text:
    SAN BERNARDO TOWNSITE CO. et al. v. HOCKER.
    (No. 6985.)
    (Court of Civil Appeals of Texas. Galveston.
    April 14, 1915.
    Rehearing Denied May 6, 1915.)
    1. Judgment <@=^17 — Process to Sukport— Nonresident.
    A personal judgment rendered against a nonresident on service of citation, or nonresident notice, served on him without the state, is void.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. <@=>17.]
    2. Judgment <@==>415 — Void Judgment —Enjoining Enforcement — “Face oe the Record.”
    The enforcement of a judgment against a nonresident may be enjoined, where the “face of the record” which means the whole record in the ease, shows that the judgment is void, without showing a defense against the cause of action.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 781-783; Pec. Dig. <§=>415.
    For other definitions, see Words and Phrases, First and Second Series, Face.]
    3. Judgment <§=>490 — Collateral Attack-Judgments Subject to.
    A personal judgment, rendered against a nonresident on service of process without the state, or waiver of service, or entry of appearance, is a mere nullity, and subject to collateral attack.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 926-928; Dec. Dig. <§=>490.]
    4. Judgment <§=>497 — 'Validity — Sekvice oe Process.
    Where a nonresident is sued on a personal demand, and judgment is rendered against him, the whole record may be examined to determine whether jurisdiction attached; and, where defendant was served out of the state, the judgment is void, in absence of anything in the record or recital in the judgment to indicate that other service was had so as to give jurisdiction, or that service was waived, or appearance entered.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 937, 938; Dec. Dig. <§=>497.].
    5. Judgment <§=>497 — Validity—Direct Attack.
    A personal judgment against a nonresident, reciting that defendant was legally served with citation, without stating the manner of the service, is not void on its face, and is subject only to direct attack, where there is nothing on the face of the record to contradict the recital.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 937, 938; Dec. Dig. <§=>497.]
    6. Judgment <§=>447 — Direct Attack — Showing oe Good Deeense.
    Where, on direct attack, the face of the record showed that the court was without jurisdiction of the person of defendant because of his nonresidence, it was not necessary for him to show a good defense to obtain the setting aside of the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 849-851; Dec. Dig. <§=>447.]
    7. Judgment <§=>461 — Direct Attack — Actions Constituting Direct Attack.
    A suit to restrain the enforcement of a judgment is a direct attack, and a recital in the judgment that defendant had been legally cited to appear did not control the allegations of the petition of defendant’s nonresidence, and return on citation showing that he was served in a sister state.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ S92, 893, 895; Dec. Dig. <§=> 461.]
    8. Execution <§=>172 — Restraining Sale — Void Judgment.
    On who sells land with covenants of warranty may, by injunction, restrain a sale thereof on execution under a void judgment, where the sale, if made, will create a cloud on his grantee’s title.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. <§=>172.]
    Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.
    Action by J. W. Hocker against the San Bernardo Townsite Company and another. From a judgment for plaintiff, defendant named appeals.
    Affirmed.
    Gaines & Corbett, of Bay Oity, for appellants. Hertzberg, Barrett & Kercheville, of San Antonio, for appellee.
   McMEANS, J.

J. W. Hocker sold certain lands in Brazoria county to W. G. Andes and others by deed containing covenants of general warranty, which lands were thereafter conveyed by said Andes and others to the San Bernardo Townsite Company. The title to a portion of the land having failed, the San Bernardo Townsite Company, on March 29, 1913, filed in the district court of Brazo-ria county a suit against the appellee Hock-er, in which suit the townsite company sought to recover a personal judgment against Hocker by reason of the warranties contained in said deed, alleging in its original petition that the residence of said Hock-er was in Bexar county, Tex. On June 6, 1913, the townsite company filed a first supplemental petition in which it alleged that the allegation in its original petition that Hocker was a resident of Bexar county was not true and correct, but that his residence was in Tulsa county, Okl., and prayed that a nonresident notice be issued to him in Tulsa county, Okl. Thereafter a notice of the suit was served upon Hocker at Tulsa, Okl., while he was a resident of said.place, and while he was actually within the confines of the state of Oklahoma, and return showing such service was duly made by the person serving said notice; but Hocker never appeared in said suit, either in person or by an attorney, and no answer was filed therein by or for him. On September 24, 1914, in said suit, the San Bernardo Townsite Company was given judgment against said Hocker; said judgment reciting on its face:

“That the defendant J. W. Hocker, having been duly and legally cited to appear and answer herein, failed to appear or answer herein, and in this behalf wholly made default. It is further ordered, adjudged, and decreed that the plaintiff San Bernardo Townsite Company do have and recover of and from said defendants J. W. Hocker et al., on its cause of action on the warranty of said defendants of the title to the land not herein recovered by plaintiff, and to which the title has failed, the sum of $25,655.-86, with interest thereon from this date until paid at the rate of 7 per cent, per annum, together with all costs incurred in this suit, for all of which let execution issue.”

Hocker had no notice of the rendition of this judgment until after the term of court at which it was rendered had closed. On December. 14, 1914, the townsite company caused to be issued out of the district court of Brazoria county, in said cause and upon said judgment, an alias writ of execution directed to the sheriff or any constable of Matagorda county, which was placed, in the hands of Bert Carr, sheriff of Matagorda county, and on December 31, 1914, said sheriff executed said writ, in part, by levying on the undivided interest of Hocker in certain lands in Matagorda county, as the property of said I-Ioeker, and duly advertised the same for sale under said writ on the first Tuesday in February, 1915.

On January 25, 1915, Hocker filed this suit in the district court of Matagorda county against the San Bernardo Townsite Company and Bert Carr, sheriff of Matagorda county, for injunctions, alleging the facts ahoye stated, and praying for a temporary injunction to restrain the sale of the land under said execution.

The defendant Bert Carr answered that he was in no way interested in the subject-matter of the litigation between the town-site company and Hocker, but that he was made a defendant in this cause purely in his capacity as sheriff and as an officer of the court, and prayed that proper orders be made for his guidance.

The defendant townsite company answered, alleging, among other things, in substance: (1) That plaintiff having voluntarily sought and invoked the jurisdiction of the court, and being indebted to it on account of said judgment and the breach of his warranty, and failing to offer any meritorious defense to the merits of the cause in which the judgment against him had been rendered, was not entitled to any relief. (2) That the record in the case in which the judgment had been rendered does not show on its face that said judgment is void, but that said judgment expressly recited that the defendant Hocker had been duly and legally cited to appear and answer, and had made default. (3) That Hocker had taken no action towards appealing from or vacating said judgment, and that the same remains in full force and effect until reversed or otherwise vacated. It also set up by cross-bill its action against Hocker upon his warranty.

The case was heard upon the petition and answer, both of which were verified, and upon copies of documents, and judgment was entered in favor of the plaintiff Hocker granting a temporary injunction in the terms of the prayer. From this judgment the townsite company has appealed.

We think that, under the facts shown, the court properly granted the temporary injunction.

That a personal judgment rendered against a nonresident defendant upon service of citation, or nonresident notice, served upon him without the state, is void, all the authorities substantially agree.

That the enforcement of such judgment may be enjoined, when, by the “face” of the record upon which it was rendered, it is shown to be void, without a showing upon the part of the plaintiff seeking the injunction that he has a good defense against the cause of action upon which such judgment was based, is the ruling of our Supreme Court in Railway Co. v. Ware, 74 Tex. 47, 11 S. W. 918, and Edrington v. Allsbrooks, 21 Tex. 186, which are approved in the later decisions of the Supreme Court in Kern Barber Supply Co. v. Freeze, 96 Tex. 516, 74 S. W. 303.

Such a judgment is a mere nullity and open to collateral attack; and any attempt, by process based upon it, to reach the property of the person against whom it is rendered, is an unlawful invasion of his rights of property, against which he is entitled to an injunction. An attempt to enforce by process such a nullity is as devoid of lawful authority as would be a seizure without process. In neither case would the existence of a valid debt aid the unlawful act. Kern Barber Supply Co. v. Freeze, supra.

There arises, then, the question: What is meant by the face of the record?

In Lutcher v. Allen, 43 Tex. Civ. App. 102, 95 S. W. 574, it is said:

“While it is true that all reasonable presumptions must be indulged in in favor of the judgments of domestic courts, and that they cannot be collaterally attacked when reciting valid service or when silent on the subject, yet it has never been held that they cannot be attacked in a collateral proceeding, if the judgment itself or the record shows that the court did not have jurisdiction.”

In Treadway v. Eastburn, 57 Tex. 209, it is said:

“To determine * * *, whether the record shows affirmatively that there has been proper service, the whole of it should be taken together. When thus considered, if that portion which relates to this question shows affirmatively such character of service as is not authorized by law, or such defective service that a judgment by default thereon would be void, and not voidable only, and the remainder of the record is silent upon this subject, not showing any finding of the court from which, it may be inferred that there was other service or an appearance, then this would be a case in which it affirmatively appears that the jurisdiction of the court had not attached.”

