text:
    EASTERN TEXAS TRACTION CO. v. BIRDSONG.
    (No. 1605.)*
    (Court of Civil Appeals of Texas. Texarkana.
    April 20, 1916.
    Rehearing Denied May 4, 1916.)
    Corporations @=432(12) — Sales op Corporate Stocks — Authority op Corporate Agent — Evidence.
    In an action for commissions due for sale of corporate stock, as well as for compensation for services rendered the corporation, evidence held to warrant a finding that the agent, with whom plaintiff made the contract, had authority to bind the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1737, 1743, 1762; Dec. Dig. @=432(12).]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.

      Action by Ellis Birdsong against the Eastern Texas Traction Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Tates, Slierrill & Starnes, of Greenville, for appellant. Clark & Leddy of Greenville, for appellee.
   HODGES, J.

The appellant, Eastern Texas Traction Company, was incorporated under the laws of Texas, for the purpose of constructing and operating a line of electric railroad between Dallas, Greenville, and other points. The appellee, plaintiff below, brought this suit to recover of the appellant certain sums of money claimed to be due for selling for the appellant shares of its stock and for services performed in an official capacity. It was alleged by the appellee that, soon after the organization of the appellant company, J. F. Nichols, its duly authorized agent, entered into a contract with him whereby the appellant agreed to pay the appellee $5 per share for each share of its preferred stock which he sold or caused to be sold; that the stock to be disposed of was of the par value of $100 per share, and was to be sold at $80 per share; that, acting on this contract, the appellee sold 900 shares of the stock, for which he claims compensation at the rate of $5 per share. He also pleaded in the alternative that he sold the stock above referred to at the special instance and request of the appellant, and that his services in so doing were reasonably worth $5 per share. He also alleged that from March 15, 1912, to the 18th day of November following he performed various services in procuring a right of way and depot grounds at the special instance and request of the appellant, for which he claims $1,000, and that in performing such service he incurred an expense to the amount of $275. It was also claimed by the appellee that the appellant owed him $200 for services rendered while acting as active vice president of the Guaranty Bank of Greenville. For these various items he asked for judgment. The appellant denied the contract relied on and described above, and denied the authority of Nichols to make such a contract in its behalf. It admitted that the appellee performed some service in the matters referred to, but averred that these services were voluntarily rendered, with the understanding that no charge would be made therefor; that the appellee was an officer of the appellant corporation, and that no provision had been made for the payment of a salary to him during that time; and for these reasons he was not entitled to compensation for the services rendered. The trial was before a jury, and resulted in. a general verdict for the appellee in the sum of $3,133.

According to the testimony of the appel-lee, he made a contract with J. F. Nichols some time in 1912 whereby Nichols agreed that the appellant corporation, for which Nichols was acting, would pay appellee $5 per share for each share of stock that he would sell or cause to be sold. That testimony was conflicting as to whether or not any such agreement had been made, but the verdict of the jury settled that issue in favor of the appellee. In this appeal the appellant insists that the evidence is not sufficient to support a finding that Nichols had authority to make that contract. It appears from the evidence that in March, 1912, the stockholders of the appellant company held their first meeting, and there was issued to G. W. Crotty stock to the amount of $800,000 in payment of franchises and grants from different cities and towns along the proposed line of the road; that there was issued to J. F. Nichols, for similar privileges, $799,500 in stock, and to W. A. Williams $500 of stock. These three men, with F. E. White, were elected the board of directors. At that meeting the following orders appear to have been made: All acts of.the original incorporators done in connection with, and all matters pertaining to, the organization of the company were ratified. The corporation assumed all liability and responsibility created by reason of any acts done or performed by the original incorporators. The company agreed to carry out and fulfill all of the contracts and agreements made by Nichols or Grotty that were in any way connected with the company or the building of the proposed railroad. It was also ordered that the board of directors proceed with the sale of preferred stock at such price and on such terms as by them were deemed proper. The board of directors elected held a meeting, and the following orders were made: The executive committee was instructed to work out the details of the issue, subscription, and sale of the preferred stock, with instructions to report to the board of director's at a future meeting. The executive committee was instructed to proceed with the work of financing and building the proposed railroad, and was given full power and authority to do and perform any and all acts necessary In connection therewith. On May 8, 1912, the board of directors had another meeting, at which all contracts and agreements theretofore made were fully ratified.

It is conceded by the appellant in its brief that at the time this contract was made with the appellee, according to the latter’s testimony, Nichols was the president and the appellee was the treasurer of the corporation, and that Crotty and Nichols constituted the executive committee. At a subsequent meeting, held on May 8th, Crotty was made general manager and directed to employ as many men as he deemed necessary to carry on the work of selling stock and securing the right of way. Appellee testified that the work of disposing of the unsold preferred stock was divided by Nichols and Crotty; Nichols assuming to dispose of a certain amount of stock allotted to the citizens of Greenville, and Crotty to dispose of stock allotted to the citizens of Dallas. The appellee resided in Greenville, and his services were enlisted both in selling stock in connection with committees of citizens in Greenville and in selling alone. He also testified that after his services were performed, and at a time when the company owed him nothing, except for the sale of stock, he called upon Mr. Crotty for compensation ; that Mr. Crotty did not dispute his right to compensation, but told him to wait until some future time, and made no objection to the demand. He also testified that he was satisfied that Mr. Crotty knew of the conditions under which he was working.

It is unnecessary to dwell at any length upon the testimony adduced in support of the judgment. We have gone over it carefully, and have reached the conclusion that there was sufficient evidence, considering all of the conditions and circumstances attending the performance of the services by the appellee, to authorize the jury to find that Nichols did have authority to make the contract relied upon as the basis of the appel-lee’s claim for commissions on the stock sold by him.

We therefore conclude that the judgment should be affirmed.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MIDDLEBROOK, J.

license: Public Domain

text:
    WALLS et al. v. CRUSE et al.
    (No. 83.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 23, 1916.)
    1. Vendor and Purchaser @=>93 — Rescission by Vendor.
    The vendor on failure of the purchaser to carry out the contract by making payments may rescind it, and sell the land, and pass title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent.'Dig. §§ 153, 154; Dec. Dig. @=>93.]
    2. Vendor and Purchaser @=>99 — Rescission by Vendor — Loss oe Right — Transfer of Note.
    Right of the vendor to rescind ceases on his sale of the vendor’s lien note.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 167-169; Dec. Dig. @=>99.]
    3. Vendor and Purchaser @=389 — Rescission by Buyer oe Vendor’s Lien Note.
    The right to rescind a contract of sale of land for default of the purchaser in payments passes to the buyer of the vendor’s lien note.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 148, 149, 151, 156; Dec. Dig. @=>89.]
    4. Vendor and Purchaser @=>97, 100 — Rescission by Vendor — Conditions.
    That a vendor or one succeeding to his rights may rescind for nonpayment of purchase money, he must insist on payment, and not wait too long.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 161, 162, 166, 170; Dee. Dig. @=397, 100.]
    5. Vendor and Purchaser @=>98 — Rescission by Vendor — Conditions.
    For the vendor or one succeeding to his rights to rescind for nonpayment of vendor’s lien note, after waiting over 20 years, he must pay back, with interest, the cash payment made.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 163-165; Dec. Dig. @=>98.]
    6. Vendor and Purchaser @=3172 — Abandonment of Contract — Perfecting of Title by Purchaser.
    For the purchaser or his heirs, after apparently abandoning the contract for many years, to perfect title, they must pay the amount of the unpaid .vendor’s lien note, with interest and all expenses, including taxes, incurred in protecting title, 'by the successor to the vendor’s rights.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 349-351; Dec. Dig. @=3172.]
    Appeal from District Court, Tyler County; A. E. Davis, Judge.
    Action by Mary S. Walls and others against R. A. Cruse and others. From an adverse judgment, plaintiffs appeal.
    Reversed and remanded for new trial.
    V. A. Collins, of Beaumont, and Thomas & Wheat, of Woodville, for appellants. Mooney & Shivers, of Woodville, for appellees.
   MIDDLEBROOK, J.

This suit was filed by Maggie Walls and others, as heirs of Thomas Walls, deceased, on the 22d day of July, 1913, in the district court of Tyler county, Tex., against R. A. Cruse and the Steger Lumber Company for the recovery of 100 acres, a part of the Robert Lucas league of land in Tyler county, Tex. Maggie Walls is a feme sole, and the suit is in the usual form of trespass to try title.

Defendants answered jointly on February 1, 1915, by general demurrer, general denial, plea of not guilty, and plead specially that Mary S. Cobb sold 100 acres of land to Thomas Walls, and retained a vendor’s lien on said land, June 9, 1883, to secure the purchase money, and that Mary S. Cobb transferred said note to R. A. Cruse; that Walls moved on and took possession of the land, and that he (Cruse) furnished Walls with groceries and merchandise; that Walls failed to pay the account and the vendor’s lien note and left the country, and Cruse knew' not of his whereabouts, and failed to find his residence, and in order to protect his note, and to prevent his indorser, Mary S. Cobb, from avoiding payment thereof, he filed suit in Tyler county, Tex., “on the-day of. -, 18 — ,” against Walls, as maker, and Mary S. Cobb, as indorser asking judgment and foreclosure on said note, which suit was carried for many years on the docket of said court, and finally dismissed by the court at the cost of plaintiff Cruse, with judgment for costs against Cruse; and that Mary S. Cobb conveyed the land to R. A. Cruse to rescind the contract of sale between her and Walls, conditioned that Cruse would release her from obligation on the vendor’s lien note, which she had theretofore transferred and indorsed to Cruse.

The case was tried before the court without a jury, and judgment was rendered in favor of Cruse for the land, and for $111 in money, being the amount Cruse had received for the timber on said land from the defendant Steger Lumber Company.

