was offered in evidence, and shows that the goods were receipted for by one of the transfer company’s drivers in September, 1914. Tire appellee did not, by any plea, attack this receipt, either by denying its execution, or fraud or mistake, bub it was shown, over appellant’s protest, that although the receipt was duly signed as pleaded, still the goods were not in fact received by the transfer company, but after signing the receipt for the goods described in the waybill, the driver immediately discovered that the box was missing when he loaded the goods from the warehouse, and immediately he reported the shortage to the appellant’s agent, for whom he had signed the receipt, ■and the agent promised to trace them and deliver them when they arrived. It was shown to be the custom to sign receipts for freight at the office before actually receiving them, and then check the items from the warehouse, where missing items were discovered and reported, and this transaction was carried on in the usual way. This explanation of the receipt was received and considered by the trial court, and, in connection with the other testimony, held to establish appellee’s contention that the goods had never been delivered to it by appellant.

Complaint is made of the refusal of the trial court to enter judgment for appellant at the conclusion of appellee’s evidence, on the ground that plaintiff failed to show by competent evidence that the goods were ever delivered to appellant, their evidence going no further than showing the delivery of the box to appellant, without showing its contents or value at that particular time, or that its contents were the same, or in the same condition, or of the same value as when delivered to the Mallory Steamship Company, in whose possession the box is shown to have been for 10 days before being delivered to appellant, and the contention is made that to sustain “the judgment, the condition and value of the goods when delivered to the steamship company must be considered, and the presumption will be indulged that they remained the same until delivered to appellant for transportation.

The goods were shown to have been securely packed in a proper box when .they were delivered to the Mallory Steamship Company, and this box was identified by peculiar and distinguishing marksi placed upon it, and is shown to have reached Galveston and to there have been delivered to appellant in apparent good order. There was nothing about the box to indicate its having been tampered with or damaged. It was of the same weight, and had been handled in the regular way. We think that this proof met the requirement that to recover in this character of action, the burden of proof rests upoii the plaintiff to establish delivery of the goods to the carrier. This requirement, however', does not go so far as to shut out every possibility of error, but simply means that the proof offered shall be sufficient to fix the belief in the minds of reasonable men that the particular goods were in fact delivered to the carrier for transportation. We do not think that it was incumbent upon the shipper to reopen this box at Galveston upon delivery to appellant to discover if the goods originally placed in the box were still there. On the contrary, we think the evidence sufficient to authorize the finding that the goods placed in the box in New York were still there when the box was delivered to appellant, and that the goods were in the same condition and of the same value. •

Appellant complains of the evidence received by the trial court to the effect that the goods were not, in fact, received by the Merchants’ Transfer Company, thereby contradicting its written receipt pleaded and proved by the carrier. This contention is based upon the fact that the appellant did not answer appellant’s pleading setting up the plea of non est factum or pleading the execution by fraud, accident, or mistake.

Where a pleading, if founded on writing, is made, such pleading must be answered by the same character of plea attacking or avoiding the writing. In this case, however, the receipt was but evidence to the plea and contention of appellant that it had made delivery of the goods. It was prima facie proof of the delivery of the goods to the transfer company, but not conclusive, ■ and was subject to contradiction or explanation. The issue was not whether the receipt was given, but whether the goods were delivered. The giving of the receipt was not disputed, but that was not the issue to be settled. Pri-ma facie case, of delivered goods can be overturned by showing that the goods had never been delivered, notwithstanding the receipt, and the sufficiency of the evidence in this regard is not disputed in this case. Burk v. County of Galveston, 76 Tex. 276, 13 S. W. 455.

Wte have carefully examined this record, and we find no error in the judgment, and it is therefore affirmed.
      <SssoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: GRAVES, J.

text:
    KELLNER et al. v. RAMDOHR et al.
    (No. 7624.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 25, 1918.)
    1. Specific Performance <⅜=?29(2) — Contracts — Description—Sufficiency.
    To warrant specific performance of a contract to convey land, the writing itself must either upon its face identify the land, or it must expressly or by implication refer to some instrument, document, record, or outside fact, by which the land can with reasonable certainty be identified.
    2. Specific Performance <®=>29(2) — Contracts — Description—Sufficiency.
    A written agreement to convey 29 acres in a survey containing approximately 1,509 acres will not support specific performance, where the writing in no way described the particular 29 acres, and, aside from the word “Damon” at the top of it, in no way described the survey out of which the tract was to be carved; for there was not enough to render admissible extrinsic evidence to show the land intended.
    Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.
    Suit by G. A. Kellner and others against O. J. Ramdohr and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    L. A. Carlton, of Houston, for appellants.
    D. Edw. Greer, of Houston, for appellee Gulf Production Co.
    Wilson •& Follett, of Angleton, H. O. Schulz, of Rosenberg, -and Elmer P. Stock-well, of Angleton, for appellees.
   GRAVES, J.

That being the only question involved, this case turns upon the proper conr struetion of the following written instrument:

“Damon 1 day of July, 3908. '
“Know all men by these presents: That I, O. J. Ramdohr, of Brazoria Co., Tex., have this day sold to G. A. Kellner, C. C. Watson & It. F. Dickson, of Wharton Co., Texas, 29 acres in the E. S. Jones ⅜ league, consideration $522, five hundred & twenty-two dollars, cash in hand paid, $25.00 twenty-five dollars by said parties, the balance is to be paid in 50 days or as soon as abstract can be made.
“O. J. Ramdohr.”

Appellants sued appellees in the court below in trespass to try title for 29 acres of land out of the Et S. Jones ⅛ league in Bra-zoria county, Tex., which they specifically described by metes and bounds in this petition, their asserted claim, thereto having its origin and sole basis in the copied instrhment; in the alternative, should the instrument in' and of itself be held not to have passed to them: title to the land they sought, they declared upon and asked specific performance of it as a valid and competent contract for that purpose.

When the instrument was offered in evidence upon the trial, the court excluded it, holding ⅜⅛ attempted description therein not only insufficient to identify and convey the land described in the petition, but also inadequate as a basis for the admission of the extraneous proof tendered in aid thereof. Judgment for the appellees necessarily followed, from which this appeal is prosecuted.

