author: HUFF, C. J.

text:
    EAGLE DRUG CO. v. WHITE.
    (No. 863.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 11, 1915.
    Rehearing Denied Feb. 2, 1916.)
    1. PARTNEnSFcXP €~4S-EvIDENeE. Declaration which B. made in a contract of sale of a business, drawn up and signed by him in the absence of W., that they were partners therein, is inadmissible against W.
    [Ed. Notc.-For other bases, see Partnership, Cent. Dig. §~ 66, 68-73; Dec. Dig. ~48.]
    2. PAYMENT ~47-APPLIOATION.
    Where, pending a sale by B. to defendants of a stock of goods, on which plaintiff had a lien as security for a note given by B., it was agreed by B. and plaintiff that the purchase price should be applied first to payment of certain debts, including said note, but not a later debt of B. to plaintiff, it was plaintiff's duty, receiving a payment from such purchase price, to so apply it, whether or not defendants ia maldag the purchase assumed the payment of the note. [Ed. Note.-For other cases, see Payment, Cent. Dig. §~ 127, 129; Dec. Dig. g~i47.]
    3. Evini~o~ ~271 - OONVERSATIONS WITI{ ANOTJaEX~.
    ~tatements and discussions between plaintiff and his attorney in the absence of defendants are inadmissible on the question of the
    [Ed. Note.-For other cases, see Evideuce~ Oent. Dig. §~ 1068-1079, 1081-1104; Dee. Dig. ~271.]
    4. CONTRACTS ~229 CoNsTRUCTIoN - PAYMRNT OF DEBT.
    Defendants merely agreeing that if p1ainti~ paid off a judgment against a stock of goods which they were buying of B., he should be paid out of such money as might be due B. after other creditors were paid, were not liable for any more than was so due B.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1045-1057, 1059-1066, 1070,1077; Dec. Dig. <@=5229.]
    5. Feattd (§=>11 — -Presentations—Opinions.
    A representation as to the amount that would be due another, appearing under the evidence to have been only an opinion, the parties understanding that it was doubtful how much would be due, will not support an action of deceit.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 12, 13; Dec. Dig. <§=11J
    6. Chattel Mortgages (§=>243 — Release — Signing Bill oe Sale.
    A mortgage lien on a stock of goods is not released by the mortgagee joining in a bill of sale of the goods, it being agreed with the purchasers that it should not be delivered till the mortgagee was paid.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 508; Dee. Dig. <§=>243.]
    7. Fraudulent Conveyances ¡§=>182 — Bulk Sale — Liability of Purchaser.
    Rev. Civ. St. art. 3972, places no personal liability for the debts of the seller on the purchaser of a stock of goods in bulk.
    _ [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 568-577; Dee. Dig. <§=>1S2.]
    8. Fraudulent Conveyances (§=o182 — Bulk Sale — Right oe Mortgage.
    Though the purchaser of a stock of goods in bulk does not assume a mortgage debt thereon, the mortgagee, not having waived his lien, may foreclose.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 568-577; Dee. Dig. (§=>182.]
    9. Partnership (§=>29 — Buying Business.
    Persons, though agreeing to purchase a business and conduct it as partners, do not become partners, so that one can bind the others by contracts or representations, till the purchase is made and the business delivered them; the agreement between them being till then merely executory.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 30-33; Dee. Dig. @=>29.]
    Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.
    Action by J. F. White against the Eagle Drug Company and others. From the judgment for plaintiff, certain defendants appeal.
    Reversed in part, and remanded.
    Cook & Tant and Geo. W. Garland, all of Vernon, Seay & Seay, of Dallas, and Ded-mon & Potter and W. C. Blalock, all of Ft. Worth, for appellants. Berry, Stokes & Morgan and Bonner & Storey, all of Vernon, for appellee.
   HUFF, C. J.

This suit was instituted in the district court of Wilbarger county by J. F. White, against S. D. Bettis, J. D. De Pauw, A. S. Ross, and A. B. Garland, alleging that the three last-named parties constituted the firm known as the Eagle Drug Company. White sued on a note for $1,000, executed by S. D. Bettis, dated the 2d day of July, 1912, due October 2, 1912, payable to the order of J. F. White, bearing interest at the rate of 10 per cent, from date per an-num, and 10 per cent, attorney’s fees; and also set up a mortgage on a soda fountain and other fixtures in the drug store, which is alleged was duly recorded. It is alleged: About March 20, 1913, De Pauw, Ross, and Garland purchased the drug store from Bet-tis, who used the trade-name of Eagle Drug Store while conducting the business, that the parties so purchasing had actual and constructive notice of the above debt and mortgage, and that as part of the consideration for said property De Pauw, Ross, and Garland assumed ■ the above note, and that the above debt was one of the listed debts furnished the proposed purchasers by Bettis during the pendency of the trade and was taken in consideration as part of the purchase price, and that they agreed in writing to pay the same, and that they took charge of the store and proceeded to run the same in the name of the Eagle Drug Company. That about the 26th of March, 1913, an execution was levied on the drug store to collect a judgment of about $1,415.38, and that at' said time the purchasers had in a manner taken charge of the store and were then so in charge, with the view of getting familiar with the business and ascertaining the indebtedness against it in order to finally close the sale. That Bettis was unable to pay the judgment and discharge the execution, and that all of the defendants requested White to pay it, which he did. In order to induce White to do so, “it was agreed and understood hy and between the plaintiff and all of the defendants that all of the equity or overplus to the said S. D. Bettis, from such sale of such property, after the payment of the listed debts against the same, should be applied to the payment and reimbursement of the plaintiff of the said $1,415.38 until the same was fully satisfied, and all of the defendants, as a further inducement to plaintiff to pay said $1,415.38, represented to him that there would be a balance of at least $1,500 going to defendant S. D. Bettis, after paying all listed debts against said Eagle Drug Company, and that plaintiff should get his money back in a few days from that time, and that J. L. De Pauw, A. S. Ross, and A. B. Garland, as an inducement to plaintiff to get him to pay said $1,-415.38, represented to him and promised him that if he would pay said amount that they would see that he was repaid his said money within a few days from that time out of the price they were paying for said stock of goods,” etc. That plaintiff was unacquainted with the facts and relied on the representations and promises so made and paid the money, as requested, and agreed upon, and that such payment was a material benefit to all the defendants. That there was, after paying all of the listed debts and expenses provided for, an equity, approximately $1,500, which should have been paid to plaintiff or so much thereof as was necessary to pay the amount advanced, with 6 per cent, interest from the 26th day of March, 1913, which De Pauw, Ross, and Garland failed and refused to pay, except the sum of $503, paid about the 20th of May, 1913.

There is a prayer for judgment on the note, for interest and attorney’s fees, together with a foreclosure of the mortgage lien, and also for the balance on the $1,415.38, the sum advanced after deducting the sum of $502 paid, leaving a balance of $863.38. Plaintiff asked for judgment against all of the defendants.

