text:
    KLABUNDE v. VOGT HARDWARE CO.
    (No. 5580.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 12, 1916.
    Rehearing Denied Feb. 9, 1916.)
    Justices oe the Peace <&wkey; 174 —Appeal — AMENDMENT OP PETITION — JUBISDICTION.
    The amendment of the petition in the county court, on appeal from a justice, so as to increase the amount of damages asked to more than ?200 because of accrual of interest pending the action, did not oust the court of jurisdiction to render judgment for less than $200.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. <&wkey;174.j
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by the Vogt Hardware Company against Carl Klabunde. From a judgment for plaintiff on appeal from a justice, defendant appeals.
    Affirmed.
    Diedrich A. Meyer and T. E. Simmang, both of San Antonio, for appellant. W. F. Hays, of Boerne, for appellee.
   CARL, J.

Appellee sued appellant in the justice court of Bexar county for a certain gasoline engine or its value, alleged to be $185, with interest in the sum of $11.25, making a total of $196.25. In the event the engine should be recovered prayer was for $15 damages. The petition was amended in the county court, where the case went on appeal, and it was alleged that the engine was worth $185, and that the interest due to October 10, 1914, made up the total sum sued for, $196.25, and that the interest on said sum from the date of filing brought the total to $204.85. There is no doubt that the justice court did have jurisdiction to try the cause, and it came regularly to the county court on appeal, so that the last-named court acquired jurisdiction. Having so acquired jurisdiction of the cause of action, did it lose it when the amended petition was filed, praying for principal and interest, aggregating $204.85? In a suit in tort, interest is a part of the cause of action for purposes of fixing jurisdiction, and this is such an action. This is one of those cases where damages will accumulate, for if the property is wrongfully detained so that the claimant is entitled to recover interest, the longer the suit is pending the greater will be the damages. If the suit had remained pending in the justice court and interest had run long enough to make the amount exceed $200, would the. justice court have lost jurisdiction by reason of that fact? The amended petition in the county court does no more than ask for the same value of the converted property, together with interest up to that date, which at that time brought the amount as prayed for to $204.85. In Ft. Worth & D. C. Ry. Co. v. Underwood, 100 Tex. 284, 99 S. W. 92, on certified question in a similar case from the Second district (Railway v. Underwood, 98 S. W. 453), Judge Williams, speaking for the Supreme Court, said:

“The cause of action asserted was of such a nature that damages might accumulate pending the action, which is true of many actions, as, for instance, those brought for the use of property detained, and the like; but the accrual of further damages in cases of that character does not take away the power of the court to give judgment for an amount claimed which is within its jurisdictional limits. The plaintiff in such cases, 'with proper pleadings, may recover the entire damage which he has suffered up to the trial; but this right may be restricted by the law limiting the jurisdiction of the court in which he has seen fit to sue. Having brought Ms action for an amount within the jurisdiction, he is entitled to such judgment as the court has power to render.”

In that case, the suit as originally brought was for an amount within the jurisdiction of the county court, but by the third amended petition, in claiming interest to that date, placed the amount at more than $1,000. In the case at bar the amount claimed in the amended petition was within the county court jurisdiction, but would not have been in that of the justice court. The court rendered judgment for $163.50 or $150, with 6 per cent, interest on that sum from October 1, 1913, to April 2, 1915, thus making the sum for which the judgment was rendered. Having regularly acquired jurisdiction of the cause, we think, under the authority ‘of the above case, that the county court had jurisdiction to render such judgment as it entered. And this view is sustained by the following cases: J. F. Siensheimer & Co. v. Maryland Motor Car Ins. Co., 157 S. W. 228; Adair v. Stallings, 165 S. W. 140.

While there are more than one assignment of error, they are all predicated upon the proposition that the county court did not have jurisdiction, after the amended petition was filed in that court; and, since we hold that the county court did have jurisdiction, the assignments are overruled, and the judgment is affirmed.
      tg^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    HAMLIN v. J. M. RADFORD GROCERY CO.
    (No. 8288.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 11, 1915.
    Rehearing Denied Jan. 15, 1916.)
    1. BANKRUPTCY &wkey;>407 — DISCHARGE—“FALSE” Statement.
    A “false” statement in obtaining credit, which under Bankr. Act July 1, 1898, c. 541, § 14b (3), 30 Stat. 550, as amended by Act June 25, 1910, c. 412, § 6, 36 Stat. 839 (U. S. Comp. St. 1913, § 9598), will prevent discharge of bankrupt, must not only have been untrue, but knowingly made.
    [Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 729-731, 737, 738, 740-751, 758, 760, 761; Dec. Dig. &wkey;>407.
    Eor other definitions, see Words and Phrases, Eirst and Second Series, Ealse.]
    2. Appeal and Error <&wkey;1008 — Review — Eindings.
    Findings not being attacked, the evidence will not be looked to on appeal, to give them other than their apparent meaning.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. &wkey;sl008.]
    Appeal from District Court, Taylor County ; Thos. L. Blanton, Judge.
    Action by the J. M. Radford Grocery Company against M. H. Hamlin. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Critz & Woodward, of Coleman, for appellant. R. W. Haynie, of Abilene, for appellee.
   DUNKLIN, J.

M. H. Hamlin secured his final discharge in bankruptcy in the federal court. One of the claims scheduled in those proceedings was in favor of J. M. Radford Grocery Company, who, after receiving a dividend thereon and after such discharge, instituted this suit against Hamlin to recover the balance due, and from a judgment in favor of the plaintiff, the defendant has appealed.