We think the ruling was correct. It seems to us that an inspection of the instrument discloses that, of and within itself, -it did not sufficiently identify the particular land described in plaintiffs’ petition. Aside from the caption, “Damon 1 day of July, 1908” — a circumstance without probative force — the only description is, “29 acres in the E. S. .Jones ⅛ league.” . Standing alone, even if it had gone further and recited that the El S. Jones one-third league was in Bra-zoria county, Tex., that description would have been equally applicable to as many different tracts of land as 29 is contained times in 1,476 — the number of acres in the one-third of a -league — or about 50 tracts; and if that be true, it of course follows that such an instrument could not alone serve as an ade-guate conveyance of any particular piece of land.

But did it afford a proper basis or lay sufficient predicate for tbe introduction of extraneous evidence in aid of such, descriptive matter as it did contain?

While the question is not clear of doubt, we conclude that it did not. The principles of law governing cases 65 this general character have been so often declared and so well settled, especially in Texas, that it is felt neither necessary to go elsewhere for authority, nor to attempt by extended discussion to add anything of value to what our own courts have already said upon the subject..

As we understand the Texas cases, the rule may be substantially, at least, thus stated: The writing itself must either upon its face identify the land, or it must expressly or by implication refer to sóme instrument, document, map, plat, record, or outside fact — that is, furnish the means — by which the land can with reasonable certainty be identified. Penn v. Yellow Pine Co., 35 Tex. Civ. App. 181, 79 S. W. 842; Rosen v. Phelps, 160 S. W. 105. Tested by this rule, the instrument here involved meets neither of its requirements; not only does it fail to state the county, state, or locality where the land is situated, hut contains no implied reference even to any record, paper document, fact, or object, natural or artificial, to which the outside evidence tendered in aid of it might attach. As we understand the proper application of the rule stated, evidence aliunde has not been admitted, except for the purpose of making something so referred to in the instrument itself applicable or attachable to a particular tract of land; that seems to us to be the net result and effect of the holdings in all the Texas cases upon the point cited and relied on by appellants, the principal ones being Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Hinzie v. Robinson, 21 Tex. Civ. App. 9, 50 S. W. 635; Penn v. Texas Yellow Pine Lumber Co., 35 Tex. Civ. App. 181, 79 S. W. 842; Pierson v. Sanger Bros., 93 Tex. 160, 53 S. W. 1012; Golden v. Walker, 153 S. W. 683; Beaton v. Fussell, 166 S. W. 458; Diffie v. White, 184 S. W. 1065; Taffinder v. Merrell, 95 Tex. 95, 65 S. W. 177, 93 Am. St. Rep. 814; Petty v. Wilkins, 190 S. W. 531; Waterhouse v. Gallup, 178 S. W. 773.

A close reading discloses that in each and all of the written instruments involved in those cases one or another of conditions which may be thus summarized existed: There was either: (1) A much more definite and particular description of the land than is the case here, in that such matters as the state, county, or survey of its location, the name of the person to whom and the date when it was patented, or a reference to the records of the named cojinty for 'further description, was given; or (2) in aid of an otherwise insufficient description there appeared some definite recitation equivalent — or held by the court in some of the cases to be tantamount — to a statement that the land sought to be conveyed was that belonging to, owned by, or the property of, a certain named person or estate within a designated town, city, survey, county, and state, or other fixed locality; in a word, data which easily furnished the means of .identification by simply ascertaining from extraneous sources what land was so owned. But we have not been cited to nor otherwise found any case holding that the mere fact of executing an instrument insufficiently attempting to describe land which might, by an ad libitum range into the records of some county not therein mentioned, or into a field of parol inquiry not referred to or trenched upon, be made to fit a particular tract in that county found by such unconnected outside processes to be owned by the maker of the instrument, was tantamount to a recitation in the instrument itself that he was the owner of that tract; and, until that could be held, it seems to us there must remain a chasm between the situation here presented and the applicability of the principle governing the cases last mentioned; in other words, the electric spark may not leap the intervening void between a writing so inherently deficient in description of the land as this one and; an outlying mine of record, fact, and circumstance which might illumine its dark places and supply its missing links.

As has been stated, we think appellants’ own cases fortify these conclusions, as well as the following additional ones cited by the appellees: Boyce v. Hornberger, 29 Tex. Civ. App. 337, 68 S. W. 701; Rosen v. Phelps, 160 S. W. 105; Harris v. Shafer, 86 Tex. 314, 23 S. W. 979, 24 S. W. 263; Edrington v. Hermann, 97 Tex. 193, 77 S. W. 408; Cammack v. Prather, 74 S. W. 354; Zanderson v. Sullivan, 91 Tex. 499, 44 S. W. 484.

In conclusion, it may be well to set out as a fact finding that the extrinsic matters tendered by appellants in aid of and in connection with the proffered instrument, which the trial court for the reason above given excluded along with it, consisted of their offer by competent proof to establish as facts the following:

(a) That Damon was in Brazoria county, Tex.
(b) That O. J. Ramdohr, who executed the instrument, resided in that county at the time of its execution, immediately or within four or five days after which it was delivered to Kellner and Dickson, and by them filed with the county clerk of such county for record, and was in fact at the same time recorded in the deed records there.
(c) That Ramdohr, one of the defendants, carried the plaintiffs Kellner and Dickson on the land and pointed out to them the land being conveyed, the particular description of which was shown by the field notes contained in plaintiffs’ amended original petition.
(d) That there was an E. S. Jones one-third league of land in Brazoria county, Tex., and no other survey of that description anywhere else in Texas.
(e) That in fact $50 of the consideration was paid, instead of the $25 named in the instrument, which had never been returned or paid back by Ramdohr or any other person to the plaintiffs.
(f) By parol declarations that the particular land described in plaintiffs’ petition was the land intended to be described in the instrument sued upon.
(g) That Ramdohr had before the making of the instrument to the plaintiffs owned a tract of land in this survey amounting to some 75 acres; that he had sold smaller tracts to various and sundry people, so that at the time the instrument was made, to wit, on the 1st day of July, 1908, he owned only the amount of acres of land in this tract mentioned in the instrument in writing so executed by him, that is, 29 acres.