Briefly stated, the facts are:

Mary S. Cobb sold Thomas Walls 100 acres of land by deed dated June 9, 1883, for $250, $125 cash, and one vendor’s lien note for $125 payable to Mary S. Cobb or bearer, with 7 per cent, per annum interest after maturity. The vendor’s lien is retained in the note and in the deed. The note was transferred to R. A. Cruse, and its payment guaranteed by Mary S. Cobb before its maturity.

Walls was a section foreman on the railroad, and the testimony shows that he cleared up a part of the land with section hands, and put it into cultivation; but it does not show how long he used and cultivated the land. . He was discharged by the railroad company, and after his discharge moved onto the land and occupied it a .while, and moved off and went to work on Houston East & West Texas Railroad. He moved from that work, and after this his whereabouts seem to be unknown, so far as the record discloses. Before Walls left the country, however, Cruse tried to collect the note, but failed. Cruse furnished him supplies while he was living near Woodville, and Walls was unable to pay for same, and gave Cruse the following note in settlement of his account with Cruse:

“$318.22 Woodville, Tyler Co., Texas,
“March 28, 1885.
“One day after date I promise to pay R. A. Cruse or bearer at Woodville, Tyler Co., Texas, three hundred & eighteen & 22/ioo dollars with ten per cent, interest from the first of last January until paid for value received.
his
‘Thomas N Walls,
mark
“Witness:
“T. E. PXyde.
“C. D. Ogden.”
- Indorsed on back:
“Thos. Walls $318.22 I acknowledge the within note to be just & correct & unpaid, this the 10th day of June 1889.
his
“Thomas X Walls,
mark
“Witness:
“T. E. Hyde.
“H. A. Arnold.
• “[Pencil notation:] Can take the land he purchased from Cruse for note.”

Walls left no one on the land, nor is there any claim set up to the land by Walls or his heirs until the filing of the present suit. Cruse had always claimed the land since AValls left the country, and paid back taxes on it, and has also paid the taxes on the land for about 27 years, up to the present time. Cruse offered to prove a settlement between himself and Walls; but upon objection the trial court refused to let him do so. Some time after Walls loft the country Cruse brought suit on the vendor’s lien note, seeking judgment for his debt and foreclosure of his vendor’s lien; Walls and Mary S. Cobb both being made parties to the suit. This suit stood on the docket of the district court for a number of years, Cruse being unable to get personal service on Walls, and the suit was finally dismissed by the court. On the 29th day of July, 1991, A. M. Davis and Mary S. Davis (formerly Mary S. Cobb) executed the following deed to R. A. Cruse: “The State of Texas, County of-.

“Know all men by these presents that I, M. S. Davis, formerly M. S. Cobb, joined by my husband, Monroe Davis, of the county of Polk and state aforesaid, for and in consideration of the sum of five dollars to us in hand paid by R. A. Cruse, and the further consideration of the sum of $- heretofore paid by said R. A. Cruse, and for the purpose of ratifying and confirming a deed to the hereinafter described land, heretofore made 'by me to the said R. A. Cruse, which said deed is alleged to have been lost or destroyed, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said R. A. Cruse, of the county of Tyler and state of Texas, all that certain tract, piece, or parcel of land lying and being situated in Tyler county, Texas, and being a part of the league of land originally granted to Robert Lucas and described by metes and bounds as follows: [Then follows description.]
“To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise 'belonging, unto the said R. A. Cruse, heirs and assigns, forever. And we do hereby bind ourselves, our heirs, executors, and administrators, to warrant and forever defend, all and singular, the said premises, unto the said R. A. Cruse, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
‘Witness our hands at- this 29 day of July, A. D. 1001.
“Signed and delivered in presence of
“A. M. Davis.
'“M. S. X Davis.
“The State of Texas, County of Polk.
“Before me, S. M. Oates, J. P. and ex officio notary public in and for Polk county, Texas, on this day personally appeared Monroe Davis, and M. S. Davis, wife of the said Monroe Davis, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed, and the said M. S. Davis, wife of the said Monroe Davis, having been examined by me privily and apart from her husband, and having the same by me fully explained to her, she, the said M. S. Davis, acknowledged such instrument to 'be her act and deed, and declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she wished not to retract it.
“Given under my hand and seal of office this 29th day of July, A. D. 1901. ¡5. M. Oates, J. P. and Ex Oflicio Notary Public in and for Polk County, Texas.”

The following deed was also executed by A. M. Davis and Ms wife, M. S. Davis (formerly M. S. Cobb):

“State of Texas, Tyler County.
“Whereas, heretofore, on, to wit, the 9th day of June, 1883, I, Mary S. Davis, then Mary S. Cobb, did by my certain two deeds in writing of that date conditionally sell and convey unto Thomas Baker and Thomas Walls each one hundred (100) acres of the hereinafter described tract of land and retained in each of said deeds a vendor’s lien on the land so conditionally sold and conveyed to secure the payment of two purchase-money notes for one hundred and twenty-five ($125.00) dollars each, due Jan. 1st, 1884, given by the said Thomas Baker and Thomas Walls, thereby retaining- the superior legal title to each tract of said land so conveyed in myself until said purchase-money notes are fully paid according to their face, tenor, and effect, which said deed to Thomas Baker is recorded in Book L, page 582, Deed Records of Tyler County, and the said deed to Thomas Walls is recorded in Book L, page 587, Deed Records of Tyler County, and both of said deeds, together with the record thereof, are hereby referred to and made a part hereof; and whereas, the said notes have been due for more than twenty (20) years, and are wholly unpaid, and the said Walls and Baker have long since abandoned the country and all claim to said land, and have refused, to carry out the contract in said deeds by paying the purchase-money notes, and I have long since rescinded said contract or conditional conveyances :
“Now, therefore, know all men by these presents that we, Mary S. Davis (née Cobb), joined by her husband, Monroe Davis, of the county of Polk and state of Texas, have rescinded and do by these presents rescind in toto the said above-mentioned conditional conveyances, and for and in consideration of the sum of five hundred ($500.00) dollars to us in hand paid by R. A. Cruse, the receipt of which is hereby acknowledged, have bargained, sold, and conveyed, and by these presents do bargain, sell, and convey, unto the said R. A. Cruse, of the county of Tyler and state of Texas, the following described tract or parcel of land, lying and being situated in Tyler county, Texas, about six (6) miles north of the town of Woodville, and being a part of the league of land originally granted unto Robert Lucas, bounded as follows: [Follows description.]
“To have and to hold the above-described premises unto the said R. A. Cruse, his heirs and assigns, forever. Monroe Davis.
“Mar. S. Davis.
“State of Texas, Polk County.
“Before me, the undersigned authority, on this day personally appeared Monroe Davis and his wife, Mary S. Davis, known to me to 'be the persons whose names are subscribed to the foregoing instrument and acknowledged to me .that they executed the same for the purposes and consideration therein expressed; and the said Mary S. Davis, having been examined by me separately and apart from her said husband, and after having the same by me fully explained to her, acknowledged to me that said instrument was her act and deed, and that she had willingly executed the same for the purposes and consideration therein expressed, and wished not to retract it.
“Given under my hand and seal of office this 27th day of Jany., 1908.
“[Seal.] J. G. Moss,
“Notary Public, Polk Co., Tex.”

This deed is not dated, but the notary took the acknowledgment January 27, 190¿, and the deed was recorded February 3, 1908.

Cruse testified that he released Mrs. Davis from the note when she deeded him the-land, but the release was verbal. The land was worth about $300 when Walls left it. Cruse sent his clerk to Walls to collect the $318 note, but he did not collect it, and when he returned from seeing Walls the pencil memorandum “can take the land he purchased from Cruse for the note” was on the back of the note, and was not there before that time. The deed from A. M. Davis and M. S. Davis was made several years after Walls left the country, and after the suit was filed by Cruse against Walls and Cobb, and Mr. Cruse testified:

“X think it was the last deed made to me in consideration of my dismissing the suit against her.”

At the time Cruse sent his clerk to Walls to collect the note it was not out of date. When he got that note back he rested satisfied from then on, because he was satisfied that Mr. Walls meant for him to take the land for the note and the other obligation; that all aggregated more than $300; the note is more than $300 for the indebtedness; that he has never since undertaken to collect that debt, 'because he was satisfied that he would get the land; that he relied on the representation on the; back of that note; that the value of the land at that time ranged from $1 to $3 an acre; he thought $3 would be a good average price for the land, and that would not have paid the debt; that since that time he has never made any effort to collect that debt, and undertook to take the land. Cruse always exercised authority and control over the land after Walls left, but never went into actual possession of it. The plaintiffs are the admitted heirs of Tilomas AValls.

It was agreed by the parties that the winner of the suit was the owner of the $111 on deposit for the timber cut from the land, and by former agreement the money for the timber cut from the land was placed upon deposit, subject to the order of the winner of the suit, and that . agreement was in . writing. The Steger Lumber Company bought the timber; hence its connection with the suit.

Appellants have assigned six errors, which are substantially:

(1) That the court -erred in rendering judgment for defendant because no proper demand was made for payment, and no notice of the rescission of the executory contract by Cruse to plaintiffs.

(2) That, Cruse having treated the contract as continuing until just before the trial, and not having given notice of the rescission of same, the judgment is contrary to the law.

(3) That Cruse having filed suit to foreclose on the vendor’s lien note, and, having dismissed the same, he was estopped after recognizing the contract as a continuing one, to go back of his acts, and claim the land under a rescission of the original contract;

(4) Because defendant Cruse could not rescind the contract until Mary Davis and her husband, Monroe Davis, gave him a written assignment of their legal title; no rescission could therefore have been made by him, and, no notice of rescission by Cruse after acquiring the land title from Davis and wife, the plaintiff should have recovered.

