author: WALTHALL, J.

text:
    DIEBOLD SAFE & LOCK CO. v. SHELTON.
    (No. 663.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 8, 1917.)
    Brokers <&wkey;56(3) — Compensation—Right to.
    Plaintiff,- a broker, knowing that a bank would shortly require vault doors and other appliances, notified defendant company of that fact, and at defendant’s suggestion sent blueprints and data regarding the building in which the vaults were to be inserted. Plaintiff at that time notified defendant that he was a broker and would expect commissions. Thereafter defendant entered into a contract with the bank for the sale of such vault doors and appliances. Reid, that plaintiff, having brought forward and put defendant into communication with the bank with which it negotiated a sale, was entitled to commissions as a broker.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 86-89.]
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Suit by T. E. Shelton against the Diebold. Safe & Lock Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Hudspeth, Dale & Harper, of Ei Paso, for appellant. W. D. Howe and H. R. Gamble, both of El Paso, for appellee.
   WALTHALL, J.

This suit was brought by E. E. Shelton to recover of the Diebold Safe & Lock Company commission on the sale of certain vault doors, etc., purchased by the Commercial National Bank of El Paso, Tex., from the Diebold Safe & Lock Company. Appellee alleged that he was engaged in a general brokerage and commission business, which facts were known to appellant; that by his efforts he brought the defendant and the Commercial National Bank together, and that he was the efficient and producing cause of a sale thereafter made to said bank by defendant; that about the 31st day of May, 1915, he learned that the bank was about to erect for itself new quarters, and wduld need for itself in said new quarters' safes, vault doors, deposit boxes, steel linings for safes and other furniture and fixtures necessary for the banking business, which various articles were manufactured by and offered for sale by defendant.

The following is the correspondence between appellee and appellant:

“May 31st, 1915. Diebold Safe & Lock Company, Canton, Ohio — Gentlemen: I had some correspondence with you several years ago about representing you in El Paso, but at that time you said you were represented in the state by Mr. Nqyes and I was not able to do any business with you. I have sold a great many safes since I have been in the general brokerage business here, some nineteen years, but have always been more or less a free lance, buying safes for cash and making my own profit over and above their net price. I have sold safes for the Herring, Hall, Marvin Safe Company and the Hall’s as well. One of our banks has commenced a new structure and is going to need a round vault door, and I believe you, the York and the Mosler are the only safe companies in this country that manufacture the round doors; I presume you can meet the prices of the York and Mosler companies and would be pleased to know whether you would care to figure on this new work. If so, I am in position to send you a blueprint. You can do the billing and collecting and remit me after your bill is paid. You can make me a net price and I will add on my commission, you giving me a quotation f. o. b. El Paso. I do not believe you are represented here, and would like to deal direct through you, and not through any of your Texas agents. As for my references, will refer you to any of the banks of this city. I inclose stamped envelope for reply, and will be very much obliged if you will let me hear from you by first mail. Thanking you for taking up your time, and awaiting your answer, I remain, Yours very truly, T. E. Shelton.”

Reply:

“Diebold Safe & Lock Co., Canton, Ohio. June 4th, 1915, Mr. T. E. Shelton, P. O. Box 451, El Paso, Texas — Dear Sir: Your valued favor of the 31st to hand and we note there is a vault coming up in your city and you are in close touch with the bankers. We would suggest that you forward B/Ps and all data regarding same to the Diebold Safe & Lock Company, 122 South Fifth Avenue, Chicago, Illinois, and they will make you up specifications covering the work, and send them to you and you can submit them to the bank. In sending this data, be sure and give full and complete information on everything so that our Chicago office can make you a full and complete specification. Yery truly yours, Diebold Safe & Lock Co.. John Rundt, Sec.”
“June 8th, 1915. Diebold Safe & Lock Company, 122 South Fifth Ave., Chicago, Ill.— Gentlemen: I wrote your main office at Canton, Ohio, asking if they would care to figure on a bank job here, and they referred me to your Chicago office, stating that you would make me prices, send specifications, etc. The Commercial National Bank of this city have commenced erecting a now bank building and they will have two vaults in this building, one in the basement which will be for books, and they only want a cheap, ordinary fireproof door for this vault. For the other vault they desire a round door, and I am sending you under separate cover blueprints showing the arrangement of the building. From the blueprint you can get an idea of the vault. They also want two hundred (200) deposit boxes, and these deposit boxes are to be in this big vault with a grille partition between the boxes and the safe. There should be a door in the grille partition so their customers can go in to their deposit boxes at any time. They are undecided as to how thick they want the steel for the vault door. I do not think they want anything very thick; in fact, Mr. J. D. "Campbell, the manager, does- not seem to know exactly what he does desire. He does know one thing — that he does not want a very expensive door; but I presume it will be impossible for him to secure a round door that will not cost several thousand dollars, for I am under the impression that round doors are expensive ; any way, he wants the cheapest round door that you make. You will have the Hosier and the York safe companies as competitors, and I presume you know the style of doors they make and can more or less meet their prices. I will want to know the weight of each door, as well as the deposit boxes; and in fact, would like to have you submit prices on a separate sheet, on all the work installed in El Paso; or if you do not care to make such a quotation, make an f. o. b. price, El Paso, and I will add my commission, and I suppose about 10 or 15% would be about right for me; or you might include my commission in your quotation, say 15%. I will be glad to have you send specifications and blueprints, an'd photographs of the style of door that you propose to quote on; also the grille work and the steel for the vaults. I do not know whether I have made myself very plain or not, but I could not get very much information from Mr. Campbell, and anything you wish to know further about, please advise and I will try to give you the information. I gave my references to the-home office in my letter to them of May 31st. Mr. Campbell states that the contractors have agreed to have the building all ready to occupy by November 1st. I presume they will want the doors installed by not later than Oct. 15th, which would mean that you would have to ship same not later than October 1st, possibly sooner. How long would it take for you to get this order out? Of course, if you could ship sooner than October 1st, it would be better. I would be much obliged if you would give this your immediate attention, and let me hear from you as soon as possible. Thanking you, I remain, Yours very truly, T. E. Shelton.”

Reply:

“Diebold Safe & Lock Co., Chicago, June 11th, 1915, Mr. T. E. Shelton, 7 Morehouse Bldg., El Paso, Texas — Dear Sir: We have your favor of the 8th and we will proceed to make specifications and forward to you as soon as possible and make you price on same. Thanking you for the information we are, Yours very truly, Diebold Safe & Lock Company, by James Sullivan, Manager.”

Telegram:

“Chicago, June 23, T. E. Shelton, Boom 7 Morehouse Bldg., El Paso Regard Commercial Bank this job will probably be let at cost we will send man from here and allow you one per cent, on the net cost of the work for the influence which you have with the bank. Diebold Safe & Lock Co.”

Letter reply to telegram:

“June 23, 1915. Diebold Safe & Lock Company, 122 South Fifth Ave., Chicago — Gentlemen: I am just in receipt of your telegram of this date advising me the job for the Commercial National Bank will probably be let at cost, and that you will send a man from Chicago and that you will allow me one per cent, on the net cost of the work, for my influence with the bank. I beg to advise you that I could not afford to accept your proposition. It would not pay me to fool with this work unless I could get not less than ten per cent, and should have fifteen by rights. I have other lines of work that will pay me a great deal better than anything like this. To my certain knowledge there has never been any bank work let in El Paso where the manufacturers did not make a good big profit. You can send your man along and let him go direct to the bank himself, and as I have already stated, I will not fool my time away with this bank work unless I can make not less than ten per cent. Yours very truly, T. E. Shelton.”

Shelton testified in part:

“The negotiations stopped here (the letters and telegrams). * * * Saw Mr. Campbell several times about the sale of this door. * * * Told Mr. Campbell I wanted to bid on the work; that I had two or three companies that made safes. He told me he wanted a round door, and I told him I did not think there was but one company that I would take up with. I did not give the name.”

J. D. Campbell testified in part:

“Is vice president of the Commercial National Bank. He and Barbee practically superintended the purchase of the vault doors. Have known the reputation of the Diebold Safe & Lock Company all his life. Wrote them, and asked if they would like to send a representative to give estimate on vault work. Wanted to have competitive bids. Wrote to no other lock company. Other companies were represented here and came to see him personally. Shelton had nothing to do with his writing the company. Had not heard from the company before writing them in regard to the doors. Got a reply to his letter. Thinks he wired the company to the effect: ‘We think it advisable that a representative see us at once about submitting an estimate for vault door shipment, and if you wish to submit a bid wire when your representative will be on the ground.’ On June 31st he received message: ‘Our representative who we prefer to send to you is serving on jury this week. He can be with you first of next week. If you cannot wait give us by return wire at our expense as much information as possible and we will bid on same.’ Campbell answered: ‘Will not let contract for vault shipment until your representative arrives next Tuesday.’ That wire was sent on June 22d. The company sent a representative. Did not recollect date of his first telegram. Thinks it was June 19th. Six thousand dollars was the amount of the purchase the bank made of the company, including two vault doors and safe deposit boxes. Shelton came into the bank in connection with this matter, thinks it was when we first started to build; said when we were, ready he would like to submit bids. Did not know him in the transaction at all.”

N. H. Constock, qualified as to knowledge of reasonable value of service for-bringing together buyer and seller in this class of work, said:

“I think as a go-between, if a man'actually brought the buyer and seller together and there was a deal went through, I think five per cent, would be a reasonable compensation; if he would carry the deal through entirely by himself, why he should receive ten.”