The conclusions stated require an affirmance of the judgment, and it has been so ordered.

Affirmed.

       dfcoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    HESS & SKINNER ENGINEERING CO. et al. v. TURNEY et al.
    (No. 5811.)
    (Court of Civil Appeals of Texas. Austin.
    Oct. 31, 1918.
    On Motion for Rehearing Dec. 11, 1918.)
    1. Assignments <§=52 — Equitable Assignment of Wages.
    An agreement whereby merchants were to furnish to laborers goods for which their employers were to pay from wages due amounted to an equitable assignment of the claims for wages.
    2. Principal and Surety’* <§=115(1) — Acts Constituting Release oe Surety — Loss or Surrender of Securities.
    The rule that the release by creditor of securities held by him for the payment of an obligation for which the surety is liable operates, to discharge and release the surety to the value of the securities released .does not apply to a surety engaged in suretyship for profit, not injured by such transaction.
    3. Assignments <®=52 — Subrogation
    <§=2S(8)-L-Advances — Liability on Contractor’s Bond.
    A transaction by which a bank loaned money to contractors for payment of wages due laborers, which money was so used, held not to constitute an equitable assignment of labor debts, nor subrogate the bank to the laborers’ claims against contractor’s surety.
    4. Equity <®=60 — Priority of Equities — Equality.
    As between persons having equitable interests, the rule “Qui prior est tempore potior est jure,” applies only where the equities are equal.
    5: Assignments <§=85 — Priorities — Equities.
    Assignment by bridge-building contractor of balance retained by county on his contract, to bank, to secure its advance of a sum which contractor used to pay laborers’ wages, was superior in equity to prior assignment of the same fund to contractor’s surety to secure it against liability on its bond, which had been previously executed, since surety parted with nothing of value as consideration for the assignment.
    6. Assignments <§=85 — Priority.
    In order that a prior assignment may have precedence over a subsequent assignment, notice of former assignment must have been given to the holder of the fund prior to the subsequent assignment.
    7. Assignments <§=52 — Equitable Assignment of Wages.
    An agreement by which laborers were paid partly in cash and partly in board, hut not showing that the laborers agreed that-any part of their wages should be paid for groceries, or that they knew such were bought from claimant, does not constitute an equitable assignment of laborers’ wages to claimant.
    8. Counties <§=123 — Contractor’s Bond-Labor and Material — 1Tools.
    A scraper and paint brushes furnished a contractor were tools, and were neither labor nor material used in the construction of a bridge, for which contractor’s surety would be liable. ■
    9. Counties <§=123 — Contractor’s Bond — Labor and Material — Fuel for Engine.
    Wood furnished as fuel for an engine used by a bridge contractor in hoisting steel, and for repairs of tools and hauling material from railroad to river, were items for “material used and labor performed” in the prosecution of the work, under the contract, for which contractor’s surety would be liable.
    10. Counties <§=123 — Contractor’s Bond-Liability — Labor and Material.
    Where a contractor, in constructing a bridge, in order to facilitate work, had laborers take their meals in camp instead of going into town for them, the labor in cooking such meals was labor performed in the prosecution of the -pork, and for such the contractor’s surety would be liable.
    On Motion for Rehearing.
    11. Principal and Surety <§=101(2) — Discharge of Surety — Alteration of Contract.
    The law in reference to releasing a surety by reason of a change in the construction con-tx-act, which surety guai-anteed, has no application to change in the' contract between contractor and subcontractor, thereafter made, where there was no resultant injury to the surety.
    Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.
    Suits by M. M. Turney and by tbe Lion Bonding & Surety .Company and others against Bastrop County and others were eón-solidated and tried together. From a judgment therein rendered, the Lion Bonding & Surety Company appeals. Hearing, after by Supreme Court to questions certified. 203 S. W. 593.
    judgment reformed.
    A. B. Wilson, of Houston, for appellant Lion Bonding & Surety Co.
    Page & Jones and Maynard & Maynard, all of Bastrop, Duncan & Burleson, of La Grange, S. L. Staples, of Smithville, and N. A. Rector, of Austin, for appellees M. M. Turney and others.
    Jno. T. Duncan and A. Burleson, both of La Grange, and S. L. Staples, of Smithville, for appellees Mrs. Tomlin and others.
   Findings of Fact.

JENKINS, J.

1. On April 29, 1914, Hess & Skinner Engineering Company, hereinafter referred to as the contractors, entered into a contract with Bastrop county for the construction of a bridge across the Colorado river for the sum of $45,000, to be paid as the work progressed, 15 per cent, of which was to be retained by the county until the completion of the bridge. The. bridge was completed according to contract, and the county paid therefor, except the sum of $6,-854.23, which amount it tendered into court for the benefit of those who might be entitled to the same.

2. At the time of the execution of said contract the contractors gave bond as required by the Acts of the 33d Legislature, ^c. 99, p. 185 (Vernon’s Sayles’ Ann. Civ. St. 1914, •art. 6394f et seq.),.'iwith the Lion Bonding & Surety Company, hereinafter referred to as the bonding company, as security. By the terms of this bond the bonding company bound itself for the completion of the bridge according to the contract, with the additional obligation that such contractors “shall promptly make payments to all persons supplying them with labor and (or) materials in the prosecution of the work provided for in such contract.” (The statute gives the right to sue on this bond to any person having such unpaid claim, and requires all such persons to intervene in any such suit when brought.

3. On April 39, 1914, the contractors, for the purpose of indemnifying the bonding company against any amount for which it might become liable on its bond, gave to said company a written assignment of the 15 per cent, of the contract price of the bridge to be retained by the county.

4. The Vincennes Bridge Company, hereinafter referred to as the bridge company, furnished the steel for the erection of the bridge. On August 25, 1914, the contractors, for the purpose of securing the bridge company for any amount that they then owed, or might thereafter owe, to said company, gave it a written assignment of its contract with the county.

5. In February, 1914, the contractors borrowed from the ’ First National Bank of Smithville, hereinafter referred* to as the bank, $1,500, and as security therefor gave the bank an order on the county for that amount to be paid out of the money to become due them on said contract. This order was properly presented to the county judge of Bastrop county, and was accepted by him. It would have been paid but for the fact that he was enjoined by appellant from making such payment.