(5) Because no notice to plaintiffs was given by Mary S. Cobb or her husband, Monroe Davis, of a rescission of the contract, before the sale to R. A. Cruse of their title to the land, or assignment of their lien, and therefore R. A. Cruse could not make any legal rescission of the contract.

(6) That the trial court erred in admitting in evidence, over plaintiffs’ objection, the $318 note.

These are answered by appellees by counter proposition, as follows:

“In order for appellants to recover under' their equitable plea, they must not only tender defendants the principal and interest on the note, also all taxes, together with legal interest thereon, and all other proper and necessary charges paid 'by defendants.”

After careful consideration of the case we have decided that neither the plaintiffs nor the defendant Cruse have met the requirements of an equitable proceeding, involving issue under the facts of this case.

That Mr. Cruse had the right to rescind the contract upon failure of Walls to carry out his part of it has been recognized for many years by the courts of our state. So, too, has the vendor the right, on default of payment of the purchase money, to sell the land and pass the title to it. Estes v. Browning, 11 Tex. 247, 60 Am. Dec. 238; Secrest v. Jones, 21 Tex. 121; Scarborough v. Arrant, 25 Tex. 129; Tom et al. v. Wollhoefer, 61 Tex. 277.

“To avail himself of this equitable right, he must not delay too long in insisting upon payment of the money. He must not treat the contract as still subsisting, or do any act which may be construed into its affirmance. A transfer of one of the purchase-money notes is held to amount to such an affirmance (Coddington v. Wells, 59 Tex. 49), and so doubtless is a repurchase of the land from the vendee, at least when more is paid than was due upon the original contract. If the vendor goes into equity to set aside the sale, he must tender the purchase money already received, or he will be defeated as not offering to do equity. Thomas v. Beaton, 25 Tex. Supp. 321. The vendee, when sued for the land, may tender the money due, and this will save the forfeiture, no matter how long he may have been in default. Estes v. Browning, supra.”

So from these authorities it would seem clear that Miss Cobb’s sale of the vendor’s lien note to R. A. Cruse would preclude her right to rescind the executory contract, and therefore the deeds she and her husband executed to Cruse after she hád sold the $125 note to Cruse could avail nothing as to rescinding the original contract; all of her rights and equities in the matter passed .to Cruse when he bought the note; and R. A. Cruse, when he became the owner of the note, had all the legal rights and equities formerly possessed by Miss Cobb, and therefore he had the right to rescind the contract, and claim the land as his own, and sell it, if he desired to do so, and thereby pass the title to it to his vendee. This principle of law is forcefully elucidated and declared in Thompson v. Robinson, 93 Tex. 170, 54 S. W. 243, 77 Am. St. Rep. 843; Rutherford v. Mothershed, 42 Tex. Civ. App. 360, 92 S. W. 1020. See, also, authorities cited in these cases.

■So Cruse being the owner and holder of the note, when it became due, had the right to annul the executory contract. But from the authorities already quoted he must insist on payment, and not wait too long after the note becomes due. His undisputed evidence shows that he was insisting upon payment of the note, though the record is silent as to just when the note would become due, and it is also shown that at some time he filed suit on the note, and sought a foreclosure of the vendor’s lien. The filing of this suit is a very forceful fact, tending to show that he did not at that time desire to rescind the contract, and take the land back; but this suit was never prosecuted to a judgment, but finally dismissed by the trial court at his cost. It is to be noted also that this suit was filed after he had received the $318 note back with the pencil memorandum upon it before quoted, because he testified that Walls left the country, and he could not get service upon him, and Walls was still here when his clerk went to see Mm to collect the note, and the merchandise note came back to Cruse with the pencil memorandum upon it. So it is by no means clear just what Mr. Cruse did at the time intend to do. However, he says that after he received the note back in that shape he after-wards considered the land his, and took charge of it, and has since exercised control over it, and has paid the taxes on it.

Cruse was warranted in arriving at a conclusion that Walls had abandoned • his contract, since Walls had left the country and for 20-odd years had done nothing toward the land nor in settlement of the purchase-money note, and he had the right “to disaffirm the contract and convey the land if the circumstances would not make it inequitable for him to do so.” As is said by Justice Brown in Thompson v. Robinson, 93 Tex. 165, 54 S. W. 245, 77 Am. St. Rep. 843:

“The plaintiffs below being in default of such payment for 15 years, Bonnet, the owner of the - superior title and the deed, had the right to dis-affirm the contract, and convey the land to B. R. Thompson, if the circumstances would not make it inequitable for him to do so.” Howard v. Davis, 6 Tex. 174; Wheatley v. Griffin, 60 Tex. 209; White v. Cole, 87 Tex. 500, 29 S. W. 759.

And upon the death of Walls his heirs had the right to pay to Mr. Cruse the purchase money paid by him for the vendor’s lien note, with interest and any other legal expenses accrued thereon and thereby perfect their title. Eor further authorities pertinent to the issues of this case see Lanier v. Foust, 81 Tex. 186, 16 S. W. 994; Evans v. Bentley, 9 Tex. Civ. App. 112, 29 S. W. 497, 36 S. W. 1070; Evans v. Ashe, 50 Tex. Civ. App. 54, 108 S. W. 398, 1190. See, also, Moore v. Brown, 46 Tex. Civ. App. 523, 103 S. W. 244; Gardner v. Randell, 70 Tex. 457, 7 S. W. 781; Telegraph v. Green, 139 S. W. 912; Moore v. Giesecke, 76 Tex. 551, 13 S. W. 290; Erwin v. Daniels, 34 Tex. Civ. App. 378, 79 S. W. 61; Hill v. Still, 19 Tex. 78; Hamblen v. Faults & Walsh, 70 Tex. 137, 7 S. W. 834.

Under the facts and pleadings of this ease and the authorities above cited and quoted from, we are of opinion that, in order for Mr. Cruse to rescind the contract, it is his duty to pay back to the heirs of Walls the cash money he received, with legal interest thereon, the undisputed evidence showing that half of the original purchase money was paid at the time of the execution of the deed to Walls, and the vendor’s lien note of Walls to Mary S. Cobb, which he did not propose to do.

We are of opinion also that in order for the heirs of Walls to perfect their title it is necessary, not only for them to pay the amount of the original purchase-money note, but it is their duty to pay all necessary and legal expenses incurred by Cruse in protecting the title to the 100 acres of land, which, of course, would include the taxes he has paid for the last 27 years, together with legal interest thereon. Equity would demand nothing short of this, because, if Cruse had not paid the taxes, the presumption, at least, is that the land would have long since been sold for taxes, and the title passed either to the state or some person bidding it oft at a tax sale. “He who seeks equity must do equity.” This law axiom is applicable both to the plaintiff and the defendant Cruse in this ease.

The record shows that Walls used the land for some time, with his- section hands cleared up a field on it, but it does not show how long he used the land, nor does it show rent value of the land during the time he used it, and, while that particular feature is not presented before us, we suggest, in view of another trial of this case, that such is proper for consideration, and, if it is shown that the land had a rent value at the time Walls was using it over and above improvements placed upon the land by him, in such event equity would demand an accounting by the plaintiffs in this case to the defendant for such rents.

The evidence offered by Cruse and rejected by the court as to settlement with Walls, under the facts of this case, and the long duration of time that Walls asserted no claim to the land, should be admitted, so that the jury may have every ray of light possible that might assist in arriving at the rights and equities of the parties.

So believing, the cause is reversed and remanded for another trial.
      «gs^For other cates see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    COMMONWEALTH BONDING & CASUALTY INS. CO. v. KNIGHT.
    (No. 564.)
    (Court of Civil Appeals of Texas. El Paso.
    April 27, 1916.
    Rehearing Denied May 18, 1916.)
    1. Insurance <@=>559(2) — Accident Insurance — Proof of Loss.
    Proof of loss is waived when the insurer denies all liability under the policy.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1391, 1392; Dec. Dig. €=>559(2).]
    2. Abatement and Revival <@=>20 — Premature Action — Abatement.
    Where the cause of action on an accident insurance policy has not matured, the action is premature, and will be abated for that reason.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 149-143; Dec. Dig. <@=>20. ]
    3. Insurance <@=>597 — Accident Policy — Construction.
    An accident policy provided that, if any bodily injury should immediately and continuously from the date of the accident disable and prevent the insured from performing any and every duty pertaining to his business or occupation, indemnity at the rate of $35 per month should be paid for a period not exceeding 24 consecutive months, but only while the insured should be under regular treatment of a physician. Under the head “General Agreement” the policy declared that proof of loss should be given within 90 days after death, injury, or termination of disability, while a subsequent paragraph declared that final proof in all cases should be given in accordance with the general agreement. Held that, despite any hardship it might work on the insured, he was not_ entitled to payment of benefits for total disability until the period of disability had ceased.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1493; Dec. Dig. <@=>597.]
    Appeal from Taylor County Court; E. M. Overshiner, Judge.
    Action by J. A. Knight against the Commonwealth Bonding & Casualty Insurance Company, begun in justice’s court, and appealed to county court! From a judgment there for plaintiff, defendant appeals.
    Reversed and dismissed.
    S. P. Hardwicke, of Abilene, for appellant. Kirby, Scarborough & Davidson, of Abilene, for appellee.
   HARPER, C. J.

Knight filed this suit against the appellant insurance company in the justice court on the 20th day of February, 1915, to recover $35 accident insurance. On the 24th day of March', 1915, he amended his petition and asked for $70. The insurance company filed plea in abatement, which was sustained, and Knight appealed to the county court, and there amended, claiming five months had expired, for which he asked $175. To this last pleading the insurance company filed its plea in abatement upon the ground that there was no liability on the policy until after proof of injury filed after the total period of disability; that the policy was not payable by the month. In the county court the cause was tried without a jury and judgment rendered for appellee for $175 for thefive months preceding the filing of the last petition, which judgment expressly reserved to appellee his right to sue for succeeding liability. From this judgment the insurance company appealed.