In Martin v. Burns, 80 Tex. 676, 16 S. W. 1072, it is held that in a collateral attack upon a judgment, if the judgment itself finds and recites a valid citation and service, that controls the balance of the record; otherwise if it recites an invalid citation or names the precise character thereof. If the judgment is silent as to service, then the whole record may on collateral attack he examined.

From these decisions and others, we deduce the following: Where a nonresident of this state has been sued in this state upon a personal demand, and a judgment has been rendered against him, the whole record in the ease may be examined to determine whether jurisdiction had attached, and that this is what is meant by the expression “face of the record.” If it thus be made to appear that the defendant was served out of the state, then in the absence of anything in the record or recital in the judgment to indicate that such other service was had upon him as to give the court jurisdiction over his person, or that service had been waived or an appearance for him was entered, the judgment is void and may be collaterally attacked.

But if the judgment recites that the defendant was duly or legally served with citation, without stating the manner of the service, and there is nothing on the face of the record to contradict the recital, the judgment would not be void upon its face, and would be subject only to direct attach.

If, however, on direct attach, it be shown by the face of the entire record that the court was without jurisdiction of the person of the defendant, because of his nonresidence in the state, then it would not be necessary for him to show a good defense to the cause of action upon which such judgment was based, but, to set aside the judgment, it would be sufficient to show by the record the invalidity of the service upon him. Foust v. Warren, 72 S. W. 404.

In this case the supplemental petition of the townsite company alleges that Hock-er’s residence was in Tulsa county, Old.., and the return upon the citation shows that he was served there. These facts were proved on the trial of this case, and no effort was made to contradict them, or to show that the court had acquired jurisdiction over Hooker’s person in any other manner. But the judgment recited that Hocker had been duly and legally cited to appear and answer therein ; and under the rule laid down in Martin v. Burns, supra, that recital would control on collateral attack as against the balance of the record. But this is not a collateral attack ; hence the rule laid down in Martin v. Burns does not apply, and the recital of service in the judgment would not control as against the entire face of the record and the other undisputed evidence, which shows the true character of the service upon which the court assumed jurisdiction of his person.

The following cases hold affirmatively that a judgment may be directly attacked by injunction to restrain its execution: Crawford v. McDonald, 88 Tex. 630, 33 S. W. 325; Dashner v. Wallace, 20 Tex. Civ. App. 151, 68 S. W. 307; Fayssoux v. Kendall County, 55 S. W. 583; and other cases in 11 Michie’s Enc. Digest, p. 156.

This suit was a direct attack on the judgment, and the proof shows that the judgment against Hocker was not such an one as the court had jurisdiction to render against him, and, having been rendered without jurisdiction, its enforcement was properly enjoined.

On the trial it was shown that on October 15, 1914, subsequently to the rendition of the judgment sought to be enjoined, the appellee J. W. Hocker' sold the land, upon which the execution issued on said judgment was levied, to C. M. Hocker, by deed containing covenants of general warranty. We think that one who sells land with covenants of warranty is entitled to an injunction to restrain a sale thereof on execution under a void judgment, when such sale would create a cloud on his vendee’s title. Huggins v. White, 7 Tex. Civ. App. 963, 27 S. W. 1066.

We find no reversible error in the record. The judgment of the court below is affirmed.

Affirmed.
      cgssPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    GOODHUE v. LECKIE et al.
    (No. 6848.)
    (Court of Civil Appeals of Texas. Galveston.
    April 20, 1915.
    Rehearing Denied May 13, 1915.)
    Appeal and Ekeoe <&wkey;771 — Filing of Briefs — 1Time to File.
    Failure of appellant to file briefs within the time prescribed by Rev. St. 1911, art. 2115, thereby depriving appellee of the right to file a brief within 20 days after notice and of the right conferred by articles 1613, 1616, to have the cause set for submission in the order in which docketed, is not excused on a showing that nothing was done towards the preparation of the briefs after the filing of the record in the court on appeal on August 28th, until January following, while the cause was regularly set for submission April 8th, and where in December appellee refused to consent to a postponement of submission, though, because of transfers of other eases on the docket to other courts, the day of submission was hastened.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3105; Dee. Dig. &wkey;771J
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Action between Josephine Leckie and another and James Wells Goodhue. From the judgment, Goodhue appeals.
    Dismissed.
    Blain & I-Iowth and R. L. Durham, all of Beaumont (Maco Stewart, of Galveston, on motion for rehearing only), for appellant. Greer, Nall & Bowers and F. J. & G. T. Duff, all of Beaumont, and Ed Haltom, of San Antonio, for appellees.
   McMEANS, J.

Appellees have filed a motion to dismiss this appeal on account of the failure of appellant to file briefs as required by law. Tbe transcript was filed in this court ou August 28, 1914. This cause was regularly set for submission in this court on April 8, 1915, and the appellant notified thereof on March 27, 1915, 11 days before the day set for the submission. A copy of his brief was not filed in the court below until March 31, 1915, nor were copies filed in this court until April 1, 1915, 8 and 7 days, respectively, before the date of submission, and counsel for appellees did not receive a copy thereof until March 29, 1915. The brief consists of 109 printed pages, and presents 27 assignments of error and numerous propositions, and cites perhaps 100 cases as authority. In her motion appellee sets out the facts with regard to the failure to file briefs, and alleges that on account of other business her counsel will not have sufficient time to prepare and file briefs in this cause on or before the day set for submission. The only excuse offered by appellant’s counsel for failure to file briefs as required by law are these: (1) That an January 27, 1915, 108 cases pending on appeal to this court, and which were prior to this in point of time of filing, were transferred to other Courts of Civil Appeals, and that the transferring of said cases occasioned the setting of this case for submission about 2 months earlier than it would otherwise have been set; (2) that the law firm of Blain & I-Iowth, which tried the case for the appellant, was dissolved on September 8, 1914, and after the dissolution the members of the old firm undertook to divide the labor incident to the business remaining on hand, and to that end Mr. Blain agreed to brief this case. Mr. Blain tried to get an agreement from the attorneys for appellees to postpone the submission of this case until after the determination by the Supreme Court of a case there pending involving some of the same issues presented on this appeal, but was unsuccessful. Some time after the Christmas holidays Mr. I-Iowth, of the former firm, asked Mr. Blain if he had succeeded in getting an agreement for postponement from the attorneys of ap-pellees, and was informed that he had not. Mr. I-Iowth then undertook to assist Mr. Blain in the preparation of the brief, and during the month of January and a part of February the brief was partly prepared, and on February 8th a good part of the brief was put in the hands.of the printer, and all of it prepared and delivered to the printer in time to have gotten it out by the latter part of February or first part of March, 1915; but after the printer had much of it in type delays were suffered on account of 'other pressing business in the printing office, so that the brief was not finally printed and ready for filing in the court below until the 29th day of March, 1915. It was shown by appellees’ motion to dismiss the appeal that Mr. Blain, on December 10, 1914, did request appellees’ counsel to agree to a postponement of submission, but that the latter, by a letter dated December 14, 1914, informed him that they would not make the agreement.

By article 2115, Revised Statutes 1911, appellant was required to file with the clerk of the district court a copy of his brief 5 days before the time of filing of the transcript in this court. It is the duty of the district clerk forthwith to give notice of such filing to the appellee or his attorney of record, who is then required, in 20 days after such notice, to file a copy of his brief with the clerk of the court below, and with the clerk of the Court of Civil Appeals four copies. The law provides that causes in this court shall be docketed in the order of their filing, and that they shall be set for submission, in the order in which they are docketed, “unless continued to some future time for good cause shown.” Articles 1613, 1616, Revised Statutes 1911.

“Under these provisions of the statute the appellee,” as said by this court in Niday v. Cochran, 48 Tex. Civ. App. 259, 106 S. W. 463, “has two substantial rights: (1) To have the cause submitted in its regular order; and (2) to be allowed 20 days after notice of the filing of appellant’s brief with the district clerk within which to prepare and file his own brief. * * * rpp overrule his motion to dismiss in the present ease will inevitably require him to yield one of these substantial rights. We will have either to postpone the submission or hear and determine the case without a brief for ap-pellee.”