The case was tried without a jury, and the court rendered judgment for appellee for the sum of $300. The Court made no findings of fact.

The appellant presents several grounds of error, presenting substantially the following: Insufficiency of the evidence to sustain the judgment; it is not shown by the evidence that the plaintiff was the procuring cause of the sale by defendant to the bank of the vault doors, the other doors and safety lock boxes; tfiat the evidence does not show that the plaintiff brought, or was the means of bringing, the seller and purchaser together; the bank had not been advised by plaintiff, nor otherwise had knowledge of the fact that plaintiff claimed to represent the defendant in the transaction, until after the bank had communicated with defendant and requested that defendant send a representative to bid in the matter, and that the bringing of the seller and purchaser together was brought about by the initiatory steps taken by the bank itself in addressing a telegram to defendant.

It is undisputed that Shelton was a broker, and, as Justice Neill said in Ross v. Moskowitz, 95 S. W. 86

“a kind of go-between those who hath property to sell and those who hath money to buy, whose business makes one as industrious in bringing about a trade between others as Ramsey Sniffle was in pulling off a fight to which he was never a party, whose own business is the business of other men, which makes him know more about what one man should do with his property and another with his money than the man himself, who is always contriving and striving to bring others together, nolens volens, in a trade, and, who like Todgers, ‘can do it for a consideration,’ which the law allows as commissions.”

The crucial question of fact in this case is: Does the evidence show that Shelton, as a broker, with the knowledge of the Diebold Safe & Lock Company, rendered it the service in negotiating the sale of the vault doors and safety boxes to the bank which resulted in its consummation? It is evident from the above testimony that Shelton, as a broker, took the matter up of negotiating the sale of the vault doors, the grille work and safety locks, for the appellant, and, at his suggestion and appellant’s request, sent appellant the blueprints and all data regarding the building, then just beginning to be erected for the bank, and that Shelton’s information as to what the bank would possibly need was the first information appellant had of the erection of the bank building and the goods the bank would need. Shelton advised appellant that he was a broker, suggested that appellant make and send to him specifications of the style of doors, grille work and steel for the bank vaults, and advised that he would expect commissions, stating same. Appellant accepted and retained the blueprints and the information sent by Shelton, and in reply said:

“We will proceed to make specifications and forward to you as soon as possible and make you price on same”

—and thanking him for the information. This evidently was an acceptance of Shelton’s service to serve as a go-between in negotiating the sale of the vault doors and safety locks to the bank, with knowledge that Shelton would demand a commission. If communication between the seller and buyer had not 'actually taken place, it was at least the bringing forward and designating a suitable buyer to whom the principal may sell in ordinary course of business. About 12 days elapsed before appellant’s next communication, stating that it would send a man to take up the matter of sale directly with the bank, and that it would allow Shelton 1 per cent, commission, not for his past service, but “for the influence which you have with the bank.” This further service Shelton declined, and further communication between appellant and Shelton ceased; Shelton voluntarily withdrawing from further participation in the transaction as broker. The proof shows that during the 12 days interim, the bank took the matter up with appellant, with request that it send a man to bid on the goods the bank would need. Appellant accepted the bank’s suggestion, sent the man, and did not send the specifications to Shelton as agreed, but sent telegram as above. Meacham on Agency, § 2431 (2d Ed.) says:

“When the broker has brought forward or designated and put the principal into communication with a suitable person to whom the principal may sell in the ordinary course of business, he has, by the weight of authority, performed his undertaking.”

In Wilson v. Mason, 158 Ill. 304, 42 N. E. 134, 49 Am. St. Rep. 162, it is said:

“The true rule is that the broker is entitled to his commissions, if the purchaser presented by him and the vendor, his employer, enter into a valid, binding, and enforceable contract.”

We believe that the evidence discloses that Shelton had substantially performed all that was required of him as a broker, to entitle him to at least a reasonable commission, which the evidence shows to be five per cent, on the sale made.

The case is affirmed.
      cgsaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J. HUFF, O. J. BOTCH, J. HALL, J.

license: Public Domain

text:
    FARMER v. EVANS.
    (No. 1095.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 17, 1917.
    Dissenting Opinion and On Motion to Certify, Feb. 21, 1917.)
    Chattel Mortgages &wkey;>82 — Notice os’ Mortgage Recorded in Foreign State — Comitt —Statute.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5655, requiring the registration of chattel mortgages forthwith, and declaring the lien reserved in such instruments, on failure to register them, to be absolutely void as to creditors, subsequent purchasers, and mortgagees in good faith, where a chattel mortgage on mules was executed and registered in Oklahoma, and the mules were brought to Texas by the mortgagor, and he sold them to a purchaser for value in good faith, who had no actual notice of the existence of the mortgage, and such purchaser resold to another purchaser in good faith, the record of the mortgage in Oklahoma did not give the purchasers constructive notice of the mortgagee’s right, and they were not liable to him, since the doctrine of comity giving a chattel mortgage effect in the state to which the property is subsequently removed should not be applied when to do so would conflict with the public policy of the state of the forum and injure or destroy the rights of local citizens innocently acquiring the property or some interest therein.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 151.]
    Boyce, J., dissenting.
    Appeal from Lipscomb County Court; W. H. Sewell, Judge.
    Suit by J. L. Evans against Ben F. Farmer and F. F. Schick. From a judgment for plaintiff against defendant Farmer alone, the latter appeals.
    Reversed and rendered.
    H. L. Adkins and D. C. Gray, both of Higgins, for appellant. Hoover & Dial, of Canadian, for appellee.
   HALL, J.

Appellee, Evans, instituted this suit in the county court of Lipscomb county, Tex., alleging in his amended original petition, in substance, that in October 1914, R. W. Warren executed and delivered to him a certain promissory note for the principal sum of $230, together with a chattel mortgage on six head of live stock, the mortgage having been executed in Harper .county, Okl., where plaintiff and Warren lived, and where the mortgaged property was situated; that immediately thereafter plaintiff had said chattel mortgage registered in Harper county, as required by law, to give notice to subsequent purchasers; that subsequently Warren brought two black mules, being a part of the live stock covered by the mortgage, into Lipscomb county, Tex., and sold them to either Ben F. Farmer or one F. F. Schick, without the knowledge or consent of plaintiff, and that, with the exception of the $120 credited on the note, the same remains unpaid; that the value of the two mules exceeds the debt.

The defendants, Farmer and Schick, answered, alleging that they purchased the mules in good faith, without notice of the lien; that the chattel mortgage was never registered in Lipscomb county as required by law; that the description of the property as contained in the mortgage did not sufficiently identify and describe the mules purchased by defendant Farmer from Warren; that plaintiff had attempted to foreclose the mortgage on the other live stock under the Oklahoma statutes, but had failed to do so in compliance with said statutes; that under said foreclosure sale plaintiff had bought one of the animals at an inadequate price and sought to obtain credit for the difference upon the note sued upon.

Upon a trial before the court judgment was rendered for plaintiff against the defendant Farmer, but it was decreed that the plaintiff take nothing as against the defendant Schick. It appears -from the record that Farmer purchased the mules from Warren, and after-wards sold them to Schick.

Farmer alone prosecutes this appeal, and first assigns as error the action of the court in not sustaining the general demurrer to plaintiff’s petition. It is urged that plaintiff’s pleadings are defective and subject' to general demurrer, because they allege that Farmer purchased the mules from Warren at a time when such property was located in Lipscomb county, Tex., and when the mortgage lien given by Warren to plaintiff, and registered in Harper county, Okl., had not been duly filed in Lipscomb county, Tex., and did not allege that Farmer had any notice, either actual or constructive, of the existence of said lien. This is the principal question on this appeal.

It was held by this court in Best v. Farmers’ & Merchants’ Bank, 141 S. W. 334, that a lien acquired by registration of a chattel mortgage in a foreign state will not he' given priority in Texas, since constructive notice imparted as a result of its registration depends wholly upon a foreign law which will not be enforced in the domestic forum. There is a conflict in the decisions of our own state upon this question. In the case of Blythe v. Crump, 28 Tex. Civ. App. 327, 66 S. W. 885, Templeton, J., held that under such conditions the mortgagee’s lien follows personal property into another state to which the personalty is removed without his knowledge or consent, and that such mortgagee was not at fault in failing to give notice of his lien by registration or otherwise to the citizens of the other state into which the property was removed where sufficient time therefor did not elapse between the removal and a sale of the property to a person without notice.

To the same effect is the holding by Judge Speer in Scaling v. First National Bank, 39 Tex. Civ. App. 154, 87 S. W. 715. The only expression by the Supreme Court of this state with reference to the rule is by Hemphill, C. J., in Crosby v. Huston, 1 Tex. 203, 238. That was a case in which it appears the trial court held that the execution and registration of a deed of trust in Mississippi conveying personalty situated in that state was notice to all the world. While there was no proof of the existence of or the requirements of the registration laws of Mississippi, or that the instrument had been recorded in accordance with such law, if any existed, the court announced the broad doctrine that:

“Whatever may have been the effect of registration in Mississippi, it cannot he extended beyond thfr territorial limits of the state. The operation of such a municipal regulation is local, and cannot effect property'in a foreign jurisdiction.’”