There are several assignments of error urged in the brief, hut, having determined that the suit was prematurely brought, the others become unimportant.

Findings of Fact.

The accident and injury occurred on the 11th' day of January, 1915. The suit was filed in the justice court on the 20th day of February, 1915. The evidence of plaintiff and his physician is that he is totally disabled from doing his usual work.

The policy sued on is dated January 11, 1915, and insures against loss or disability resulting from accidental means for a period of one year. Under the heading “Monthly Accident Indemnity — Total Disability”:

“If any bodily injury as above defined, not resulting in a loss specified in part 1, shall immediately, wholly, and continuously from date of accident disable and prevent the insured from performing any and every duty pertaining to his business or occupation, indemnity is payable at the rate of $35.00 per month, for a period not exceeding twenty-four consecutive months, and only while the insured is under the regular treatment of a legally qualified physician or surgeon by reason of such injury.”

Paragraph 5, under head of “General Agreement,” contains the following:

“Written notice * * * must be given * * * 0f any accident, * * * etc. Written proof of loss must 'be given to the company within ninety days from the date of death, * * ⅜ loss of sight, * * * or termination of disability from bodily injury or illness. * * * ]\[0 legal proceedings for recovery hereunder shall be brought within- ninety days after the receipt of proof by the company as aforesaid.”

In paragraph' 9 it is provided:

“Final proof in all cases must be given in accordance with clause five of the general agreements.”

The question here is not proof of loss, but at what time does the indemnity become due that suit may be brought either with or without proof of loss? Proof of loss is waived when the insurer denies ail liability under the policy. Sun Mutual Co. v. Mattingly et al., 77 Tex. 162, 13 S. W. 1016. Unless the cause of action has matured, the suit is prematurely brought and subject to be abated for that reason. Life Ins. Co. v. English, 96 Tex. 268, 72 S. W. 58; Culbertson v. Cabeen, 29 Tex. 254.

Clearly the terms of the policy are, that proof of loss must be given to the company after the determination of disability, and that no legal proceeding should be brought until after receipt of such proof. When did the disability on account of the accident terminate? If it had been the loss of a hand or leg, there could be no question, and there would be one payment, so it seems equally clear that the insurer, by the terms of this policy, has provided for only one proof of loss and one settlement, all after the disability had terminated, instead of each month for-possibly the life of the policy, 24 months.. Appellee in his recovery must be held to the plain terms of the policy in his recovery; for there is no. claim that he was mistaken as tops terms.

We recognize the force of the appellee’s argument that-the day-laborer who by accident was disabled from work might believe that-each month that he was so disabled he would.' receive the $35 provided for in his accident policy, but, if there is nothing in the policy upon which to base such belief, and there is-no pleading nor proof that such provisions-were left out by fraud, accident, or mistake, the insured must take according to the provisions of his policy or not at all.

The indemnity not having become due at" the time this suit was filed, it was prematurely brought, and the trial court should have-sustained the plea in abatement.

The cause must therefore be reversed and: dismissed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    HILLYER-DEUTSCH LUMBER CO. et al. v. CLARK et al.
    (No. 5665.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 19, 1916.
    Rehearing Denied May 17, 1916.)
    Venue <©=>7 — Actions — Pjsivilege oar Defendant to be Sued in iiis Home County. .
    A contract required the contractor to execute a bond declaring that the contract and bond, should be in force and enforceable in the county.of the owner’s residence. The bond, which was for the faithful performance of a contract to-erect a school building, referred to and made the contract a part of the bond. Held, that, where the sureties themselves recognized that they were liable in the county where the school building was to be erected, they were not entitled to the privilege of being sued in the county of their residence; the ease falling within the-fifth exception to Rev. St. art. 1830, declaring that whei-⅞ a person has contracted in writing to perform'an obligation in any particular county, suit may be brought either in such county,, or in that of the person’s domicile.
    [Ed. Note. — For other cases, see Venue, Gent-Dig. §§ 13-16; Dec. Dig. <⅞=^7.]
    Appeal from District Court, Goliad County ; John M. Green, Judge.
    Action by the Hjllyea'-Deutsch Lumber1" Company against W. L. Clark and others, in. which the Goliad Independent School District and others intervened. From a judgment sustaining the plea of privilege for some of the defendants, plaintiffs- appeal.
    Reversed and rendered.
    G. E. Pope, Fowler & Fowler; and' H. J. Passmore, all of Goliad, for appellants. Proctor, Vandenberge, Crain & Mitchell,, of Victoria, for appellees.
   FLY, C. J.

The Hillyer-Deutsch Lumber Company instituted suit on a contractor’s bond against W. L. Clark, as principal, and W. IT. Holloman, H. Sanders, S. L. Marsb, and the McMurry Lumber Company, as sureties, alleging that Clark bad made a contract witb tbe Goliad Independent School District to erect a schoolhouse for the sum of $18,-000;- that in compliance with one of the terms of the contract Clark made, executed, and delivered to the board of trustees of said school district, for the use and benefit of said board of trustees and of all persons who might furnish labor and material to be used in the erection of said building, his certain bond in the sum of $6,000, with W. F. Holloman, H. Sanders, S. L. Marsh, and the McMurry Lumber Company as sureties, guaranteeing compliance of said Clark with the terms of his contract; that the plaintiff had furnished said Clark with lumber and building material to be used in the erection of the school building for which he had agreed to pay plaintiff the sum of $1,200, but had failed and refused to pay the same. The Goliad Independent School District, the Goliad Lumber Company, and the Goliad Rank & Trust Company intervened in the suit, each setting up claims against Clark and his sureties for material or money furnished him in connection with the school building. Clark and his sureties, with the exception of McMurry Lumber Company, filed pleas of privilege, the first to be sued in Bexar county and the three sureties to be sued in Calhoun county. Clark’s plea of privilege was overruled and the pleas of privilege of Holloman, Sanders, and Marsh were sustained, and the plaintiff and interveners have prosecuted this appeal.

The contract and bond were executed on the same day. In the contract are the following provisions:

“The contractor shall execute and deliver to the owner, contemporaneously with the delivery hereof, a bond in the sum of six thousand ($6,-000.00) dollars,, payable to owner upon certain conditions agreed upon and in the draft of said bond set forth, which bond shall be signed by a reliable bonding company, as surety, or by some other sureties satisfactory to the owner.
“This contract and the required bond shall be in force and in all things enforceable in Goliad, Texas.”

After binding the principal and sureties to pay the sum of $6,000 to the Goliad Independent School District “as well as all other persons who may become entitled to liens under the law or under the contract hereinafter mentioned,” the bond recites:

“The condition of this obligation is such that whereas the said W. L. Clark has this day entered into a contract in writing with said Goliad Independent School District, and the trustees thereof, for the erection of a school building * * * according to certain plans and specifications made a part of said contract, all of which is now referred to and made a part hereof for the full terms of said contract and .the plans and specifications,” etc.

The language last quoted made the terms of the contract a part of the bond as fully as though written in full in the bond. It carried into the bond an agreement upon the part of the principal and sureties that the contract and bond should be in force “and in all things enforceable in Goliad, Texas.” This clause of the contract, adopted in the bond, clearly brings the case within exception 5 to article 1830, Rev. Stats., “Where a person has contracted in writing to perform an obligation in any particular county, in which ease suit may be brought either in such county, or where the defendant has his domicile.” It has been held that the recital in a contract that it shall be “enforceable” at a certain place gave that place jurisdiction. Whisenant v. Schawe, 141 S. W. 146.

This case is easily distinguishable from the eases decided by this courf and cited by ap-pellees, to wit, Chamberlain v. Meredith, 52 S. W. 120, and Chamberlain v. Fox, 54 S. W. 297. In those cases the contractor had agreed to furnish “a bond payable in San Antonio,” but failed to do so, and the contract was not made a part of the bond, as in this case. None of the cases cited by ap-pellees conflicts with the holding in this case. No conflict with any other case could arise because no appellate court would hold that when a bond adopts the contract and ingrafts it into the bond, and the contract provides for suit in a particular county, that the bond could not be enforced in that county. When, as in the ease of Lindheim v. Muschamp, 72 Tex. 33, 12 S. W. 125, the contract was not made a part - of- the bond, of course the sureties must be sued in the counties of theis„domicile. •

Several months after the bond was executed, Sanders, Marsh, and Holloman signed a paper authorizing the payment to Clark of a reserve fund of 20 per cent, of moneys due Clark, which was provided for in the contract, and in that document it is recited:

“We have signed a certain bond dated August 19, 1913, in the sum of six thousand ($6,000) dollars payable at Goliad, Texas,” etc.

This indicates that the sureties believed the bond to be payable at Goliad. It showed their construction of the bond with the contract written into it. The recital was in strict conformity with the facts.