It could hardly be expected that appellees would be able to prepare their brief, in answer to the extended brief of appellant, in the limited time from March 29th, when they received a copy, of appellant’s brief, and April 8th, the day the case was set for submission ; and in recognition of this fact the appellant himself, by a motion filed in this court on April 5th, urged a postponement of submission to some future day of the term or to some future term of this court in order that the appellees might have ample time in Which to file their briefs. The exense offered by appellant for failure to file Ms briefs as required cannot be considered sufficient to authorize such action. While he showed commendable energy of bis counsel after they began the preparation of the briefs, no reason is shown why the long interval between the filing of the record, in this court on August 28, 1914, to January 1915, when they began the preparation, was not utilized for this purpose. That the transfer of cases from this court to others hastened the day of submission is true, and has been true as to other cases remaining on the docket of this court when previous transfers were made, and appellant’s attorneys were bound to know that such a result would be inevitable. They also knew on December 14, 1914, when the attorneys for appellees refused to agree to a postponement of submission, that a submission would be insisted on by the appel-lees when the case was reached in regular order. “It has been the rule in this court to refuse to dismiss for failure on the part of appellant to file briefs in strict compliance with the rules, where a relaxation of the rules would not delay a submission of the case, and there was ample time after the filing to allow appellee to prepare and file briefs before submission.” This is not such a case. The case of Niday v. Cochran, above referred to, and tbe authorities there collated, will show that our action in dismissing this appeal is in entire harmony with the ruling of this and other Courts of Civil Appeals and sanctioned by the Supreme ■Court, as shown by refusal of writs of error in some of the cases referred to.

The motion to dismiss the appeal must be sustained.
      <S=»For other cases see same topic and ICBY-NUMBER In all Key-Numbered Digests and Indexes


author: MeMEANS, J.

text:
    LONE STAR CANAL CO. v. BROUSSARD et al.
    (No. 6723.)
    (Court of Civil Appeals of Texas. Galveston.
    April 28, 1915.
    Rehearing Denied May 20, 1915.)
    1. Appeal and Error &wkey;J1002 — Review — Finding.
    A jury’s finding, based on conflicting evidence, cannot be disturbed on apneal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <&wkey; 1002.]
    2. Trial <&wkey;260 — Refusal op Instruction-Instruction Elsewhere Given.
    Error could not be predicated upon the refusal of a requested instruction, where one on the same point more favorable to the objecting party was given.
    [Ed. Note. — For other cases, see Trial, Cent, Dig. §§ 651-659; Dec. Dig. &wkey;260.]
    3. Appeal and Error <&wkey;216 — Preservation op Grounds op Review — Objectionable Instruction.
    Where a charge was correct as far as it went, the failure to request more specific instructions prevented the question of the sufficiency of the charge from coming up on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <3&wkey;216; Trial, Cent. Dig. § 627.]
    4. Waters and Water Courses &wkey;>254 — Irrigation — Contract — Ancillary Agreement — “Consideration.”
    In an action by an irrigation company to recover for supplying' water to defendants, where the original agreement was supplemented by a further one whereby the company, if defendants would plant certain land with rice, agreed to supply water therefor one month after the usual time for ceasing to pump, the fact that the company did not benefit under such ancillary agreement did not render it without consideration, since a valid “consideration” consists in benefit or detriment to either party, and need not be mutual.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. <&wkey;> 254.
    For other definitions, see Words and Phrases, First and Second Series, Consideration.]
    5. Evidence <&wkey;445 — Parol Evidence — Subsequent Contract.
    A written contract may be abrogated or altered by a subsequent parol agreement, and proof of such subsequent agreement is not inadmissible as an attempt to vary a written instrument by parol evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. <&wkey;>445.]
    6. Evidence <&wkey;141 — Similar Facts —Irrigation — Injuries erom Failure to Supply-Damages.
    An action by an irrigation company to recover for water supplied, where the defendants brought a cross-action alleging damage to their crop through the company’s failure to supply water for the time agreed, evidence, based on the yield of an adjoining tract of land, the conditions being shown to have been similar, was admissible on the point of damage to defendants.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 406, 408-413; Dec. Dig. <@=ol41J
    7. Evidence <&wkey;533 — Opinion Evidence — Expert Testimony — Damage to Crop.
    The damage done to a crop by failure of an irrigation company to supply water therefor was a proper subject for expert testimony; sufficient showing having been made of the witness’ qualifications.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2341; Dec. Dig. <¿^>533.]
    Appeal from District Court, Chambers County; J. Llewellyn, Judge.
    Action by the Lone Star Canal Company against D. L. Broussard, Jr., and another. From affirmative judgment for defendants in their cross-action, plaintiff appeals.
    Affirmed.
    Lipscomb & Lipscomb, of Beaumont, for appellant. A. W. Marshall, of Anahuac, for appellees.
   MeMEANS, J.

The Lone Star Canal Company brought this suit against D. L. Brous-sard and George ■ Staples to recover $1,314, water rates for supplying water to defendants for 219 acres, a part of their rice crop of the year 1912, with interest and attorney’s fees, under a written contract which provided that the defendants should pay as water rental $6 per acre for each and every acre of land planted in rice by the defendants during said year, and which should be watered in whole or in part by plaintiff. Defendants answered by general denial and other pleas not necessary to be stated, and by way of cross-action set up that, subsequently to the execution of the written contract, and before they had prepared the land for planting, and before the plaintiff had applied water to 150 acres of the 219-acre crop, they had decided not to plant said 150 acres, because of the lateness of the season, but that plaintiff expressly requested them to plow, prepare, and plant said 150 acres, and made a new agreement with defendants in regard thereto, whereby plaintiff agreed that if defendants would plant said 150 acres in rice, plaintiff would pump and sup-lily water for them for a month after the regular season, which closed September 1st, in order to mature their rice crop thereon; that, relying upon this agreement, and understanding, defendants plowed and planted said 150 acres in rice, but that plaintiff breached its agreement to furnish water to mature the crop at the time it was most needed, whereby the crop suffered deterioration to the amount of $3,266.25, whereof three-tenths was- suffered by their landlords and the remainder, $2,286.38, being credited with the water rates sued for, left $946.38, as the damages claimed by defendants. The case was tried before a jury, and resulted in a verdict for defendants for the sum of $2,280.28, less $1,340, water rent, leaving $946.38 as the damages sustained by defendants. Defendants voluntarily entered a re-mittitur of $87.36, and judgment was then duly entered in their favor for $859.02, from which the plaintiff has appealed.

Appellant’s first assignment of error is predicated upon the refusal of the court to give to the jury its first special charge, which contained a peremptory instruction to find tor the plaintiff. Its first proposition is that the pleadings of defendants and charge of the court showed that plaintiff was entitled to be allowed its claim for water rates on 219 acres at $6 per acre. This is true, and the court so charged the jury, and the amount was found by the jury in appellant’s favor.

The second proposition asserts that the undisputed evidence showed that appellant fully watered up to and including September 1st, and the irrigating canal was left full for defendants’ benefit, and that the undisputed evidence shows freedom from obligation to pump after that date. The evidence sufficiently shows, we think, that the appellant discharged its obligation as to pumping water into the irrigation canals*, up to September 1st, and that* it then left the canals full of water. But the evidence does not show without dispute that the water in the canals, although they were full on September 1st, was sufficient to water appellees’ crop and bring it to maturity. On the contrary, there was evidence that justified the jury in reaching, as it did, the opposite conclusion. We will not pause to set this evidence out here, but we make this finding from the evidence in the record. The testimony of the appellee was such as to justify the jury in finding that a contract was made by them with appellant to pump after September 1st, and, further, that their rice crop needed water after that date, so that, instead of the evidence indisputably showing freedom of obligation upon the part of appellant to pump after that date, as appellant contends, the jury was justified in finding that such obligation rested upon appellant, and that this obligation was not discharged.

By a third proposition appellant contends that if there was any obligation on the part of plaintiff to furnish water after September 1st, it was no more than an obligation to use due diligence to furnish fresh water when fresh water was available, and that the prima facie case of due care and diligence made out by plaintiff was not rebutted by any evidence competent or sufficient as rebuttal. If it be conceded that the obligation assumed by appellant to furnish appellees with water after September 1st was only to use due diligence to furnish fresh water when such was available, there was sufficient testimony to raise the issue that by the exercise of such diligence appellant could have supplied a sufficient quantity of fresh water to irrigate and bring plaintiffs’ crop on the 160 acres to maturity. True, the evidence introduced by appellant, had the jury given it credence, was sufficient to justify a finding that appellant had discharged its obligation in this regard, but the evidence introduced by the aijpellees on this issue was sufficient to raise a conflict, and the jury settled the conflict in favor of appellees, and their finding, in such circumstances, is conclusive upon this court. The assignment is overruled.

The second assignment complains that:

“The court erred in refusing to give plaintiff’s second special instruction, same being a request for a peremptory instruction as against the defendants on their cross-demand, and to find for plaintiff to the amount of $6 per acre for the number of acres within 219 for which they should find that plaintiff had furnished sufficient water to properly irrigate them.”

The court peremptorily instructed the jury to find for appellant in the sum of $6 per acre for each of the 219. This was more favorable to the appellant than the special charge which the court refused to give. The peremptory instruction to find against defendants on their cross-demand was properly refused for the reasons heretofore given.