The defendants, appellants herein, T. L. De Pauw, A. S. Ross, and A. B. Garland, denied specifically the assumption of the debts or either of them, or that there was $1,500 equity belonging to Bettis and specifically denied the allegations in the petition, setting up liability, and that they or plaintiff knew how much equity Bettis had in the drug store at the time of the trade. They specifically alleged, on information and belief, that White was the owner of the drug store and fixtures, alleging that Bettis had conveyed the same to him by a bill of sale. They further alleged: That about the 5th of April, 1913, White and Bettis sold and delivered to these appellees the Eagle Drug Store, and under the contract of sale therefor they were to accept as correct the list of articles and prices thereof composing said stock, as set forth in a certain inventory of said stock, made after the 20th day of March, 1913, and prior to the contract by Bettis and others. That while making the inventory certain goods and articles were sold, and that the cash realized therefrom amounted to $1,005.-45, which was on hand and held in contemplation of the sale; that these appellants would accept said sum of money in lieu of the articles sold. They agreed that the fixtures which had 'been purchased from ITous-sels and Pain should be fixed at the price as shown by the inventory made by said parties and upon which same was sold to the Eagle Drug Company, and that the remainder of the fixtures were to be the original cost price to the Eagle Drug Company. That these appellants were to pay plaintiff and the said Bettis for said property as follows: They were to assume a certain debt to the Crowdus Drug Company, aggregating the sum of $2,-100.98, in satisfaction of which it was understood the Crowdus Drug Company had then agreed to accept notes executed by appellants, payable to said company, in the sum of $300 each (except the last due), and due respectively monthly after date thereof, and appellants agreed to assume and pay certain debts due the Waggoner National Bank of Vernon, Tex., aggregating the sum of $840, and agreed to pay the sum of $5,000 cash, or so much thereof as was necessary to amount to the full of said stock and fixtures, and agreed that the ’balance over and above said sum be paid in cash, or, if appellants elected, by delivering to Bettis and White their promissory notes, payable to White’s order. It was further agreed that appellee and Bettis were to make, execute, and deliver to appellants a good and valid bill of sale, in due form, transferring the goods, and that these appellants, in connection with one A. S. Brice, and defendant Bettis, were to ascertain the amount due each of the various creditors by said Eagle Drug Company, and apply said cash payment to the payment and discharge of each of said creditor’s claims, to the extent thereof, if necessary, or as much thereof as was necessary to pay all of said debts, and any balance of said cash, if any, left after paying said debts, was to be paid over to the appellee in satisfaction of any and all interest or claim he held in or to said property. They alleged that the inventory of said stock amounted to the sum of $5,760.10; that the amount of said cash held was $1,005.45; that the total amount of fixtures which were purchased from I-Ioussels & Pain, as disclosed by the inventory, made by said parties, amounted to $2,187; and that the full amount of the remainder of said fixtures was $503. It is alleged that during the pendency of the negotiations that appellant entered into an agreement in writing with Bettis, stipulating that whatever equity Bettis had after the payment of the indebtedness of the Eagle Drug Company, which existed'prior to March 20, 1913, and all expenses incidental to the transaction (meaning the sale of the property to appellant) had been paid; that said equity, if any, was to be deposited in the Farmers’ State Bank, to the credit of appellee; and it was further provided, among other things, that the $5,000 cash payment to be paid should be applied, as far as it would go, to the then present indebtedness of the drug store; that the agreement was made the 27th day of March, 1913. It is then alleged that they applied to Bettis for a list of creditors of the company, and that they sent out notices to the creditors under the Bulk Sales Law. They alleged that they discharged the debt assumed to the Crowdus Drug Company, and the Waggoner National Bank, and ascertained the debt due on the list, which amounted to the aggregate sum of $5,284.84; that they paid, under the agreements, certain expenses incidental to the sale, to appellants, aggregating the sum of $300; that after adding up the list they believed that there was a balance remaining due on the equity of Bet-tis of $502.53, and, so believing, paid that amount to White, the appellee. They set up the fact that Bettis and White executed to them a bill of sale for the stock of goods on the 5th of April, and they allege the execution of the bill of sale aforesaid by White, as in effect a release of any claims or lien on the stock of goods sued upon by appellee.

By supplemental petition, the appellee denied generally the allegations in the answer, and denied that he had any interest in the drug store, and that if there was a hill of sale, executed by Bettis to him, that he knew nothing of it, and that it had never been delivered to him, and that the bill of sale signed by him April 5, 1913, was signed, but not to be delivered until his claim and indebtedness had been fully satisfied, and that the appellants procured the same fraudulently and without his consent, and he denies that there was any agreement made by him on the 20th of March, 1913; that the appellants tried to induce him to sign such contract as a party thereto, but that he refused to do so.

All of the allegations made by the appellants in their answer are denied by the appel-lee, and the pleadings are so voluminous that we are unable to set them out more at length than above stated.

This case was tried before a jury upon special issues, and upon their answers returned a judgment was rendered with foreclosure as prayed for on the $1,000 note, together with interest and' attorney’s fees against Bettis and the appellants, and also a judgment on the account for the sum of $872.54. From this judgment the appellant herein appealed.

The evidence in this ease shows that S. D. Bettis was in charge of the Eagle Drug Company in the town of Vernon, during the year 1912, up to March 20, 1913; that he drew up a contract, dated March 20, 1913, with the appellants herein, to convey to the appellants the drug store, reciting therein that the Eagle Drug Store, a partnership composed of White and Bettis, entered into the contract with the appellant. At the time he signed the contract White was away from home and did not return for some four or five days, and upon his return he was requested to sign the contract with Bettis, which he declined to do for the reason stated by him, that he was not the owner or interested in the drug store. The appellants proceeded, under the Bulk Sale Law, to call upon Mr. Bettis for a sworn statement of the creditors of the store, which he delivered to them and registered notices were sent out to the various creditors, who were scattered over the state, and the United States. While awaiting the required time under the law for answers from the creditors, an execution was issued out of the district court of Tarrant county, on a judgment in favor of J. D. Hag-ler, against S. D. Bettis, for the sum of $1,415.38. Before the levy was made Bettis visited White, who lived in the country some distance, and requested White to prevent the levy being made. White called up the sheriff and told him not to levy on the goods. Just what claim White made in the matter at the time he was talking to the sheriff over the phone is not clear from the testimony. However, the sheriff, after procuring an indemnity bond, proceeded to make the levy on the stock of goods, and afterwards White came in and money was procured from him to pay off the judgment and release the goods from the levy. The trade was then consummated between Bettis and appellants, and it is contended in this ease by appellants thqt White joined with him in making the trade or sale. A bill of sale was executed for the stock of goods by White and Bettis, to appellant, April 5, 1913, which appellant had in possession, but which White contends, and the jury found, was not to be delivered until the debt and claim sued on by him were fully satisfied and discharged. Some time afterward appellant paid to White $502 and some cents, by check, which White applied on the $1,415.38. W.e find in the record no aggregate amount of the inventory of the goods, and there seems to be no evidence of the creditors named in the list, furnished by Bettis to appellants during the negotiations. However, the testimony is that after paying all the other listed creditors, and the amounts which were assumed to be paid by appellants, that there was no equity in the goods except $502. This amount the appellants contend was more than the equity of Bettis in the stock of goods, for the- reason that they made some mistake in their calculation. This is simply a general outline of the facts in the ease, and the particular facts, together with the several instruments introduced in evidence, will be noticed more in detail in considering the several assignments.

The first and second assignments complain of the action of the court in charging the jury that they should not consider the contract of March 20, 1913, as any evidence of joint ownership of interest in the business between White and Bettis. The ex parte declaration of Bettis, who purported to be the partner of White, in the absence of White, is not admissible for the purpose of proving the partnership or agency. The trial court, we think, correctly instructed thé jury that the recitals in the contract, dated March 20, 1913, to the effect that White was a partner in the Eagle Drug Company, could not be considered as evidence to prove partnership. The evidence in the case is that Bettis drew up the contract and signed it for the company, by himself and as manager. White did not, according to his testimony, authorize him to do so, and refused to sign the contract, asserting that he was not a partner, and that the store was not his. Robinson v. National Bank, 98 Tex. 184, 82 S. W. 505. The rule is different where the evidence tends to show liability on the part of the partnership. Such declaration is admissible, if aliunde the declaration there is other testimony tending to establish partnership. The court did not withdraw the contract from the consideration of the jury on the question of liability if they otherwise found a partnership, but simply told them they should not consider the contract as evidence of the partnership.

At this time we will consider the seventh assignment which is to the effect that the court erred in rendering judgment for the full amount of the note sued on for the reason that the uncontroverted evidence shows that this note was one of the listed claims furnished which was to be paid, and that the $502.33 should be applied on the note, instead of on the $1,415.38 claim.

The facts in this case establish, we think, that appellants purchased the Eagle Drug Company from Bettis, arid were to pay for the stock of goods at their original cost, for the fixtures at the price fixed by an inventory thereof in a list known as the Houssels & Pain inventory, and for other fixtures at their original cost. The first written contract, which purports to be made by these appellants on the one part and the Eagle Drug Company, a partnership composed of White & Bettis, on the other part, dated March 20, 1913, provided that the stock was to be invoiced “according to correct price list of wholesale dealers in drugs and druggists’ sundries.” This contract stipulated the sellers should, when the full amount was ascertained, execute a bill of sale, warranting against every claim or debt that could be made or charged against the stock, or against the parties purchasing. The proposed purchasers agreed to pay, when the bill of sale was executed, $5,000 cash, and the balance, if any, in monthly installments of $300. This contract further stipulated that when any of the prices affixed to articles are not in accordance with the original cost of the articles, charge should be made so as to correspond with the original cost. These articles as attached appear to refer to the invoice of certain fixtures, theretofore made by Hous-sels & Pain. About the 25th day of March, 1913, this contract was presented to White for his signature, which he refused to sign, because, he claimed, he was not the owner of the store or a partner therein. The evidence at this point is very conflicting. Appellants contend that when White was informed he would be liable for the debts if he signed the contract he said he would not sign; the appellants contending that unless he (White) would get behind the deal they would not make the trade and they claim they declared the trade off. But it is certain from the evidence that Bettis was called on for a list of the claims against the business, and that he furnished that list, and it is reasonably certain the note sued on was one of the debts on the list furnished. The evidence is not clear whether the list was furnished and notice registered and sent out to the creditors just before or just after White refused to sign the contract.