This holding of the Supreme Court was followed by this court in the case of Best v. P. & M. Bank, supra. The CrosbyrHuston Case was not cited in either the Staling Case or the Blythe Case, and, we presume, was overlooked since the opinions in those cases are based upon authorities from other states. From the notes to Walter C. Jones v. North Pacific Fish & Oil Co., 6 L. R. A. (N. S.) 940, and Snider v. Yates, 64 L. R. A. 353, we understand that the great weight of authority is against the rule announced by the Supreme Court in the Crosby Case, and by this court in the Best Case. It is not within the province of this court to overturn the decision by Judge Hemphill, as announced in the Crosby Case. Decisions of the Supreme Court may be overruled only by that court. Jones v. G., C. & S. F. Ry. Co., 23 S. W. 186; Missouri, etc., Railway Co. v. Blecher, 88 Tex. 549, 32 S. W. 518; Cleveland & Co. v. Carr, 90 Tex. 393, 38 S. W. 1123. By the principle of stare decisis we are constrained to follow the decisions of the Supreme Court until that court has changed its ruling.

There is another ground upon which we think Farmer and Schick should recover: By the weight of authority a chattel mortgage executed and filed for registration in one state, covering chattels situated there, is given effect in the state to which the property is subsequently removed solely upon the doctrine of comity; but this doctrine should not be applied when to do so would conflict with the public policy of the state of the forum, and when the effect of enforcing it is to injure or destroy the rights of local citizens innocently acquiring the property or some interest therein. The policy of our laws, evidenced by statutory provisions, require the registration of chattel mortgages “forthwith,” and upon failure to so register them the lien reserved in such instruments is declared to be absolutely void as to creditors, subsequent purchasers, and mortgagees in good faith. Vernon’s Sayles’ Civil Statutes, art. 5655. In Austin v. Welch, 31 Tex. Civ. App. 526, 72 S. W. 881, it is held that a chattel mortgage executed on Saturday at 2 o’clock p. m., which was not filed by the mortgagee until the following Monday, although he passed the clerk’s office Saturday afternoon before 5 o’clock, was not filed “forthwith” as required by statute. To hold that a chattel mortgage registered in a distant state should be given effect against bona fide purchasers of the property described against it in- this state is diametrically opposed to the policy evinced by the above-mentioned statute and the decisions of this state construing it. In Pope v. Hanke, 155 Ill. 617, 40 N. E. 839, 28 L. R. A. 568, this doctrine is declared by Magruder, J. That was an action upon three notes executed in St. Louis, given in settlement of a gambling contract for the sale of wheat and corn. The notes would have been valid under the laws of Missouri, because they were acquired by plaintiff before maturity, and without notice of their illegality. The court said:

“This being so, can a recovery he had in this state [Illinois] upon the notes here sued upon? The general rule is that the validity of a contract is to be governed by the law of the place where it is made (Phinney v. Baldwin, 16 Ill. 108, 61 Am. Dec. 62; Mumford v. Canty, 50 Ill. 370, 99 Am. Dec. 525); and in the application of this principle to notes it is held that the laws of the state where a note is made will govern as to the defenses, which can be set up against a recovery thereon [citing authorities]. While it is true, however, that one state or nation will recognize and execute the laws of another through comity, yet the principle of comity does not permit the enforcement of foreign laws which are prejudicial to the interests of the state where they are sought to be enforced. A contract made in one state will not be enforced in another, when to do so would contravene the criminal laws of the latter state, or would be against the express prohibition of its laws. Comity between different states does not require a law of one state to be executed in another when it would be against the public policy of the latter state. No state is bound to recognize or enforce contracts which are injurious to the welfare of its people, or which are in violation of its own laws. Mumford v. Canty, supra; Storey’s Conflict of Laws, § 327; Faulkner v. Hyman, 142 Mass. 53 [6 N. E. 846]; Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205; Fisher v. Lord, 63 N. H. 514 [3 Atl. 927].”

The court then quotes from the Criminal Code and decisions of Illinois condemning such contracts, and proceeds:

“It thus appears that, under the statutes of this state and the decisions construing them, the notes sued on are absolutely void. The contracts upon which they are based are declared to be gambling contracts and void. The transactions in which they have their origin are prohibited by the criminal code of the state; and those engaging in them are subject to punishment by fine or imprisonment. * * * In view of the character of the transactions here involved as thus characterized, we think that our own law should be applied in determining whether a recovery should be had in this suit; and that comity does not require us to ignore the statute of Illinois under which these notes are void even in the hands of an innocent holder, in order to permit a defense which would be allowed under the law of a foreign state. ■ The enforcement of such foreign law would contravene the Criminal Code of this state, and would be in opposition to its public policy, and to the express prohibition of its statutory enactments, and would be prejudicial to the interest of its people. We are therefore inclined to hold that no recovery can be had upon the notes,” etc.

Upon investigation we find that other jurisdictions refuse to recognize the rule of comity adopted by a majority of the states and hold that their own citizens should be protected against prior liens acquired in other states by nonresidents. Miles v. Oden, 8 Mart. N. S. (La.) 214, 19 Am. Dec. 177; Verdier v. Leprete, 4 La. 41; Zollikoffer v. Briggs, 19 La. 521; Tillman v. Drake, 4 La. Ann. 16; Frelson v. Tiner, 6 La. Ann. 18; Delop v. Windsor, 26 La. Ann. 185. In the last-cited case the court said:

“We are not bound by the comity of nations to enforce a contract which, if made here, could not defeat the rights acquired by attachment under our * * * laws.”

This doctrine is announced after the court had stated that a chattel mortgage was unknown in Louisiana. In Miles v. Oden, supra, it was said:

“The court aré aware of the common principle that contracts are governed by the laws of the country in Which they are passed; and that, by the comity of nations, the rights flowing from them are not diminished by the parties passing into other states, provided, the laws of that state afford adequate remedies to enforce the obligation. But this principle is subject to the exception that in carrying them into effect no injury result to the inhabitants of the country whose aid is required to enforce them.”

In the note to Farmers’, etc., State Bank v. Sutherlin, Ann. Cas. 1914B, 1250, from which these authorities are cited, it is further stated that the courts of Michigan refused to enforce to the injury of a citizen of that state a chattel mortgage validly executed in a foreign state, and in Allison v. Teeters, 176 Mich. 216, 142 N. W. 340, said:

“A citizen of this state dealing with the property and its apparent owner in this state is not required to take notice of the records in Indiana.”

To the same effect is State Bank of Sherman v. Carr, 15 Pa. Super. Ct. 346; Buffalo Coal Co. v. Rochester State Line Railway Co., 8 Wkly. Notes Cas. 126; Boydson v. Goodrich, 49 Mich. 65, 12 N. W. 913.

In Rosenbaum v. Dawes, 77 Ill. App. 295, the court said that the rule based on interstate comity that the constructive notice of a chattel mortgage resulting from its records in the state of its execution is also constructive notice to the citizens of other states to which the property may be removed should not be extended by the court of the latter state to the detriment of its citizens.

In view of the holding in Crosby v. Huston, supra, announcing the rule in this state, which we feel obliged to follow, and in addition thereto the doctrine as announced in the cases from which we have just quoted, we hold that the court erred in not sustain-' ing the general demurrer.

The trial court found that in about one month after the mules in question were brought to Texas by Warren, the mortgagor, he sold them to defendant Farmer, who in good faith paid valuable consideration for them without actual notice of the existence of the mortgage and without other notice thereof than such as was afforded by the filing of said mortgage in Harper county, Okl., in accordance with the laws of that state; that in September, 1915, about six months after the mules were brought to Texas, Farmer sold them to defendant Schick, who in good faith paid valuable consideration for them without notice, either actual dr constructive, other than such as results from the registration of the mortgage in Harper county, Okl. These findihgs are supported by the uncontroverted evidence.

Since the case seems to have been fully developed, and it is not probable that any new matter could be either set up or proven which would affect the result in another trial, for the reasons above stated we reverse the judgment of the trial court, and here render it that appellee, J. L. Evans, take nothing by reason of his action, and that the defendants, Farmer and Schick, recover of him all costs.

Reversed and rendered.

HUFF, O. J.

(concurring). The members of this court concur that, under Crosby v. Huston, this ease should be rendered for appellant. If the case cited is authority for the action of this court, it must, in my judgment, rest upon the theory that the policy of our law is to protect an innocent purchaser. The Supreme Court in that case evidently recognized the lex loci contractus as controlling in the construction of the contract, but refused to give extraterritorial effect to a foreign law as to notice to the hurt of a bona fide purchaser in this state.

The rule of caveat emptor, it occurs to me, in this country does not fully apply as to title.

“It seems universally to be conceded here, if the seller is in possession of the goods, the warranty of title accompanies the sale, upon the grounds that his undertaking to sell, under such circumstances, is of itself an affirmation of his title.” Mechem on Sales, § 1302,

It is an implied warranty as to the whole title and protects against partial defects, liens, etc. Id. § 1304. Therefore the rule of “let the buyer beware” does not necessarily follow. If the seller is a fraudulent possessor and has no right to sell, the purchaser may get no title, not because he is required to be on his guard, but because the seller has no title to convey; but a mortgagor has title — the right of possession and the right to sell ordinarily. The purchaser, in the ab-sense of a statute, as a rule, is not charged with notice of an equity.

“It is a well recognized doctrine in equity that a bona fide purchaser of the legal title to property, who pays a valuable consideration therefor, without notice, actual or constructive, of the right of other persons, is entitled to protection against others who may have equitable title to or interest in the thing purchased; and it matters not whether the thing purchased be real or personal property.” Hill v. Moore, 62 Tex. 610.