By the third assignment appellant contends that if it was proper to submit to the jury any issue as to a parol contract, it was error to submit the question of whether such parol contract was made without defining what was necessary in law to constitute a contract, and that the court erred in overruling plaintiff’s exceptions to its charge based on this ground. The charge of the court in this regard was correct as far as it went; and, if not satisfied with it, the appellant should have requested more specific instructions. None were asked, and we see nothing in the charge given to induce the belief that the jury was in any way misled by it. Ins. Co. v. Ende, 65 Tex. 124; Railway v. Harmonson, 22 S. W. 764; Railway v. Spencer, 28 Tex. Civ. App. 251, 67 S. W. 196. The assignment cannot be sustained.

It was not error to permit the defendant Staples to testify to a conversation between himself and Charles B. Allaire, the vice president and general manager of appellant in 1912, the object of which was to show a new agreement to that expressed in writing to furnish water after September 1st. The objection to this testimony was that there was no consideration for the new agreement, and that said evidence was intended as a variance of the written contract, and would so operate if admitted and considered. The testimony showed a sufficient consideration for the new agreement, in this: It was shown that, owing to the lateness of the season, the appellees had abandoned the intention of planting the 150 acres in rice, and that Al-laire, being informed of this, promised and 'agreed that if the appellees would plant the 150 acres (it being recognized by the parties that the rice planted at that late date could not mature by September 1st), the appellant would furnish water after that date for a period of 30 days, or for such less length of time as necessary to mature the crop. Acting on this promise and agreement, appellees thereafter plowed and planted the 150 acres in rice, which they would not have done but for the new agreement. It is well settled that a consideration for a contract is valid in law if either party is to receive a benefit or be injured by it. It need not be mutually beneficial. Bason v. Hughart, 2 Tex. 479; Hendricks v. Snediker, 30 Tex. 306; Willis v. Matthews, 46 Tex. 483; Murphy v. Stell, 43 Tex. 131; Lane v. Scott, 57 Tex. 373.

The new agreement was not less valid and binding between the parties because not in writing. It was made subsequently to the written contract, and proof of it was not made in an attempt to vary the written contract, but to show the making of a new agreement, substituting a date later than September 1st to which appellant was to furnish water. Bradshaw v. Davis, 12 Tex. 354. The assignment is overruled.

The testimony of appellee G. W. Staples, the admission of which is complained of in the fourth assignment, was properly ad-' mitted. His testimony as to the probable yield on the 159 acres was based upon the yield on the Miller 50 acres, adjoining the 150 acres in question, and shows that the conditions surrounding the two crops were similar, except in the difference in the time of planting, and the witness, in estimating the yield by this comparison, made allowance for the difference in time of planting.

We think that the witness Mitchell was sufficiently shown to be qualified as an expert to testify as to the probable yield of the 150 acres, and that the admission of his testimony, complained of in the sixth assignment, was not error.

We have carefully considered all other assignments of error presented by appellant, and are of the opinion that no reversible error is pointed out in any of them. We conclude that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      ©soFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GENERAL BONDING & CASUALTY INS. CO. v. WAPLES LUMBER CO. et al.
    (No. 6806.)
    (Court of Civil Appeals of Texas. Galveston.
    April 19, 1915.
    Rehearing Denied May 13, 1915.)
    1. Appeal and Error <©=>907 — Review — Presumption.
    Where the only assignment of error is made on the hypothesis that the error is fundamental and apparent from the face of the record, it will be presumed that every fact warranted by the pleadings and essential to the validity of the judgment was proved upon the trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. <@=>907.]
    2. Principal and Surety <©=359 — Surety’s Liability — Construction.
    Surety bonds on building contracts are not to be construed as contracts of insurance, but as the obligations of a surety, and are to be strictly construed and not extended beyond the plain import of the language used.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 103, 103%; Dec. Dig. <@=>59.]
    3. Mechanics’ Liens <©=>317 — Bond to Owner-Liability of Surety — Parties.
    Where an owner of land requires of his contractor a bond binding him and his surety to pay all debts contracted for materials, whether the claims might be asserted against the property of the owner as a lien or not, material-men could sustain an action against the contractor and the surety upon the bond.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 659; Dec. Dig. <©=>317.]
    4. Mechanics’ Liens <©=>317 — Bond—Contractor’s Surety Bond — Liability of Surety.
    An owner of land contracted with a builder to furnish all the labor and materials and to erect certain improvements, with the privilege to buy labor and materials on the contractor’s failure in performance and deduct the cost from the amount due the contractor, and the right to retain out of payments due an amount sufficient to indemnify the owner against liens. The contractor’s surety bond was conditioned for faithful performance in accordance with the contract, and to be in force only if the contractor failed to perform or to pay and satisfy all materialmen and subcontractors. Held, that the bond was one defining the liability of the surety to the owner, and, in the absence of any provision indicating such undertaking, did not inure to the benefit of materialmen, who could not sue thereon directly, or to compel the owner to sue as trustee for their benefit.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 659; Dec. Dig. <©=>317.]
    Appeal from District Court, Galveston County; Robt. G. Street, Judge.
    Suit by the Waples Lumber Company against the General Bonding & Casualty Insurance Company, W. F. Breath and wife, and W. T. Butler, with cross-bill by defendants Breath and wife against the Insurance Company. Judgment for plaintiff against defendants Butler and Breath and wife, judgment for Breath and wife against Butler and the Insurance Company for the benefit of plaintiff, with judgment for the Insurance Company over against Butler, and the defendant Insurance Company appeals.
    Reversed and remanded.
    John W. Campbell, of Galveston, and Gill Jones & Tyler, of Houston, for appellant. W. F. Kelly, of Galveston, for appellee Waples Lumber Co. 'D. D. McDonald, of Galveston, for appellee W. F. Breath and wife.
   McMEANS, J.

The statement of the nature and result of the suit made by appellant in its brief, and agreed by appellees to be correct, is adopted.

Plaintiff Waples Lumber Company filed this suit on the 5th day of September, 1913, and, by its amended petition against W. T. Butler, W. F. Breath and wife, Lucy P. Breath, and General Bonding & Casualty Insurance Company, alleged, in substance, that the defendant Butler had contracted to build for defendants Breath and wife, and had furnished a bond for the faithful performance of his contract with the defendant General Bonding & Casualty Insurance Company, as surety, and that said bond, a copy of which is attached to the pleading, guaranteed the payment of all material and labor claims on the building, and that, relying upon this provision of the bond, plaintiff lumber company and other materialmen, whose claims had been assigned to plaintiff lumber company, had furnished material to said contractor Butler, and had filed their material-men’s liens therefor, and that the owners, Breath and wife, in requiring and accepting the bond in question, payable to themselves, acted as trustees for materialmen on the building, and that it was their duty to collect enough money on the bond to pay plaintiff’s debt, which is alleged to aggregate $1,050.98 and interest, and plaintiff asks that it have judgment either upon the bond direct, or that the defendant Breath and wife recover judgment on the bond, as trustees for the use and benefit of plaintiff.

The defendants Breath and wife answered, denying all material allegations, except those alleged in their answer, and specially denying that mechanic’s liens had been fixed as alleged, and pleading that the property upon which the building was erected was their homestead, and that the contract for the construction of the building was not acknowledged by either Breath or wife, and hence that no mechanic’s or materialman’s lien attached to the property, or could be enforced against them; that, under the terms of the bond in question, the surety company became liable for plaintiff’s debt, as alleged by plaintiff, and that defendants Breath and wife were entitled to recover for the use and benefit of plaintiff the sum of $996.76, less $475.-50, the unpaid portion of the contract price remaining in the hands of the owners, and which was deposited in the registry of the court, and that these defendants were entitled to recover of said surety the sum of $521.26 for the use and benefit of plaintiff.

The answer of the defendant W. T. Butler operated as a general denial of all material allegations of the plaintiff’s petition, and of the answer and cross-bill of defendants Breath and wife, except that he admitted the execution of the contract and bond, the fact that the contract was not privily acknowledged by Breath’s wife, and was for improvements on the homestead, and denied that the bond was intended for the protection of materialmen, or that they relied thereon.

The defendant casualty company answered by general and special demurrers, and, in conformity with the rules, in effect denied all the allegations of plaintiff’s petition and of defendants Breath and wife’s cross-bill, except that it admitted the execution of the bond sued on, but denied that the legal effect or intent of said bond was as alleged by plaintiff or by the defendants Breath and wife, and alleged that the plain import and Intent of said bond was to indemnify the defendants Breath and wife only, and did not inure to the benefit of materialmen in any respect.