It is shown by the evidence that about the 26th of March, 1913, the sheriff received an execution, issued out of the district court of Tarrant county, on a judgment in favor of Hagler against S. D. Bettis, for about $1,-415.38, with instructions to levy on the drug store. Bettis on notice of this fact visited White, who lived in the country, and while there White phoned the sheriff to let the store alone. The sheriff thinks that White claimed to own the goods, but was not certain as to what was said. White admits that he told the sheriff to let the goods alone, and that he had a lien on the goods. He also admits that he knew his lien would not warrant the sheriff in refusing to make the levy. The sheriff procured an indemnity bond, and the evidence indicates the levy was made on the 27th day of March, 1913. Bet-tis then got White to come into town, and the money was obtained from him, White, to pay off the judgment and release the store from the levy. On the 27th day of March, 1913, White and Bettis entered into an agreement. It is recited therein that an execution issued on a judgment in the district court of Tarrant county, for the sum of $1,415.38, was that day levied on the goods, and that White, for Bettis, had paid off the judgment, and that the store was transferred to De Pauw, Ross, and Garland. It was recited and agreed between White and Bettis that after the indebtedness should be ascertained and the contract entered into on the 20th day of March, between the purchasers and the Eagle Drug Company, had been complied with, then that whatever equity, if any, after all indebtedness on and prior to March 20, 1913, and all other expenses incidental to said transaction, has been paid, that the equity of Bet-tis, if any, was to be deposited in the bank to the credit of White until he is reimbursed for the amount paid on the judgment. Bet-tis also agreed to deposit the notes and accounts of the store in the bank due prior to March 20, 1913, for collection, and that upon collection the amount should be held in the name of White as trustee; and when it should be definitely ascertained how much equity Bettis had in the store funds, it should be applied as far as it would go to the amount so advanced by White; and in case there was no sufficient amount, the remainder was to be taken out of the trust fund, and the balance, if any, after said indebtedness to White shall be paid, turned over to Bettis. “It is further agreed and understood that the $5,-000 cash payment to be paid the said Eagle Drug Company store shall be applied to the payment so far as it will go [to] the present indebtedness of said drug store.” The contract is signed by S. D. Bettis and J. F. White.

White admits that De Pauw was present when he and Bettis made the above contract and knew about it. Mr. Cecil Storey, who drew the contract, says that De Pauw was present when the contract was drawn up between White and Bettis, and requested that the last clause above quoted, with reference to the $5,000, be added in the contract, which was done. White says at that time he did not know either Garland or Ross, and had no recollection of having seen them, and that whatever representations were made were made to him by De Pauw. The appellants all testified that they did not assume to pay the creditors of the drug store, except in such amount as the goods would amount to. It does not appear to be a controverted fact that the $1,-000 debt was on the list of claims furnished appellants by Bettis. There is no evidence that the $1,415.38 was on the list of claims furnished by Bettis to appellants. On the 5th day of April, 1913, Bettis and White signed and acknowledged a bill of sale to the appellants to the store, for the recited consideration of $10,000, $8,000 cash and the assumption of $2,100 indebtedness due the Crowdus Drug Company by appellant. This bill of sale the jury found that White understood was not to be delivered until he was paid. Bettis testified by deposition that appellant agreed to assume all of the indebtedness of the Eagle Drug Company, hut he also testifies that the invoice of the goods was taken and the price extended from the regular current jobbers’ list, and that there was no written agreement to assume the indebtedness of the store. We are unable to determine from this record just what the total inventory of goods and fixtures were and the total value according to wholesale prices. Neither are we able to determine who of the creditors were in the list and the total amount o^the listed debts. The appellants swear, and their testimony is uncon-troverted, that after paying the listed debts and the Crowdus Drug Company debt, which they assumed, that there was remaining an equity going to Bettis, of $502.33, which they paid by check on the 2d day of May, 1913, which was payable to the order of White, and that they indorsed in the corner of the check, “Payment in/ full of account.” The jury make no finding as to the value of the goods sold, or the amount of the listed debts.

We have concluded that the contract made by White and Bettis March 27, 1913, required all the debts prior to March 20, 1913, to be paid out of the sale and the consideration for the store; and if there then should be any equity, it should be applied on the $1,-415.38, paid by White for Bettis. The $1,-000 note, with the lien, being one of the debts so due, should first be paid before applying any part of the consideration on the $1,415.-38. The trial court should have applied the $502.33, as of the date of its payment. The agreement of March 27th amounted to a direction by Bettis and assented to by White, to apply the proceeds of the sale to the other debts designated in the list, one of which was the $1,000 note, before any of the sum should be applied to the amount advanced by White to Bettis, to release the goods from the levy; and when this payment was made to him, it was his duty to so apply it as he had agreed it should be done. Merrick v. Rogers, 47 S. W. 801; Rugeley v. Smalley, 12 Tex. 238; Bank v. Gibbs, 96 S. W. 947, Willis v. McIntyre, 70 Tex. 34, 7 S. W. 594, 8 Am. St. Rep. 574; 30 Cyc. 1237(f), 1240(2), 1248(7 and 8), 1250 (e).

The application should be so made, whether or not appellants assumed the note as part of the consideration for the store.

The eleventh assignment complains of the action of the court in admitting the testimony of Storey as to the discussion he had with White and his opinion as to the effect of the bill of sale of April 5, 1913, and his advice to White, etc. We do not believe this testimony is admissible. If it was agreed between the parties that the bill of sale should not be delivered until the payment of the indebtedness, such fact was admissible, but in the absence of the appellants or either of them,' statements made and matters discussed between the attorney and his client should not be admitted. The appellee herein contends the record shows that appellants were present on that occasion. We do not so read the record. There is a general statement made by the witness that the parties, as he understood, agreed, etc. He does not state who these parties were and when and where it was that he so understood. This evidence, as to the presence of the parties by the witness, was entirely too indefinite to admit the discussion between himself and White. Chilson v. Oheim, 171 S. W. 1074. The appellee cites the cases of Security Trust Company v. Stuart, 163 S. W. 396; Britt v. Burghart, 16 Tex. Civ. App. 78, 41 S. W. 390. The testimony complained of in this case does not fall under the rule announced in the cases cited by appellee and recognized by this court in the case of Memphis Cotton Oil Company v. Goode, 171 S. W. 284.

The twelfth and thirteenth assignments relate to testimony of De Pauw, offered and excluded. This testimony was admissible under the circumstances in connection with it. The trial court, however, appends a statement to the bill of exceptions showing this testimony was in fact admitted after appellants offered to show and did show White was present. For this reason the assignment is overruled.

Appellants present several assignments, to the effect that the answers of the jury on issues 3 and 4 are uncertain, and fail to answer the material issue in the case; that the answers of the jury did not warrant the judgment of the court on the $1,415.38 advance sued for, less the credit applied by White, and that the evidence did not support the answers of the jury. The third issue is as follows:

“If you answer the last question in the affirmative, then say whether White was induced to pay said sum by said Du Pauw, if you find he was, by the promise, if you find there was, that said sum in its entirety would be repaid to him by Garland, Boss, and De Pauw; or did De Pauw represent that they would pay White what was loft over after other creditors should be satisfied? State fully whether De Pauw made cither of such representations, if so, which? Answer: De Pauw induced White to pay, believing there was sufficient equity out of equity.”

Fourth issue:

“If in answer to the last question you say that De Pauw represented that White would be paid out of such money as might be due to Bettis after the other creditors should be paid, then state whether White was induced to part from his money on that occasion, if you find he was, by such representations, if you find there was. Answer: He was.”

The jury, by issue 3, was required to answer two questions: (1) Was White induced to pay the sum by De Pauw by a promise that the entire sum would be repaid to him by appellants? Or (2)' did De Pauw represent that they would pay what was left over and after other creditors should be satisfied? The jury’s answer to these two questions answered neither. The first question required an answer whether White was induced to pay upon an unconditional promise to pay the entire debt. The jury does not answer this question, but they answer White was induced by De Pauw to pay, believing there was sufficient equity. They do not answer that appellants promised to pay that sum in its entirety. The answer of the jury would simply indicate that White was induced to pay by representations that there was sufficient equity to pay, and not that he was induced to pay because of a promise to repay by appellants. The answer of the jury would give, if anything, White a recovery upon deceit. The question propounded called for an answer as to whether there was a contract by appellants to pay — two very dissimilar causes of action. The answer to the fourth issue would indicate that they found White was induced to part from his money by the representation that he would be paid out of such money as might be due Bettis after other creditors should be paid. If this is their finding, then clearly, if there was no money left after paying other creditors, the court could render no judgment in favor of White, for the money so advanced. All that was left was $502.33, according to this record, and according to the written agreement between White and Bettis it was agreed this should be applied to the debts owing by the business March 20th, and the equity left, after the application so made, should be paid on the sum advanced, as pointed out by us in considering assignment No. 7.