6. At the time the assignment was given to the bank neither it nor Bastrop county, non the county judge,'bad any notice of the assignment by the contractors to appellant.

7. During the progress of the work on the ' bridge certain local merchants, the contractors, and the laborers entered into an agreement whereby the merchants were to furnish the laborers goods. The contractors were to pay for the same out of wages due and to become due such laborers, and deduct the amount of such payments from the wages of said respective laborers.

8. Appellants brought suit to enjoin the county from paying out any of the funds due on the contract to the bank or to the bridge company. M. M. Turney brought suit to recover the amount due him from the county, and the bonding company and other appel-lees intervened in said suit. The two suits were consolidated and tried together. / /

9. The case was tried before the court without ,a jury. Judgment was - rendered against/appellant for Turney and for all of the intérveners, 38 in number, for the respective amounts shown in the judgment of the court, except W. O. Moore, Falkenberg Drug Company, and Alamo Ironworks, and fore- ■ closing their lien on the money in the registry of the court.

. 10. The court filed its findings of fact herein, which we approve; but as they are very lengthy, rendered so by the number of the -parties herein and the finding as to each claim, we do not deem it necessary to set out such findings of fact. We think that our .findings of fact as herein set out, together with such additional facts as are stated in the opinion herein, are all that are necessary to an understanding of the issues here involved.

11. Appellant, Lion Bonding & Surety Company, only appealed from the judgment rendered.

Opinion.

This case was tried before the court without .a jury. Appellant filed a motion for a new trial. It did not copy any part of its motion for a new trial as assignments of error, but, filed assignments independent of such motion. Appellees objected to the consideration of these assignments. We certified to the Supreme Court the question whether or not the assignments herein should be considered, and that court answered in the affirmative. The question was certified under the style of Hess & Skinner Engineering Company v. M. M. Turney et al.

R. E. Hoppe recovered judgment for goods sold to laborers, under the circumstances, as local merchants, mentioned in our seventh finding of fact, supra, for the amounts due him, with the right of pro rata participation of the funds in the registry of the court. In this there was no error. The transaction mentioned in said finding of fact amounted to an equitable assignment to him of the claims of the laborers. McIlhenny v. Binz, 80 Tex. 20, 13 S. W. 665, 26 Am. St. Rep. 705.

One of the appellees herein is the bridge company./ At one of the periodical settlements between the county and the contractors it was found that the county was due the contractors $16,149.80. There' were present at this settlement one of the contractors, the county judge, an agent of the bridge company, and a representative of all of the local merchants. There was then due the local merchants, under the agreement referred to in the seventh finding of fact, supra, the sum of $6,499.80. The representative of the local merchants objected to any of this sum being paid to the contractors. It was then agreed by all parties that the county should issue to the contractors two warrants, one for the sum of $6,499.80, which should be immediately indorsed by the contractors to the representative of the local merchants, and the other for the balance, $9,650. This was done, and the warrant for $6,499.80 was collected by the representative of the merchants, and the proceeds was paid to them.'

In connection with these facts, appellant submits the following proposition:

“Where a creditor releases the securities held by him for the payment of an obligation for which a surety is liable, the release of said securities operates to discharge and release the surety, at all events to the extent of the value of the securities released.”

This proposition, under the facts ordinarily existing in suits against sureties, is too well established to require citation of authorities in its support. The bridge company, by its agreement and indorsement of the $6,499.80 warrant to the merchants, released security which it had the right to retain by virtue of the assignment to it, as stated in our fourth finding of fact, supra.

To the above proposition there should be added, under the facts of this case, the following:

Where, however, a surety is engaged in the business of suretyship for profit, and it appears that he was not injured by such release, he will not be discharged thereby, in whole or in part. Rule v. Andrews, 160 Mo. App. 347, 142 S. W. 358; U. S. Fidelity Co. v. United States, 191 U. S. 416, 24 Sup. Ct. 142, 48 L. Ed. 242; People v. Bowen, 187 Mich. 257, 153 N. W. 672.

It is stated in the note to Hormel v. Bonding Co., 33 L. R. A. (N. S.) 513, that the over-whelming weight of authority supports the. proposition that the rule of strictissimi Ju-, ris, by which the rights of uncompensated' sureties are- determined, is not applicable-to the contracts of surety companies, which-make the matter of suretyship a business for profit. - See the numerous authorities cited in this note in support of the proposition.

Under the assignment stated in the fourth finding of fact, supra, the bridge company had the right to have all of the $16,149.80 due by the county to the contractors paid to it. Had it done so the debt of the contractors to it would have been reduced by the amount of $6,499.80, which it consented to\ have paid to the local merchants. But in that event the debt of the contractors tov the merchants for that amount would have' remained unpaid, and by virtue of their equitable assignment from the laborers they could have recovered that amount against ap-.( pellant in this suit. The appellant suffered-no injury by said transaction, as its liabilities were not lessened thereby. It can make no difference that in this suit it was the bridge company instead of the lo.cal merchants that recovered against it. ! I

Among the recoveries in this case against appellants was one for $1,612.60, in favor of the bank, the same being the principal and interest of the loan made to the contractors, as stated in our fifth finding of fact. In this we think there was error.

The contractors at the time they borrowed this money represented to the bank that they needed it to pay wages due the laborers. This was true, and' the money was used for that purpose. The laborers, however, were not parties to this transaction. When they were paid, their debts were extinguished. The transaction did not constitute an equitable assignment of their debts, and did not subrogate the bank to their claims against appellant. I. & G. N. Ry. Co. v. Concrete Investment Co., 201 S. W. 723; Lion Bonding Co. v. Bank, 194 S. W. 1012; Bank v. Corse, 133 Tenn. 720, 182 S. W. 917; Morgan’s S. S. Co. v. Ry. Co., 137 U. S. 171, 11 Sup. Ct. 61, 34 L. Ed. 625; Malone v. Kaufman, 38 Tex. 455.