The judgment is reversed, and judgment here rendered overruling the pleas of privilege of the sureties, and that they pay all costs of this suit.
      <©=oEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and.Indexes


text:
    INDIANA CO-OP. CANAL CO. v. DARLING et al.
    (No. 5731.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 26, 1916.
    Rehearing Denied May 17, 1916.)
    1. Waters and Water Courses ⅞=247(1)— Irrigation Companies — Stockholders—Application eor Receives — Damages.
    In a suit to place the property and business of a corporation in the hands of a receiver indefinitely for the .benefit of minority stockholders, which, if granted, would remedy the alleged depreciation of plaintiff’s property caused by the corporation’s failure to irrigate his land, a claim for damages for permanent depreciation would have no basis and could not be made in good faith.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 314; Dec. Dig. <@= 247(1).]
    2. Corporations <@=553 (5) — Minority Stockholders — Action—Appointment op Receiver-Grounds.
    A court of equity will not appoint a permanent receiver for a corporation because of the dissatisfaction of the minority stockholders with .the management of the majority. .
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 2205; Dec. Dig; <@=553(5).]
    3. Corporations <@=553 (6) — Appointment op Receiver — Grounds. ■
    The fact that the majority of the stockholders improvidently administer the affairs of a corporation is not ground for a receivership.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2206, 2207; Dec. Dig. <@=553(6).]
    Appeal from. District Court, Cameron County; W, B. Hopkins, Judge.
    Suit by A. H. Darling and others against the Indiana Co-operative Canal Company. Judgment for the plaintiffs, and .defendant appeals.
    Reversed and remanded.
    Amos Rich, of. Brownsville, and G. P. Dougherty, of Houston, for appellant. Graham, Jones & George, of Brownsville, for appellees.
   FLY, C. J.

This is a suit instituted by A. H. Darling, J. A. Dimick, C. J. Berry, Roy D. Patton, Randall Mathejg, and Franklin Beal against appellant to obtain a receivership for it, and for (damages arising from depreciation in value of land because of a failure to furnish water to irrigate the land. The petition is voluminous, setting out numerous shortcomings of the corporation and its directors; the prayer being for an indefinite amount of damages and the placing of the affairs of the corporation in the hands of a receiver. The court appointed a receiver.

The main, if not the only, object of this’ suit is to place the property and business of a corporation in the hands of a receiver, not for purposes of dissolution, but to administer upon its estate and operate it indefinite'ly for the benefit of minority stockholders.' There is no demand for damages for loss of crops occasioned by a failure to furnish water, but for depreciation in value of lands, which depreciation would be remedied by the operation of the irrigation plant. Such a claim for damages would have no basis, and could:not be made in good faith, for if it were possible to grant such damages, and then operate the plant as desired by appel-lees, they would have their damages for permanent depreciation of the value of" the land, and at the same -time have a restoration of the land to its full value as being irrigable property. ■ To state such á proposition is its own complete refutation.

The allegations of the petition disclose the fact that parties holding about 178 shares out of a total of 2,500 shares are dissatisfied with the management of the property of the corporation by the majority, and in an ex parte hearing sought and obtained the appointment of a receiver who would conduct the business according to their theories and desires. As said by this court in Toomey v. First Mortgage Trust Co., 177 S. W. 539:

“It was never contemplated that a disaffected minority of shareholders should take the affairs of a corporation out of the hands of its lawful officers and place them in the hands of a receiver to be administered in the interest of the minority.”

That the corporation will not be managed by a majority as the minority may desire is often the case, and is one of the risks assumed by every' stockholder who has not a controlling interest in the shares of the corporation. Courts will not lend themselves to minorities to enable them to run the affairs of a corporation, but they will be left to what usually comes to the minority in all the affairs of Ufe. Usually very little attention is given to the wants and demands of ’minorities, and each shareholder in a corporation is charged with this knowledge and has assumed the risk that comes to the minority.

How long the receivership in this case is to last is not disclosed by the pleading or the .judgment. The prayer would indicate that the appellees desired a permanent receivership to conduct the affairs óf the corporation forever, for it is asked that the receiver be invested with authority to conduct the business of the corporation, that he repair and operate the canal, that he collect debts, that he accept payments for water, and that he be empowered to do everything that the board of directors could do in and about the premises. No dissolution is sought, no winding up of the corporation is desired, but simply that it be conducted in the interest and for the benefit of the minority. “A court of equity has no power to appoint a receiver to carry on the business, except with a view to winding up its affairs and selling its property.” Cook, Corporations, § 863.

The allegations fail to show the insolvency of the corporation or any emergency existing for the appointment of a receiver without notice to any one. The warp and woof of the petition is dissatisfaction of a minority with the management of a majority, which they desire to control through a court of equity.

There is no basis laid in the allegations for a recovery of damages, and the whole pleadings seem to point to nothing but the appointment of a receiver to take over and manage the corporation in the interests of a minority of the stockholders. It may be, as alleged, that the directors áre not conducting the affairs of the corporation to the test advantage of the stockholders, but this can offer no excuse for displacing the directorate and placing the affairs of the corporation in the hands of a receiver, not for a limited time, but for all time.

The petition fails to show any cause of action against the corporation, but the whole drift of the petition is that the majority is improvidently administering the affairs of the corporation, but that is no ground for a receivership. People’s Investment Co. v. Crawford, 45 S. W. 738; Williams v. Watt, 171 S. W. 266. As said in Toomey v. Mortgage Trust Co., herein cited:

“While there are some state courts that hold that a court will appoint a receiver where it is evident that continuation of business is impracticable or inequitable, still the weight of authority sustains Texas decisions in holding that a court will not appoint a receiver to administer on the estate of a corporation at the instance of dissatisfied stockholders, to whom the corporation is not indebted, in the absence of direct statutory authority for filing such suits. * * * In order to obtain the appointment of a receiver for a corporation it should appear that the plaintiff has a valid cause of action and his rights imperatively demand it, and it should not be used as a means of taking charge of affairs of a corporation when a minority has failed to secure a sufficient number of votes to run the business as they may desire. A court of equity will not lend its aid to a minority in getting the advantage of a majority of the stockholders.”

The allegations fail to indicate such an emergency for taking the property of the corporation and placing it in the control of a receiver, without notice to any one. There was no reason for such precipitate action and the law will not tolerate it. Williams v. Watt, 171 S. W. 266.

The judgment is reversed, and the cause remanded.
      ©ssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and-Indexes


author: •SWEARINGEN, J.

text:
    WELLBORN et al. v. WELLBORN.
    (No. 5640.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 29, 1916.
    Rehearing Denied May 17, 1916.)
    1. Appeal and Eeboe <$=>281(1) — Scope op Review — Motion poe New Tkial.
    Assignments of error presented in the briefs cannot be considered in the absence of motion for new trial in the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3281; Dec. Dig. <§=>281(1).]
    2. Watebs and Watee Coueses <§=>126(1) — Subface Watebs — Pleading—General Denial.
    In an action for. damages for overflow caused by defendant’s placing an embankment on Ms own land, bis general denial is sufficient to warrant submission of the issue whether the embankment was formed by usual and ordinary plowing necessary to cultivation, since under the general denial, defendant could prove any fact going to show that plaintiff never had a cause of action.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 139, 142; Dec. Dig. <©=>126(1).] "
    3. Judgment <S=>199(1) — Validity—Non Ob-stante Veeedicto.
    Judgment non obstante veredicto is not permissible in Texas.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 367, 374, 375; Dec. Dig. <$=> 199(1).]
    4. Watebs and Watee Coueses <§=>118 — Sub-pace Watebs — Right to Diveet.
    A landowner has the legal right to divert the flow of surface water after rainfall from his land to adjacent land by constructing embankments for that purpose.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 128-130; Dec. Dig. <§=>118.]
    Appeal from District Court, Kerr County; R. H. Burney, Judge.
    Action by Claud Wellborn and others against Tom Wellborn. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Lee Wallace, of Kerrville, and Geo. Powell, of San Antonio, for appellants. Guy S. McFarland, of San Antonio, and H. C. Geddie and W. G. Garrett, both of Kerrville, for appellee.
   •SWEARINGEN, J.

This is a suit to recover damages alleged to have accrued by reason of the construction of an embankment by appellee, entirely upon his own land, which, embankment after each heavy rainfall diverted surface water from appellee’s farm and deflected some of the water onto the land of appellants causing damage to their crops. Judgment was rendered for appellee. This cause was tried before a jury, to which the court submitted special issues.

Appellants filed no motion for a new trial in the district court. In obedience to the rules of the Supreme Court of Texas, this court cannot consider any of the ten assignments of error presented In appellants’ brief. El Paso Elec. Ry. Co. v. Lee, 157 S. W. 748; Craver v. Greer, 179 S. W. 862. There is no fundamental error apparent in the record.

Appellants contend that the trial court erred in submitting to the jury special issue No. 3:

“Was said embankment, if any, formed by the usual and. ordinary plowing necessary to the cultivation. of the defendants’ land?”

To which question the jury answered “Yes.” Appellants claim this was error because there were no pleadings to justify the submission of that issue. Defendant’s general denial was sufficient, for “under the general denial defendant may prove any fact which goes to show that plaintiff never had any cause of action.” South Texas Telephone Co. v. Huntington, 121 S. W. 250. This embankment was entirely on defendant’s land, and, if formed as found by the jury; was the result of defendant’s lawful exercise of dominion over his property.

- Appellants further contend that the trial court erred because its judgment is contrary to the facts found by the jury. If this contention were correct, there might be fundamental error, for judgment non ob-stante veredicto is not permissible under our practice. Hayes v. Stowers, 180 S. W. 151, § 4. A careful examination of the judgment and findings of the jury show that the judgment is not contrary to any fact found by the jury.

Appellants further contend that the trial court based its judgment on facts found by the court without evidence to sustain such finding of facts. The statement of facts contains ample evidence to sustain the judgment.

There is no fundamental error apparent in the record. In fact, from the pleadings as limited by the evidence, no other or different judgment could have been properly rendered. Appellee had the legal right to divert the flow of surface water after rainfall from bis land onto the adjacent land of appellants by constructing the embankments for that purpose. Cartwright v. Warren, 177 S. W. 200, § 4; Wilborn v. Terry, 161 S. W. 33; Barnett v. Matagorda R. & I. Co., 98 Tex. 355, 83 S. W. 801, 107 Am. St. Rep. 636; Gramann v. Eicholtz, 36 Tex. Civ. App. 309. 81 S. W. 756; Gembler v. Echterhoff, 57 S. W. 313.