The account for the goods sold was closed by the defendant executing to the plaintiff his promissory note providing for interest and attorney’s fees in the usual form, and the present suit was instituted upon that note. Replying to the defendant’s plea of his discharge in bankruptcy, plaintiff, after alleging that the note was given for merchandise purchased, further alleged that the defendant in order to obtain said goods falsely and knowingly misrepresented his assets, the material misrepresentation shown by the evidence being the statement that he owned, among other assets, a tract of land worth $4,000. The case was tried by the court without the aid of a jury, and the judge filed findings of fact and conclusions of law which appear in the record. The court found that, in order to induce plaintiff to sell him the goods, defendant through C. B. Lovelace, his authorized representative, made a statement in writing, which was afterwards signed by the defendant, in which a tract of land worth $4,000 was listed as one of defendant’s assets, which representation was false; defendant as a matter of fact not owning such land at said time and has not since owned the same. The court further found that such misrepresentation was material, and that the plaintiff was induced thereby to sell the goods to the defendant. The court also found that, at the time the defendant signed said written statement containing said misrepresentation, he did not know what said written statement contained, but signed it relying upon his bookkeeper to give a true and correct statement of his business affairs. Two of the findings of fact by the trial judge are as follows:

“At the request of the defendant, the court finds that the clause in the written instrument, which formed the basis for credit, signed by defendant, to wit: ‘The above statement is made to J. M. Radford Grocery Company as a basis of credit now or hereafter extended to me by said company, and all goods furnished me and all credit extended to me by said company, are to be furnished and extended upon the faith of said statement and the accuracy and correctness of each representation made therein, each of said representations being material, and upon this agreement, and this statement and agreement shall stand good as to all future credit extended to me by said company unless and until I have notified said company of any change In my financial condition above stated.’
“That the defendant did not know at the time he signed said statement, that such clause was a part of same, but in this connection the court finds that the defendant had theretofore been in business for a number of years, and that he knew that it was the custom of all wholesale merchants and jobbers to require similar statements as a basis of credit from all of their customers, and that he had been in the habit of giving such written and printed statements as to his financial standing and with such clause as that contained, to his creditors, in order to obtain credit.”

The correctness of the court’s findings of fact is not challenged, and the controlling question upon this appeal is whether or not, under the findings related, th«e plaintiff’s claim against Hamlin was discharged in bankruptcy.

Appellant contends that in order to defeat the discharge pleaded, it would be necessary to show that the misrepresentation found was knowingly and fraudulently made; while appellee insists that if appellant obtained the goods under false representations, that fact was sufficient to avoid the discharge, even though the misrepresentation was innocently made. By section 14b (3) of the Bankrupt Act, it is provided that a bankrupt shall not be discharged if he has—

“obtained money or property on credit upon a materially false statement in writing, made by him to any person or his representative for the purpose of obtaining credit from such person.” 32 Stat. 797, amended 1910 by 36 Stat. 839.

See, also, 1 Eed. Stat. Anno. Sup. 1912, p. 560.

The following quotation from 3 Ruling Case Law, § 133, is a correct statement of the interpretation of what is meant by “false statement,” as used in the article of the statute quoted according to what appears to he an unbroken line of decisions:

“The word ‘false’ as here employed is not merely equivalent to ‘untrue’ or ‘incorrect,’ but it connotes a guilty scienter on the part of the bankrupt, and requires that the written statement made for the purpose of obtaining credit shall be knowingly and intentionally untrue in order to constitute a bar to the bankrupt’s discharge. In the application of that principle a discharge has been granted to a bankrupt, notwithstanding he had obtained money on the ground of an incorrect statement of his bookkeeper, where the bankrupt did not actually know what the statement contained, or did not know that it was materially false, and did not have a conscious intention to deceive the creditor.”

See, also, Cooper Grocery Co. v. Gaddy, 141 S. W. 825; Hardie v. Swafford Bros. D. Gds. Co., 165 Fed. 588, 91 C. C. A. 426, 20 L. R. A. (N. S.) 785; Gilpin v. Merchants’ Nat. Bank, 165 Fed. 607, 91 C. C. A. 445, 20 L. R. A. (N. S.) 1023; also other decisions cited 1 Fed. Anno. Sup. 1912, p. 562. Also see Neal v. Clark, 95 U. S. 704, 24 L. Ed. 586; Strang v. Bradner, 114 U. S. 555, 5 Sup. Ct. 1038, 29 L. Ed. 248; Noble v. Hammond, 129 U. S. 65, 9 Sup. Ct. 235, 32 L. Ed. 621. In Gilpin v. Merchants’ National Bank, supra, the following occurs:

“In other words, ‘false statement’ connotes a guilty scienter on the part of the bankrupt. This primary and ordinary meaning of the word ‘false’ cannot be ignored. It is the primary meaning given in the ordinary lexicons of the English language. Webster gives as its primary meaning: ‘Uttering falsehood; unvera-cious; given to deceit; dishonest.’ As an adjective, it is correlative with the noun ‘falsehood.’ To charge a person with making a false statement is equivalent to charging him with uttering a falsehood, and imputes moral delinquency to the person so charged. It is true that the word may have a secondary meaning in certain collocations, and be merely equivalent to ‘untrue’ or ‘incorrect.’ But this is not the ordinary or usual signification attached to the word. To charge a person with making false entries in books of account means something more than that incorrect or untrue entries have been made, and it has been so held by the courts in the consideration of offenses of that character. The last edition of Bouvier’s Law Dictionary says of the word ‘false’ that, when ‘applied to the intentional act of a responsible being, it implies a purpose to deceive.’ In Black’s Law Dictionary, under the title ‘False,’ it is said: ‘In law, this word means something more than untrue; it means something designedly untrue and deceitful, and implies an intention to perpetrate some treachery or fraud.’. In a recent and well-accepted publication called ‘Words and Phrases,’ the word ‘false’ is thus defined: ‘False means that which is not true,- coupled with a lying intent.’ Wood v. State, 48 Ga. 192, 297, 15 Am. Rep. 664. ‘False’ in jurisprudence usually imports something more than the vernacular sense of ‘erroneous’ or ‘untrue.’ ”

It will be noted from the court’s findings in the present suit that appellee not only failed to sustain its allegation that the misrepresentation upon which the goods were obtained was knowingly made, but the court has found the negative of that allegation.

Appellee insists, further, in effect, that from the findings of fact by the trial judge, considered in connection with the evidence, it appears that although appellant did not actually know of the falsity of the statement in question, he had the opportunity of informing himself, and his act in making it was so reckless as to make the misrepresentation fraudulent and thus to deprive him of the right to claim the discharge. As noted already, no attack was made upon the findings of fact, which do not show any fraudulent intent in making the untrue statement, even though it should be said that such findings show the same to have been made without proper care and caution, and, under the circumstances, the evidence cannot be looked to to give a different meaning to those findings.