There was no error, however, in the judgment of the court that the amount due the -bank be paid out of the money in the ‘registry of the court. The transaction mentioned in our fifth finding of fact constituted an assignment of the funds in the hands of the county to the amount of said indebtedness. This seems to be conceded by appellant, but it contends that it had a prior right to such fund, by reason of the previous assignment made to it, as stated in our third finding of fact.

The appellant relies upon the rule, “Qui prior est tempore, potior est jure.” This rule is subject to limitations. An able English equity judge says: “This is an incorrect statement of the rule, for that proposition is far from being invariably true.” Rice v. Rice, 2 Drew, 73. Mr. Pomeroy gives the following as a more correct statement of the rule: “As between persons having only equitable interests, if their equities are equal, qui prior est tempore, potior est jure.” 1 Pomeroy, Eq. Jur. § 414. Again, the same learned author says: “Among successive equitable estates or interests, where there exists no special claim, advantage, or superiority in any one over the others, the order of time controls.” 2 Pomeroy, Eq. Jur. § 682. “It is certainly not enough that two successive equitable interests should he of precisely the same nature, for even then one might be accompanied with some collateral incident which gave it a precedence over the other without reference to their order of time. When we say that A. has a better equity than B., this means that, according to those principles of right and justice which a court of equity recognizes and acts upon, it will prefer A. to B., and will interfere to enforce the rights of A. against B.” Id. § 683.

We think that “the collateral incidents” existing in the instant case should, “according to the principles of right and justice,” give the bank’s equitable claim to the funds in the registry of the court precedence over that of appellant. In addition to the fact that the bank had no notice of the assignment to appellant, the effect of which we will discuss in the succeeding paragraphs of this opinion, the appellant did not part with anything of value as a consideration for the assignment to it. Such assignment was made to secure it against liability on its bond, which had been previously executed. On the othex hand, the hank pai-ted with $1,500 cash for the assignment to it. While the bank did not secure an assignment of the wages due to laborers, for the payment of which appellant was liable on its bond, nevertheless the money obtained from the bank was used to pay such laboi-ers. For the reasons stated, we hold that the bank’s assignment was superior in equity to that of appellant.

For another reason we do not think that the court erred in adjudging the payment of the bank’s debt out of the funds in the registry of the court: At the time the assignment was made to the bank, neither it nor the county had any notice of the previous assignment to appellees. As to the assignor; no notice is necessary. As to successive assignments it is the settled doctrine in England that notice of the assignment must be given to the holder of the fund, in order for it to take precedence over a subsequent assignment. 2 Pomeroy, Eq. Jur. § 695. There is a diversity of opinion on this among the courts of the several states in this country. We know of no decision in Texas as to this point.

The learned editor of the note to Graham Paper Co. v. Pembroke, 71 Am. St. Rep. p. 34 et seq., after citing cases pro and con, says:

“Under the rule that the date of the assignment controls, where there is a prior and subsequent assignee of the same cause of action from the same person, it is evident that no assignment can he taken with safety. We are, therefore, induced to believe that the second rule, which allows the assignee who first gives notice to the debtor to obtain priority, is the better one, not only because of the reasons given in the principal case, but because it is in obedience to the genei-al principle of law which requires that ⅜11 transfers of property must be rendered as complete as the nature of the action will permit, in order to make them valid as against subsequent bona fide purchasers for- a valuable consideration without notice. See Methven v. Staten Island, etc., Power Co., 66 Fed. 113, 13 C. C. A. 362. It is clearly the duty of an assignee, in order to perfect an assignment, to give notice to the debtor, and the amount of such a doctrine is that the bare assignment of a chose in action does not pass it away without notiee of the fact to the debtor. If notice of the assignment is not communicated, it enables the original creditor to commit a fraud, as he may assign a second time, and such assignee, although he may take the precaution of inquiring of the debtor, yet he cannot ascertain from him the fact of a previous assignment, as it has never been communicated to him. Richards v. Griggs, 16 Mo. 416, 57 Am. Dec. 240; Maybin v. Kirby, 4 Rich Eq. [S. C.] 105; Murdoch v. Finney, 21 Mo. 138.”

We concur in these views, and in support of same, in addition to the authorities above referred to, we cite Judson v. Corcoran, 17 How. (58 U. S.) 612, 15 L. Ed. 231; Spain v. Hamilton, 1 Wall. (68 U. S.) 604, 17 L. Ed. 619; Bank v. Farwell, 58 Fed. 633, 7 C. C. A. 391; Vanbuskirk v. Ins. Co., 14 Conn. 141, 36 Am. Dec. 473; Bank v. Hewitt, 3 Iowa, 93, 66 Am. Dec. 49; Houser v. Richardson, 90 Mo. App. 134; Wallston v. Braswell, 54 N. C. (1 Jones, Eq.) 137; Clodfelter v. Cox, 1 Sneed (Tenn.) 330, 60 Am. Dec. 157; Penniman v. Smith, 5 Lea (Tenn.) 130; Ward v. Morrison, 25 Vt. 593.

Judgment was rendered in favor of R. E. Hoppe, among other things, for $183.-25, for provisions furnished by him to the contractors, and used in running a boarding camp. These were furnished under an agreement of Hoppe with the contractors that they would deduct the board of the laborers from the amount due them for wages, and out of same pay him the amount due for groceries. The amount was so deducted, though it was not paid to Hoppe by the contractors. It does not appear that the laborers were parties to this contract. They agreed that their board bills should be deducted from their wages. Under this agreement they were paid partly in cash and partly in board. This extinguished the debts to them. It does not appear that the laborers agreed that any part of their wages should be paid to Hoppe for groceries, or in fact that they knew that groceries were being bought from Hoppe. Such being the case, there was no equitable assignment of the laborers’ wages to Hoppe, and the court erred in rendering judgment for him on this item.

We are also of the opinion that the court erred in rendering judgment for Hoppe for $2.30 for a scraper sold by him to the bridge company, and used by them in constructing the bridge; also that it was error to render judgment against appellant in favor of Turney for $12.85 for brushes used in painting the bridge; also that the court erred in rendering judgment against appellant in favor of E. H. Eggleston for $45.50 loaned by him to the contractors to buy wood; and for $4.30 advanced by Eggleston to pay express on some bolts.