The first question in issue 3 was not raised by the pleadings. Appellee simply alleged that appellants were to pay this advancement out of the “equity” of Bettis. Now, this equity could only be ascertained by paying off the indebtedness against the store. When that was done, the equity remaining, if any, it was alleged should be paid on this sum. There was no recovery sought by the petition for this item upon an unconditional promise to pay; but it is alleged that the equity of Bettis was to be paid to White, and out of the price appellants were paying for the goods. White also sought a recovery upon misrepresentations by De Pauw as to the value of the stock and the debts against it, and the amount which would be left, going to Bettis. This issue was not submitted to the jury by either of the above questions. These representations, if made, were clearly expressions of opinion. The contract by White and Bettis, on the 27th of March, shows the amount was not then ascertained. Storey’s testimony indicates the parties did not then know what would be coming to Bet-tis after the debts were paid. In one portion of his testimony White said, at the time he signed the contract of March 27th:

“It was understood and I knew that there might not be enough money coming out of the purchase price of this drug store to pay my debt.”

We think all these facts indicate that if De Pauw made this representation it was only an opinion, and was not a representation of a fact, and did not purport to be. We therefore think the trial court, under this state of facts, should not have rendered judgment upon a finding by him that De Pauw falsely represented the facts, and thereby induced White to pay out his money. We are satisfied the trial court did not render the judgment upon such a finding, but that he regarded the findings of the jury as sufficient to authorize the judgment. We think the court was in error in rendering judgment on these findings.

The twentieth, twenty-first, and twenty-third assignments complain of the action of the court in submitting supplemental issues Nos. 1 and 2, and the answers of the jury thereto, for the reason that the'' evidence did not warrant the submission or the answers thereto. The issues are:

“(1) Did J. F. White, the plaintiff herein, accept the check for $502.33, as a payment on the $1,000 note? Answer: No.
“(2) Did J. F. White accept the check for $502.33, as a payment on the $1,415.38 matter? Answer: Yes.”

What we have said in disposing of the seventh assignment will dispose of the above. Appellee, in answer to these assignments, says the contract of March 27th shows that Bettis’ equity should be applied on the $1,-415.38. The contract clearly provides that this balance or equity is not to be so applied until all of the debts owing 'by the Eagle Drug Company prior to March 20th are paid. Bettis was the debtor in this ease, and had the right to direct the application of payments, which he did, by his written contract with White, and White thereby assented to it. Appellants knew of this direction and acted upon it. Bettis had given them a list of the debts to be paid; the $1,000 due White was one of them; the $1,415.38 was not on the list, and no claim is made that it was. When White accepted the check he did so under his agreement that the list debts should first be paid, and he could not, upon his own motion, in the face of his written agreement, place it elsewhere.

The twenty-third and twenty-fourth assignments relate to the delivery of a 'bill of sale, dated April 5, 1913. Objection is made to the finding of the jury to the sixth issue, which finding is in effect that the bill of sale, which was delivered to Sam Hogsett, was to be delivered only after White should have been paid. This objection by appellant we regard as technical and rather hypercritical. The real issue was whether appellants agreed with White that the bill of sale should not be delivered or have effect until he was paid. The issue submitted this question we think substantially. While the evidence is weak, that any such instruction was given to Hog-sett by any one, yet if it was agreed that it should not be delivered, the issue submitted would not likely be misunderstood by the jury. This conclusion disposes of the twenty-fourth assignment, to the effect that the bill of sale was a release of the mortgage lien.

The twenty-fifth and twenty-sixth assignments assert the jury were not warranted in finding that appellants assumed the payment of the $1,000 note. The jury found that appellants assumed the payment of the note. There is some evidence to support the finding. Bettis says the appellants agreed to assume all of the indebtedness of the drug store. It is true that his bill of sale recites the assumption only of the Crowdus Drug Company debt. The appellee, in reply, in support of this verdict, refers to testimony to the effect that this claim was listed as one of the debts of the drug store, and we presume that they contend that because listed, it was thereby assumed. It appears to be the construction by the courts of article 3972, Revised Civil Statutes, that if a party purchase in bulk goods the Bulk Sales Law will not impose a personal liability on the purchaser, by virtue of the law itself. Bewley v. Sims, 145 S. W. 1076; Owosso, etc., v. McIntosh, 179 S. W. 257. It does not occur to us that it was the purpose of the law to penalize a purchaser, who in good faith procures a list of the debts of the seller and gives the required notice, by making him personally liable for all the debts, whether the goods in value- are sufficient to pay them or not. In this ease the seller and purchaser agreed to the method of finding the value of the goods; that is, they were to pay the cost price as shown by wholesale dealers’ price list. This would give the consideration for the goods. We do not see very well how it can be insisted that appellants should pay more than the contract price, and thereby make them personally liable for the debts, over and above that amount. Of course if the agreement was that as a consideration for the goods the appellants assumed the indebtedness and agreed to pay them, they would be personally liable on their assumption. ' According to this record, if appellants agreed to pay all the debts, and as claimed by Bettis, pay in addition the $1,415.38 due by him to White, the appellants were wanting a secondhand stock of goods very much. If the testimony is true that there was only an equity of $502.33 after paying the listed debts, except the $1,000 note sued on, they agreed to pay something over $2,000 more than Bettis priced the goods and agreed to take. Whether they assumed this debt or not, and became thereby personally liable thereon, if White did not waive his mortgage lien, he was entitled to a foreclosure of the same for the amount of the debt, after allowing proper credits and making proper application of payments. This would be allowed him upon establishing his debts against Bettis.

The twenty-seventh assignment will be sustained for reasons given by us in considering the seventh.

The jury found that, when the levy of the execution was made, appellants were partners. They further answered an issue that appellants entered into an agreement to buy the store as partners and run it as such. Appellants had not bought the store when the levy was made. The bill of sale to them was not made until April 5, 1913, and the cash consideration was not paid until some time about the 9th of April. In the petition White does not allege that appellants had purchased the store when the levy was made, but it is alleged they in a manner had taken charge, with a view of getting familiar with the business in order to finally close the deal.

The ease appears to have been tried in the court below upon the theory that from the time appellants agreed to purchase the drug business they were partners. The facts in this case appear to be uncontroverted that appellants agreed to purchase the business and pay the original cost price for the goods, and to apply the price paid on the debts of the drug company. Garland was to have and pay in one-half, and the other two one-fourth each. We think until the purchase was made and the business delivered to appellants, they could not be said to be partners. Until this was done the agreement between appellants was an executory contract to form a partnership, and. was not a partnership, though it thereafter ripened into a partnership by being launched. The agreement was to enter into a mercantile 'business; that is, buying and selling goods. Until the business was acquired, the partnership was inchoate or tentative. Until the partnership was launched, one party to the agreement was not authorized to bind the other upon the contracts entered into- by him before the consummation of the partnership. Bates on Partnership, § 78; 30 Cyc. 358 (g), 522, 523 (14 and 15); Buzard v. McAnulty, 77 Tex. 438, 14 S. W. 138; Rojers v. Nichols, 20 Tex. 724.

We make the above suggestion for the guidance of the parties in considering the testimony as to representations made by De Pauw. If it was not then a partnership, or if he was not authorized as an agent to make suck representations, and they were not within the scope of his authority, such representations would' not bind Ross and Garland, unless they thereafter knowingly ratified the acts of De Pauw.

The judgment as to appellants Garland, De Pauw, and Ross will he reversed and remanded ; as to Bettis, who is not complaining in this court, the judgment will be affirmed. The judgment will not be disturbed as to Bet-tis. Reversed and remanded.
      <§=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CARL, J.

license: Public Domain

text:
    BEHLES v. BLUM et al.
    (No. 5562.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.
    Rehearing Denied Feb. 2, 1916.)
    Appeal and Error <@=31002 — Review—Verdict.
    Where the conditions under which an architect was to receive compensation for drawing plans were in dispute, a verdict on conflicting evidence will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ S9S5-8937; Dec. Dig. &wkey; 1002.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Ernest P. Behles against Max Blum and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    Templeton, Brooks, Napier & Ogden, and Reagan Houston, Jr., all of San Antonio, for appellant. W. H. Kennon, of San Antonio, for appellees.
   CARL, J.

Appellant sued Max Blum and Mrs. William Elaxman to recover fees for drawing plans and specifications for a house to be erected for Mrs. Elaxman. He alleged that he was to have, by agreement, 8% per cent, on an arbitrary cost of $8,000 and that, when it was found that the house designed could not be erected for that figure, they agreed that he should draw another set of plans for which he was to receive $124.38. Max Blum was the agent of Mrs. Elaxman; his sister, and carried on the negotiations with appellant. The defendants contended that it was a part of the contract that the building was to cost not to exceed $8,000, including the architect’s fees; that appellant, when it was found that it would cost $10,-500, not including architect’s fees, to erect the building, agreed to draw another set of plans which would bring it within the total cost of $8,000; but that he did not finish this second set of plans; and that they would have called for an expenditure exceeding $8,-000. The case was submitted on special issues and the jury found that appellant was to be paid 3% per cent, on an arbitrary cost of $8,000, but that, as a part of that contract, appellant agreed that the total cost should not exceed $8,000. The jury also found that, while appellant was to have $124.-38 for drawing the second set of plans, still the maximum limit of $8,000 in the cost was to obtain, and that the building so designed by the second plans could not have been constructed for that sum. They further found that the second set of blueprints were never completed. It was admitted that the building as designed would have cost $10,500.