Under the authorities cited, we must hold that the court erred in its judgment, and in not rendering judgment in favor of the appellant. Accordingly, the judgment of the trial court is reversed, and judgment is here rendered in favor of appellant.
      ®=»For oilier oases see same topic ana KEY-NUMBER. in all Key-Numbered Digests and Indexes


text:
    KANSAS CITY, M. & O. RY. Co. OF TEXAS v. LATHAM.
    (No. 8277.)
    (Court of Civil Appeals of Texas. Ft Worth.
    Dec. 18, 1915.
    Rehearing Denied Jan. 22, 1916.)
    1. Estoppel &wkey;>70 — Equitable Estoppel— What Constitutes.
    Where the federal court on discharging the receiver and returning, the property to a railroad company required the railroad company, pursuant to its offer, to assume payment of claims arising during the receivership, plaintiff’s failure to assert his claim by intervention in the receivership suit before discharge, coupled with his delay for two months thereafter, during which the railroad expended relatively small sums in the betterment of its property, works no estoppel preventing assertion thereafter.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 183-187; Dec. Dig. &wkey;70J
    2. Receivers <&wkey;65 — Appointment of Receiver — Effect.
    The appointment of a receiver and his administration of the affairs of a railroad company impounds the property of the company, so that while it remains in the custody of the court, the receiver’s possession cannot be disturbed by any other court.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 114, 115; Dec. Dig. &wkey;65.]
    3. Courts <&wkey;493 — Receivers—Appointment —Power of State Courts.
    After discharge of a receiver appointed by the federal court, and during the pendency of the receivership suit, a state court may appoint a receiver who can hold the property to the exclusion of the power of the federal court to appoint a second receiver for it.
    [Ed. Note. — For other cases, see Courts, Cent Dig. §§ 1346-1352; Dec. Dig. &wkey;493.]
    4. Courts <&wkey;500 — Receivers — Power of State Courts.
    Pending a receivership in the federal court, a state court may determine a claim against the railroad company whose property was so impounded, if it does not inter-fere with the receiver’s custody of the property.
    [Ed. Note. — For other cases, see Courts, Cent Dig. §§ 1407, 1408; Dec. Dig. &wkey;500.]
    5. Courts <&wkey;501 — Receivers — Action in State Court.
    Under Act Cong. Aug. 13, 1888, c. 866, § 3, 25 Stat. 436 (U. S. Comp. St. 1913, § 1048), claimants against receivers of a railroad company appointed by the federal court may bring suit in the state court without consent of the appointing court, and it cannot, sitting as a court of equity, deprive claimants of that right.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 1409; Dec. Dig. <&wkey;501.]
    6. Railroads <&wkey;212 — Receivers — Discharge — Action Against Railroad .
    Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2141, declaring that all parties and corporations whose property has been placed in the hands of a receiver, and which has been delivered back to the original parties or corporations without sale, shall be liable and held to _ pay all the unpaid liabilities of the receiver arising out of the receivership, a shipper whose claim arose while the property of a railroad company ■was in the possession of a receiver appointed by a federal court may, after termination of the receivership and return of property to the railroad company, sue the railroad company.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 702-706; Dec. Dig. &wkey;212.]
    7. Receivers <&wkey;204^-DxscHARGE — Jurisdiction of Court.
    Where the federal court appoints a receiver for a railroad company, such court acquires jurisdiction of all claims presented by petition or intervention, and the discharge of .the receiver does not of itself release such jurisdiction.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 319, 407, 40S; Dec. Dig. &wkey;204.]
    8. Receivers <&wkey;60 —Discharge—Jurisdiction Retained.
    In such case, the reservation of jurisdiction is necessarily limited to controversies pending in the federal court, and by such reservation that tribunal cannot acquire jurisdiction over claims not filed, for a court of equity has no inherent jurisdiction beyond that conferred by the Constitution and the statutes.
    [Ed. Note. — For other cases, see Receivers, Cent Dig. §§ 106-107; Dec. Dig. &wkey;60.]
    9. Railroads <@=3265 — Receivers — Discharge-Return of Property — Effect of Order.
    Where the federal court, which had appointed a receiver for the property of a railroad company, returned the property to the company on an application whereby the company agreed to accept the property subject to all liabilities or indebtedness accruing, or to accrue against the receiver of every kind, and the order of return provided that the company should assume all liabilities incurred by the receiver, the company was liable for claims against the receiver growing out of negligence in the operation of a train, notwithstanding the federal court reserved all questions not disposed of.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 838-853; Dec. Dig. <&wkey;>265.]
    10. Railroads <&wkey;265 — Receivers—Removal.
    Where a federal court removed a receiver of a railroad company, returning the property to the company, one having a claim against the receiver, arising out of negligence in the mismanagement of the road, may have the benefit of Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2141, making the company liable on such claims, though the federal court, on ordering return of the property, reserved jurisdiction as to matters undetermined.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 838-853; Dec. Dig. <@=3265.]
    11'. Railroads &wkey;>265 — Receivers — Parties to Action.
    Where receipts were not personally liable, and had been discharged, they are not necessary parties to an action against a railroad company for damages, for negligent injury to a shipment during the receivership.
    [Ed. Note. — For other cases, see Railroads, Oent. Dig. §§ 838-853; Dec. Dig. &wkey;>265.]
    Appeal from District Court, Nolan County; W. W. Beall, Judge.
    Action by J. H. Latham against the Kansas City, Mexico & Orient Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    H. S. Garrett, of San Angelo, for appellant. J. H. Beall and E. R. Spencer, both of Sweet-water, for appellee.
   DUNKLIN, J.

The Kansas City, Mexico & Orient Railway Company of Texas has appealed from a judgment against it in favor of J. H. Latham for injuries to a shipment of cattle resulting from negligent handling of the cattle by the employSs of the receivers of that railway, who were appointed by the federal court and who were finally discharged prior to the institution of this suit.

The case was tried upon an agreed statement of facts, which is a part of the record here. The defendant railway company expressly agreed that the claim asserted by plaintiff was a valid claim .against the receivers before their discharge for the amount awarded by the trial court; but by all the assignments of error presented it is insisted that appellant is not liable therefor. Appellant was the owner of the property at the time the receivers were appointed, and upon its application the receivers were discharged, and the property returned to the company without a sale.