We conclude that there is no error in the judgment, and it is affirmed.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FIRST STATE BANK OF ARANSAS PASS v. FUSON et al.
    (No. 5656.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 19, 1916.
    Rehearing Denied May 17, 1916.)
    1. Contracts <©=3238(2) — Construction — Merger oe Obal Contract.
    Where an oral contract for extension of time on a mortgage is reduced to writing, it is merged in the written contract, whose terms thereafter control.
    [Ed. Note. — For other cases, see Contracts, Cent, Dig. §§ 1117, 1123; Dec. Dig. <§=>■ 238(2).]
    2. Assignments <©=334 —■ Sufficiency — Obal Assignments.
    Under proper circumstances, an oral assignment of money due one of the parties might be binding between them, but not as to any one else without notice.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 67-71; Dec. Dig. <§==334.]
    3. Assignments <©=>54^-Vaiidity — Consideration.
    Where an assignment of moneys due one party was made under the other party’s agreement to extend the time on a mortgage, but no extension was made, the assignment was without consideration.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 112; Dec. Dig. <©=354.]
    Appeal from San Patricio County Court; M. A. Childers, Judge.
    Garnishment proceedings by M. Fuson against the Ingleside Truck Growers’ Association and another, in which the First State. Bank of Aransas Pass intervened. From the judgment rendered, the Bank appeals.
    Affirmed.
    E. Gordon Gibson, of Rockport, for appellant. John De Berry Wheeler, of Aransas Pass, for appellees.
   FLY, C. J.

M. Fuson applied for and obtained writs of garnishment directed against the Ingleside Truck Growers’ Association and V. G. Thomas, its secretary-treasurer, requiring them to answer as to any sums of money in which they might be indebted to A. E. Ives, and they answered that they were indebted to him in the sum of $66 at the time the writ of garnishment was served, and that since that time the sum of $323.28 had come into their hands. Appellant intervened in the suit, claiming that prior to service of the writs of garnishment A. E. Ives had for a valuable consideration assigned to appellant all moneys due or to become due him by the Ingleside 'Truck Growers’ Association. The cause was tried without a jury, and judgment in favor of appellant for $66, and in favor of M. Fuson for $323.28, was rendered against the garnishees.

The evidence shows that Ives was indebted to appellant, and had secured his indebtedness with a chattel mortgage on certain stock; that he went to the bank on June 17, 1915, and asked for further time on his debt, and it was agreed that there would be an extension of time if Ives would assign to the bank all the money coming, to him from the Ingleside Truck Growers’ Association, and Ives then handed certain tickets or receipts from the Truck Growers’ Association to the president of the bank. Ives was about to leave the bank when the president called him back and requested a writing to evidence the agreement, and it was written and signed by Ives. That document sold and assigned to appellant “all my right, title, and interest in all moneys due and payable to me by the Ingleside Truck Growers’ Association.” At that time the association owed him only $66. No extension was given on the notes owed by Ives. The debt was amply secured before the assignment was made. The paper signed by Ives was prepared by the president of the bank.

The oral agreement made by the parties was merged into the written instrument, and its terms must control. The oral agreement merely led up to the written agreement; as no written contract can ever be made without some understanding beforehand as to what it shall contain. Appellant wrote the instrument, and it must have embodied the desires of the contracting parties. Under proper circumstances an oral assignment of money due one of the parties might be binding between them, but not as to any one else without notice. The verbal agreement in this instance, however, was but the preliminary to a written agreement which was drawn by appellant and signed by Ives. There was no extension of the debt of Ives, and consequently no consideration for the assignment.

The judgment is affirmed.
      igmsFor other eases see same topic and ICEY-NTJMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    COLLEPS et al. v. GEORGE W. SMITH LUMBER CO.
    (Court of Civil Appeals of Texas. Beaumont.
    March 2, 1916.
    Rehearing Denied April 6, 1916.)
    1. Mechanics’ Liens <⅜=>73(2) — Agreement of Owner — Homestead.
    A mechanic’s lien on a homestead can be acquired only by strict compliance with article 5631, Vernon’s Sayles^ Ann. Civ. St. 1914, requiring the execution of a written contract signed by the owner and his wife, acknowledged by her before the material or labor is furnished and recorded in the office of the county clerk.
    [Ed: Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 88; Dec. Dig. <S=>73(2).]
    2. Homestead <S=>97 — Equitable Liens— Subcontractors.
    In the absence of such contract, those who furnished labor or material to the contractor have no equitable lien on the homestead or on the money due the contractor for the improvement.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 154; Dec. Dig. <§=>97.]
    3. Liens <©=>7 — Equitable Lien — Equity Follows the Law.
    Under the maxim that equity follows the law. one who by noncompliance with article 5631, Vernon’s Sayles’ Ann. Civ. St. 1914, fails to secure a mechanic’s lien cannot claim an equitable lien.
    [Ed. Note. — For other cases, see Liens, Cent. Dig. §§ 26-28; Dee. Dig. <S=>7.]
    4. Assignments <®=>48 — Equitable Assignments — Requisites.
    To create an equitable assignment of a fund, there must be delivery actual or symbolic, or some act to place the fund beyond the control of the assignor, and a mere promise or agreement to pay a debt out of such fund is not an equitable assignment.
    [Ed. Note. — For other eases, see Assignments, Cent. Dig. § 133; Dee. Dig. <§¿=>48.]
    5. Assignments <§=>52 — Equitable Assignments — Requisites.
    The contractor agreed to pay for material and labor out of the money to be paid him when the work was completed. Held not an equitable assignment of the fund, since it remained under the contractor’s control.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 107-111; Dec. Dig. <§=>52. ]
    Appeal fr'om District Court, Jefferson County; W. H. Davidson, Judge.
    Action by the George W. Smith Lumber Company against C. I. Colleps, in which C. A. Logan and others intervene. From judgment for plaintiff and order denying a new trial, interveners appeal, defendant joining therein.
    Affirmed.
    Barry & Burges and V. A. Collins, all of Beaumont, for appellants. Greer, Nall & Bowers, of Beaumont, for appellee.
   BROOKE, J.

This suit grew out of garnishment proceedings instituted by appellee, George W. Smith Lumber Company, 'against A. J. Montagne and J. M. Eastham, garnishees, alleging that Montagne and East-ham were indebted to C. I. Colleps against whom appellee, George W. Smith Lumber- ■ Company, had instituted' a suit for debt.. For the purpose of this suit it was admitted-that said C. I. Colleps owed appellee the-debt, that same was due and unpaid, and-that the garnishment proceeding against said Montagne and Eastham was sufficient to. fix a lien in favor of appellee on any fund belonging to said C. I. Colleps in the hands of said Montagne and Eastham if said sum was. subject to garnishment as against the equitable rights asserted by the other appellants connected herein with C. I. Colleps-. The -said Montagne and Eastham answered the garnishment proceedings, saying, in effect, that they contracted with C. I. Colleps to build certain improvements on a house, and that they held $580 of said contract price of said improvements in their hands subject to said contract, but answered further that said other parties claimed said funds, to wit, C. A. Logan, R. M. Carter, Lon Hefler, Neches Electric Company, Beaumont Shingle & Lumber Company, and J. T. Boon, and, prayed that said other parties be vouched in to determine in one proceeding the ownership-of said money. The appellants filed answer claiming, in effect, that they were the owners of certain specific interest in said fund by-virtue of an equitable assignment of same made to them by C. I. Colleps before they furnished material for said improvements or did any work thereon, and that, relying on, such equitable assignment of an interest in the contract money, they furnished material, and labor for said improvements.

Appellee joined issue on appellants’ plea-, and the cause was tried by the court without a jury, and resulted in a judgment in favor-of the appellee fixing and foreclosing his-garnishment lien and rendering judgment against the principal and sureties 'on a re-plevin bond which had been filed by Colleps,. through which he had been given possession, of said fund. It may be added that the sum of $584.35 was due C. I. Colleps by Mon-tagne on an oral agreement to erect for the-said Montagne an addition to his home in the-city of Beaumont, and that the George W.. Smith Lumber Company had prior to the-trial of the garnishment suit obtained judgment on its claim.

Appellants filed their motion for new tidal, and are now properly before this court on errors complained of in the trial court.

The first assignment of error assails the-action of the lower court in holding, finding, and concluding that the furnishing of material and labor by these defendants would not constitute an equitable lien against the fund in controversy as against the claim of the George W. Smith Lumber Company,, whose claim was based upon a judgment which the said plaintiff had against the defendant, O. I. Colleps, and had no connection with the building or fund in eontr'oversy. The proposition advanced by appellants under this assignment is that parties furnishing material for the construction of buildings or improvements and parties doing work or labor on same have a lien on such building or improvements superior to any lien that can be fixed by any common creditor ■of the owner of the building or improvements, or, if the m'oney is on deposit to pay for such building or improvements, the parties contributing material and labor have an equitable lien on said money superior to any lien that can be fixed by any creditor of the ■owner of the building or improvements.

There is only one way known to the law by which one who furnishes material or labor for the erection of, or labor made upon, the homestead, to fix and secure a lien upon the same. Article 5631, Vernon’s Sayles’ Statutes, provides:

“When material is furnished, labor performed, erections or repairs made upon a homestead, if the owner thereof is a married man, then to fix and secure the lien upon the same, it shall be necessary for the person or persons who furnished the material or performed the labor, before such material is furnished or labor is performed, to make and enter into a contract in writing, setting forth the terms thereof, which shall be signed by the owner and his wife, and privily acknowledged by her, as is required in making sale of homestead. And such contract shall be recorded in the office of the county clerk in the county where such homestead is situated, in a well bound book to be kept for that purpose: Provided, when such contract has been made and entered into by the husband and wife and the contractor or briilder, and the same has been recorded, as heretofore provided, then the same shall inure to the benefit of any and all persons who shall furnish material or labor thereon for such contractor or builder.”