The scraper and paint brushes were tools, and were neither “labor nor material” used in the construction of the bridge.

Our reason for holding that appellants are not liable for money loaned the contractors is stated under our discussion of the judgment in favor of the bank, supra.

Appellant complains of the judgment of the court, in that it allowed certain of the appellees for wood furnished in running the engine used in hoisting the steel, for repairs of tools, and for hauling material from the railroad to the river.

We overrule these assignments, and also the assignment as to the judgment in favor of Mrs. Tomlin for cooking for the camp. We think these items were material used and labor performed “in the prosecution of the work provided for in the contract.” This language of the statute requiring bond for the construction of public works is broader than that used in the mechanic’s lien law, which gives a lien to those “who may labor or furnish material * * * for the construction of any house,” etc. It might well be held the labor here referred to must be performed in the actual construction of the house, or for material that entered into the structure. It has been so held. But the language of the statute here under consideration gives a lien to those who supply labor and material “in the prosecution of the work provided for in the contract.” This is a remedial statute enacted for the protection of those whose labor or material contributes to the “prosecution of the work,” without reference to whether such labor was on the structure, or whether such material entered into the structure. If it directly and materially aided in the prosecution of the work, we think that is sufficient to bring it within the protection of the statute.

In the instant case it was necessary to hoist large steel beams. Had the contractors employed as many men as Pharaoh is supposed to have used in building the pyramids, perhaps this could have been done with their hands. It was none the less “in the prosecution of the work” because it was done with a steam engine. The wood used in making the steam was as essential as was the muscular strength of those who performed manual labor. In order for the engine to do the work, it was necessary to keep it in repair. Food was essential to the laborers, and it was necessary that it be cooked. It facilitated the work to have laborers take their meals in the camp, instead of going to town for them. We think the cooking, under the circumstances, was labor performed “in the prosecution of the work.” We are aware of the fact that there are decisions in other- jurisdictions which hold contrary to the views which we have expressed. There are also decisions sustaining our views which we think are supported by better reason. See Breault v. Archambault, 64 Minn. 420, 67 N. W. 348, 58 Am. St. Rep. 545; Winslow v. Urquhart, 39 Wis. 260; Heddan v. Walden, 31 N. D. 393, 153 N. W. 1015.

The judgment of the trial court will be here reformed in accordance with this opinion, and as thus reformed it is affirmed.

Reformed and affirmed.

On Motion for Rehearing.

The appellant, the bonding company, in its motion for a rehearing complains that we overruled its first assignment without specific reference thereto. Said assignment is as follows;

“The court erred in its conclusions of law and in rendering judgment for Vincennes Bridge Company for $6,407.09, because: (1) The Vincennes Bridge Company and Hess & Skinner Engineering Company entered into a contract on the 28th day of May, 1914, by the terms of which Hess & Skinner Engineering Company agreed to purchase from Vincennes Bridge Company the steel for the construction of a bridge in road district No. 1, Bastrop county, Texas, trusses at $2.40 and cylinders at $2.10, one-half of which was to be paid for in cash upon delivery of the metal at shop, and the balance in warrants on Bastrop county, Texas, with 6 per cent, interest from dates of shipments; and Vin-cennes Bridge Company changed the contract, and failed to demand or collect the one-half in cash, and shipped out and delivered to Hess & Skinner Engineering Company all of said bridge material, and in this way changed the terms of the contract, and relieved the Lion Bonding & Surety Company from any liability as surety upon Hess & Skinner Engineering Company’s bond.”

We did not discuss this assignment because we thought it showed upon its face, when taken in connection with the undisputed 'evidence, that it was without merit. The appellant in its original brief cited a long list of authorities under this assignment, none of which, in our opinion, are in point, except the case of American Bonding Co. v. United States et al., 233 Fed. 364, 147 C. C. A. 300. The other authorities cited announce the proposition that where parties enter into a contract, and a third party becomes surety for its performance, any material change in the contract made by such contracting parties will release the sureties, without regard to whether such change is to the injury of the surety, and without reference to whether the surety became such for accommodation or for hire. This proposition is so well settled that it needed no citation of authorities to support it. This is so for the reason that the new contract is not the one the performance of which was guaranteed by the surety.

The assignment alleges that the contractor and the bridge company “changed the contract.” What contract? Not the one entered into between the county and the contractor, upon which appellant became surety, but a contract between the contractor and the bridge company. Did this change release the appellant? The case of American Bonding Co. v. United States et al., supra, cited by appellant, holds that it did not, unless the appellant was materially injured thereby. We quote from that case as follows:

“Companies that make a business of guaranty insurance * * * are not relieved ⅜ * ⅜ unless the change [in the contract] has done them harm.” 233 Fed. 369, 147 C. C. A. 305.

In that case the terms of the contract between the contractor and the Marble Company wore that the Marble Company was to be paid $75,000, ns the work progressed, for the marble furnished by it. The court says:

“These terms were not observed at all. * * * If the terms of this subcontract had been observed, the marble company would have been paid 80 per cent, in cash as the work went on, and, even if the retained 20 per cent, had not been paid at the end, the loss of the surety company would have been no larger than this percentage. In fact, however, it is confronted now with a judgment (in favor of the marble company) for $20,000, and with a contingent liability, which may or may not become an actual liability, of more than $30,000 in addition.”

The change complained of in the instant case was that the bridge company shipped the material without collecting one-half of the value of the same before making shipments. This worked no injury to appellants. M.ucli more than one-half of the value of such shipments was paid to the bridge company by the contractors as the work progressed, though not before the same was shipped from Vincennes, Ind.

There is neither pleading nor evidence to show where the “shop” mentioned in the contract was located.

In our opinion, the law in reference to releasing a surety by reason of a change in the contract which he had guaranteed has no application to a change in the contract between the contractor and a subcontractor .thereafter made. Such contract, where it provides for payments in advance, or as the work progresses, is in the nature of security to the subcontractor; and, if he consents to a change of the contract so as to impair his security, the surety will be released to the extent that he is injured thereby. In such case, in order to release the surety pro tanto, there must be both a change in the contract between the contractor and the subcontractor, and resultant injury to the surety.