In regard to the first plans, the essential thing is whether appellant agreed to design a house that would not exceed in cost $8,000, notwithstanding the fees were based upon an arbitrary basis of $8,000, and this the jury found he did agree to do. And it was found that $2,500 was a material variation. And so with reference to the second set of plans, for the jury found that the cost was there limited to $8,000, which the plans did not meet

There is no dispute as to how much appellant was to receive, but there is a serious disagreement as to the conditions under which he was to receive same. The jury has determined that the plaintiff did not meet those conditions, and that is an end of the matter.

We find no error calling for a reversal, and the judgment is affirmed.


text:
    HELDENFELS et al. v. SCHOOL TRUSTEES OF SCHOOL DIST. NO. 7, SAN PATRICIO COUNTY.
    (No. 5544.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Evidence &wkey;441 — Parol Evidence Ae-eecting Writing — Building Conteact.
    In an action by the contractor to recover the contract price of a school building, where a change from a tile roof to a metal roof was ordered by the architect in writing, stating that there would be no difference in the cost, it was error to admit parol testimony to show an agreement to pay the difference in value between the roofs in variance of the written order, in the absence of participation by the contractor in the alleged fraud of the architect issuing such order.
    [Ed. Note. — Eor other cases, see Evidence, Gent. Dig. §§ 1719, 1723-1763,1765-1845,2030-2047; Dec. Dig. &wkey;441.]
    2. Evidence &wkey;320 — Heabsat — Testimony OE EXPERT.
    In an action to recover for materials used in the erection of a school building by the contractor, it was error to allow a witness as an expert to testify to the value of such materials, where he obtained his information from a traveling man, to whom he submitted the specifications a week before the trial.
    [Ed. Note. — For other eases, see Evidence, Gent. Dig. § 1201; Dec. Dig. <@^320J
    3. Teial <&wkey;350 — Submission oe Special Issues.
    It is improper practice to submit numerous special issues to the jury as to evidentiary facts that merely go to establish or prove some real issue.
    [Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 828-833; Dec. Dig. &wkey;350.]

      4. Trial <&wkey;229 — Instructions—Undue.Emphasis.
    Undue emphasis of the cause of one party by reiteration of charges as to damages is improper.
    [Ed. Note. — For other cases, see Trial, Oent. Dig. § 513; Dec. Dig. <i&wkey;229.]
    5. Schools and School Districts <&wkey;8G— Erecting Building — Building Tax — Essential Allegation.
    Where the petition in a contractor’s suit against school trustees for the contract price of a building erected by him failed to allege that a tax had been levied for the purpose of creating a fund out of which the contract price of the building might be paid, the petition failed to state a cause of action.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 203-205; Dec. Dig. &wkey;S6J
    6. Principal and Surety &wkey;>100 — Contractor’s Bond — School Building — New Contract — Discharge.
    Where a bonding company executed a contractor’s bond guaranteeing a school building contract with a provision therein that the company should be notified of changes in plans and materials, and subsequently a new contract was entered into between the contractor and the school trustees, involving changes in materials and plans of which the bonding company was not advised, such company was not liable as the contractor’s surety under such subsequent contract.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 162-165; Dec. Dig. <&wkey;
    Appeal from District Court, San Patricio County; W. W. Walling, Special Judge.
    Action by C. A. Heldenfels against the Trustees of School District No. 7, San Pa-tricio County. Cross-action by defendants against plaintiff, L. W. Franks, and the General Bonding & Casualty Insurance Company. From a judgment that plaintiffs take nothing and for defendants against L. W. Franks, but without recovery against the bonding company, plaintiff and Franks appeal.
    Reversed in part, and affirmed in part.
    J. J. Carmichael and H. S. Bonham, both of Beeville, for appellants. G. R. Scott, Boone & Pope, Claude Lawrence, and Gowan Jones, all of Corpus Christi, and J. G. Cook, of Sin-ton, for appellees.
   CARL, J.

C. A. Ileldenfels sued the trustees of school district No. 7 in San Patricio county, they being T. D. Cook, J. D. Ezell, and R. L. Anthony, on a certain building contract, entered into on October 12, 1912, between L. W. Franks as contractor and said trustees, wherein the said Franks agreed to erect a school building according to plans and specifications furnished, for the consideration of $11,425. Franks did not complete the contract, but assigned the same to C. A. Heldenfels and he alleges that he did finish the building, and therefore sued for $2,212.-37 alleged to be due on the contract price. 'The school board answered by demurrer and by traverse of every material issue, and, in a cross-action, sued plaintiff L. W. Franks, the original contractor, and the General Bonding & Casualty Insurance Company, which had made the bond of Franks. In this answer the trustees aJllege that Franks abandoned the building and declined to complete same under his contract, and, without the school board’s consent, pretended to assign the contract to C. A. Heldenfels. They say they notified Heldenfels that they would not accept the assignment of the Franks contract, but that, notwithstanding this notice, Heldenfels went to work upon the building. They also charge that the architects Stephenson & Ileldenfels were in collusion with Franks and C. A. Heldenfels for the purpose of constructing said building out of inferior and defective material; that F. W. Ilelden-fels, the architect, was a partner in a lumber yard at Beeville with plaintiff C. A. Hel-denfels ; and that Franks owed Heldenfels Bros, a large bill for lumber, and it was to the interest of said Heldenfels Bros, that the building be constructed as cheaply as possible so that there would be a greater profit in the contract, to the end that Franks’ debt could be collected. They say they did not at the time know that their architects were so interested, and that, in fact, F. W. Helden-fels, in approving work and material on the building, was really not acting for the board, but was acting contrary to their and in his own interest, and for this reason they are not bound by any of his acceptances, etc. Various and sundry items of damage and violations of the plans and specifications are alleged. The board further alleged that, if the assignment of the contract by Franks to G. A. Heldenfels was good, then he breached same by abandoning the building before it was completed, and that the defective material and construction damaged them to the extent of $2,982. The board had employed Marchant & Roberts, architects, to supervise the corrections and the finishing of the building, and they made the above estimate. It is alleged that the plumbing would cost $1,-000, wiring $150; and that the reasonable value of material and labor necessary to construct outside walks and toilet buildings is $645, for which Franks should have credit. Also, that the difference between the cost of the tile roof and metal roof which was put on the building was $520. Or, that the board was entitled to $1,6.70 by reason of such changes, etc., less $645 due Franks by reason of the toilets and walks — a net balance in their favor of $1,025. It was alleged that the board had paid Franks $9,900, and that they did not know of these defects, etc., at the time he was so paid. The contract provided that for each day over the time stipulated for the completion Of the building Franks was to pay $5 and for each day under that time he was to receive a like sum. Therefore the board claimed $4,008 against Franks and the bonding company. Appellants, Hel-denfels and Franks, denied these allegations; and pleaded that the school board was estop-ped to deny that the contract was assigned, that it acquiesced therein and could not be heard to complain, and that the building was completed; and denied any iraud or collusion between the architects and Franks and Hel-denfels Bros.; and pleaded that such changes as were made in the building were made on written order of the school board. The bonding company pleaded that the contract it guaranteed was dated September 21, 1912, and the one that is alleged to have been breached was dated October 12, 1912, and that it was not liable for the breach of such subsequent contract and for changes of which it was never advised. The cause was submitted on special issues, and the judgment entered was that the plaintiffs take nothing, and that the school board recover as against Xj. W. Franks the sum of $446.63; but no recovery was had as against the bonding company and O. A. Heldenfels. Heldenfels and Franks have appealed.

The first assignment of error is directed at the action of the court in admitting testimony as to the difference in cost of the tile roof provided in the contract and the metal roof placed thereon, because the change was ordered in writing in which it was stated that there would be no difference from that provided in the contract. The jury found that the value of the changes was not agreed upon, and the allowance to be made for these changes was $615. And there was a further finding that the architects were guilty of fraud on the school board in supervising the construction and in passing on and accepting material and workmanship in the construction of the building.

F. W. Heldenfels was one of the architects, and O. A. Heldenfels was the man who took over the Franks contract, and in answer to special issue No. 15 the jury found that there was no fraud as between the architects and L. W. Franks. Nor is there any finding that O. A. Heldenfels participated in the fraud of the architects, if they practiced such, on the school board. And, unless he did participate in the same, he would not be chargeable with the fraud. In trying to hold the bonding company, appellees asserted that they had complied with all the conditions of the contract, one of which wqs that “changes must be agreed upon in writing.” This they claim they complied with, and one of the trustees, Mr. Cook, in speaking of these changes, said:

“They (the architects) didn’t talk as if they wanted to change it. The change was finally made with their approval. It was in writing.”