The case was tried before the court without a jury and resulted in a judgment for plaintiff Waples Lumber Company against defendant Butler for the sum of $994.76, and for the sum of $475.50 paid into the registry of the court by defendants Breath and wife, to be credited upon the judgment against Butler, and that plaintiff take nothing by its suit against the casualty company or upon its suit for debt and foreclosure against Breath and wife, and further that defendant Breath and wife recover of the defendant Butler and appellant General Bonding & Casualty Insurance Company the sum of $519.26 for the use and benefit of plaintiff Waples Lumber Company, to be credited upon its judgment for $994.76, against defendant Butler, and that the lot of land upon which the house was constructed and the improvements thereon be declared free and unincumbered by the materialmen’s lien claimed by plaintiff, and that appellant General Bonding & Casualty Insurance Company have judgment over against its codefendant Butler for the sum of $519.26 and costs. From the judgment against it, the General Bonding & Casualty Insurance Company has appealed.

There are no statement of facts or bills of exception in the record, but the contract between Breath and wife and Butler, and the bond executed by Butler to them, with the bonding company as surety, are attached to and form a part of the pleadings in the case.

Appellant’s first assignment of error, which is submitted as a proposition, is as follows:

“The court erred in rendering judgment herein against appellant surety company, for the reason that the pleadings of the plaintiff Wap-les Lumber Company- and the pleadings,of the defendants Breath and wife, for the use and benefit of plaintiff Waples Lumber Company, both affirmatively show that the only cause of action claimed herein against appellant surety company was under and by virtue of the terms of a written bond, whereby appellant surety company obligated itself to indemnify and hold harmless the defendants Breath and wife against the breach of a written- contract by the defendant W. T. Butler, and further affirmatively show that the defendants Breath and wife have sustained no injury and suffered no damage by reason of any breach of said contract, and further affirmatively show that there is no privity of contract whatsoever between the plaintiff and defendant surety company, and that the terms of the bond in question did not inure to the benefit of the plaintiff or other ma-terialmen, and that neither the plaintiff nor the defendants Breath and wife, as trustees for the plaintiff, was a party or a privy to said bond; and the error of the court in rendering a judgment herein, not supported by the pleadings, is a fundamental error, apparent of record, requiring a reversal of the judgment.”

The issues as between the plaintiff and Breath and wife on the one hand and the bonding company on the other as made by the plaintiff’s pleadings are substantially that Breath and wife made a contract with Butler to furnish all the labor and materials and. to erect certain improvements on a lot of land in tlie city of Galveston, owned and occupied by Breath and wife as their homestead ; that the building had been completed and all material and’labor contracted for had been furnished by Butler, and that there still remained in the hands of Breath and wife a part of the contract price agreed to be paid by them to Butler; that the plaintiff Waples Lumber Company, and those whose rights it had acquired, had furnished materials to Butler which were used in the construction of the improvements, and for which Butler had -not paid. There was no allegation that Butler had not complied with his contract for the construction of the improvements in any respect or particular, except that he had failed' to pay plaintiff Waples Lumber Company for the materials furnished ; that the contract between Breath and wife and Butler was in writing, but not executed in such a way as to give a lien on the homestead, and that a bond had been given to secure the performance of that contract; that the bonding company executed said bond as surety, and that, under the terms thereof, said surety had obligated itself to pay for the materials and labor used by Butler in the performance of his contract, and that the plaintiff Waples Lumber Company was entitled to recover on the bond, or else the ob-ligees Breath and wife were entitled to recover on the bond for the use and benefit 'of the plaintiff.

The building contract between Breath and ■wife and Butler is quite lengthy, and will .not be set out in full in this opinion, but we will state the substance of such of its provisions as directly or remotely bear upon the question herein discussed. Article 1 provides that the contractor, Butler, shall provide all the materials and perform all the work for 'the erection and completion of the improvements. Article 5 provides that should the contractor at any time refuse or neglect to supply a sufficiency of workmen or materials, 'or fail to prosecute the work with diligence, •or fail to perform any of the agreements of the contract, the owners should be at liberty to provide such labor or materials and de•duct the cost thereof from any money that thereafter might become due to the contractor under the contract, and further provides that under certain circumstances the owners might terminate the contract, finish the work -themselves, and charge the cost of same against the sum promised to the contractor for doing the work. A paragraph in the ■ninth article reads- as follows:

“If at any time there shall be evidence of any lien or claim for which, if established, the owner of said premises might become hable, and which is chargeable to the contractor, the owner ■shall have the right to retain out of any payment then due, or thereafter to become due, an amount sufficient to completely indemnify said owner against such lien or claim. Should there prove to be any such claim after all payments are made, the contractor shall refund to the •owners all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the contractor’s default.”

The bond sued on, omitting the formal parts, is as follows:

“Know all men by these presents: That I, W. T. Butler, principal, and General Bonding & Casualty Insurance Co., Dallas, Texas, as sureties, are held and firmly bound unto W. F. Breath and wife in the penal sum of eight hundred dollars ($SOO.OO), to the payment whereof we jointly and severally do hereby obligate ourselves, our heirs, executors, administrators, representatives and assigns. The conditions of the above obligations are such that whereas the above W. T. Butler has made and entered into a written contract to furnish all materials and labor for (except as otherwise specified in said contract), and to erect and construct upon the property situated on the N. W. corner of 25th and Avenue N, in the city and county of Galveston, state of Texas, for the said W. E. Breath and wife, a two-story frame dwelling and improvements, all of which are fully set forth and provided for in said contract, plans and specifications for said work prepared by Stowe & Stowe, architects, which are hereby referred to for particulars, and which contracts, plans and specifications are made a part of this obligation; and whereas a part of the consideration for the making by said W. T. Butler with said W. F. Breath and wife of said building-contract was the agreement of said W. T. Butler to furnish to said W. F. Breath and wife a good and sufficient bond and obligation to faithfully carry out and perform all the obligations assumed by him under said building contract, and to furnish all materials and labor for, and to construct and fully complete and finish said work, and all work connected therewith, in accordance with and as provided for in said contract, plans and specifications: Now, therefore, if the said W. T. Butler shall well and truly keep and perform all the obligations undertaken by him in the aforesaid contrhct made between him and the said Wt F. Breath and wife, and shall fully perform all the work provided for, and complete and furnish the aforesaid work and improvements according to the terms, stipulations and provisions in the aforesaid contract, and in accordance with the aforesaid plans and specifications, and within the time specified by said contract, and shall pay in full and satisfy all materialmen, subcontractors and laborers, and all other persons employed by him in any manner in the erection of said work, then this obligation shall become null and void, otherwise the same shall be and remain in full force and effect.”

The -only questions presented for our determination are whether the bond inured to the benefit of the plaintiff Waples Lumber Company and other materialmen, whose claims plaintiff holds, and whether it could be enforced by the plaintiff or Breath and wife, as trustees, for its use. If either of these questions be answered in the affirmative, the judgment was properly rendered against the bonding company; if not, the judgment was erroneous.

The only assignment presented is predicated upon the hypothesis that the error is fundamental and apparent from the face of the record; and it will be presumed, therefore, that every fact warranted by the pleadings, and essential to the validity of the judgment, was proved upon the trial.

There' was no stipulation in the contract which required the contractor to give the bond; and hence the purpose of the bond must be gathered from its own terms. To aid in its construction, we quote that part of it which declares the purpose for which it was required:

“The condition of the above obligations are such that whereas the above W. T; Butler has made and entered into a written contract to furnish all materials and labor for * * * and to erect and construct * * * for W. F. Breath and wife [the building] and whereas, a part of the consideration for the making by said W. T. Butler with said W. F. Breath and wife of said building contract, was the agreement of' said AV. T. Butler to furnish to said' W. F. Breath and wife a good and sufficient bond and obligation to faithfully carry out and perform all the obligations assumed by him under said building contract, and to furnish all materials and labor for, and to construct and fully complete and finish said work, and all work connected therewith, in accordance with and as provided for in said contract, plans and specifications.”

It cannot be successfully contended that the purpose of the bond and the condition of the obligation assumed by its language, above quoted, are anything more than Indemnity to Mr. and Mrs. Breath against any failure on the part of Butler to furnish the labor and materials and to build and finish the house conformably to the plans and specifications ; and we do not understand that ap-pellees contend otherwise. But it is on this further language of the bond, which provides the conditions under which the bond may become ineffective and void, that appellees base their contention that the bond by its terms inured to the plaintiff as a materialman, and could be enforced by it or by the obligees therein for its benefit:

“Now, therefore, if the said W. T. Butler shall well and truly keep and perform all the obligations undertaken by the aforesaid contract * * * and shall pay in full and satisfy all materialmen, subcontractors and laborers, and all other persons employed by him in any manner in the erection of said work, then this obligation shall become null and void, otherwise the same shall be and remain in full force and effect.”

I This is not an affirmative promise to Breath and wife that Butler would pay the claims of materialmen, and there is not in the bond or in the contract any language to indicate an agreement or intention that the bond was intended for the security of the materialmen either directly or through Breath and wife, as trustees, unless such an agreement is expressed by the language of the bond last above quoted. Certainly that language does not express an affirmative promise to the materialmen or for their benefit.