It is apparent from the record that there was a clerical error in entering judgment for the Smithville Gin Company for $62.85, when it should have been for $78.85. The motion of said appellee to reform the judgment as above indicated is granted, and said judgment is so reformed.

Judgment was entered in the court below for Mrs. Susie McDaniel for $128.05. Mrs. McDaniel was not a party to this suit. Such judgment should have been in favor of D. W. Pohplatz, and the judgment of the trial court is here so reformed.

Appellant’s motion for a rehearing is overruled.

Motion overruled.
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author: PLY, C J.

text:
    TITTLE, Acting Comptroller, v. BARTHOLOMAE et al.
    (No. 6097.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 27, 1918.)
    1. Intoxicating Liquors <§=>108(10) — Petition to Reinstate License — Sufficiency.
    A petition to compel the acting comptroller of Texas to reinstate a retail liquor license held, as against general demurrer, to sufficiently allege the license was rescinded and vacated.
    2. Pleading <§=>34(3) — Construction—General Demurrer.
    When assailed by a general demurrer, every reasonable intendment should be read into the petition.
    3. Pleading <§=>403(2) — Defect in Petition —Cure by Answer.
    Though a petition to compel the acting comptroller of Texas to reinstate a retail liquor license failed to allege the. license had, been rescinded and vacated, the defect is cured, where that fact was set out by the answer.

      Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    'Suit by W. G. Bartholomae and another against L. W. Tittle, Acting Comptroller of Texas. Prom a judgment for plaintiffs, defendant appeals.
    Affirmed.
    B. P. Looney and W. J. Townsend, both of Austin, for appellant.
    ■C. J. Gray and Don A. Bliss, both of San Antonio, for appellees.
   PLY, C J.

This is a suit against the comptroller of public accounts of Texas, instituted by appellees, to have a liquor license reinstated which it was alleged appellant “undertook unlawfully and illegally to rescind, vacate, and withdraw.” Judgment was rendered reinstating the license.

The only question presented in this court is as to the action of the trial court in overruling a general demurrer to the petition. The petition, omitting caption and signatures, is as follows:

“Your petitioners, W. G. Bartholomae and J. 15. Helmer, respectfully show to the court that heretofore on, to wit, the -day of -, 1917, the proper authorities of the state of Texas and of the county of Bexar, and the city of San Antonio, in said county and state, issued and, delivered to your petitioners retail liquor dealers’ licenses, authorizing your petitioners to conduct a retail liquor dealer’s business in the said city of San Antonio, on Commerce street, in the said county of Bexar, and petitioners proceeded to open said business 'and to conduct the same on said street.
“Thereafter, on, to wit, the 8th day or the 9th day of February, 1918, the comptroller of the state of Texas, or rather the acting comptroller of the state of Texas, one L. W. Tittle, undertook to rescind, vacate, and withdraw said license unlawfully and illegally.
“Your petitioners show to the court that licenses authorized and empowered your petitioners to" conduct said business and to sell at retail spirituous, vinous, and malt liquors in quantities less than a quart from said date for the period of one year. The said licenses were then and there of the value of, to wit, $1,200.
“But the said acting comptroller of the state of Texas undertook unlawfully and illegally to rescind, vacate, and withdraw said licenses, and to prevent your petitioners from conducting said business on or about the date hereinbefore mentioned.
“Premises considered, petitioners sue, and pray that the comptroller of public accounts for the state of Texas be cited to answer this petition, and that, upon final hearing, your petitioners have judgment reinstating said licenses, for costs, and for general relief.”

It is contended that the petition is subject to general demurrer, because it does not allege that the comptroller “did vacate, annul, and rescind such license,” but merely that he undertook to do so. Beading every reasonable intendment into the petition, as is required to be done when assailed by a general demurrer, it is clear that the pleader intended to state that the license was rescinded and vacated. This is btorne out by the prayer for a reinstatement of the license.

Had the petition been subject, on its face, to a general demurrer, appellant cured its defects by fully admitting that he had vacated, rescinded, and annulled the liquor license, giving his reasons therefor. That the allegations in an answer may be considered in connection with those of the petition, in order to sustain the latter, when attacked by demurrer, is well established in Texas. Peoples v. Brockman, 153 S. W. 907, and authorities therein collated; Hotel Dieu v. Armendariz, 167 S. W. 181; Hranicky v. Sell, 199 S. W. 315. The first case cited was decided by this court, through Associate Justice Moursund, and a writ of error was denied by the Supreme Court

The judgment is affirmed.
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author: DANE, J.

text:
    PELIPCHYK v. BORDEN.
    (No. 7642.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 2, 1918.)
    1. Master and Servant <⅞=»258(19) — Injuries to Servant — Petition—Sufficiency.
    A petition alleging that plaintiff, while a minor, 17 years old, was employed by defendant, that he was required to perform services in a cotton gin owned by defendant, that the machinery was negligently left exposed, that plaintiff was ignorant of the danger, that he was not warned, and that as a result he sustained injuries, held, as against general demurrer, sufficient to state a cause of action.
    2. Pleading @=>34(3) — Demurrer — General Demurrer.
    When a general demurrer is addressed to a pleading, it is the duty of the court to extend every reasonable intendment in its favor.
    Appeal from District Court, Wharton County; Samuel J. Styles, Judge.
    Action by Konstantin Pelipehyk against A. P. Borden. Prom a judgment for defendant, after the sustaining of a general demurrer, plaintiff appeals.
    Reversed and remand- * ed.
    P. Harvey, of Houston, for appellant.
   DANE, J.

This suit was brought by plaintiff in error against defendant in error to recover for. personal injuries suffered by him, which he alleged were caused by the negligence of defendant in error.