In his petition in the present suit plaintiff sought to hold the company liable for the claim upon two special theories: First, that while the property was in the hands of the receivers, earnings derived from operating it, in excess of the aggregate of all debts and liabilities incurred by the receivers, were expended for betterments and improvements of the property, the benefits of all which were realized by the company after the property was restored; second, that by the terms of the railway company’s application for the discharge of the receivers and the restoration of the property to its possession and control and, as a condition precedent to the grant of such relief, it expressly agreed to assume all outstanding liabilities of the receivers, and that by the terms of the order of court granting the application the property was released to the company charged with all such liabilities.

But plaintiff also pleaded that appellant was liable for his claim by operation of law, and, in connection therewith, alleged that by order of court the receivers were discharged and the property in their hands returned to defendant without sale. The proof explicitly refuted any right to recover upon the first theory,mentioned.

In the application for the discharge of the receivers, many claims were mentioned specifically, including those outstanding against the company prior to the appointment of the receivers, some of which had been allowed by the master in chancery and approved by the court, and others were still pending and undetermined. It was further alleged that there were outstanding receivers’ certificates in the sum of approximately $1,470,000, secured by a preference lien.on all the property of the company; and in addition thereto adjusted liabilities of the receivers in the sum of $250,000. A further allegation relative to outstanding claims reads:

“Your petitioner further states that there are pending undetermined and unadjudicated, by suit and in few instances by claims, other liabilities and demands against this company prior to the receivership, as well as against these receivers; but petitioner is unable to state what amount will finally be due upon the same.”

The application concludes with the following:

“Now the premises considered, your petitioner prays for a proper order and decree discharging such receivers, and directing that all of its property and assets be taken from the possession and control of said receivers and delivered to this petitioner, and that it be authorized to take charge of said property and operate same, and in order that the rights and indebtedness of all parties may be fully protected, it hereby agrees to accept‘said property subject to the charge of all indebtedness which has been or may be finally adjudicated against it, and it further assumes all of the liabilities and indebtedness accruing or to accrue against said receivers of every kind and character whatever, and is willing that the court may make all proper and necessary orders which will protect the indebtedness of all parties having any claims or demands, either against this petitioner, or against the receivers herein.
“Wherefore, the premises considered, your petitioner prays that all due and proper orders be made and entered herein by this court, as herein prayed for.”

The order of court granting the application contains the following:

V. “It is ordered, adjudged, and decreed by the court that said defendant, the Kansas City, Mexico & Orient Railway Company of Texas, hereby takes and receives, and shall take and receive, all of the property and assets of every kind and description owned by it involved in this receivership, including the assets of every kind and description held .and delivered to it by the said receivers, involved in and conveyed by this order, directing the delivery of said property to the said defendant, the Kansas City, Mexico & Orient Railway Company of Texas, by the said receivers, expressly charged with and subject to the following claims, demands, and liabilities, to wit:
“(a) All of the court costs incurred in this receivership which are or may be properly chargeable to or against the complainant herein, or to or against the defendant, the Kansas City, Mexico & Orient Railway Company of Texas, or to or against said S. B. Hovey and M. L. Mertz, as x-eceivers.
“(b) All of the liabilities which have heretofore been adjudicated and determined, and which may hereafter be finally adjudicated and determined and found to be just, true, and connect demands against the said S. B. Hovey and M. L. Mertz, as receivers, arising out of the operation of the lines or property of the defendant by such receivers.
“(c) All of the indebtedness and liabilities owed by and due from the said the Kansas City, Mexico & Orient Railway Company of Texas, which have been finally established and adjudged, or which may be hereafter finally adjudicated by this court, or by any other court of competent jurisdiction, and which may be found to be just and legal liabilities against the said defendant, the Kansas City, Mexico & Orient Railway Company of Texas.
“(d) Any allowances for compensation of any officer or officers of this court appointed in this cause, or officer or agents of the receivers, if, in the opinion of the court, any of such are entitled to such compensation, reservation being hereby made by the court of its right to hereafter determine such question.
“And it is further provided by the acceptance of the said the Kansas City, Mexico & Orient Railway Company of Texas of the provisions of this order and decree that it is deemed and held to have assumed all of such liabilities and indebtedness as herein provided for.
YI. “And it fuither appearing to the court that the Kansas City, Mexico & Orient Railway Company of Texas, through a bondholders’ committee, has caused to be placed with S. B. Hovey and M. L. Mertz, receivers herein, the sum of three hundred fifty thousand dollars ($350,000), which said sum the said Hovey and Mertz accepted as trustees for the purpose of paying off and discharging the indebtedness and liabilities of the receivers finally adjudicated and determined, and of the class and kind named in the petition filed herein by the Kansas City, Mexico & Orient Railway Company of Texas, and also paying off and discharging the indebtedness and liabilities of the Kansas City, Mexico & Orient Railway Company of Texas, adjudicated and determined as set forth in said petition, and the court having confidence in the said trustees aforesaid, hereby orders and directs that the said S. B. Hovey and M. L. Mertz, as trustees, proceed with due diligence to expend the amount so placed in their hands as trustees toward paying off the liabilities and indebtedness as aforesaid named and provided for.
“It is further ordered, adjudged, and decreed by the court that all questions not hereby disposed of are reserved for future adjudication, and the court reserves jurisdiction of this cause and of the property affected by this decree for the purpose of final disposition of all such questions and matters, and any party to this proceeding, and any claimant or intervener whose claims have been or shall be filed herein, may apply to this court for further orders and directions as may be deemed right and proper. And the court reserves jurisdiction, upon due hearing, subject to the right of all parties interested to contest, to charge the property hereby directed to be delivered to the said defendant as aforesaid, with any and all liabilities which have been or which may hereafter at any time b& finally adjudged against the receivers for or by reason of any act or omission of theirs in the administration of their trust as such receivers. And likewise, the court reserves jurisdiction, upon due hearing, subject to the right of all parties interested to contest, to charge the property here directed to be delivered to said defendant the Kansas City, Mexico & Orient Railway Company of Texas, or which may come into its hands under and by virtue of this decree, with any lien or liens which may be finally established to exist against such property, and to fix and determine the priority of such iiens.”