There is no allegation by any party to this suit of ambiguity in, or fraud, accident, or mistake in, the execution of the contract, or any pleading seeking a reformation of either; and it is elementary that, in the absence of such allegations or pleading, the obligation of a surety cannot be extended beyond the plain import of the language used in the writing. Surety bonds on building contracts are not to be construed as contracts of insurance, but as the obligation of a surety, and to be strictly construed. Lonergan v. San Antonio Trust Co., 101 Tex. 76, 104 S. W. 1061, 106 S. W. 876, 130 Am. St. Rep. 803; Lane v. Scott & Culver, 57 Tex. 370; Ryan v. Morton, 65 Tex. 252.

AVe think there is no doubt that Breath and wife could have required of Butler a bond binding him and his surety to pay all debts contracted with persons for materials, whether the claims might be asserted against the property of the owner as a lien or not, and that under such a contract, if it had been made, the materialmen might sustain an action against the contractor and the surety upon the bond. Bank v. Railway Co., 95 Tex. 184, 66 S. W. 203. .

Thus, in Nelson v. Stephenson, 168 S. AV. 61, in which a bond was required of, and given by, a building contractor’, the bond containing the condition that the contractor would faithfully perform his contract and pay all indebtedness that might be incurred, and being given to “all parties who might furnish labor or materials on the contract hereinbefore mentioned,” and “to be paid to said school district No. 1, Sinton, Tex., and to said parties who may furnish labor and material,” it was held that the bond “inured to the benefit of the laborers and material-men to whom it was made payable. They were by the plain terms of the contract privies thereto and fully protected thereby, and each, or any of them, could prosecute a suit on the bond in his own name,” and cite many authorities in support of the ruling.

In United States Fidelity & Guaranty Co. v. Thomas, 156 S. W. 573, the obligation of the building bond was to “pay all claims and liens,” and “we also agree that the obligation of this bond shall inure to the benefit of materialmen and subcontractors.” In discussing the language quoted, the court says:

“Counsel for appellees admit that without this provision the suit [of the materialmen and subcontractors] could not be maintained. AVith it inserted in the bond, are the appellees bene ficiaries and entitled to a right of action thereon? AVe have reached the conclusion that this question should be answered in the affirmative.”

In Texas Glass & Paint Co. v. Southwestern Iron Co., 147 S. W. 620, it was held that a bond given by a contractor, conditioned on his performing the contract and paying all indebtedness, and completing the building free of liens and payable to the owner and to the lienholders, and providing' that it is made for the use of all persons who may become entitled to liens according to law, might be recovered upon by one holding a lien upon the building, but not by a material-man who had furnished materials which entered into the construction but who had no lien.

To the same effect is Republic Guaranty & Surety Co. v. Wm. Cameron & Co., 143 S. W. 317, where the bond sued upon by the ma-terialmen was payable “to all persons who may become entitled to liens under the eon-tract hereinbefore mentioned,” and contained the provision that:

“This bond is made for the use and benefit of all persons who may become entitled to. liens under said contract, according' to the provisions of law, * * * and may be sued upon by them as if executed to them in proper person.”

In every Texas ease, to which our attention has been called, in which a materialman, laborer, or lienholder has been allowed to recover on the bond of a building contractor, the right has been rested upon some specific obligation in the bond directly to the plaintiff, either where the bond is by its terms made payable to him or provides that it shall inure to his benefit. In no Texas case that we have seen has it been held that a ma-terialman may recover upon the bond of a contractor, where the bond itself or the contract requiring its execution did not provide that the bond should be payable to the ma-terialmen or that it should inure to their benefit.

In National Bank v. Railway Co., 95 Tex. 184, 66 S. W. 203, the bond was conditioned that the contractors “shall well and faithfully pay all laborers, mechanics, material-men, and persons who supply such contractors with provisions or goods of any bind, all just debts due to such persons or to any person to whom any part of such work is given, incurred in carrying on such work agreed to be done and performed” by the contractors. The Supreme Court, in a suit by a holder of the claims of laborers to recover on the bond, held:

“There is not in this clause any promise by Evans and Hoskour [the contractors] to pay these persons who might contract with them during the progress of the work. It simply is the expression of a condition upon which their liability to the railroad company [the owner] is defined and for a breach of which they would be liable to the company itself. Standing alone, the clause would not support the claim.”

In Campbell-Root Lumber Co. v. Smith, 148 S. W. 1196, it is said:

“It will be observed that the bond in the present case was executed for the benefit of the trustees of said school district and for lien-holders against said building. It is not shown by any allegation in the petition nor the bond or contract that plaintiffs came within the purview of this provision. * * * The effect of the obligation of said bond is to be determined strictly according to its terms, and cannot be extended by implication, so as to make sureties thereon liable beyond its stipulations. See Cyc. vol. 27, p. 308. If the bond in the present case had provided that the obligors were bound, not only to the trustees of the Killeen independent school district, but likewise to all persons who might perform labor or furnish material in the construction of said building, irrespective of whether they were lienholders or not, then it seems, under the authorities, that plaintiffs in this ease might have a cause of action, and be able to maintain this suit.”

After a review of all the authorities cited by the parties in their briefs, we have reached the conclusion that, whatever may be the holding in other states, it is the well-established law of this state that a building contractor’s bond, conditioned as in the instant case, is simply an expression of a condition upon which the liability of the surety to the owners is defined, and for a breach of which the Surety will be liable to the owner only, and does not inure to the benefit of materialmen, in the absence of a provision evidencing such an undertaking. The bond, then, being an indemnity bond to W. F. Breath and wife, does not give a right of action to the plaintiff, as a materialman, against the surety on the bond. It fqllows from this that the materialman, not having any right of recovery on the bond in his town behalf, cannot recover through the obligees as trustees. It is our conclusion that the judgment of the court below must be reversed; and inasmuch as this conclusion is based upon the view that the judgment was one that could not have been properly rendered on the plaintiff’s pleadings, and to that extent the judgment of reversal partakes of the nature of a judgment sustaining a general demurrer to the petition, this court should not render judgment here, but should remand the cause; and it has been so ordered.

Reversed ¿nd remanded.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    DICKEN et al. v. CRUSE et al.
    (No. 6785.)
    (Court of Civil Appeals of Texas. Galveston.
    April 7, 1915.
    Rehearing Denied April 29, 1915.)
    1. Appeal and Eeeoe <@=1078 — Questions Review able — Waives oe Assignments oe Eeeoe.
    Assignments of error omitted from appellant’s brief are waived.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. <@= 1078.]
    2. CONTRACTS <@=3164 — CONSTEUCTION — INSTRUMENTS Simultaneously Executed.
    A deed, bill of sale, notes for part of the price, and a mortgage on the property conveyed to secure the notes, executed by the same parties and simultaneously, must be construed as but one and the same agreement.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 746-748; Dec. Dig. <@=164.]
    3. Payment <@=73 — Evidence—Payment oe Purchase Money.
    The instruments, construed together, were proof that the purchase price was not fully paid at the time of the execution of the deed.
    [Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 220, 222-225, 232-238; Dec. Dig. <@=73.]
    4. Vendoe and Purchaseb <@=53 — Contracts — Executory Contracts.
    The instruments, construed together, showed an executory contract for the conveyance of the land, the superior title remaining in the grantor, from which he could not be divested by the purchaser, or those claiming under him, except by payment of the price.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. § 84; Dec. Dig. <@=53.]
    5. Vendor and Purchaser <@=105 — Execu-tory Contracts — Rescission.
    Where a vendor,' in an executory contract of sale, was by judgment restored to his title, the judgment revested the title in him, free from the claim of the purchaser.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 183-187; Dec. Dig. <S^106.]
    6. Vendor and Purchaser <S=»265 — Bona Eide Purchaser — Notice—Abandonment.
    One purchasing from a purchaser in an ex-ecutory contract, duly recorded, takes subject to the vendor’s lien retained by the contract; and where he does not pay or offer to pay his proportionate part of the price, and does not exercise, or attempt to exercise, his right of redemption, but abandons the same, he thereby loses his rights, and his heirs cannot recover the property.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. @=»265J
    7. Witnesses <§^>140 — Competency— Statutory Provisions.
    Rev. St. 1911, art. 3690, providing that in actions by or against heirs, arising out of any transaction with the deceased ancestor^ neither party may testify as to any transaction with decedent, does not disqualify a person not a party to the suit, though interested therein.
    [Ed. Note.- — Eor other cases, see Witnesses, Cent. Dig. §§ 598-618; Dec. Dig. <@^140.]
    8. Vendor and Purchaser <®==j219 — Bona Eide Purchaser — Notice—Evidence.
    In an action for land claimed by defendants as heirs of a grantee of a purchaser in an executory contract of sale, subject to a vendor’s lien, under which plaintiffs claimed, testimony that the grantee never claimed the land was admissible to show, as claimed by plaintiffs, that the grantee knew that the purchaser could not convey a good title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 453-400; Dec. Dig. 4i^219.]
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    Action by R. A. Cruse and others against R. E. Dicken and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Geo. G. Clough and Aubrey Fuller, both of Galveston, for appellants. Holland & Holland, of Orange, for appellees.
   LANE, J.