Under the above article it has been held that an express agreement in a mechanic’s contract that he shall have a lien upon the homestead as provided by law will not create a lien until all the requirements of the ■statute have been complied with. Cameron v. Marshall, 65 Tex. 7; Building & L. Association v. Logan, 83 S. W. 1088.

It has been held also that the material furnished for the erection of a building or a homestead will not support a mechanic’s lien in the absence of a written contract fbr ■such material, signed by the owner and his wife, as required by Const, art. 16, § 50. Republic Guaranty & Surety Co. v. Win. Cameron & Co., 143 S. W. 317; Kalamazoo Nat. Bank v. Johnson, 5 Tex. Civ. App. 535, 24 S. W. 350; Security Mortgage & Trust Co. v. Caruthers, 11 Tex. Civ. App. 430, 32 S. W. 837.

In the instant case it was admitted that .A. J. Montagne was married; that he was a son-in-law of Mally Eastham; that an addition was being erected to his home in the city of Beaumont under a verbal agreement .as above set out.

We are cited by appellants to the following cases, as supporting their Contention: Roberts Summerville et al. v. Jesse King et al., 98 Tex. 340, 83 S. W. 683, in which the court uses the following language:

“There is no evidence of any homestead right in the land in question prior to the making of the contract between Hanks and wife [it should be Summerville and wife], and B. R. Jones for the building of the house.”

In the case of Telephone & Telegraph Company et al. v. Kellogg Switchboard & Supply Company et al., 132 S. W. 963, the question 6of homestead was not raised in any way, and in the case of Howell et ux. v. McMurray Lbr. Co., 132 S. W. 849, the court says:

“Other than as above noted, no question is made as to the form or sufficiency of the contract or of the proceedings thereunder, and, the consent of the wife having been given in the manner required by section 50, art. 16, of the Constitution, authorizing the forced sale of the homestead, we think the court below properly adjudged the lien as prayed for.”

We have been unable to find any case in the Texas decisions even remotely holding the contrary doctrine. We therefore conclude that, in so far as the house or improvements made thereon under the agreement in the instant case are concerned, no lien, either legal or equitable, arose or could arise in favor of the mechanic or material-man or against the funds paid into court under said agreement. If we understand appellants’ position, it is stated in the brief that they had a lien On improvements, but that, inasmuch as the money was tendered to pay for all improvements, and inasmuch as the material was furnished and labor performed with the understanding that it was a turnkey job, and no payment was to be made until the job was completed, by reason of the premises an equitable lien arose in their favor upon the said fund. We cannot agree with the contention of appellants. Equity follows the law, and neither by the contract or the agreement or any provision thereof could a lien arise upon the building or grounds, and therefore we are unable, by any process of reasoning, to find how any equitable lien could arise against such funds. Appellants could have protected themselves by a compliance with the statute with reference to fixing liens in such cases, and, as they have not seen fit to do so, they must abide the consequences.

The action of the lower court is assailed in holding, finding, and concluding that the verbal agreements had between the defendant, C. 1. Colleps, and the materialmen and laborers impleaded herein was insufficient to constitute an equitable assignment of the fund in controversy, which has 'been set aside and designated to pay for such material and labor, and this is followed by the proposition that, where a party having a contract for the construction of improvements procures the material and labor to construct such improvements by such statements or promises to the parties furnishing same, they shall have their pay out of money coming to him on the specific contract, that such understanding on the part of the parties would constitute an equitable assignment of the contract fund to the extent of the value of such material furniáhed or labor done, and that no particular form of words is necessary to constitute such equitable assignment. In order to determine what agreement, if any, or understanding, if any, was made between Col-leps and the people furnishing the material, it will, perhaps, be necessary to detail the conversations as shown by the record.

Colleps testified:

“The lumber that went into that house I bought myself from the Gray Lumber Company —the Beaumont Shingle & Lumber Company. I got the hardware from the Smyth Lumber Company, tlie plaintiff in this suit, which I think amounted to $11.45; I have g'ot their bill. Mr. Booth put the roof on for me, and the Bettis Manufacturing Company furnished the mill-work. The Neches Electric Company done the wiring, Smyth Lumber Company the hardware, and R. M. Carter the painting. I had no contract with the Beaumont Shingle & Lumber, only that they would furnish the stuff, and no money until the building was accepted by the architect and Eastham. Mr. Chambers, who is the bookkeeper there and salesman, I told him I was going to build a house. I said: ‘Mr. Chambers, this is a “turnkey’’ job, and there won’t be a cent drawed by me until it is complete.’ He says: ‘All right, Mr. Colleps; go ahead; I will send you the stuff.’ Mr. Carter the same way; he furnished the paint, canvas, and paper, with the understanding that when the job was done he got his pay. I told Mr. Booth when he come out there to do the work, I says: ‘Mr. Booth, this is a “turnkey” job.’ And he had made me a price on his part of the work, the roofing and metal work. ‘Is that all right?’ And he said: ‘It is.’ And he went on and did the work. That was Mr. Booth, for the roofing and metal work. And Mr. Carter, the contract I made with him; he was the low man on the work. I said: ‘Mr. Carter, this is a “turnkey” job.’ I says: T am no millionaire. When I settle with those men, you get your money, and I don’t get a cent until the job is done. Is that satisfactory?’ And he says: ‘It is.’ Mr. Carter contracted the work and furnished the material and labor for $75. I went to Mr. Chambers, * * * and I said: ‘Mr. Chambers, what kind of a deal do you want to make?’ * * * ^nd ¿e . ‘-$yeu, o0iie-pS¡ whatever will suit you?’ And I says: ‘Well, all I can do is to have you wait until I get through with the job.’ I says: ‘It is a “turnkey” job, and I don’t get a cent until I turn over the job.’ And he says: ‘That’s all right.’ Mr. Heller and I principally done the job. I told Mr. Hefler — he had been working with me for several years — I says: ‘Mr. I-Iefier, this is a job that won’t pay me a cent until the job is complete ; can you work three or four or five weeks without any money?’ And he says: T will work for you until the house is complete, without any money.’ And he did. Mr. Hefler and myself done the work on that house I done the biggest part of it myself.”

On cross-examination he said:

“I had a conversation with Mr. J. T. Booth with reference to putting on the roof. I made a contract with him for Montagne. I agreed on the amount of the contract. I didn’t tell-him no fund that this money would be paid out of. I just told him he would get his money when I got paid. It was a ‘turnkey’ job. I wanted to know if Mr. Booth was going to do my work and wait until I got paid, and I asked him the question, and he said: ‘It is all right; I will go ahead with it.’ I was to pay him out of my money. I am no millionaire; I have no big bank account. I told him I was going to pay him when I got my money for that job. I told him I was going to pay him out of that particular money, out of that job. He said it was all right. I haven’t paid him. * * * The arrangement that I had with the Neches Electric Company was simply that I told them to go ahead with the work if they wanted to wait until I got through and paid them out of the contract money in this case, the money that I was to get from Montagne.”

In reply to questions by the court this witness testified:

“I told them it was a ‘turnkey’ job, they all understand that, you -know, and when I got my money out of the contract I would pay them, and they understood it, I think, that way. I told them it was a ‘turnkey’ job, there would be no money until the job was complete and satisfactory and the work had been. done, and I wanted them to wait until the job was completed and O. K.’d and I got my money, and they agreed to do it. That’s all that was said about it.”
“I was to draw the money myself when the job was complete. The money was to be paid over to Mr. Montagne. I did give one order on the job to the Bettis Manufacturing Company, on that millwork, but they didn’t get it out of Montagne.”

Carter testified:

“I am the Carter who. did some work on Mr. Montagne’s house. I painted and papered. I did that work by contract. I wrote up a contract and give it to Mr. Colleps, what I would do the work for, but I couldn’t tell you the date. I have no written contract; Mr. Colleps and I never signed a contract. The contract I had with Mr. Colleps was 'verbal. I was to do that work for $75 and furnish the material. I knew Charley Colleps at the time I agreed to do that work. Mr. Colleps told me when I made the contract, he says: ‘Now, Mr. Carter, this is a “turnkey” job, and when the job 'is completed and O. K.’d I will pay you yo.ur money.’ Well, I knew Charley Colleps didn’t have much money, and I knew very well that he paid me for every other job that I done, and I told him: ‘All right, Charley; I will do that on that consideration, and I will get it out oi the job.’ Mr. Colleps was to pay me when he got his money, and my work was to be accepted along with the rest of the job. I never bargained with Mr. Eastham and Mr. Montagne; I bargained with Mr. Colleps.”

Booth testified:

“My business is tinwork, tin sheet, iron cor. nice work, and roofing. I know Mr. C. I. Col-leps. I have had contractual relations with him. I put the roof on and did some tin sheet work on this Eastham job. I had a verbal contract with Mr. Colleps. I built the roof originally; put on the entire roof. When they did the additional work, the job was let to Mr. Colleps. I gave Mr. Colleps an estimate what the work would cost him, and he gave me the work. On account of not knowing Mr. Col-leps — that being the first time I ever saw him to know him; he was a stranger to me — the question of payment for the work was brought up. He told me that it was a ‘turnkey’ job, and he would not get a cent until the work was finished; that, if I would complete the work and wait until he got his money on the contract, until the contract price was paid to him-, he then would pay me. Knowing that the work was .being done for Mr. Eastham, I didn’t question Mr. Colleps at all, although he was a stranger to me, but I thought that my money was perfectly good. He told me it was a ‘turnkey’ job, and when he got his money he would pay me. I did the work because I was hunting work, wanted a profit on it, I make my living that way, I thought the money was good. Mr. Oolieps was a stranger to me, and that was the only conditions on which I would do the work, that I was to. get my money when he got his, and, being well acquainted with Mr. Montagne and Mr. Eastham, I knew if there was any doubts of my getting it I could go to them before it was paid out. I thought I would get my money out of the money that Mr. Eastham agreed to pay for this work on the contract on that particular job.”