The receivers were appointed, qualified, and took possession of the property March 9, 1912. They were discharged and the property restored to the company on July 9, 1914. On March 25, 1912, Judge O. K. Bell was appointed special master in chancery, with power to hear and determine all claims presented by intervention and asserted against the receivers, or against the company, permission to file such pleas of intervention being expressly given in the order; and the master in chancery was ordered to appoint dates and places for hearing the same convenient to the claimants. He was directed to give due notice of such appointment, and to report to the court his findings upon all such claims. On April 24, 1913, Wm. H. At-well was appointed special master in chancery to succeed Judge Bell, who had died, and was given the same powers. The duties imposed upon those appointees were duly performed.

November 23, 1913, was the date upon which the shipment of cattle in controversy in this suit sustained their injuries through the negligence of the receivers’ employes. On December 29, 1913, plaintiff, Latham, filed with the general manager of the receivers his written claim for such damages, which was expressly rejected by them March 17, 1914, nearly four months before their discharge. Plaintiff never at any. time filed said claim with the special master in chancery, and did not institute the present suit until September 7, 1914, nearly two months after the receivers were discharged.

Appellant contends that the decree of the federal court should be construed as limiting the liabilities which were fixed as a charge upon the property and which were assumed by the company to claims which were then pending or which already had been reduced to judgments either in that court or in state courts, or which might thereafter be asserted and adjudicated in the receivership court.

The language used in the court’s order designating the liabilities which the company, by accepting the property under the order, would assume and which would become a charge on the property restored, especially when construed in the light of the offer contained in the company’s application, as should be done, is indeed broad and sweeping in its scope and clearly sufficient to comprehend the claim asserted by plaintiff in the present suit. Nor do we entertain the slightest doubt that such was the intention of the court in making the order and of the company in accepting the property under and by virtue of it. And if all such claims were expressly assumed by the company, and the property expressly charged therewith, as one of the considerations for discharging the receivers and restoring the property to the owner, we are unable to discern upon what principle of equity plaintiff would be estopped to recover in this suit, as appellant insists, by his failure to assert his claim by intervention in the receivership suit before the receivers were discharged, coupled with his delay in instituting the present suit for some two months thereafter, during which period the company expended $25,000 and incurred obligations to expend $83,000 more for betterments upon the property for its own benefit.

The appointment of the receivers and their administration of the affairs of the company were but ancillary proceedings only. By those proceedings the property was impounded, and while it remained in the custody of the court the receivers’ possession could not be disturbed by any other court 11 Oye. 1010. B.ut after the discharge of a receiver appointed by a federal court and during the pendency of the receivership suit, a state court may appoint a receiver of the property who dan hold it to the exclusion of the power of the federal court to appoint another receiver of it. Shields v. Coleman, 157 U. S. 168, 15 Sup. Ct. 570, 39 L. Ed. 660. And, pending a receivership in the federal court, a state court has jurisdiction to determine a claim against the defendant company which has not been filed in the federal court, if the same does not interfere with the receiver’s custody of the property. Calhoun v. Lanant, 127 U. S. 634, 8 Sup. Ct. 1345, 32 L. Ed. 297.

By authority of the act of Congress, of August 13, 1888 (25 Stat. L. 436), plaintiff, without permission of the court appointing them, could have sued the receivers themselves in a state court, and it wTas not within the powers of the federal court, sitting as a court of equity, to deprive him of that right. M., K. & T. Ry. v. Chilton, 7 Tex. Civ. App. 183, 27 S. W. 272; T. & P. Ry. v. Johnson, 76 Tex. 421, 13 S. W. 463, 18 Am. St. Rep. 60; Id., 151 U. S. 81, 14 Sup. Ct. 25Ó, 38 L. Ed. 81; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed. 981.

After the discharge of the receivers and the restoration of the property to the company, plaintiff had the right, under article 2141 of our statutes, to sue the company upon the claim asserted herein, and no' court could deprive him of the benefits of that statute.

Independent of the receivership proceedings, the federal court acquired jurisdiction of all claims presented in the case by petition or intervention, including the power to determine and enforce all liens asserted against the property. The discharge of the receivers did not of itself operate to release such jurisdiction, and we construe the provision in the order of discharge to the effect that the court reserved jurisdiction over the property as but a precautionary recital precluding any possible assumption to the contrary. Furthermore, such reservation of jurisdiction, necessarily, was limited to controversies then pending in that case. A court cannot acquire jurisdiction over a claim before suit is filed therein. T. & P. Ry. v. Johnson, supra; M., K. & T. Ry. v. Chilton, supra. Jurisdiction is conferred by the Constitution and statutes only, and, aside from such authority, it is not inherent in the power of a court of equity. Messner v. Giddings, 65 Tes. 301; 11 Cye. 661.

Appellant has cited several decisions, such as Fidelity Ins. Trust & Safe Department Co. v. N. & W. Ry. (C. C.) 88 Fed. 815; Stewart v. Wisconsin Central Ry. (C. C.) 117 Fed. 782, in which the rule is announced that if it be one of the terms of the contract of purchase of property sold by a receiver that the purchaser shall assume such liability of the receiver as may be fixed and determined by the court appointing him, then the purchaser has the right to claim that he is not bound by the judgment of any other court fixing such liabilities. See, also, 34 Cyc. 331.

But as the appellant in the present suit did not purchase the property from the receiver, clearly, the reasons upon which those decisions are based do not obtain if the property is returned without sale, and therefore the decisions are not applicable, even though we should be inclined to follow them.

Furthermore, it reasonably cannot be supposed that in mailing the order discharging the receiver and returning the property to the company, the court, contrary to the well-established rules and statutes mentioned above, intended to assume jurisdiction of claims that had not been an.d would not be filed in that court, and to bar them if they were not there presented; especially in the face of appellant’s application for the discharge of the receivers, by the terms of which appellant, in consideration for such discharge, offered to assume and pay all outstanding liabilities of the receivers without any exceptions whatever.