This suit was brought by ap-pellees against appellants and others who are not parties to this appeal, on the 20th day of November, 1911, to recover the 388 acres of -land involved in this appeal, and other land, not necessary to be mentioned in this opinion, as the title to the same is not involved by tnis appeal. The appellants are the heirs of R. N. Dicken, to whom U. M. Gilder conveyed the said 38S acres of land on the 16th day of October, 1863. The ap-pellees are the heirs of Wm. Minter, from whom Gilder, the vendor of R. N. Dicken, purchased the land in question. The case was tried before the court without a jury, and judgment was rendered for appellees.

There were other parties before the trial court who were disposed of by the judgment; but, as no appeal was taken by them, no further mention will be made of them in this opinion.

Appellants omit from their brief their : assignments 1 and 2, and therein specially waive the same. The effect of assignments 3, 4, 5, and 6 in their brief is: First, that the court erred in rendering judgment for appellees because the recitation in the deed from William Minter and wife to U. M. Gilder, of date March 11, 1863, hereinafter mentioned, is that the purchase money for the land was paid in cash, and there is no evidence to show that the. recitation in the deed is not true, and therefore the appellees have failed to show title in themselves, as against appellants, who claim under such deed; second, that William Minter had taken a mortgage upon the land sold by him to Gilder, and also upon another tract of 937 acres of land owned by txilder, but never owned nor sold by Minter, to secure the payment of the notes given in part payment for the purchase money for land sold by Minter to Gilder, which included the 388 acres involved in this suit, and as thereafter Minter’s heirs, appellees herein, changed their suit against Gilder from one upon the purchase-money notes and foreclosure of the mortgage lien on all the property mortgaged to a suit for the land, or, in other words, for a rescission of the contract, they released the 388 acres sold by Gilder to R. N. Dicken from all incumbrances, and are estopped to claim said 388 acres, as it was their duty to-resort to the property of the estate of Gilder, upon which the mortgage rested, for the payment of said notes, before resorting to the land conveyed by Gilder to R. N. Dicken.

The evidence established that on the 11th day of March, 1863, vv'm. Minter and wife, who were the owners, conveyed to U. M. Gilder a tract of 1,555.9 acres of land, part of the N. Tatman league (which tract includes the land in controversy), and by the same conveyance a tract out of the Ann Fisher league, in the same county; the consideration recited being $3,661 in hand paid.. On the same date of March 11, 1863, Wm.. Minter executed a bill of sale to U. M. Gilder for a number of negro slaves, wagons, mules, horses, and oxen for a consideration recited of $42,440 in hand paid. On the same-date of Marcn 11, 1863, U. M. Gilder executed three notes payable to Wm. Minter, aggregating $25,471.12. On the same date of' March 11, 1863, U. M. Gilder and wife executed a mortgage to Wm. Minter, to secure the identical three notes mentioned,. on the same land described in the deed of the same date, and including other lands, and on the-same personal property covered by the bill of sale. The deed and the mortgage were-both filed for record in the county clerk’s office on the same day and recorded in the same record book on consecutive pages. On January 6, 1866, U. M. Gilder having defaulted in the payment of these notes, Wm. Minter filed suit thereon in the district court of Tyler county, seeking to enforce the mortgage upon the land, and asking that it be-sold to satisfy the lien. It appears that to this action defendants U. M. Gilder and wife answered, setting up, in substance, a failure of consideration by reason of the emancipation of the negroes, and asking a rescission of the contract as follows:

“Defendants here tender the said negroes or persons of color, as mentioned in said mortgage, purchased from the said Minter, plaintiff, together with all of the property purchased from the said plaintiff at the time the negroes were purchased, and asks that said contract based upon said mortgage and the promissory notes be canceled, and that said mortgage be declared null and void and of no effect.”

And the defendants in that suit also sued in reconvention to recover back $23,-000 paid on the contract of purchase on March 11, 1863. It appears that this suit continued on the docket of the court for some years thereafter; and, Gilder and wife having died, their heirs were made parties defendant by scire facias; and, Minter and his wife having died, their heirs were properly made parties plaintiff. The plaintiffs in that suit, the heirs of Minter, on December 22, 1884. filed their amended petition in the form of ordinary action of trespass to try title to recover the land described in the mortgage above referred to. The defendants in that suit, heirs of Gilder, answered by general demurrer, general denial, and plea " of not guilty, filed on the same date. Thereupon an agreed judgment was entered in the cause in December, 1884, in which the heirs of Wm. Minter, as plaintiffs, recovered back the 1,555.9 acres of the Tatman league and the tract of the Ann Eisher league, being the identical lands which Minter and his wife had conveyed to Gilder; and the heirs of Gilder recovered from the heirs of Minter the other tracts of land described in the mortgage ; and, the personal property having been lost by the freeing of the negroes, it was so declared. It appears, however, that on October 1C, 1863, U. M. Gilder conveyed to R. N. Dicken the identical tract of 38S acres in this suit and covered by the mortgage previously given and recorded by Gilder to Minter. R. N. Dicken is the ancestor under whom appellants in this case claim. It was proven, though, that R. N. Dicken stated that, after he bought the land, he found out that the Minters (Wm. Minter) had a claim on the land for purchase money; that the land had not been paid for, and that Gilder could not make him a good title, and that was the cause of his abandonment of the land; that he left it and gave it up. It was further proven that R. N. Dicken was sheriff of the county from 1870 and for many years during the pendency of the suit between the heirs of Minter and the heirs of Gilder, and never took any steps to assert any right to the property now claimed by his heirs. Also the record does not show, and appellant offered no proof, that the consideration named in the deed from Gilder to Dicken was in fact paid.

Under all these facts, which are practically undisputed, we think a finding by the trial court that there was sufficient proof to show that the purchase money for the land was not in fact fully paid by Gilder to Minter, and that R. N. Dicken, under whom appellants claim as heirs, so knew, at the time of his deed, and that the superior title remained in Minter, and Dicken did not acquire title thereto as against Minter, and, as he had abandoned his claim thereto before the judgment of rescission was taken and failure to avail himself of an equity of redemption, appellants have no title to the land in question. Before appellants can ask equity, they must do equity. Harris v. Catlin, 53 Tex. at page 8.

The deed, mortgage, notes, and bill of sale were all executed by the same parties and simultaneously. The mortgage is based upon the notes, and they are proven by the admissions of Gilder, in his answer to the suit thereon by Minter, to have been executed as a i>art of the consideration for the sale of the personalty and realty under mortgage. All the instruments being parts of and in reference to the same subject-matter, the effect of the simultaneous execution of tlie same would be to constitute them but one act and require them to be construed as but one and the same agreement. Howard v. Davis, 6 Tex. 181; Dunlap v. Wright, 11 Tex. 597, 62 Am. Dec. 506.

And, being so considered, they evidence the fact that Minter and wife owned two tracts of land, slaves, and other property, and that Gilder desired to acquire these two tracts and the slaves and personal property, and to that end he executed the three promissory notes for the amount of unpaid purchase money of the slaves, personalty, and lands, executing contemporaneously the mortgage upon the property thus conveyed to him to secure payment of the purchase money notes, and, in addition to the land and personal property thus being acquired, mortgaged also other real estate then owned by him. Consequently there was proof that the purchase money was not fully paid at the time of the conveyance to Gilder. By virtue of these instruments thus construed together, it would follow, as a legal proposition, that there was an executory contract for the conveyance of the tract of land out of the Tatman league, the superior title remaining in Minter and wife, and-'which could be divested by Gilder or his vendees only by the payment of the purchase price. Masterson v. Cohen, 46 Tex. 520; Jackson v. Palmer, 52 Tex. 427; Webster v. Mann, 52 Tex. 416; Hale v. Baker, 60 Tex. 217.

And it is further to be observed that a complete rescission of the entire original contract evidenced by the deed, mortgage, bill of sale, and notes took place and was given effect by the terms of the decree of 1884 upon the property; there being restored to Gilder, through his heirs, the land which he owned prior to the execution oí the mortgage, independent of Ms purchase from Minter, and there being restored to Minter, through his heirs, the title to the land which he had contracted by the executory agreement to convey to Gilder out of the Tatman league and Eisher league. The effect was to revest the heir's of Minter with their ancestor’s title, free from the Gilder claim.