It appears from Jones on Ghattel Mortgages, in 'the section cited, that the duty is on the purchaser of property recently brought into one state from another, to inquire there whether the property is incumbered. It has never been the rule, as I understand, to require a purchaser in this state to inquire if there is an outstanding equity against the property. If he has no notice of it, he is not charged with knowledge. The fact that our statute does not require, as contended, the registration of chattel mortgages on property brought to this state from another, does not necessarily establish that it is not the policy of this state to protect an innocent purchaser. We think it is manifest that the Supreme Court of this state, in the case cited, has determined the question that a purchaser is not required to go into another state to ascertain if there was a mortgage recorded therein. It is said in Crosby v. Huston:

“But, whatever may have been the effect of registration in Mississippi, it cannot be extended beyond the territorial limits of the state. The operation of.such municipal regulation is local, and cannot affect property in a foreign jurisdiction.”

But, as we understand by a great many decisions, it is held that under the rule of comity it will be so extended so as to effect notice. This would charge a purchaser with notice of an equity of which he was utterly ignorant. It appears to me the Supreme Court recognized that such a rule would defeat the policy of this state.

I concur in the result reached in this case.

BOTCH, J.

(dissenting). On the original submission of this case I concurred in the result, under the impression that .the ease of Crosby v. Huston, 1 Tex. 203, 238, was controlling authority on us so long as it was not overruled or modified by the Supreme Court. A reconsideration of that case, however, has convinced me that it should not be so regarded. The question now squarely before this court was but meagerly and incidentally mentioned in a lengthy opinion in that case, devoted largely to other questions, and the court prefaces its discussion of the law as announced in the decision by this statement:

“Under these circumstances we will not undertake to determine the controversy and establish, not the real rights of the parties, but what they would have been had the whole transaction and the acts of all the parties transpired in this republic before the introduction of the common law.”

The courts of sister states administering a common system of laws, under one national government, whose citizens are closely associated in social and commercial enterprises, 'would be disposed to apply the principles of comity more liberally in favor of contracts entered into in a sister state, and with a citizen of such state, than in favor of contracts executed in foreign nations and between its citizens. On account of this fact and the great change which has taken place since the decision of Judge Hemphill, announced in the case of Crosby v. Huston, I do not believe that our courts should now regard the passing expression of an opinion in that case, under the circumstances, as being controlling in a question of comity arising as it does in this case.

Ordinarily the purchaser of personal property, except commercial paper, acquires only such rights and title to the property as his vendor had. Certain exceptions to this rule were adopted by the law to prevent fraud; among these the common-law rule that ,a chattel mortgage, when possession of the property remains with the mortgagor, was fraudulent as to creditors, etc. Most of the states, including our own, have adopted registration statutes, which take the place of the possession by the common law to render the mortgage valid. These statutes usually simply declare that chattel mortgages which shall not be accompanied by change of possession shall be void as to creditors and purchasers without notice, unless recorded in a prescribed manner. When the mortgage is so recorded, it then becomes effective against the world, in so far as the laws of the state under which it was recorded can make it so, in the same manner as if possession had been delivered to the mortgagee; and the overwhelming weight of authority is to the effect that, when one has complied with the law of the state where the property is situat-. ed and supposed to remain in such manner as to create a valid mortgage against purchasers and creditors, and the property is, without the mortgagee’s consent, removed to another state, the courts of the state to which the property is removed will, under the doctrine of comity, recognize the validity of such mortgage as it existed under the laws of the state where the property is situated, and enforce it against even purchasers and creditors without notice. Blythe v. Crump, 28 Tex. Civ. App. 327, 66 S. W. 885; Scaling v. First Nat. Bank, 39 Tex. Civ. App. 154, 87 S. W. 715; Jones on Chattel Mortgages, § 260a; Cyc. vol. 6, p. 1089; notes to Snider v. Yates, 64 L. R. A. 357. This rule seems to me to be founded in good reason and justice and should be applied by our courts unless its enforcement is against the policy of our law.

Let us for a moment examine our statutes on the subject:

Article 5655 declares that:

Every chattel mortgage, etc., “which shall not be accompanied by an immediate delivery and. be followed by an actual and continued change' of possession of the property mortgaged or pledged by such instrument, shall be absolutely void as against the creditors of the mortgagor or person making same, and as against subsequent purchasers and mortgagees, or lien-holders in good faith, unless such instrument or a true copy thereof shall be forthwith deposited with and filed in the office of the county clerk of the county whore the property shall then be situated, or if the mortgagor or person making the same be a resident of this state, then, of the county of which he shall at that time be a resident.”

Under this statute the mortgagee has the option of recording the mortgage either in the county of the residence of the mortgagor or of the county where the property is situated when the mortgage is given.

Article 6841 of Revised Statutes provides' that:

Mortgage, etc., of personal property shall be recorded in the clerk’s office of the county in which the property shall remain, “and if after-wards the person claiming title under such deed, mortgage, or other writing, shall permit any other person in whose possession such property may be to remove with the same, or any part thereof, out of the county in which the same shall be recorded, and shall not, within four months after such removal, cause the same to be recorded in the county to which such property shall he removed, such deed, mortgage, or other writing, for so long as it shall not he recorded in such last mentioned county, and for so much of the property aforesaid as shall have been removed, shall be void as to all creditors and purchasers thereof for valuable consideration without notice.”

We find no provision with reference to the recording of a mortgage here on property removed to this state from another state. Obviously the provisions of the articles above referred to were not intended to apply to such mortgages, and I do. not think any policy with reference to the enforcement of a foreign mortgage here can be fairly deduced from these provisions of the statute. To my mind, they no more evidence an intention to protect innocent purchasers and creditors than an intention to protect the mortgage holder when he has complied with the law in the record of his mortgage. Indeed, it might more properly be said that these laws evidence a policy to protect the mortgage holder in his rights where property is removed without his knowledge and consent and relieve him of the duty of constant knowledge of the location of the mortgaged property, for it has been held that, where the property is removed from the county of its location, without the knowledge or consent of the mortgagor, he does not have to follow it up in its new location with the record of his mortgage in order to protect the mortgage agjainst innocent purchasers. Spikes v. Brown, 49 S. W. 725; Thos. Goggan & Bros. v. Synnott, 134 S. W. 1184. Nearly all the states in which the question has been considered have registration statutes very similar to our own, and the courts of those states have deduced no such policy as announced by this court from such statutes.

Neither do I think it a wise policy, nor one that will in the end subserve the best interest of the citizens of this state, to deny the Oklahoma citizen the enforcement of his mortgage against property feloniously perhaps brought to this state because in the particular instance a citizen of this state will suffer. The Supreme Court of Iowa makes such an appropriate observation on this subject that I here quote it:

“The argument based upon the hardships of this and similar cases fails to convince us, that justice and the interest of the people of this state require a modification of the rule, lex loci contractus. * * • That there may be instances of innocent persons sustaining loss, as did the defendant in this case, in its application to instruments executed in another state, may readily be admitted; but these occasional instances of hardship are amply counterbalanced by the benefits which the people of the state receive in the application of the rule in other states to contracts entered into here. We could illy afford to establish a precedent disregarding- and setting aside, in our administration of justice, those rules of comity which have heretofore been recognized by all civilized nations. It might return upon us with most mischievous results.” Smith & Co. v. McLean, 24 Iowa, 329.

The application of this doctrine may work hardships in some instances, but equally hard is the result if one who has done everything required of him by law to secure his rights may be deprived of them by^ the criminal act of another, done without his knowledge or consent. The innocent purchaser of stolen property suffers equally when the property is taken from him by the rightful owner. If this property had been removed from the southern part of this state to Lipscomb county, a distance of nearly 1,000 miles, and had been bought by Farmer under the same circumstances, a mortgage recorded against the property located in a different part of the state before its removal would be enforced against it. I-Iere the mortgaged property is removed just across the line of one state into another, and is sold within one month after its removal, and yet the mortgagee, without fault, is denied the enforcement of his mortgage, because taken in another state. I do not think that the courts of our state will go so far to protect its own citizens against the rights of a citizen of our sister state.

For these reasons, I respectfully dissent from the disposition of the case as made by the majority of the court.

On Motion to Certify.

HALL, J.

We are requested in the motion to certify to the Supreme Court the question of the extraterritorial effect of the Oklahoma mortgage. Our opinion in this case is based principally upon the Supreme Court’s decision of Crosby v. Huston, 1 Tex. 203, and while it is in conflict with Blythe v. Crump, 28 Tex. Civ. App. 327, 66 S. W. 885, and Scaling v. First National Bank, 39 Tex. Civ. App. 154, 87 S. W. 715, I am of the opinion that it is not such a question as we are authorized to certify under the provisions of article 1623, Yernon’s Sayles’ Civil Statutes. That article provides that we shall certify the question to the Supreme Court whenever any one of the Courts of Civil Appeals may arrive at an opinion in any cause pending in said court that may be in conflict with an opinion theretofore rendered, or thereafter rendered by some other Court of Civil Appeals in the state on any question of law. While there is a conflict upon a question of law between our opinion in the instant case and in the Blythe-Crump and Scaling Cases, supra, this court having followed a Supreme Court decision, the status of the matter is that the conflict is between the Supreme Court and the last two cases decided by the Court of Civil Appeals, and it has been frequently held that, when this condition exists, it is not a question which should be certified under said article of the statute. Village Mills Co. v. Houston Oil Co., 186 S. W. 785-804 (34); Lock v. City National Bank, 165 S. W. 536; Smith v. Connor, 98 Tex. 434, 84 S. W. 815; Stark v. J. M. Guffey Petroleum Co., 80 S. W. 1080; Yoacham v. McCurdy, 27 Tex. Civ. App. 183, 65 S. W. 213.