And F. W. Heldenfels testified that the change in the roof was made over his protest. Cook says that Franks thought there would be $500 difference between the tile and the metal roof in favor of the school board, but he says that while Heldenfels, the architect, figured on it, he does not recall what his figures were. Heldenfels says he did not make an estimate of the difference because they said there would be no change in cost. These changes were made upon written orders of the school board, and it was therein stated that there would be no change in the cost, except that in some an additional amount was fixed. Unless C. A. Heldenfels and Franks participated in the alleged fraud of the architect in the issuance of said orders, they had a right to rely on same, and it would certainly be varying the terms of a written instrument to permit Miner to testify to a different agreement from that expressed in the writing. Cook says: “Franks figured to Mr. Miller and me that there would be something like $500 difference in costs.” And the architect swears it was made over his protest. No trustee says that the architects submitted an estimate of the difference in cost. One trustee, however, does say that they had an understanding that when a change was made the proper party should receive credit for the fair and reasonable difference between the work as actually planned and that performed. This, however, was put down in writing and is not to be supplemented by testimony to show a different contract at the time. The assignment is sustained, and for the same reason the second assignment is also sustained.

We think, also, that the objection should have been sustained to the testimony of the witness Holman, as an expert, because he admitted that he got his price from a traveling man. He says the drummer knew the articles to give him prices on from the specifications, and says that these prices were given him only the week before the trial. He did not ask the gentleman of the road what those prices were a year before or at the time the work was done. Such testimony should have been stricken out when it developed that the witness was merely telling what a man had told him and that not at the time of the alleged breach of the contract.

Upon another trial of this case, if it should be determined that the architects and the contractors were in collusion for the purpose of defrauding the school board and by reason thereof induced the signing of orders which may thereby be avoided on account of such fraud, then, in the event of such finding, it would be proper to submit to the jury to find to what extent the board had been injured by reason thereof; but, unless that fraudulent collusion be established, the contracts or written orders would speak for themselves.

There were 40 special issues submitted to the jury, and they so overlap and conflict that it is a very difficult matter to ascertain just what the jury meant. For instance, the jury finds that deviations were made from the plans and specifications; that these changes were in some instances on written order of the board, and approved by the architects; that the change in cost was not always stated; that the damage on December 1, 1913, on account of defects resulting from a variance from the original plans, was $1,975; that the trustees are entitled to liquidated damages at $5 per day under the contract for 100 days; that the total cost of correcting the defects pointed out by the trustees would have been $1,175; and then the difference between the value of the building as it was at the time of the trial and when Heldenfels claimed to have completed it is $995. And, further, that a fair and reasonable allowance for emitting the plumbing and fixtures is $400, that a fair and reasonable cost of completing the toilets is $600, and that the difference in cost of the tile roof and metal roof is $500.

We have heretofore, on different occasions, condemned the practice of submitting a multitude of issues to the jury, especially on those evidentiary matters that merely go to establish or disprove some real issue. Railway Co. v. Jenkins, 172 S. W. 984; Aguinaga v. Medina Valley Irrigation Company, 168 S. W. 79. Neither should the court, by reiteration of charges as to damages, unduly emphasize the cause of one party. We therefore sustain the sixth assignment.

We cannot write this opinion properly and follow strictly the order of the briefs. What we shall do is to state our views and then the parties may apply them as may be required upon another trial.

The important thing to determine, first, is whether there was collusion between the architects and Pranks or C. A. Heldenfels as against the trustees to such an extent as to vitiate such written modifications and changes in the original contract so as to make them not binding on the board. And when this is determined then it becomes material as to the amount of damages resulting therefrom. It would be material, of course, to inquire what the damage was by reason of defective material and workmanship actually placed in the building up to the time the contractors turned it over or quit the building, and what it would cost to complete the same according to plans and specifications. And if the written orders for changes should be found not binding because of fraud as before indicated, then it would be material to inquire as to the agreement with reference to the cost of such changes; but, unless they first be found as obtained by fraud, the contractor participating, they speak for themselves.

If there were deviations from the original plans and specifications, it would be material to inquire whether same were authorized by the board, and, if they were not, th.en as to the difference in cost, etc.; but this would not apply to that part finished, because that would be covered in the general finding as to the difference between the value of the building if the work and material had been as-specified and that' actually placed therein. And as to whether the board unreasonably delayed making complaint if the testimony is such as to make it an issue as to whether the terms in the contract in regard thereto did not apply. Another inquiry might be as to whether the extensions granted by the architects (if they should be in the record) were done in fraud of the rights of the board, for, if they were not, they would be binding on the board under the contract. The contractor claims that he finished the building in December. At any rate, he quit it then, and it occurs to us that the board’s-damage then was the difference between what they contracted to get and what they actually received.

Appellee school trustees have a cross-assignment of error to the effect that the court erred in overruling a general demurrer to plaintiff’s petition because same failed to allege that a tax had been levied for the purpose of creating a fund out of which the contract price of the building might be paid. It has often been held that a petition which fails to make such allegation does not state a cause of action. School Dist. v. National Bank, 163 S. W. 340; McNeal v. City of Waco, 89 Tex. 89, 33 S. W. 322; Peck-Smead Co. v. City of Sherman, 26 Tex. Civ. App. 208, 63 S. W. 340; Noel v. City of San Antonio, 11 Tex. Civ. App. 580, 33 S. W. 263.

The contract which the bonding company guaranteed was dated September 21, 1912, and the contract upon which recovery was had was -dated October 12, 1912. The bonding company knew nothing about the various changes made, and it was provided that it should be advised of such changes. When that company guaranteed the contract or became surety, it did so in reference to the one dated September 21, 1912, as found by the jury, and did not undertake to make good a contract subsequently entered into by the board without its knowledge or consent; nor can it be held liable for changes of which it was not advised.

As between the school board and appellants, the judgment is reversed and the cause remanded; but, as to the bonding company, the judgment is affirmed.
      <£X^>For other cases see same topic and KBY-NÜMBEP, in all Key-Numbered Digests and Indexes

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

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


author: FLX, C. J.

text:
    SAN ANTONIO BREWING ASS’N v. SIEVERT.
    (No. 5563.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Masteb and Servant <&wkey;101, 102—Inju-ries to Servant—Liability oe Master-Duties oe Master.
    It is the master’s duty to exercise ordinary care to render the place for work reasonably safe for his servants.
    [Ed. Note.—For other cases, see Master and Servant) Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. &wkey;101, 102.]-

      2. Master and Servant <&wkey;226 — Injuries to Servant — Liability op Master — Oare as to Place op Work — Assumption op Risk.
    While the master is not liable for failure to provide a reasonably safe place for bis servants to work where the very progress of the work renders it impossible to supply a safe place, he is still bound to exercise ordinary care, since the servant working in such a place does not assume the risk of the master’s negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 659-667; Dec. Dig. <§=> 226.]
    3. Master and Servant <&wkey;235 — Injuries to Servant — Liability op Master — Duties op Servant — Inspection.
    A servant is not required to inspect the place provided him to work for the purpose of discovering concealed dangers, though they might be disclosed by superficial observation, but he can assume that the master has provided him a safe place and safe appliances with which to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. <&wkey;> 235.]
    4. Master and Servant <&wkey;124 — Injuries to Servant — Liability op Master — Inspection.
    Where the danger of a place to work arises from the work itself, and there is no evidence that the master had knowledge of the danger, or was, by the length of time it had existed, charged with knowledge of it, the mere failure to inspect does not determine his liability, since it must first be shown that he had an opportunity for inspection.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. &wkey;5 124.]
    5. Master and Servant <&wkey;124 — Injuries to Servant — Liability op Master — Inspection — Suppioiency.
    The duty of the master to inspect the place to work is not a continuing duty requiring inspection from time to time.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. <&wkey;> 124.]
    6. Master and Servant <&wkey;177 — Injuries to Servant — Liability op Master — Acts op Fellow Servants.
    Although the master’s duty to furnish a safe place to work is nondelegable, he is not liable to an injured servant when the place of work is made temporarily dangerous* by the act of a fellow servant.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. &wkey;177J
    7. Master and Servant <&wkey;107 — Injuries to Servant — Liability op Master — Risks op Operation.
    The master is not liable for failure to provide a safe place to work when such failure results from a risk of operation, but that liability attaches only on failure properly to construct or provide a safe place to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. &wkey;107J
    8. Master and Servant i&wkey;201 — Injuries to Servant — Liability op Master — Sape Place.
    Where a servant was injured by the falling of a barrel from a stack carelessly piled by a fellow servant, near which he was ordered to work, and there was no evidence as to when the barrels were stacked, or that the master had notice of the danger, or that the utmost diligence would have disclosed the danger, the court should have instructed that the injury resulted from the negligent act of fellow servants, and not from the master’s negligence.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. <&wkey; 201.]
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by Julius Sievert against the San Antonio Brewing Association. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Newton & Newton and Terrell, Walthall & Terrell, all of San Antonio, for appellant. Harris & Newton and Will A. Morriss, all of San Antonio, for appellee.
   FLX, C. J.