We are of opinion, further, that independent of said order of court appellant assumed and became liable to pay plaintiff’s claim by force of the provisions of article 2141, 2 Vernon’s Sayles’ Tesas Civil Statutes, mentioned ^already, which reads:

“All parties and corporations whose property has been placed in the hands of a receiver by order of the count, and which was not sold by the receiver, and which property has been delivered back to the original parties or corporation, without any sale of said property, shall be liable and held to pay all of the unpaid liabilities of the receiver in causes of action arising out of and during the receivership; and, if there are any suits pending against the receiver at the date of discharge, on causes of action arising during the receivership, the plaintiff shall have the right to make the party or corporation to whom the receiver delivered the property which was in his hands as receiver a party defendant along with the receiver; and, if any judgment is rendered against the receiver for causes of action arising out of and during the receivership, then, the court shall also, at the same time (if the party or corporation receiving back the property have been made parties defendant), render judgment in favor of the plaintiff against defendants for the amount so found for plaintiff and all costs; and plaintiff shall have the right to foreclose his lien on the property delivered back by said receiver to said party or corporation.”

We are of the opinion that the benefits of this statute were available to plaintiff under the general allegation of legal liability in connection with the averment of the restoration of the property without sale as noted above, knd that plaintiff was entitled to recover thereunder, irrespective of the special pleas mentioned.

The receivers, having been discharged and not being personally liable, were not necessary parties defendant to plaintiff’s suit. S. A. & A. P. Ry. v. Barnett, 44 S. W. 20.

For the reasons indicated, all assignments of error are overruled, and the judgment is affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&^3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    EARDLEY BROS. v. BURT et al.
    (No. 5597.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 26, 1916.)
    1. Mechanics’ Liens <@=>199 — Priorities — Vendor’s Lien.
    A vendor’s lien on land sold has priority over a mechanic’s lien thereon based upon the drilling of an artesian well for the buyer.
    [Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. §§ 371-374; Dec. Dig. <@=> 199.]
    2. Mechanics’ Liens <@=>59 — “Owner” of Land.
    One who has only a contract to purchase land is not the owner thereof within the meaning of the mechanics’ lien statutes.
    [Ed. Note.—E\>r other cases, see Mechanics’ Liens, Cent. Dig. §§ 75, 76; Dec. Dig. <@=>59.
    For other definitions, see Words and Phrases, First and Second Series, Owner.]
    3. Principal and Agent <@=>22—Establish-ment of Agency—Declaration oe Agent.
    An agency cannot be established by the statement of the agent.
    [Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. <@=>22.]
    4. Mechanics’ Liens <@=>57 — Contractor’s Duty to Inquire.
    Where the title to farm lands stood in the name of one other than the trustee for the farms who managed them and contracted for the cleaning and drilling of wells thereon, it became the duty of the contractors for the work to ascertain what rights had been acquired by such trustee.
    [Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. §§ 64-71, 74; Dec. Dig. <@=> 57.]
    5. Principal and Agent <@=>23 — Agency — Sufficiency of. Evidence.
    In an action for the value of services in cleaning and drilling wells, evidence held insufficient to support a finding that the one who ordered the work done was the agent of the owner of the land to contract for the work, or for any other purpose, or that he purported to act as agent in making the contracts.
    [Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. <@=>23.]
    6. Principal and Agent <@=>173—Ratifica-tion—Sufficiency of Evidence.
    In an action for the value of services in cleaning and drilling wells, evidence held insufficient to show any ratification by the owner of the land of the contracts for the work made by another.
    [Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 659-661; Dec. Dig; <©=> 173.]

      7. Pkincipal and Agent <@=164 — Ratification.
    There can be no ratification of an unauthorized contract by a principal binding him, unless the ratified contract was made by one purporting to act as agent at the time.
    [Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 622-625; Dec. Dig. <§= 164.]
    8. Mechanics’ Liens @=376 — Acquiescence oe Undisclosed Ownek.
    Where the owner of farm lands did not know that a well was being drilled thereon pursuant to contract with one who later purchased the land until the work was in progress, and did not know that the contractors were not fully informed of the facts relating to the title to the land, which, though standing in his own name when the work was contracted for, was conveyed to the person who had contracted for the work prior to its completion, there was no acquiescence in or consent to the work on the part of the record owner such as would affect his rights.
    [Ed. Note. — Eor other cases, see Mechanics’ Liens, Cent. Dig. §§ 104-107; Dec. Dig. <@= 76.]
    9. Mechanics’ Liens <@=>76 — Acquiescence op Owner.
    Under the mechanics’ lien statute, the mere fact that the owner of property acquiesced in or even consented to the furnishing of material to be used on the premises, or the performance of labor, cannot fix liens on the property by one in possession.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 104 — 107; Dee. Dig. <§= 76.]
    Error from District Court, Dimmit County; J. F. Mullally, Judge.
    Action by A. Eardley and John Eardley, composing the firm of Eardley Bros., against F. S. Burt and another. To review a judgment for the named and against the unnamed defendant, plaintiffs bring error.
    Affirmed.
    Vandervoort & Johnson, of Carrizo Springs, for plaintiffs in error.
   MOURSUND, J.

A. Eardley and John Eardley, composing the firm of Eardley Bros., sued M. H. Burt and F. S. Burt for the valué of services rendered in cleaning out a well and drilling a well on 80 acres of land in Dimmit county, being the west half of the S. W. quarter of section 29, alleging that said land was owned by F. S. Burt and was named “Wonderland Farms” by defendants, and that M. H. Burt represented himself to be trustee and manager of said “Wonderland Farms.” The suit was upon two written contracts, which will be copied in stating the testimony. Plaintiffs sought to establish and foreclose a mechanic’s lien on said land.

Defendants denied all the material allegations, and alleged that F. S. Burt never joined in the contracts for the work done, that he had no interest therein, and was in no way liable thereon; that M. H. Burt bought the land from O. T. Gregory, who was holding it with the balance of the section for defendant F. S. Burt under an unrecorded deed from the Artesian Land & Irrigation ■Company, which deed was later recorded, and said Gregory later made a deed to F. S. Burt, who, on November 23, 1912, executed and delivered a deed to the 80 acres to M. H. Burt in consideration of a vendor’s lien note dated November 23,1912, for $4,000, of which amount $1,600 was for borrowed money.