I therefore respectfully dissent from the decision of the majority to certify.
      ^=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    SANTA FÉ TIE & LUMBER PRESERVING CO. v. BURNS.
    (No. 7285.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 12, 1917.
    Rehearing Denied Feb. 8, 1917.)
    1. Master and Servant <&wkey;270(2) — Action eor Injuries — Sufficiency oe Evidence-Cause oe Injury.
    In a servant’s action for injuries caused by falling of lumber from a car which plaintiff was unloading, evidence held to sustain a finding that the plaintiff was injured by the timbers from the car falling upon him.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959.]
    2. Master and Servant <&wkey;>289(l) — Action eor Injuries — Sueeiciency oe Evidence.
    Evidence held to sustain a finding that plaintiff was not negligent.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1089.]
    3. Master and Servant &wkey;>288(l) — Action eor Injuries — Sufeioiency oe Evidence.
    Evidence held to sustain a finding that plaintiff did not assume the risk of such injuries.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068,1009, 1087, 1088.]
    4. Continuance <&wkey;ll — Grounds — Failure to Sign Deposition.
    Where plaintiff testified at the trial and was not interrogated by the defendant in regard to a deposition, and no question was raised as to the accuracy of the copy of the deposition tendered after an announcement of “ready,” and it is not shown that the failure of the defendant to obtain the deposition before the trial affected its preparedness to meet the case, refusal of the court to grant a motion for continuance on the ground of plaintiff’s alleged failure and refusal to sign and swear to the deposition before trial, was not erroneous.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 19-24.]
    5. Master and Servant &wkey;>286(13) — Injuries to Servant — Negligence — Question eor Jury.
    Whether defendant was negligent in failing to have stays placed on the side of the car of lumber before it was unloaded held for the jury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1020.]
    6. Master and Servant &wkey;>lll(l) — Injury to Servant — Negligence—Safe «Place to Work.
    If master was negligent in failing to replace stays on a car of lumber before directing a servant to unload the car, it failed to use the ordinary care required to provide a safe place for the performance of the work assigned to a servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215, 255.]
    7. Master and Servant <&wkey;>205(3) — Injury to Servant — Negligence—Duty to Discover Defects.
    • It is the duty of the master to discover defects in the place at which and the appliances with which the servant is to work, and there is no duty of inspection placed upon the servant, but he can rely upon the assumption -that the master has performed his duty, and is not required to use ordinary care to see whether this has been done or not.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 547.]
    Appeal from District Court, Burleson County; Ed R. Sinks, Judge.
    Action by Tom Burns against the Santa Fé Tie & Lumber Preserving Company and another. Judgment for plaintiff, and the named defendant appeals.
    Affirmed.
    Hunt, Myer & Teagle, of Houston, for appellant. U. S. Hearrell, of Cameron, and W. M. Hilliard, of Caldwell,- for appellee. ■
   PLEASANTS, C. J.

This suit was brought by the appellee against the appellant and the Gulf, Colorado & Santa-Fé Railway Company to recover damages in the sum of $35,000' for personal injuries alleged to have been caused by the negligence of the defendants.

The petition alleges, in substance, that on November 13, 1914, plaintiff, who was at that time an employe of appellant, was engaged with other employes of appellant in unloading lumber from cars in appellant’s yards and stacking or piling it along the side of the railroad track, and while so engaged was injured by timbers falling upon him from the car which was being unloaded.

The negligence charged against the railway was^in “spotting” or placing the car in appellant’s yard to be unloaded without having stays or standards on the side of the car to prevent the timbers from falling therefrom. Th¡e negligence charged against appellant was its failure to furnish plaintiff with a reasonably safe place in which to work and in the failure to warn plaintiff, who was inexperienced, of the danger of unloading the car in the condition in which it was when plaintiff was put at such work.

The appellant answered by a general demurrer and special exceptions, general denial and pleas of contributory negligence, assumed risk, and negligence of a fellow servant.

After the trial had begun plaintiff dismissed his suit against the railway company. The cause as between plaintiff and appellant was submitted to a jury upon special issues, and upon the return by the jury of their verdict judgment was rendered in favor of plaintiff for $10,000.

In answer to questions propounded in the charge of the court the jury found that the plaintiff was injured by the timbers from the car falling upon him, as alleged in his petition, that the appellant was negligent in failing- to have stays or standards placed upon, the side of the car before attempting to have the timbers removed from the south to the north end of the car, and that such negligence was the proximate cause of plaintiff’s injury. They also found against appellant on its pleas of contributory negligence and assumed risk, and fixed the amount of plaintiff’s damage at $10,000. The evidence is sufficient .to sustain each and all of these findings.

The first assignment of error complains of the refusal of the court to grant a motion for a continuance made by appellant on the ground that plaintiff had failed and refused to sign and swear to depositions taken at the instance of appellant. The propositions presented under this assignment are as follows:

“A litigant is entitled to the testimony of the adverse party before trial of the cause, when he is diligent in attempting to procure same, and a tender of such deposition after an announcement of ‘ready’ is not sufficient,” and “Plaintiff having refused to sign and swear to Ms deposition before the officer taking the same, thereby depriving the defendant of the benefits of a bill of discovery, the defendant was entitled to a continuance.”

The sworn answer of plaintiff to the motion for continuance, which is uncontradict-ed, states:

That in obedience to a summons from T. J. Carter, notary public, he appeared before said officer on November 10, 1915, and made answer under oath to all of the questions propounded to him by appellant; that said answers were taken in shorthand by a stenographer employed by the appellant, and were afterwards transcribed; that before they were transcribed plaintiff’s attorney had left Somerville, at which place the depositions were taken, and when they were presented to Mm by the notary for his signature, in view of the fact that he had made his answers before the officer under oath, he did not think he was required to sign and again swear thereto, and asked the officer to allow him to consult his attorney in reg'ard to signing the depositions; “that he immediately went to the phone and called up his attorney and asked him whether or not he should sign said depositions, and upon being advised that he should do so immediately thereupon proceeded to advise the said T. J. Carter, notary public, that he would sign and subscribe under oath to said depositions, but the said T. J. Carter refused to permit him to sign same, advising him that he had already sent the papers in to the district court of Caldwell, Tex. Plaintiff says that he has always been willing and ready to sign said ordl depositions, and has signed and subscribed to same, and now presents a copy of said depositions duly signed and sworn to by Mm, and attaches the same to this instrument filed herein, and makes the same a part hereof.”

The plaintiff testified on the trial and was not interrogated by the appellant in regard to his deposition. No question was raised as to the accuracy of the copy of the deposition tendered with the answer to the motion for rehearing, and there is nothing in the record upon which to base even a surmise or suspicion that' the failure of appellant to obtain the depositions before the trial affected in the least its preparedness to meet the case made by the pleadings and evidence of plaintiff. The assignment is without merit, and must be overruled.

The second assignment complains of the refusal of the court to instruct the jury to return a verdict for the defendant. The proposition under this assignment is:

“When an unusual condition exists in the place an employe is to work in, or a change in the condition of a tool furnished, which is unusual or out of the ordinary rule, and the employe is thereby injured, he must allege and prove that the master knew of this condition, or could have known thereof by the exercise of ordinary care on his part.”

We do not think this proposition has any application to the case made by the pleadings and evidence.

The pleadings and evidence show that appellant is engaged in the business of creosoting ties and timbers and that its employés number about 300, and it was agreed that at the time the accident occurred which caused plaintiff’s injury appellant was not a subscriber to the Texas Insurance Association created by the Act of the Thirty-Third Legislature. There were 13 employés of appellant, including plaintiff, engaged in unloading and stacking the lumber from the car at the time of the accident. These employés were directed to unload the car by a foreman or boss who had supervision over the crew. The timbers with which the car was loaded were 8x8 inches in width and thickness and 12 feet in length. This car was a flat car, and when placed in the yard by the railroad company for unloading it had stays or standards on its sides to keep the timbers in place. These standards are fitted in sockets and extended above the timbers and are held together by crosspieces nailed to the top of the standards across the timbers. There were from 8 to 10 standards on each side of the car. When appellant’s foreman directed plaintiff’s coemployés to unload the car in question all of the standards had been taken from the ear from which the timbers were to be unloaded. It does not appear from the evidence when or by whom the standards were removed. The foreman was present when the work of unloading began.

Oars loaded with timbers of this kind are unloaded one end at a timev The usual and safe method of unloading is to place skids 10 or 12 feet long, fastened on the ground at one end with the other end resting on the timbers just below the top layer. After the skids are placed the standards and crosspieces on that section or end of the ear are removed. The skids keep, the timbers from falling. When the top tier of timbers has been removed the skids are lowered and the next tier removed, and this process is continued until that end or section of the car is unloaded. The skids are then moved to the other section or end of the car and the same method followed in unloading it.