Appellee sued appellant for damages, alleging that he was its employe, and that while in performance of the duty of removing bungs from beer barrels, a barrel fell from a stack of such barrels striking and breaking his left hand. It was alleged that it was the duty of appellant to furnish appel-lee a safe place in which to work, but that it negligently placed appellee too near where 'barrels were stacked in a loose, careless, and insecure manner, and that they were stacked at too great a height and could be jarred or shaken down. Appellant denied that it had been negligent, and pleaded assumed risk, contributory negligence, and that the injury was caused by the act of a fellow servant. The cause was tried by jury, resulting in a verdict and judgment for appellee in the sum of $5,000.

The evidence showed that appellee was an employé of appellant; that he was ordered to a certain place in the building of appellant to remove bungs from certain barrels; that while so engaged a barrel fell and struck and disabled his left hand. No one was working near appellee. The evidence fails to show how long the stack from which the barrel fell had been stacked. The barrels were stacked by fellow servants of appellee.

It is the duty of the master to exercise ordinary care to render the place for work reasonably safe for his servants. This rule applies to this case, but there are facts in the case that tend to bring it within that rule which provides that, when the very progress of the work renders it impossible to supply a safe place in which the servant can work, the master may not be liable. In such a case the master is not relieved from the exercise of ordinary care, and, where the work itself creates danger, the master cannot absolve himself from liability for any dangers arising solely from a failure to exercise ordinary care. In other words, the servant, even while working in a dangerous place, does not assume the risk of the master’s negligence. In this case appellee claims that he was not working on the stack of barrels from which the barrel fell, and the evidence does not show anything to put him on notice that there was any danger from the stacks of barrels standing near where he was working. He had never known a barrel to fall from a stack except when it was knocked down by other barrels being thrown against it, and no one, according to his testimony, was near the barrels when he was injured.

As a general rule, the servant is under no obligation either to inspect the place by which his safety may be affected, or to endeavor to discover concealed dangers, which would be disclosed by superficial observation. He can act on the assumption that his master has put him in a safe place and furnished him with safe instrumentalities with which to perform his work. The duty of inspection did not rest upon him. It was the duty of the master to inspect the premises where he had his servant employed, and ascertain whether there was danger in him working near the barrels. This rule would not apply, however, in a case where the danger arises from the work itself, and there is no evidence that the master had knowledge of the danger, or was, by the length of time the danger had existed or other circumstances, charged with a knowledge of the danger. The duty of inspection rests upon the master, but there must be evidence tending to show that an opportunity for inspection arose before the accident happened.

There is a rule that the master is not under obligation to examine into the condition of his appliances from time to time for the purpose of ascertaining whether they expose the servant to those elements which arise from the manner in which the details of the work are carried out. Labatt, Mast. & Serv. § 1066. It is true that the duty of the master to use reasonable care to furnish a safe place in which his employSs can work, is nondelegable, but that doctrine does not require the utter overthrow of the rule as to fellow servants and make the master liable to a servant although the place was made temporarily dangerous by the act of a fellow servant. As said by the Supreme Court of Minnesota, in the case of Fraser v. Lumber Co., 45 Minn. 235, 47 N. W. 785:

“When it is considered that, where numerous employes are all engaged in prosecuting the same general object, there is hardly one of them whose duties do not, in part at least, in some way relate to or affect the safety of the instru-mentalities with which, or of the places in which, the others work, it is easy to see that the rule referred to may be, as it often has been, carried so far as to practically abrogate the whole doctrine of ‘common employment.’ ”

Speaking on this subject, the Court of Appeals of New York, in the case of Perry v. Rogers, 157 N. Y. 251, 51 N. E. 1021, held:

“Under the guise of an application of the rule requiring a master to furnish a reasonably safe place for his servants to work in, other attempts before this have been made to deprive a defendant of another equally well settled and just rule of the law of negligence, that a party shall not be held responsible to a servant for an injury occasioned by the neglect of a competent coem-ploye.”

The cases unite in holding that the nondelegable duty of the master in reference to providing a safe place in which to work is one of construction and provision, and not one of operation, and a master is not liable for a risk of operation, but only for those of construction or provision. American Bridge Co. v. Seeds, 144 Fed. 605, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041; Coal Co. v. Peterson, 136 Ind. 398, 35 N. E. 7, 43 Am. St. Rep. 327; Hussey v. Coger, 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787; McGrath v. Thompson, 231 Pa. 631, 80 Atl. 1109; Ponelli v. Steel Co., 64 Wash. 269, 116 Pac. 864; Henry v. Railroad Co., 140 Mich. 446, 103 N. W. 846; Conner v. Draper, 182 Mass. 184, 65 N. E. 39; Durst v. Carnegie Steel Co., 173 Pa. 162, 33 Atl. 1102.

It was held, in the case of Meehan v. Spiers, 172 Mass. 375, 52 N. E. 518, that the master is not bound to protect the servant against transitory perils. This is the theory upon which these cases rest:

“Upon the evidence, the danger to which the plaintiff was exposed was merely a transitory one, existing only on the single occasion when the injury was sustained, and due to no fault of plan or construction, or lack of repair, and to no permanent defect or want of safety in the defendant’s works, or in the manner in which they had been ordinarily used.”

The law is thus stated by the Supreme Court of Michigan in the case of Wickham v. Railway, 160 Mich. 277, 125 N. W. 22, 52 L. R. A. (N. S.) 1082, 136 Am. St. Rep. 436, Ann. Cas. 1913E, 1069:

“The authorities cited by the plaintiff relate to the rule that the master in the performance of the nondelegable duty of providing a safe place for his employSs to work cannot invoke the defense of fellow servant to evade liability. This is a sound doctrine when applied to situations where the master has failed to provide a reasonably safe place to work, or has failed to supply reasonably safe appliances. It does not follow, however, that the employer can be held responsible for the transitory negligent act of a coemployé of the plaintiff, which negligence occurs in the use- of a proper tool or instrumentality in a negligent manner, where the defendant in the nature of the case could have no knowledge of the condition, or the act of the fellow servant.”

The authorities are overwhelming on this subject, and they are practically followed in a recent decision by the Supreme Court of Texas. Telephone Co. v. Sanders (Sup.) 173 S. W. 865. To the same effect are the following Texas cases: Railway v. Farmer, 73 Tex. 85, 11 S. W. 156; Wells Fargo Co. v. Page, 29 Tex. Civ. App. 489, 68 S. W. 528. In the Farmer Case, as in this, there was no complaint of any defect in the floor or any other part of the house in which appellee was working, but the negligence consisted in the improper stacking of certain lumber, and the Supreme Court said:

“In the case before us there is no complaint of any defect of machinery, or of a want of cai-e in the employment of any servant whose negligence caused the injury. The ear upon which the lumber was loaded was neither defective nor out of repair. The negligence consisted in loading the lumber in an improper manner.”

The court held that Farmer had no cause of action.

In this case there is no allegation or proof that the place furnished by appellant was not a reasonably safe one, and the sole ground of negligence is the improper piling of the barrels. The piling was admittedly done by fellow servants. There is no evidence as to when the barrels were stacked. There is no evidence tending to show that appellant had any notice whatever of the dangerous .condition in which the barrels were stacked, or that the utmost diligence would have disclosed such dangerous condition. The only evidence as to the time when any of the barrels were stacked is that the pile upon which appellee was working had been there for about three days, and that it had been there longer than any of the other stacks. Did the master know the unsafe condition of the barrels at the time that appellee was ordered to work near them, if he was so ordered, or were the circumstances such as to charge appellant with knowledge •of the condition of the barrels? The evidence fails to answer. It merely shows that appellee was injured by the negligence of fellow servants, and not by any negligence of the master. The court should have so instructed the jury.