Plaintiffs’ first supplemental petition charges that the deed of November 23, 1912, was executed long after the work was completed and was and is, as to them, fictitious and fraudulent; also that if it be true that F. S. Burt had no interest in “Wonderland Farms,” that he had full notice and agreed that M. H. Burt might take possession in name of “Wonderland Farms” and improve the same, and that he had taken possession and was improving the same, and F. S. Burt should be estopped from denying plaintiffs their lien thereon.

Defendants replied, to the effect that F. S. Burt had no interest in “Wonderland Farms,” except his vendor’s lien thereon; that he did not know what improvements had been placed thereon, and did not authorize, acquiesce in, or ratify any improvements that were placed thereon.

The court instructed the jury that plaintiffs were not entitled to recover against F. S. Burt, and that his lien to the extent of $30 per acre was prior to that of plaintiffs. The jury returned a verdict against M. H. Burt for $1,393.50, with foreclosure of mechanic’s lien on 50 acres of land, subject to F. S. Burt’s lien of $30 per acre. Judgment was entered upon such verdict. Plaintiffs appealed, and by appropriate assignments of error complain of the court’s action in instructing the jury that plaintiffs could not recover against F. S. Burt, and in effect that his lien to the extent of the purchase money had priority over that of plaintiffs if they found that plaintiffs were entitled to recover.

In May, 1911, the Artesian Land & Irrigation Company, a corporation of which Asher Richardson was president and M. H. Burt was secretary and treasurer, and which owned about 20,000 acres of land in Dimmit county, entered into a contract with O. T. Gregory, whereby he undertook to sell such land. Defendant F. S. Burt owned stock in the corporation. On June 10, 1911, he surrendered a portion of his stock in exchange for section 29. The deed was taken in Gregory’s name, for convenience in selling, and he conveyed it to F. S. Burt by deed dated November 16, 1911, which was not recorded until April 22, 1912. F. S. Burt conveyed to M. H. Burt the 80 acres out of survey 29, described in plaintiffs’ petition, by deed dated and acknowledged November 23, 1912, but not filed for record until September 1, 1914. The consideration recited in the deed is $4,-000, evidenced by a promissory note, to secure which a vendor’s lien was retained in the deed. Plaintiffs’ mechanics’ lien was filed December 14, 1912.

The contracts sued upon read as follows:

“Asherton, Texas, May 27, 1912.
“Agreement entered into this day and date above written between M. H. Burt and Eardley Bros, of Carrizo Springs in which the said Eard-ley Bros, agree to move rig on section 29 on 80 acres now cleared and work on well now there at rate of $15 per day until an agreement is reached as to what is necessary. The said M. H. Burt agrees to give said Eardley Bros, the job of drilling new well if one is necessary and such other wells as he may have drilled on this section. [Signed] M. H. Burt.”
“San Antonio, Texas, June 17, 1912.
“Contract Agreement.
“This agreement entered into this day and date above written by and between M. H. Burt, of San Antonio, Texas, party of the first part, and Eardley Brothers of Carrizo Springs, Texas, parties of the second part, witnesseth:
“Party of the first part in the capacity of trustee and manager of Wonderlands Farms does hereby employ party of the second part to drill a well for artesian water on the west one-half of the southwest one-quarter of section 29 in the Asher Richardson survey, Dimmit county, Texas. Said well to be drilled to and through both stratas of the water bearing sands known to exist in this section. Party of the first part to furnish all casing necessary to case said well but party of the second part to furnish everything else and drill the well as far as possible as a 8%-inch hole and finish same as a 6%-inch. Well to 700 feet or more if necessary.
“Por and in consideration of the faithful performance of said work by the parties of the second part the party of the first part hereby agrees to pay said second party the sum of one dollar ($1.00) per foot for such 'actual depth as the well may measure when completed and accepted by said first party.
“Witness our hand and signatures this day and date above written.
“[Signed] M. H. Burt.
“John Eardley.”

John Eardley testified:

“I looked to F. S. Burt because F. S. Burt was interested in that land and M. H. Burt was working under F. S. Burt. As to whether I knew that at that time, I would say I know it by M. H. Burt’s own talk to me. I think he told me that not a great while before this contract was signed up. He told me that he and his brother was interested in that land, this M. H. Burt was just working for this F. S. Burt. I got that information through M. H. Burt. I could not recall now what Mr. M. H. Burt said to me that caused me to believe that. I might have recalled it if this matter had come up shortly after this work was done, I believe I could have recalled everything, but it had been two years and more since it came up.”

He also testified that when he got down to 550 feet he found it advisable, on account of the well caving in, to reduce the hole to 53/ie inches; hut as the contract called for 6% inches at the bottom, he got Vaughan, the tenant in possession of the land, to ascertain whether it would be satisfactory to make such reduction in the size of the well; that Vaughan in about four days told him to go ahead, that it would be all right; that F. S. Burt had said so. Vaughan testified 'that he did not talk to F. S. Burt; that Eardley asked him to talk to M. H. Burt, and he talked to the latter over the telephone at San Antonio, and received the reply that M. H. Burt wanted the well according to contract and the amount of water contracted for, but if he could get the water he might reduce the size of the casing; that he communicated this answer to Eardley. F. S. Burt testified he never had any conversation with Vaughan. M. H. Burt denied having ever authorized the reduction of the size of the well, and testified he had no information that such reduction was contemplated. After the well was completed John Eardley went to San Antonio and had a conversation with F. S. Burt. He testified he asked F. S. Burt for his money, and was told by F. S. Burt that he could not do anything until his brother, M. H. Burt, came back to San Antonio; that he said as soon as his brother returned they would come to Ash-erton, and in fact named the day they would be there; that F. S. Burt spoke about going 1,000 feet, and witness told him he could not and would not do it at that price; that witness had fulfilled his contract and that after he paid witness for that work witness would make a new contract and go as deep as he wanted to go; that on the day appointed John and 'Will Eardley met M. H. and F. S. Burt at Asherton and had a conversation with them about the well; that F. S. Burt said they would like to go out and look over the place before they could settle with Eard-ley Bros., and they would meet John Eardley in Carrizo Springs the next day and settle up for the work on the well; that the Burts did not come to Carrizo Springs the next day, but John Eardley received the following letter:

“W. A. H. Miller, Attorney at Law, Lands & Loans.
“Asherton, Texas, October 3, 1912.
“Mr. John Eardley, Carrizo Springs, Texas-Dear Sir: You seem determined for reasons unknown to us not to complete our well according to contract. We now wish to notify you that unless you start operation at once and finish the well to the second strata of the water sand according to contract without any further delay that you can pull out your 53/ie casing and remove your machinery from the place at once and we will pay you for the 8% casing you put in the well of your own. We will pay you $1 per foot as per contract when you complete the well through the second strata of the water sand and if this is not encountered previous to drilling 1,000 feet we will then pay you $1,000 and enter into another contract providing we want to go any further down at that time but will consider your contract completed when you have drilled 1,000 feet as you advised me at the time of making this contract that you had an outfit capable of going this depth.
“Kindly give me an immediate answer as to what you intend to do in the matter, addressing me at our office in San Antonio, Texas.
“Yours very truly,
“[Signed] M. H. Burt.”

The testimony of M. H. Burt, F. S. Burt, and Gregory is to the effect that during the latter part of June, 1911, Gregory sold to M. H. Burt the 80 acres of land for $2,400, and reported such sale to F. S. Burt at Wichita, Kan., during the latter part of July, 1911; that F. S. Burt approved the sale and at Gregory’s request loaned M. H. Burt $1,000 to improve the land, Gregory having informed him of M. H. Burt’s plan to sell “Wonderland Farms” on the unit plan; that in October, 1911, F. S. Burt loaned M. H. Burt $600 more to pay for improvements. Both M. H. and F. S. Burt testified that F. S. Burt had no interest in the SO acres or in the “Wonderland Farms” enterprise other than his lien for purchase money and loans. M. H. Burt explained his plan as follows:

“My object was to raise onions, and I was already selling the land — I was selling the land out on a unit plan. By that I mean this: A unit was one acre, and when I sold them I sold them on contract and I became the trustee and manager for the man I sold to. When he paid out he had a deed to the acre or 2 acres or 5 acres, and the contract that I had extended for 5 years, that I was to raise onions for him and I got 25 per cent, of the net profits. I sold about 60 acres of those units. * * * ”

He explained that he used the expression, “our well,” in the letter because he always expressed himself in the plural on account of handling.it in units, and representing himself and others in developing the property.

F. S. Burt testified that he had nothing to do with the matter of drilling the well on the SO acres by Eardley Bros., and knew nothing of it until the latter part of July or August, 1912; that he stated to Eardley he had no interest in the well; that he came to Asherton with his brother because he was interested in seeing a good well on the 80 acres, on account of the effect upon the balance of the land, as well as the value of his lien; that he was to loan his brother $1,000 to pay for the well if it was completed to a depth of 1,000 feet.

Appellants’ theory apparently is that the parol sale of the 80 acres to W. H. Burt was not enforceable by him because of the fact that he had not paid the purchase money, and therefore the land should be treated as absolutely owned by F. S. Burt. It is evident that if M. H. Burt was the owner within the meaning of the mechanics’ lien statute, the land was incumbered by a vendor’s lien for $2,400, which would have priority over the mechanics’ lien. But if M. H. Burt only had a contract to purchase, he was not the owner within the meaning of such statutes. Galveston Exhibition Association v. Perkins, 80 Tex. 62, 15 S. W. 633. We will therefore Inquire into the question whether the evidence would support a finding that F. S. Burt authorized the execution of the contracts or is liable thereon. There is no testimony from which it can be said that F. S. Burt authorized M. H. Burt to execute such contracts or that he even knew a well was being drilled until the latter part of July or in August, 1912. The only evidence that tends to show that M. H. Burt was agent for F. g. Burt is that of John Eardley to the effect that he knew from M. H. Burt’s talk they were both interested in the land, and that M. H. Burt was working under F. S. Burt; that he thought Burt had told him not a great while before this contract was signed up.

Aside from the fact that agency cannot be established by the statement of the agent, such statement is far from being one to the effect that M. H. Burt was the agent of F. S. Burt for the purpose of making improvements costing over $700. M. H. Burt represented in the principal contract that he acted in the capacity of “trustee and manager for Wonderland Farms.” Eardley Bros, made no inquiry as to the ownership or what the term “Wonderland Farms” stood for. As the title stood in the name of F. S. Burt, it became their duty to ascertain what rights had been acquired by M. H. Burt, trustee, etc., and had inquiry been made it must be assumed it would have developed the fact that M. H. Burt and his unit associates could get no other title than one incumbered with a vendor’s lien for $2,400. The evidence would not support a finding that M. H. Burt was the agent of F. S. Burt for the purpose of contracting for the cleaning and drilling of wells, or for any other purpose, or that he purported to act as agent for him in making the contracts. The evidence fails to show any ratification by F. .S. Burt of the contracts made by M. H. Burt, and in fact as in such contracts M. H. Burt did not purport to act as the agent of F. g. Burt, there was no acting as agent for him to ratify. Sheer v. Cummings, 80 Tex. 294, 16 S. W. 37.

As F. S. Burt did not know the well was being drilled until the latter part of July or in August, and did not know that Eardley Bros, were not fully informed of the facts relating to the title to the land, we think there was no acquiescence or consent on his part such as would affect his rights. In addition under statutes such as ours the mere fact that the owners of the property acquiesced or even consented to the furnishing of material to be used on the premises or to the performance of labor, could not fix liens on the property. Galveston Exhibition Association v. Perkins, 80 Tex. 62, 15 S. W. 633; Faber v. Muir, 27 Tex. Civ. App. 27, 64 S. W. 938. The evidence wholly fails to sustain any theory of liability on the part of F. g. Burt such as is pleaded by plaintiff, and the court did not err in instructing a verdict.

Judgment affirmed.
      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 182 S.W.—46

      other cases see same topic and KBY-NXJMBBR in all Key-Numbered Digests and Indexes