On cross-examination lie testified:

“I took Mr. CoIIep’s word for the fact that he would pay me after Eastham paid him. If he put the money down in his pocket, then I had nothing.”

Heller testified:

“Mr-. Oolieps stated: ‘You come up there and go to work with me on the Mally Eastham job, Heller.’ And he said: T will tell you what I want you to' understand. This is a “turnkey” job, I can’t pay you until the job is done.’ And I says:' ‘All right, Mr. Oolieps; I would rather work there a few weeks and get it all in a lump than in little dríbble-drabbles.’ I didn’t need any money at home at the time. There was nothing more said about how he was to pay me, except Mr. Oolieps said it was a ‘turnkey’ job. I understood we were to get our money through Mr. Eastham. That was the condition on which I worked on that job, to get our money through Mr. Eastham, and when we asked for it, Mr. Eastham was to come in a few days and pay us, but it dillydallied along, and we found out there was some trouble about the matter. ⅜ * ⅜ Mr. Oolieps said we was to get it through Mr. Eastham. Mr. Oolieps was to pay me. I suppose -Mr. Eastham was to pay Mr. Oolieps. I believe if Oolieps ever makes it he- will pay me whether Eastham pays him or not. Oolieps owes me yet for that amount, and I think he will pay me. I have worked for him and his brother for several years. He has always paid me, whether he got the money out of the job or not.”

Chambers testified:

“I am secretary of the company [Beaumont Shingle & Humber Company], Mr. Oolieps told us we would get our money as soon as the job was completed. I understood there was nothing to draw on the job until it was completed, and, when the job was completed, that the money would be turned over to us. I understood that the money was coming through Mally Eastham on the job, and, when the job was complete, he would have Mr. Montagne issue a check for the lumber. I looked to Mr. Montagne for my money; in fact, before the job was done, I went down to see Mr. Montagne. I only looked to Oolieps to verify our records, and I looked to Montagne and Eastham for o.ur money.”

On cross-examination he said:

“I did not have more than one or two conversations with Mr. Oolieps that I remember; I don’t believe he was in the office more than one time. * ⅜ * I told him [Logan] that Col-leps would settle with me. I don’t remember telling him to go ahead and settle with Oolieps and that I had no claim, because I did have a claim. I don’t remember whether I told him to settle with Oolieps or not. He asked me whether it would be all right to settle with Ool-ieps. I didn’t know that there was any trouble about the job at that time. I don’t remember just what the conversation was between Mr. Logan and I. I told Mr. Logan the amount of our account on that job, and then I believe if the money had been turned over to Mr. Oolieps he would have paid me. Under the agreement I had with Oolieps I expected Montagne to issue a cheek for it, because that is the way most of it was handled. * * * I don’t remember just how many times we have sold Mr. Oolieps lumber; we have sold him a number of different times. Most of the lumber he bought he paid cash for it. I always look to the owner of the building. Mr. Oolieps does not come up there and tell me the owner will pay me; this one was a different proposition. The bill I furnished Mr. Oolieps he said he only got an estimate of so much a week, and we would go to the man together, and he would turn over the money to me. In a way I did look to the owner of the building in that instance; that the money would be turned over in my presence, and, while there was no agreement, it was always done. It was not the same thing in this instance, because this was a ‘turnkey’ job, and I was to get my check from Mr. Montagne, that was the original agreement, and when Mr. Logan talked to me I told him when the money was turned over to Mr. Oolieps I believed he would pay me. I don’t remember I went into details and told Mi-. Logan I would get my money direct; I don’t think it was necessary. I stated that I didn’t state to Mr. Logan that we would not have any claim, because we did have a claim. I did not say to Mr. Logan about the check being payable to me. I was then looking to Mr. Oolieps, because I knew he would pay me. The question of trusting Mr. Oolieps was not reached when he first came up there. ' If Mr. Oolieps hadn’t said, T will pay you as soon as the job is completed,’ I would have trusted him.”

Upon being asked that Mr. Oolieps testified on the stand that Mr. Oolieps said he would pay him, he was mistaken about what the contract was, the witness stated:

“Well, I don’t know what Mr. Oolieps testified. The contract was just like I have stated to you, because he O. K.’d the bill; we checked up the credits on the bill and he O. K.’d it. The first conversation was that the money would be turned over to us when the job was completed, and I informed him that he should have Mr. Montagne issue the check; that is what he told me when he came to get the estimate. I don’t know whether he told me at the time the order was given or not; I don’t remember. He didn’t tell me that as soon as the lumber was sent out Mr. Eastham would give me a check. He told me that when the job was completed, if I preferred, that Mr. Montagne would issue the chock to me. I don’t remember whether he had given the order at that time. * * ⅜ But, when the order was placed with me, he came to me and told me, if I would send the lumber out on that kind of an arrangement, why, it was perfectly all right, to go ahead and send it out. When the order was placed with me, I understood where it was going, and he didn’t telí me in the beginning; I am sure he didn’t. "When the order was placed, he told me how the settlement was to be made; it was a ‘turnkey’ proposition, and that he was building the house for Mr. Montagne. He said if I would prefer it, Mr. Montagne would give me a check. I told him it was perfectly satisfactory. He came in there to place the order with me, and I asked him where the lumber was to go, and he told me it was going to Mr. Montague’s, and I think he told me voluntarily it was a ‘turnkey’ proposition, and I wouldn’t get any money until the house was completed; and he says, ‘Now, if you prefer it, I will have Mr. Montaene send you a check direct,’ anü I said, ‘That will be perfectly satisfactory.’ ”

Logan, the architect, testified:

“When I supervise the contract I do not issue the check for the material myself. I audit the account. In this case I called up the ma-terialmen and asked them what they wanted to do in the matter, and, if they tell me they want their money held out, then I will do it. Mr. Chambers told me it was all right; to go ahead and pay Colleps. I gave Oolieps his es-limates. I had two or three conversations with Mr. Booth. I understood myself that it was a turnkey job. It was wholly within my hands as to when the money was to be paid, because I was the supervising architect, and it was my duty to accept the work. I did not understand from conversation with Mr. Chambers that he was looking to Mr. Montague for his pay on this material. I called him up and asked Mm about that. I did not tell Mr. Walder or Mr. Nall, or any of the agents of the Smyth Lumber Company, that Mr. Eastham owed this money to Mr. Colleps and if they would file a suit they would catch it.”

The above is almost a complete résumé of the testimony. It has been said th'at a mere promise, though of the greatest and. most solemn kind, to pay a debt out of a particular fund, is not an assignment of the fund, even in equity, and a mere agreement to pay out of said fund is not sufficient; something more being necessary. In order to make an equitable assignment, there should be an equitably constructive appropriation of the subject-matter as to confer a complete and present right in the party meant to be provided for, even where the circumstances do not admit of its immediate exercise. If the holder of the fund retain control of it, it is fatal to the claim of the assignee. There must be some character of delivery, actual or symbolic, or some act to place the fund beyond the control of the assignor. There must be a perfected contract between parties intended to vest in the assignee a present right, even where the circumstances do not admit of its immediate exercise.

We have .examined carefully all the authorities available, using our best efforts to find some decision which would be authority for the proposition that appellants either had a lien on the fund or that there was an equitable assignment of the same, but we are unable to discover in any of the text-books or the decisions anything to warrant such a conclusion. The fund was under the control of Colleps. The fact that he promised the appellants that they would get their money when he got his money out of the job would not be an assignment, equitable or otherwise, of any interest in the fund. Colleps had not parted with the power of control of the fund, and even a direction by him to apply certain funds to the payment of a debt would not operate as an equitable assignment, for the reason such direction, even until acted upon, might be revoked. A promise to these appellants would only be an agreement to pay their debts out of a certain fund. It would not be sufficient to transfer any control of the fund or any interest in the fund. The appellants would receive at the hands of this court, and are entitled to receive, by virtue of the peculiar circumstances and the fact that a hardship will be east upon them, the most careful consideration of their rights.

In the case of Adoue v. Blum, 6 Tex. Civ. App. 289, 25 S. W. 335, the following language is used:

“The district court held that the mere instructions given to the bank to transmit the balance due him to Adoue & Lobit, and the telegram of the same date, as the instructions from Weiss to Adoue & Lobit, did not constitute either a legal or equitable assignment of the funds to Adoue & Lobit; and in this we fully concur. We think this question is settled by the decision rendered by the Supreme Court of this state in the case of Wallis v. Taylor, 67 Tex. 431 [3 S. W. 321]. The judgment of the same court in its recent decision in Austin in the case of the Alliance Milling Company [86 Tex. 491] 25 S. W. 614 [24 L. R. A. 369], is to the same effect. The funds in the bank at the time of the institution of Adoue & Lobit’s suit were subject to the control of Weiss, and were therefore subject to garnishment at the suit of Blum or any other creditor of Weiss.”

We are constrained to hold in this case that there was no assignment of the funds, either legal or equitable, by Colleps to the appellants. Neither had they a lien which arose in law or equity from the funds.

Therefore the holding of the lower court and the action of the same was without error.

Appellants’ assignments are in all things overruled, and this cause affirmed.

It is so ordered.
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