There was a pile of lumber near the south end of the car in question which prevented the use of the skids in unloading that end, and as the car could not be moved because of other cars on the track, it was necessary in order to unload the south end to move the timbers from that end to the north end so that the skids could be used in sliding them to the ground. After the north end of the car liad been unloaded plaintiff and other employés were told to get on the car and move the timbers from the south end to the north end. Plaintiff had not been engaged in taking the timbers from the north end of the car, but had been at work placing the timbers after they had reached the ground. When he was called upon to get on the car he went in between its south end and the pile of lumber before mentioned and reached up on the lumber to get a hook to use in moving the timbers on the car. Just as he did this the timbers from the car fell on him and caused the injuries for which he recovered. No one was on the car and no one had touched the timbers that fell on plaintiff. Widen the work of unloading the car began plaintiff was not present, having been sent on an errand by the foreman, but as soon as he returned the foreman directed him to assist in the unloading which he did, as before stated.

Plaintiff’s statement as to the timbers falling on him and his knowledge of the condition of the car are as follows:

“Some fellows called for me and another man to get on south end to push the lumber to them on the north end where they could throw it off. I walked in there to get my hook, when I reached up some voice hollowed to me to look out, and I began to dodge ahead. I didn’t have time to get out of the way. At that time I was engaged in the work required of me. I did not know how many pieces fell on me. Some of the boys said seven fell. I was rendered unconscious. I did not know whether the standard had been removed from that section or not, because I hadn’t looked. I did not see the standards. Why X didn’t see them was because I didn’t look. I was busy to get to my hook to get on the end of the car to push the lumber down to the boys.”

The testimony all shows that the absence of stays or standards would be seen by any one who looked at the car.

We think this evidence clearly raised the issue of negligence on the part of appellant, which was the proximate cause of plaintiff’s injury, and the trial court properly refused to instruct a verdict for the defendant.

In addition to the general charge of negligence in failing to provide plaintiff with a reasonably safe place in which to work, the petition specially alleges that appellant was negligent in failing to replace the standards. It was the duty of appellant to use ordinary care to furnish plaintiff a reasonably safe place in which to perform his work, and if it was negligent in failing to replace the standards before it put plaintiff to work unloading the car, it failed to use ordinary care to provide a reasonably safe place for the performance of the work assigned to plaintiff; the undisputed evidence showing the danger of working on or by a ear in this condition. Appellant’s foreman who had supervision of the crew, of employés who were engaged in unloading the car was at the car when the work of unloading began under his orders, and, according to the undisputed evidence, if he had looked at the car, he must have observed the absence of the standards.

Upon this evidence reasonable minds cannot differ in the conclusion that by the use of ordinary care the condition of the car could have been discovered by appellant’s foreman before he ordered plaintiff to work thereon. It is the duty of the master to discover defects and dangers in the place at which and the appliances with which the servant is to work, and there is no duty of inspection placed upon the servant. He can rely upon the assumption that the master has performed his duty and is not required to use ordinary care to see whether this has been done or not. Bonnet v. Railway, 89 Tex. 72, 33 S. W. 334; Ry. Co. v. Hannig, 91 Tex. 347, 43 S. W. 508.

We think it unnecessary to discuss the remaining assignments of error. None of them, in our opinion, should be sustained.

The charge of the court sufficiently submitted the issues raised by the pleadings and evidence, and the special charges requested by the appellant were properly refused.

We think the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      &wkey;?For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LEAGUE et al. v. GALVESTON CITY CO. et al.
    (No. 7171.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 12, 1917.
    Rehearing Denied Feb. 1, 1917.)
    1. CORPORATIONS t&wkey;139 — OWNERSHIP OF Stock—Evidence—Sufficiency.
    In a suit by heirs and legatees to establish the ownership of a share of stock in defendant corporation, evidence held to sustain findings that the certificate in question was surrendered or disposed of by plaintiffs’ ancestors and canceled by the corporation.
    [Ed. Note.—Eor other cases, see Corporations, Cent. Dig. §§ 467, 469.]
    2. Witnesses &wkey;>205—Privileged Communications.
    Statements contained in a letter written by a client to his attorney, which were to be used as answers to interrogatories and evidence upon the trial of a case, were not privileged.
    [Ed. Note.—For other eases, see Witnesses, Cent. Dig. §§ 754, 763.]
    3. Corporations &wkey;>139—Transfer of Stock —Circumstantial Evidence.
    The defendant corporation was entitled to show by circumstantial evidence that the certificate of stock was not then owned by the plaintiffs without showing that it was then held and claimed by some one else, although there is no record of the transfer upon the books of the com- ^ pany.
    [Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 467, 469.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by Mary D. League and others against the Galveston City Company and otheiE. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Geo. E. Maim, of Galveston, and Ramsey, Black & Ramsey, of Austin, for appellants. Maco Stewart, Mart H. Royston, and Bar-ret Gibson, all of Galveston, and Clarence Milbeiser, of Houston, for appellees.
   PLEASANTS, C. J.

This suit was brought by appellants, who are heirs and legatees of Thomas P. McKinney and Samuel M. Williams, against the Galveston City Company and Maco Stewart, to establish the ownership of plaintiffs of a share of stock in said company issued to said McKinney and Williams, who at the time of the issuance of said stock were partners doing business under the firm name and style of McKinney & Williams.

The material issues presented by the appeal may be understood without any extended statement of the pleadings.

Plaintiffs allege: That M. B. Menard and Robert Triplett conveyed the league and labor of the east end of Galveston Island to Levi Jones, Thos. Green, and Wm. R. Johnson, with authority to issue 1,000 certificates, of which 400 were to be issued against a like number that had theretofore been issued to Levi Jones, and the remaining 600 were to be sold by the trustees, at not less than $1,500 each; the 600 certificates were apportioned two-thirds to Menard and those claiming under him, and one-third to Robert Triplett and those claiming under him. That the trustees executed 1,000 certificates divided into books designated A, B, O, D, and E, each containing 200 blank certificates. On August 21, 1838, “the partnership of McKinney & Williams, composed of Thos. F. McKinney and Samuel M. Williams, for a valuable consideration by them fully paid and surrendered to the trustees, and by them accepted and received, became the purchaser and original owner and proprietor of one of said joint-stock shares,” and “in evidence of which two of said trustees” “issued and delivered to said Thomas F. McKinney for account of McKinney & Williams” one certificate No. 84 out of Book A. That in April, 1838, the holders of trustee certificates issued by said trustees mtet at Galveston, Tex., and there organized the unincorporated association or joint-stock company styled “Galveston City Company.” That on' February 5, 1841, by act of Congress of the Republic of Texas “the stockholders of the Galveston City Company” were incorporated. That said trustee certificates could be exchanged for certificates of stock in the unincorporated joint-stock company as well as for certificates of stock in the corporation thereafter formed, and that said trustee certificates or said certificates of said joint-stock company or said certificates of said corporation were in many instances used in the payment to the corporation for property or in payment of debts. That said trustees 1 actually issued 1,000 certificates. That all of the said trustee certificates had been taken up by the company either in payment for property or debts or in exchange for certificates of the company, save and except 9, which 9 plaintiffs allege to be still outstanding, and among which plaintiffs allege is certificate A-84.

Plaintiffs allege: That ,the company has taken up 991 of the trustees’ certificates. That the company, both incorporated and unincorporated, accepted in payment for property not only trustee certificates, but also the certificates of stock that had been issued by the company in exchange for surrendered trustee certificates, and that by that manner all of the certificates of the company had been ■ canceled except 24. Plaintiffs allege: That 24 certificates issued by the company alleged to be outstanding and the 9 certificates issued by the trustees, alleged to be outstanding, making a total of 33 shares, constitute all of the stock of the company. That the company had always recognized the validity of said 9 trustee certificates as being valid stock in the company until the control of the company was acquired by defendant, Stewart, in July, 1909, when, for the first time, the company repudiated the rights of the alleged 9 outstanding trustee certificates.

Plaintiffs allege that the original certificate A-84 has been lost or destroyed, but that the books of the defendant company show same to be a valid outstanding share of stock therein. Plaintiffs allege they are entitled to the entire estate of Samuel P. Williams and Sarah P. Williams, and of Thos. F. McKinney.

The original petition was filed July 13, 1910. The prayer of the petition was for a discovery by the defendants setting forth all the contents of the books, records, and other papers in their possession relating in any way to the trustees’ stock and to the 9 lost trustees’ certificate shares, including the plaintiffs’ share, and for a production on the trial by the defendants of all of said books, records, and papers which are referred to in detail in the petition. They further pray that they be adjudged and declared the owners of said share of stock, and that a renewal certificate be issued to them in the, form used by the defendant company, and that they be decreed to share ratably and equally as. the other renewal stockholders of the company have done in all earnings and accumulations of property of whatever nature by the company, and that they have judgment for the amount of the dividends due'on their share, to wit, $32,500, and that a lien be fixed upon the property of the corporation to secure the payment of the said dividends. They further pray: That the transfer and alleged sale of the land to the said Stewart, together with the deeds of conveyance, be set aside and canceled. That all of the proceedings whereby the said Stewart undertook to liquidate the affairs of the corporation be set aside, and that they have judgment against the said Stewart for such damages as may have been sustained by the corporation by reason of his conduct. They further pray that their right to a proportionate share of all the property and assets of the corporation 'then on hand be fixed and decreed by the judgment, and for general relief.

The answer of defendants denies that certificate No. 84 out of Book A was issued to Thom'as E. McKinney for account of McKinney & Williams, and avers that if said share of stock was ever owned by McKinney & Williams they sold and transferred it during their lifetime, and it was surrendered to and canceled by the defendant company. They also pleaded statutes of limitation of two, four, and ten years.