The judgment is reversed, and the cause remanded.
      ig^jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SAN ANTONIO, U. & G. R. CO. v. GREEN et al.
    (No. 5572.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 5, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Damages '<&wkey;173 — Personal Injuries — Evidence — Admissibility — Pecuniary Condition.
    A brakeman suing for injuries in coupling cars could show the amount he was capable of earning, and had earned with other companies in the past.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 400-492, 501; Dec. Dig. &wkey;173J
    2. Damages <&wkey;10>6 — PERSONAL Injuries — Evidence — Admissibility—Pain and Suffering.
    In a brakeman’s suit for injuries in coupling cars, evidence as to what was done to his injured leg after the accident was admissible to show his pain and anguish.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 478, 479, 481; Dec. Dig. <©=166.]
    3. Tbial <&wkey;253 — Instructions — Ignoring Issues.
    In a brakeman’s action for injuries in coupling cars, a requested instruction denying his right to recover, if he was eontributorily negligent, whether the defendant was negligent or not, was properly refused, since it ignored the state and federal statutes on comparative negligence.
    (Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. &wkey;253.]
    4. Appeal and Error <&wkey;1033 — Error Favorable — Instructions.
    In a brakeman’s action for injuries in coupling cars, where the court instructed that if the injury resulted from plaintiff’s negligence he could not recover, defendant could not complain of the refusal of his requested instruction that plaintiff could not recover if he was negligent whether defendant was negligent or not; the instruction given being more favorable than defendant was entitled to have.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. <@= 1033; Trial, Cent. Dig. § 587.]
    5. Master and Servant <&wkey;289 — Injuries to Servant — 'Violation oe Rules — Question eor Jury.
    In a brakeman’s action for injuries in coupling cars, it is not error to refuse a requested instruction making it negligence for the brakeman to disobey a company rule; such a rule not having the effect of a statute, and its violation not being negligence per se.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. <®=289.]
    6. Appeal and Error <&wkey;1033 — Error Favorable-Instructions.
    In a brakeman’s action for injuries in coupling cars, where the court charged that he could not recover if his negligence caused the injuries, defendant could not complain of the refusal of its requested charge on comparative negligence, which was less favorable than the charge given.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. &wkey;> 1033; Trial, Cent. Dig. § 587.]
    7. Negligence <&wkey;101 — Injuries to Servant —Liability oe Master — Comparative Negligence.
    A brakeman’s action for injuries in coupling ears cannot be wholly defeated by a showing of his greater comparative negligence, unless his negligence alone caused the injury.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dec. Dig. &wkey; 101.]
    8. Master and Servant <0=203 — Injuries to Servant — Actions — Defenses — Assumption oe Risk.
    Assumption of risk causing his injury will defeat an injured brakeman’s action for damages for the injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. <0= 203.]
    9. Negligence <&wkey;101 — Injuries to Servant —Actions—Defenses—Contributory Negligence.
    Contributory negligence of a brakeman will not defeat his action for the injuries received in coupling cars, where the company was also negligent, but merely reduces the amount of his recovery.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dec. Dig. &wkey; 101.]
    10. Damages <&wkey;132 — Personal Injuries —Excessive Damages.
    A verdict of $18,000 damages for loss of a brakeman’s leg while coupling cars is not excessive merely on the ground of comparative negligence, where intense suffering is shown, and plaintiff is a young man, especially where a proper instruction on contributory negligence was given and the jury absolved him of such negligence.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. &wkey;132.]

      Error from District Court, Bexar County; S. G. Tayloe, Judge.
    Action by T. H. Green against tbe San Antonio, Uvalde & Gulf Railroad Company, in which Duval West was made a party by amendment pendente lite, as receiver for the defendant company. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Williams & Hartman, of San Antonio, for plaintiff in error. C. C. Harris, Perry J. Lewis, Champe G. Carter, Randolph L. Carter, and H. C. Carter, all of San Antonio, for defendants in error.

       Application for writ of error pending in Supreme Court.

   FLY, C. J.

This is a suit instituted by T. H. Green, originally against the plaintiff in error, but afterwards amended to make Duval West a party who had pendente lite been appointed receiver of the railroad by the federal District Court, to recover damages alleged to have accrued to said Green by reason of the negligence of said railroad company in crushing his right leg between two cars, while he was engaged in making an air coupling, which it was his duty to make, as a brakeman, in the employ of plaintiff in error. Plaintiff in error pleaded assumed risk and contributory negligence. The cause was tried by jury, resulting in a verdict and judgment in favor of Green as against plaintiff in error in the sum of $18,-000, and against Green as to the receiver.

The evidence justifies the conclusion that T. H. Green was permanently disabled through the negligence of plaintiff in error, in backing a car upon him while he was engaged in the duty of coupling two cars. He was not guilty of contributory negligence and did not assume the risk.

The first assignment of error is overruled. Green showed that he was a railroad brakeman, and it was proper for him to show what he had received when he worked, as a brakeman, for another railway company. As to that part of the assignment relating to what is denominated “the standard wage,” there is nothing in the record to show that any such evidence was admitted. Evidence as to what a man was capable of earning and had actually earned in the past and with other companies would be permissible. Railway v. St. Clair, 21 Tex. Civ. App. 345, 51 S. W. 666; Railway v. Murphy, 49 Tex. Civ. App. 586, 109 S. W. 489; Wells-Fargo Co. v. Benjamin, 165 S. W. 120.

The second assignment of error attacks the action of the court in permitting any testimony as to what was done to Green’s leg after the accident. There is' no merit whatever in the assignment. The testimony did not tend to establish a different case from that alleged, and was perfectly legitimate to show the pain and anguish that was suffered by the injured party. The assignment of error is overruled.

Through the third assignment of error the plaintiff in error assails the action of the court in refusing to give a special charge presenting contributory negligence on the part of Green. The charge required a verdict for plaintiff in error regardless of whether it was guilty of negligence or not, ignoring the state and federal statutes on comparative negligence, and was properly refused. At the request of plaintiff in error, the court did instruct the jury as follows:

“You are instructed that, if you believe from the evidence that the injury to the plaintiff was caused by his own negligence, then you will return a verdict for the defendant.”

Plaintiff in error in that instruction obtained more than it was entitled to under the law, and cannot be heard to complain that the error in its favor was not repeated.

The fourth assignment of error complains of the refusal to give a charge in which it was made negligence on the part of the brakeman to disobey a rule formulated by plaintiff in error. The charge did not embody the law. It is not negligence per se inviolate a rule promulgated by a railroad corporation. The rules of a railway corporation do not have the effect of the statutes of a commonwealth. Railway v. Bodie, 32 Tex. Civ. App. 168, 74 S. W. 100; Railway v. Allen, 48 Tex. Civ. App. 66, 106 S. W. 441. The-charge was in other respects on the weight of the evidence.

The charge on comparative negligence, the rejection of which is complained, of in the fifth assignment of error, is in direct conflict with a charge herein copied which was requested by plaintiff in error and given by the court. We fail to see how plaintiff in error could be injured by a refusal to give a charge which, in case of negligence of ifiaintiff in error greater than that of Green, might permit a verdict against it, when one was given which absolutely precluded Green from a recovery if he was guilty of any contributory negligence. Plaintiff in error presented irreconcilable charges on negligence to the court, and there is no ground for complaint that all were not given, and especially in face of the fact that the court selected the most favorable charge to it and gave it to the jury. The question of whether the negligence of the injured party was the proximate cause or in any way contributed to his injury was completely ignored in the charge. The charge failed to give the proper definition of “comparative negligence.” The injured party could not be deprived of all damages because his negligence was greater than that of the railway company. In order to defeat a recovery under the rule of comparative negligence, the contributory negligence must be the sole cause of the accident. Pope v. Railway (Sup.) 155 S. W. 1175; Railway v. Moya, 173 S. W. 608. In the last-cited case the opinion was written by the Chief Justice of this court, although credited in the report to the Chief Justice of the Third Court of Civil Appeals.

The sixth assignment of error is overruled. The contributory negligence of the injured party did not preclude a recovery. Assumed risk would preclude such a recovery, and the court so informed the jury in his main charge. In a special charge requested by plaintiff in error, the jury was told that Oreen could not recover if he was guilty of contributory negligence, and under the two charges the jury must have found that he did not assume the risk and was not guilty of contributory negligence. Contributory negligence is not a defense for a railroad company, when it is also guilty of negligence; it merely lessens the damages. This phase of the matter was properly presented in the charge of the court, and the rule of comparative negligence properly given.

The verdict is claimed to be excessive merely on the ground of comparative negligence on the part of Green. The jury found that he was not guilty of contributory negligence, and therefore the contention is without foundation or basis. The court instructed the jury :

“However, if you find from the evidence that plaintiff was guilty of contributory negligence, as alleged by the defendant, then such contributory negligence will not defeat his recovery; hut the damages which you may award the plaintiff should be diminished in proportion to the amount of negligence, if any, attributable to the plaintiff.”

Of course, that charge was based upon the hypothesis of a finding that plaintiff in error had been guilty of negligence which resulted in injury to Green. No request was made for an instruction that, if the contributory negligence of Green was the sole cause of the injury, he could not recover. Under the facts, the verdict was not excessive. Defendant in error Green, a young man, is maimed for life, and suffered, and is suffering, greatly.

The judgment is affirmed.
      <@E5>For other cases see same topic and KEIf-NUMBER. in all Key-Numbered Digests and Indexes