And the effect of the fact of which Dicken had notice is that, if Dicken secured any right or title, it was taken subject to the vendor’s lien and superior title of Minter. And he not having paid or offered to pay his proportionate part of the purchase money, nor having exercised or attempted to exercise his right of redemption, but having abandoned same, appellants cannot recover. Ufford v. Wells, 52 Tex. 617; Pierce v. Moreman, 84 Tex. 596, 20 S. W. 821. The third, fourth, fifth, and sixth assignments must therefore be overruled.

The greater portion of the last five paragraphs of this opinion are taken from and supported by the opinion in the case of Vinson et al. v. W. T. Carter & Bro., 161 S. W. 49, handed down by the Court of Civil Appeals for the Sixth District, at Texarkana.

By appellants’ seventh assignment in their brief it is insisted that the trial court erred in permitting J. C. Minter to testify that some time in 1886 or 1887 R. N, Dicken, deceased, told him (Minter) that he had abandoned the 388 acres of land purchased by him from Gilder, because he knew Gilder, his vendor, had never paid the purchase money for the land, and therefore could not make him (R. N. Dicken) a good deed, because the witness owned an interest in the subject-matter of the suit, inasmuch as he had, prior to giving such testimony, conveyed an undivided interest in the land in question to a third party under a warranty deed, which.interest was adverse to appellants, who are suing as heirs of R. N. Dicken, deceased. It is not contended that J. C. Minter is a party to this suit, but1 only that he has an interest therein, as above stated. It is insisted by counsel for appellants that his contention is supported by the provisions of article 3690, Revised Statutes of 1911, which are as follows:

“In actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others 'as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.”

The witness J. C. Minter was not a party to this suit, was not disqualified under the rules of evidence prescribed by article 3690, supra; and therefore appellants’ seventh assignment is overruled. Gilder v. Brenham, 67 Tex. 345, 3 S. W. 309; Howard v. Galbraith, 30 S. W. 689; G., C. & S. F. Ry. Co. v. Short, 51 S. W. 261, and authorities there cited.

The eighth, ninth, and tenth assignments in appellants’ brief insist that the court erred in permitting the witnesses J. O. Minter, R. A. Cruse, and N. B. Barclay, over the objection of appellants, to testify that the heirs of Wm. Minter had been claiming the land in question all along; that they had lived near R. N. Dicken and knew him well and had never heard him claim the land in controversy. The objection urged to this testimony is that it is immaterial and irrelevant to any issue in the cause; that it did not tend to disprove the title of R. N. Dicken to the land in question, and could not he used for that purpose. We think this testimony was admissible as tending to show that R. N. Dicken knew Gilder did not and could not convey to him a good title to the land' in question, and for that reason he had abandoned the same. So believing, we overrule said assignments.

What has been said disposes of all of appellants’ assignments, and, as we find no reversible error in the trial of this case in the court below, the judgment there entered is affirmed.

Affirmed.
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author: RAINEY, C. J.

text:
    SHERRILL v. AMERICAN WELL & PROSPECTING CO.
    (No. 7300.)
    (Court of Civil Appeals of Texas. Dallas.
    May 8, 1915.)
    1. Master and Servant <®=?185—Injury to Servant—Biability.
    Where an employé, without authority to employ or discharge men, but required to work as other men, permitted men to prepare to celebrate an incoming year by drilling a hole in a piece of iron to be filled with powder, and then taken out of the building and caused to explode, and while the men were at work explosion occurred in the building, injuring a coemployS remaining at work, the employer was not liable.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 385—421; Dec. Dig. <@=^> 185.]
    2. Master and Servant t®c=U90—Injury to Servant—Negligence.
    Where a vice principal permitted men under him to load a “cannon” with powder to be taken out of the building and there exploded, but the “cannon” exploded within the building, injuring an employé remaining at work, there could be no recovery, because the accident Was not within the contemplation of the vice principal.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dee. Dig. 190.]
    Appeal from District Court, Navarro County; H. B. Daviss, Judge.
    Action by S. T. Sherrill against the American Well & Prospecting Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.

      A. B. Oeppert, of Teague, and Richard Mays, of Corsicana, for appellant. Davis & Jester and Callicutt & Johnson, all of Corsi-cana, for appellee.
   RAINEY, C. J.

Appellant instituted this suit against appellee, a corporation, to recover damages for personal injuries sustained through the alleged negligence of ap-pellee; the allegations, in effect, being that appellant was an employé of appellee working under appellee’s night foreman C. C. Hull; that while in the discharge of his duties, about 11:45 on the night of December 31, 1913, some of the employés had drilled a hole in a piece of iron to he filled with powder for the purpose of an explosion to celebrate the incoming year; that while said em-ployés were filling said hole with powder in said building near where appellant was at work, and while tamping the powder with an iron rod, said powder was caused to explode, causing a small particle to fly from said iron and to strike appellant in the eye, destroying the sight thereof.

Appellee answered by general and special exceptions, admitted that appellant was an employé, denied that Hull had any right or authority to employ or discharge employés, his duties being to work as other employés, to keep them at work and supply them with new work as occasion required, but he had no authority to give permission, to direct or control any employé, to do the things alleged. It also denied that it closed down its machinery a few minutes before 12 o’clock to celebrate the incoming of the New Tear, or that it was customary for it so to do, or that it engaged or aided in such celebration, on that occasion, but that, if any of the em-Ifloyés closed down their machines or quit work and aided in loading said iron for the purpose of taking part in said celebration, it was done of their own volition, and not in furtherance of appellee’s business. It further alleged that appellant of his own accord joined in the spirit of the occasion, contributed thereto, and participated therein with full knowledge of what was going on.

After hearing the evidence, a verdict was instructed for appellee, and the appellant prosecutes this appeal.

The liability of appellee for the injuries sustained by appellant depends upon one issue, and that is: "Was it negligent in failing to provide appellant a safe place to work at things for which he was employed, or, in other words, was the appellee liable under the circumstances for allowing some of its employés, who were not at the time engaged in the master’s business, to drill a hole in a piece of iron and fill it with powder in a room of its plant where the iron accidentally exploded in the act of being charged with powder; said room being the one in which appellee was at work?

The conclusions we have drawn from the evidence gleaned from the record are that appellee was operating a plant equipped with modern appliances, erected and maintained at great expense. There is no complaint of the erection of the plant nor the manner in which the machinery was installed or operated. The plant was operated by two shifts, one working during the day and one during the night. The president was on duty during the day; at night O. 0. Hull was on duty. The president was absent from the plant on the night in question, knew nothing of what transpired at" the plant, and Hull was on duty, but he had no authority to employ or discharge other workmen; his duty being to direct the other workmen, keep their time, and supply them with new work as pending work was finished. All of the employés were paid by the hour. Some of the employés desired to celebrate the incoming of the New Year. One of them early in the night of December 31st procured from the junk pile a piece of iron, cone-shaped, about eight inches high, about six inches in diameter at one end and eight inches in diameter at the other. One of the said party drilled a hole in this piece of iron, using his own time, and it was the understanding that this iron was to be loaded with powder, taken out on the railroad track some little distance from the plant, and exploded at the proper time. To this Hull consented. A few minutes before 12 o’clock these parties assembled in the operating room, where some of the employés were at work, and were proceeding to load the improvised “cannon” by putting the powder in and packing it with an iron tamp, when appellant left his work, went near the group, and warned them of the danger of using the iron tamp, and as he was turning away the explosion occurred, which explosion caused a particle of the iron to strike him in the eye and destroyed the sight thereof. Hull at that time was in an adjoining room partaking of his midnight meal. Appellant had not stopped work that night, did not participate in the celebration further than contributing a quarter that night to buy powder, but it was not used and was returned to him. The parties, in preparing the “cannon” and loading it, were not in the discharge of the master’s business, but were using their own time and working for their own purpose.

We are of the opinion that the evidence fails to show any liability on the part of ap-pellee. It is true that the law imposes the duty upon the master to furnish his employé a safe place to perform the work for which he is engaged, but it does not make him responsible for the acts of an employé when done by the employé • while not engaged in the master’s business, and within the scope of his employment. Railway Co. v. Currie, 100 Tex. 136, 96 S. W. 1073, 10 L. R. A. (N. S.) 367; Railway Co. v. Cooper, 88 Tex. 607, 32 S. W. 517. Here the master was absent and knew nothing about what the employes preparing for the celebration were doing.

If it could be said that Hull was the vice principal and knew that they were loading the “cannon” at that particular place, it fails to show that the accident should have been contemplated. He expected the parties to have procured the explosion out on the railroad track, where it would have resulted in no harm.

In the Currie Case, supra, where the employs, while operating an instrument furnished by the master for use in its business, turned aside from the master’s business and in sport by its use injured an employs, it was held that the master was not liable.

In this case the parties had turned aside and were engaged in a matter in no way connected with the master’s business, but one of their own, and the injury resulting does not make the appellee liable. The appellant was not entitled under the facts to recover, and the court did not err in directing a verdict for appellee.

The judgment is affirmed.
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