The cause was submitted to a jury in* the court below upon special issues, and in response to the questions submitted in the charge the jury found that ihe certificate in question was transferred or disposed of by McKinney & Williams, and that it was “surrendered or disposed of to or sunk in the Galveston City Company.” Upon this verdict judgment was rendered in favor of the defendants.

The undisputed evidence sustains the allegations of the petition as to the original ownership of the property which became the capital of the Galveston City Company, the issuance of certificates of shares in said property by trustees,' the organization of the joint-stock company and of the present company. The evidence further shows that trustees’ certificate No. A-84 was issued to Thomas E. McKinney . for the firm of McKinney & Williams on August 21, 1838. Thos. E. McKinney died in 1876, and Samuel M. Williams in 1858. Plaintiffs are heirs and legatees of said McKinney & Williams. Williams was one of the members of the first board of directors of the company, and continuously served in that capacity. Shortly after its organization the board ordered that a stock ledger be opened, and directed all persons holding trustees’ certificates to surrender them and take in lieu thereof certificates issued by the company.

On May 21, 1839, McKinney & Williams obtained from the Galveston City Company, unincorporated, a certificate numbered 1 for 62 shares. The form of this certificate is substantially as follows:

“Be it known that' McKinney & Williams is entitled to 62 shares of the Galveston City Company stock on which $- has been paid.”

An account was opened in the stock ledger with McKinney & Williams, showing the account of McKinney & Williams, and showing that on that date' they were recognized and regarded as stockholders to the extent of 62 shares, as evidenced by a new certificate held by them, numbered 1.

In the stock ledger there appears the stock account of McKinney & Williams. The first entry in this account is under date of May 20, 1839, and shows a stock credit of 62 shares. This account is credited with various shares of stock, and this account charged with various shares of stock, some surrendered by McKinney & Williams td the company, and others transferred -to various persons. This account shows that on May 3, 1845, McKinney & Williams had a balance to their credit of 6 shares of stock, and shows, further, that on September 25, 1848, one-half of said 6 shares, to wit, 3 shares, were transferred to the Galveston City Company by Thos. E. McKinney, and that on the same day the balance of 3 shares was transferred from the account of McKinney & Williams, thereby closing such account. In closing this account it shows that these 3 shares (being one-half of said 6 shares) were carried to the credit of Samuel M. Williams on September 25, 1848. The stock account of Samuel M. Williams also appears in said stock ledger. This account shows that on May 12, 1846, Samuel M. Williams received to his credit 2 shares transferred to him by O. C. Givens. This account of Samuel M. Williams then shows under date of September 25, 1848, a credit of 3 shares, the entry thereunder .reading as follows:

“McKinney & Williams balance a half interest in 6 shares. The other half being- transferred by McKinney to the Galveston City Company.”

McKinney signed a power of attorney on November 9, 1840, reciting that the firm of McKinney & Williams and Moseley Baker owned exactly 46 shares on that date, and it was proven that Baker then owned 44 shares, from which it appears that McKinney & Williams on that date owned only 2 shares. The stock ledger discloses that McKinney & Williams on said date did own exactly 2 shares, and shows these 2 disposed of. The statement of account rendered by Borden, agent, to McKinney & Williams also shows that said firm owned 2 shares and no more on said November 9, 1840. The 2 shares owned by said firm on November 9, 1840, are shown to have been subsequently surrendered to the company and canceled.

■ In 1858 McKinney 'wrote a letter to Judge William P. Ballinger, in which he states that he was a stockholder of the company until about eight years before the date of the letter, at which time he thought he transferred and disposed of all his interest to other parties.

The certificates issued by the trustees were transferable by indorsement, and no record of their transfer was required. J. P. Cole, ■who was agent and secretary of the company for a number of years, testified in a suit brought by Thos. J. Scott against the Galveston City Company to recover a share of stock in said company, wliicli suit was tried in 1874, that he had seen certificates A-84 among the exchanged and redeemed shares on file with the papers of the company. McKinney & Williams and also McKinney were indebted to the company in considerable amounts, and McKinney was in very straitened circumstances for many years before his death. No claim was ever made by either that they owned the share of stock in the company which plaintiffs now claim.

We think this evidence clearly sufficient to sustain the findings of the jury.

The first assignment of error complains of the refusal of the court to sustain plaintiffs’ objections to the introduction in evidence of a letter from Thomas F. McKinney to Judge William P. Ballinger written in 1858, on the ground that the letter was a confidential communication between attorney and client and made by reason of their relations as such and for the purpose of enabling the attorney to perform his professional duty in regard to the matter communicated, and was therefore privileged.

The bill of exceptions shows that on November 25, 1857, William P. Ballinger, who was attorney for defendants in a suit then pending in the United States Court at Galveston, styled Harvey Baldwin v. Galveston City Company et al., wrote Thomas F. McKinney, who was then at Austin, a letter which contains the following:

“I sent Baldwin’s interrogs to you. You replied that you could not answer them. My dear sir, you must answer them. If you don’t know or have forgotten, answer so far as you can recollect. You are obliged to answer. You endanger your interest not to do so. You are a defendant to said case, and you can’t neglect it. I don’t think whatever may be your answers that there is any chance of your losing anything, but still you are obliged to answer, and that under oath. So just sit down and give an hour as patiently as you can to looking many letters and to interrogs, and answer them as fully as you can. I will then draw up the answer in form and return it to you unless the other side waives its being sworn to. But you can’t refuse to answer. If you don’t remember say so to each interrogs, but state facts as far as you can remember.”

Defendants offered this letter in evidence, and in connection therewith the following letter from Thomas F. McKinney to Judge Ballinger, which was written in 1858, and produced from the letter files of the firm of Ballinger & Jack, of which Judge Ballinger was a member at the time the letter was written:

“Dear Ballinger: I wrote you long since answering the interrogatories and giving you the facts which you cannot have received. I have known Baldwin, Holman and Borden for many years; don’t recollect how long. I was not to my recollection a stockholder in 1850; the books of the company, however, will show the fact. I was a stockholder from the formation of the Galveston City Company until about eight years since when I think I transferred all my interest to other parties my interest varied as to quantity as I was frequently procuring and disposing of stock. I was director, but do not recollect date. The books of the company will better tell the facts. It is no use to talk to me about dates; Gail Borden, Jr., was agent for a long time, and Dr. Levi Jones preceded him. I cannot pretend to give dates, and I cannot now say that I recollect the location of a single lot in Galveston without aid of maps. I had conversation with Baldwin some years since about his ownership of lots in Galveston, but do not recollect the date or number of lots, nor can I say how often Baldwin bored me on tibe subject, nor can I now recollect all or much of the conversation had with Baldwin. Neither Williams nor myself have any interest in the judgment against Holman ; it belongs to Mrs. Toby. Tom and Riley receipted to Mrs. Toby for Holman note, and how the judgment was ever rendered in 'our name I cannot tell. I acted as Mrs. Toby’s agent and remitted to her all I received. I know nothing about Holman having lots in Galveston. Ed-monds, who is always hunting up something, came to me and asked me if I could give him one-half of the proceeds of any property of Holman’s which he could find and made subject to the judgment. I told him I would. He procured the execution from Houston, pointed out the property, and had it sold and bought in. I transferred what he said was his and the whole of the property passed out of my hands; he, Edwards, swindling me as I afterwards learned, or rather Mrs. Toby, for whose benefit the transaction was made.
“Yours truly, Thos. F. McKinney.”

All of the records of the case of Baldwin v. Galveston City Company, except the court docket, which only gives the style of the ease, as before set out, have been destroyed. Nothing is shown as to the nature of the suit or the parties thereto in addition to the docket entry and the statements in these letters.

We think it clear that the statements in the letter of McKinney were in response to interrogatories which had been sent to him by Judge Ballinger and were intended to be used as evidence on the trial of the case. Judge Ballinger advises McKinney in his letter inclosing the interrogatories to write him a letter giving as accurate answers as he could to the interrogatories, and he would then draw up the answers in form and return it to him (evidently for his signature and affidavit), unless the opposing parties waived its being sworn to. It is, we think, apparent from McKinney’s letter that it was written to answer the questions propounded, which had been answered in previous letters that Judge Ballinger had not received, and that such answers were .to be used in evidence upon the trial of the case. It being intended that the statements contained in the letter should be used as evidence in the case, such statements were not privileged. Henderson v. Terry, 62 Tex. 282; Railway Co. v. Brooking, 51 S. W. 537.

The several assignments of error which assail the judgment on the ground that there was no evidence sufficient to authorize the submission to the jury of the issues submitted by the charge, and that the verdict of the jury is without evidence to sustain it, are disposed of by our fact conclusions before set out, and will not be discussed.

The contention that appellees are not entitled to show by circumstantial evidence that the certificate in question is not now owned by appellants, without showing that it is now held and claimed by some one else, there being no record of the transfer upon the books of the company, cannot be sustained. This contention was fully discussed in the opinion of this court in the case of Condit v. Galveston City Co., 186 S. W. 402, which was a companion case to this, and was overruled. We do not wish to add to what was said in the case cited upon this subject.

The cross-assignment of error presented in appellees’ brief is without merit, and is overruled without discussion.