In his petition plaintiff in error makes the following allegations and prayer:

“That plaintiff is a minor, at present about 20 years of age, without a guardian of his person or estate, and resides in Harris county, Tex. Defendant is a resident of Wharton county, Tex., and during the year of 1913 owned and cultivated a farm or plantation, and employed thereon many men to till and cultivate and plant and harvest crops, and plaintiff was so employed. And defendant owned and operated on said farm or plantation a cotton gin, the machinery of which was moved and operated with great force and speed by high power, and the shafts, pulleys, flywheels, belts, and other machinery exposed and thus moving, operated, and revolving at a fast speed and great velocity and force constitute and are unsafe and dangerous tools, appliances, and machinery, and, when so operated and exposed as they were in said gin, rendered said gin an unsafe and dangerous place for plaintiff to be, remain in, or work.
“That on or about October 23, 1913, plaintiff, then a minor about 17 years of age, Russian by birth, and unable to understand the English language, was in the employ of defendant as a farm hand, and was required to till the soil, and do other common labor about said farm, and on or about said date plaintiff was for the first time ordered, required, or permitted by defendant, his agent or foreman in charge and with authority to enter, remain in, and perform work and services in said gin and about said exposed shafts, flywheels, pulleys, belts, and other machinery then being operated as aforesaid, and which was then and there an unsafe and dangerous place for plaintiff to work, plaintiff not knowing and being unable to understand and appreciate said danger, plaintiff never having worked in said gin, and being ignorant of the construction and operation of said machinery, and not being warned and advised by defendant, his agent or foreman in charge, of the danger of said machinery or place,. and when defendant employed plaintiff he knew of his minority and inexperience, and failed to explain to plaintiff the character of the work he would be called upon to perform, and to warn him of the dangers attending its operation, all of which was known to defendant, or by the exercise of ordinary care could have been known to him.
“And while plaintiff was performing the work and service in said gin as was required of him by the defendant, and while he was therein for a very short time, a sack being held by plaintiff, in some manner or other, and unknown to plaintiff, was caught and became entangled with a swiftly moving and revolving shaft, pulley, flywheel, belt, or other machinery, and plaintiff was jerked with such violence that his arm was torn and pulled off at his shoulder.
“That the direct and proximate cause of the injury to plaintiff, as aforesaid, was the act of omission of the defendant or his agent in ordering, requiring, or permitting plaintiff to enter, remain in, and perform work and services in said gin, the same being then and there an unsafe and dangerous place for plaintiff to enter, remain in, and perform work and services, and which was known to defendant; plaintiff being then and there young and unexperienced in any other work than that of common labor on a farm, which was known to defendant, or by the exercise of ordinary care could have been known to him.
“The failure of defendant to warn and advise plaintiff of the danger of said gin, pulleys, belts, and other machinery therein, and which was known to the defendant, or by the exercise of ordinary care could have been known, in having, maintaining, and operating said gin and place in an unsafe and dangerous condition by having said machinery exposed with set screws and other obstacles projecting, it being a common practice and with little expense, and well known to defendant, or by the exercise of ordinary care could have been known to defendant, the manner and method of making same safe by boxing, guards, and other approved ways. The failure of defendant to instruct his servants and agents to prevent plaintiff entering said gin, remaining therein and performing services and work therein, and the failure of defendant to instruct his agents and servants to keep plaintiff therefrom, and not to order him therein, and to keep him therefrqm.
“That at the time of the injury to plaintiff, as aforesaid, he was 17 years of age, was uneducated, and was a laborer and earning $20 per month, together with board and lodging, and his services were reasonably worth that amount, and in the course of a few years his services would have been worth much more; that as a result thereof, the arm of the plaintiff was jerked and torn clear and free from his body, his shoulder blade was fractured, he was rendered unconscious, and his side was bruised, tom, and lacerated, and plaintiff was caused to remain in the hospital several months, and thus he was maimed and crippled for life, and otherwise wounded and bruised in many parts of his body, both externally and internally, and was subjected to a powerful mental and physical shock; and that by his injuries received, as aforesaid, plaintiff was caused to suffer great mental and physical pain, which will continue' so long as he shall live, and his ability to earn money and make a living is thereby greatly impaired ; all to his actual damage in the sum of $30,000.
“Wherefore plaintiff prays that defendant be cited to appear and answer herein, and that on a hearing hereof he have judgment for his damages, for costs of this suit, and for such and further relief as he may be entitled,"for all of which he will ever pray.”

To this petition the trial court sustained a general demurrer, and, upon the refusal of the plaintiff to amend, judgment was rendered for the defendant.

Plaintiff in error has appealed and has filed his brief in this court, and has assigned the action of the trial court in sustaining the general demurrer to his petition as error.

Defendant in error has filed no brief.

We think the assignments shopld be sustained. While many, if not all, of the allegations, which attempt to charge actionable negligence on the part of defendant in error, are vague and to a degree indefinite and verbose, and for those reasons might have been subject to special demurrers if made and insisted upon, we think the petition as a whole is sufficient as against a general demurrer.

We think that it may be reasonably inferred from the allegations of the petition that the plaintiff intended to charge that at the time he was injured he was a minor 17 years of age; that at such time he was an employé of the defendant, and'that as such employé he was ordered, required, or permitted by the defendant, “or by his agent or foreman in charge and with authority, to enter, remain in, and perform work and services” in a certain gin owned and operated by defendant, in which the machinery used in its operation was negligently left exposed and uncovered in such manner as to render such gin a dangerous place in which to work; that plaintiff had never worked in the gin before, and was ignorant of its construction and the operation of said machinery, and did not know and appreciate the danger incident to such work, and that he was not warned by defendant, his agent or foreman in charge' of said gin and machinery, of the danger incident to such work. He alleged his injury, and that the negligence alleged was the proximate cause of such injury. In support of the sufficiency of the petition as against general demurrer, see Lantry-Sharp Con. Co. v. McCracken, 105 Tex. 407, 150 S. W. 1156, and authorities there cited.

The only question presented by this appeal is as to the correctness of the ruling of the trial court upon the general demurrer. It is a well-settled rule in this state that, when a general demurrer is addressed to a pleading, it is the duty of the court to extend every reasonable intendment in its favor. I. & G. N. Ry. Co. v. Hinzie, 82 Tex. 623, 18 S. W. 681; Parks v. State Bank, 34 S. W. 1044; Werner v. Kasten, 26 S. W. 322.

For the reasons pointed out, the judgment of the trial court is reversed, and the cause is remanded.

Reversed and remanded.
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