All of the assignments presented in appellants’ brief have been considered, and none of them, in our opinion, should be sustained. It follows that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
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author: LANE, J.

text:
    MILLER & VIDOR LUMBER CO. v. ATCHISON, T. & S. F. RY. CO.
    (No. 7292.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 12, 1917.)
    CARRIERS <&wkey;194r- Carriage of Goods — Shipment “Freight Collect” — Liability op Consignor.
    Where lumber was delivered to a carrier under a bill of lading, naming the consignee, and showing that the lumber was to be shipped “freight collect,” and the lumber was transported from the point of delivery to-the point of destination named in the bill of lading, and carrier performed its contract and tendered the shipment to the consignee at the point of destination and consignee refused to receive the same or pay the freight charges after due notice, and the consignor was within a reasonable time thereafter notified of such refusal and took no steps to pay the freight charges or take care of the lumber, and the carrier in conformity with law sold the goods to enforce its lien for charges, and there is still a balance due, the consignor is liable to the carrier for such balance, since the liability of the consignor with whom a contract of shipment is made for the charges provided for therein exists regardless of whether or not the consignee is the owner, and irrespective of the failure of the carrier to collect freight from the consignee.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 870-872.]
    Error from District Court, Galveston County; Clay S. Briggs, Judge.
    Action by the Atchison, Topeka & Santa Fé Railway Company against the Miller & Vidor Lumber Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Stewarts, of Galveston, for plaintiff in error. Terry, Cavin & Mills and Jno. G. Gregg, all of Galveston, for defendant in error.
   LANE, J.

For the purpose of more clearly presenting the issues involved, we will, at the outset, make a statement of the nature of the case, as follows:

On or about each of the days of October 1, 9, and 14, 1909, the plaintiff in error, Miller & Vidor Lumber Company, a corporation incorporated under the laws of the state of Texas, delivered to the Gulf, Colorado & Santa Fé Railway Company, a carrier of freight for hire in the state of Texas, one carload of lumber at Waukegan in said state. Said three cars of lumber were delivered to said Gulf, Colorado & Santa Fé Railway Company and consigned to one E. B. Lombard at Chicago in the state of Illinois, “freight collect.” All of said lumber was transported by the Gulf, Colorado & Santa Fé Railway Company to its connection with the Atchison, Topeka & Santa Fé Railway Company, a corporation incorporated under the laws of the state of Kansas, plaintiff herein, and there delivered to and transported by said last-named company to Chicago, Ill., in proper time. Within a reasonable time after each of said cars of lumber had reached Chicago, E. B. Lombard, the consignee, was notified of the arrival of same, and that the same, would be delivered to him upon payment of the freight charges due thereon. The freight charges due on said lumber was 8454.22. After such notice had been received by said Lombard, he notified defendant in error that the lumber was not such lumber as he had ordered from plaintiff in error, and that he would not accept and receive the same. Immediately after notice of such refusal of Lombard to accept said lumber, defendant in error requested plain-tin in error to advise what disposition they wanted made of said lumber. Neither plaintiff in error nor E. B. Lombard, consignee, made disposition, or advised defendant in error what disposition to make of the same. Said lumber remained on the cars at Chicago and in storage, while defendant in error awaited advice as to its disposition, until the lawful charges for demurrage, unloading, and storage had amounted to 8389.79. Defendant in error finding it impossible to have the freight and other charges due on said lumber paid by either the consignee or the shipper, in due time and in accordance with law had said lumber sold to pay the charges above mentioned, aggregating 8844.01, and the further sum of 847.99 incurred in making said sale under the law, all of which aggregated the sum of $892. At said sale said lumber was sold for the sum of $160, which, deducted from the aggregate sum of $892 due for freight, demurrage, storage, and other expenses above stated, left an unpaid balance thereof of $732, for which defendant in error sued in this cause. No payment was ever made upon the claim of defendant in error other than the $160 above mentioned. The Atchison, Topeka & Santa Fé Railway Company, defendant in error, became and is the owner of the entire unpaid balance of said $892 due for freight, demurrage, etc.

At tlie time said lumber was delivered to the Gulf, Colorado & Santa Fé Railway Company at Waukegan, Tex., there was an agreement between Miller & Vidor Lumber Company and the consignee, E. B. Lombard, to the effect that said lumber was to he delivered by Miller & Vidor Lumber Company to some common carrier, f. o. b. cars at Wau-lcegan, Tex., but none of the common carriers which participated in its transportation had either actual or constructive notice of said agreement. The whereabouts of the consignee, E. B. Lombard, was unknown at the time this suit was brought. He has never paid Miller & Vidor Lumber Company anything on this lumber, nor has he been sued by said company for any sum growing out of the transactions above stated.

Defendant in error, on the facts above stated, sued to recover from plaintiff in error the sum of $733.01.

Plaintiff in error, defendant in the trial court, answered by general demurrer and general denial only.

The case was tried before the court without a jury, upon an agreed statement of facts, substantially las stated above, and thereupon the court rendered judgment in favor of the Atchison, Topeka & Santa Fé Railway Company against Miller & Vidor Lumber Company for the sum of $733.01.

Miller & Vidor Lumber Company has brought this case before this court by writ of error, and is insisting that the judgment of the trial court should be reversed and judgment here rendered for plaintiff in er-x’or, because, it says, the shipment of the lumber delivered by the defendant Miller & Vidor Lumber Company, to the Gulf, Colorado & Santa Fé Railway Company to be shipped to E. B. Lombard, to whom it had sold the same, upon a bill of lading, which showed that said Lombard was the consignee, and that said lumber was to be shipped to Chicago, Ill., “freight collect,” and that such bill of lading was sufficient notice to sp¿id railway company that the lumber belonged to E. B. Lombard, and that said lumber company was acting as forwarding or shipping agent -only for said Lombard, and that under such circumstances said lumber company was not, and is not now, liable to defendant in error for the unpaid freight, demurrage, storage, etc. We cannot sustain such contention. It is shown by the agreed statement of facts upon which this case was tried that the plaintiff in error delivered the lumber in question to the Gulf, Colorado & Santa Fé Railway Company at Waukegan, Tex., to be transported by it and its connecting carriers, one of which was the defendant in error, to Chicago, Ill., “freight collect,” and there to be delivered to E. B. Lombard; that defendant in error became and is entitled to all freight charges, etc., due by reason of the shipment, storage, etc., of said lumber; that neither the Gulf, Colorado & Santa Fé Railway Company, the initial carrier, the defendant in error, nor any other carrier handling said shipment, had any notice or knowledge of the terms of sale of said lumber to E. B. Lombard by plaintiff in error, or who was the owner thereof, either actual or constructive, beyond what the bill of lading imparted on its face. Ordinarily a carrier has a right to look for his compensation to the person who required' him to perform the service by causing the goods to be delivered to him for transportation, and that person is generally, of course, the consignor named in the bill of lading. The fact that the latter does not own the goods has been held immaterial, on the grounds that the carrier’s contract and right to recover his freight cannot be made to depend on what may prove to be the legal effect of the negotiations between the consignor and the consignee on the title to the property which is the subject of transportation. Furthermore, even though there is a stipulation in a bill of lading providing that the consignee shall pay the freight, that does not, of itself, relieve the consignor, and a carrier is not bound at his peril to enforce the payment of freight • from the consignee. The usual clause in bills of lading that a shipment is to be delivered to the person named, or his assignees, “he or they paying freight,” is only inserted as a recognition or assertion of the right of the carrier to retain the goods carried until his lien is satisfied by payment of the freight; it imposes no obligation on him to insist on payment before delivery of the goods. If he sees fit to waive his right of lien and to deliver the goods without payment of the freight, his right to resort to the shipper for compensation still remains. 4 R. O. L. § 310, p. 857.

In general the consignor with whom the contract of shipment is made is liable under the contract for the charges provided for therein. And this liability exists regardless of whether the consignee is the owner, and irrespective of the failure of the carrier to collect freight from the consignee.' 6 Cyc. 500.

“Even though the bill of lading provides for delivery of the goods to the consignee on his paying freight, the consignor remains liable on the contract.” Holt v. Westcott, 43 Me. 446, 69 Am. Dec. 74.

In the absence of special contract, a shipper of coal in carload lots to a consignee who declines to receive it is liable to the carrier for the freight, and also for demurrage accruing after he has notice of the consignee’s refusal. Baltimore & Ohio Ry. Co. v. Luella Coal & Coke Co., 74 W. Va. 289, 81 S. E. 1044, 52 L. R. A. (N. S.) 398.

Where a common carrier waives prepayment, and the consignee refuses to take the goods and pay the transportation charges, and the carrier in strict conformity with law sells the goods to enforce its lien for charges, and there is still a balance due, the consign- or is liable for it to tile carrier. Jelks v. Pha. & R. Ry. Co., 14 Ga. App. 96, 80 S. E. 216.

It is admitted that the carrier in. the case at bar in due time transported the lumber in question from the point of delivery to point of destination named in the bill of lading, and in all respects performed its part of the contract of shipment; that it tendered the shipment to the consignee at point of destination, and that said consignee refused to receive the same and pay the freight charges after due notice, and that the consignor was within a reasonable time thereafter notified of such refusal, and after the receipt of such notice it took no steps to pay said freight charges or to take charge of said lumber. It is also admitted that there is still due defendant in error a balance on charges for freight, demurrage, storage, etc., the sum sued for.

We think under the agreed facts that the Miller & Vidor Lumber Company is liable to the Atchison, Topeka & . Santa Eé Railway Company for the sum sued for, and, so believing, we overrule all of the assignments of plaintiff in error.

The judgment of the court below is affirmed.

Affirmed.
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