author: HADE, J.

text:
    HEATON et al. v. STATE NAT. BANK.
    (Court of Civil Appeals of Texas. Amarillo.
    June 28, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. Bills and Notes (§ 489) — Action—'Variance — Exhibit.
    The note sued on being attached to the petition as an exhibit, there could be no variance between the allegation and the proof such as' would surprise defendants when the note was offered in evidence.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1587-1642; Dec. Dig. § 489.]
    2. Principal and Surety (§ 104) — Provision por Extension — Discharge op Surety.
    Provision in a note, signed by a surety, as well as the principal debtor, that time of payment might be extended without notice thereof permitted of but one extension; so that a subsequent extension, without the knowledge and consent of the surety, binding the payee, discharged the surety.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 186-190, 193-195, 197-199, 200; Dec. Dig. § 104.]
    Appeal from District Court, Tarrant County; Thomas Simmons, Judge.
    Action by the State National Bank against W. S. Heaton and others. Judgment for plaintiff, and defendant R. Vickery appeals.
    Reversed and rendered as to appellant.
    Orrick & Terrell, of Ft. Worth, for appellant. W. B. Paddock and F. M. Bransford, both of Ft. Worth, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HADE, J.

This suit was brought by appel-lee bank against W. S. Heaton, George Bury, and R. Vickery, upon a promissory note, dated May 15, 1908, due 90 days after date, in the sum of $2,500, stipulating for 10 per cent, interest and 10 per cent, attorney’s fees. The note sued upon was made an exhibit to the petition, and was executed by R. Vickery, “as security.” Defendant Vickery replied by general demurrer and special demurrer, because there was a variance between the allegations in the original petition and the exhibit, in that the original petition declared against him as a maker, while the note showed he was merely a surety, and setting up the four-year statute of limitation. Pie specially pleaded that he signed the note as surety, and was liable upon the same as such, which was well known to the bank; that after the maturity of the note for a valuable consideration, without his knowledge or consent, time of payment thereof was extended from time to time, and that plaintiff continued this every 90 days for a period of 18 months or longer, and that by reason of such facts he is released; that when he signed the original note, of which the one in suit was a renewal, he signed the same as surety, •and that at the time he signed this note, Heaton and Bury were in good standing financially, and within the defendant’s knowledge were the owners of about 600 acres of land in Tarrant county, some lots and blocks in Ft. Worth, and of a number of vendor’s lien notes; that after defendant signed the note in suit, plaintiff bank extended other credits to Heaton and Bury, who were already largely indebted to plaintiff in sums to this defendant unknown; .that no notice was ever given this defendant of the fact that Heaton and Bury had not paid said note when it matured, nor did he know that the time of payment had been extended from time to time upon the payment of interest in advance on same, nor did he consent to said extensions. There are other allegations not necessary to be noted here. By supplemental petition, the bank alleged that the note was extended from time to time for a valuable consideration paid by the defendants Heaton and Bury, and that said consideration was credited on the back of said note; that same was extended to a certain time, which was done according to the conditions described and agreed to in said note by all the parties; that it had been the custom in the dealings between it and the said defendants, Vickery, Heaton, and Bury, that upon the maturity of a note, instead of executing a new note for the parties, to pay interest for an extension, which would be thereupon indorsed upon the back of the note; that Vickery had signed other notes in which this method had been pursued; that the extensions complained of were made in accordance with the term of the note and the custom existing between the parties. The note in question contained the following provision: “The makers and all indorsers hereof severally waive presentment for payment, protest and notice of protest and consent that time of payment may be extended without notice thereof.” When introduced in evidence the note showed that upon the date of its maturity, August 13, 1908, the interest was paid and the note extended to October 12, 1908, and contained 10 other extensions; the last being to December 9, 1909. Defendant Bury introduced his discharge in bankruptcy which had been pleaded. On a trial before the court without the intervention of a jury, judgment was rendered discharging Bury and in favor of the bank against the defendants W. S. Hea-ton and B. Vickery. From this judgment K. Vickery alone appealed.

The trial court found the following facts, in substance: That at the time of the several extensions interest was paid in advance to the time when the payment was extended; that Vickery had no notice of the payments of interest in advance, nor of the extensions of the time of payment; that the original note made by the parties had been renewed three times, and that the various extensions were of the last note; that Vickery did not know the last note had not been paid until November or December, 1909, and that he did not consent to any of the extensions of the time of payment; that the bank knew at all times that Vickery was merely a surety upon the note.

The first assignment of error is without merit.' The original note sued upon having been attached to the petition as an exhibit, there can be no variance between the allegation and the proof such as would surprise the defendants when the note was offered in evidence. The real question in this case is whether or not the stipulation quoted above, to the effect that the time of payment might be extended without notice thereof, permitted repeated extensions of the time of payment without the knowledge and consent of appellant, Vickery. We have not been able to find any Texas case in which this question has been considered. In the ease of Oyler et al. v. McMurray, 7 Ind. App. 645, 34 N. E. 1004, the note sued upon had this provision: “The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and nonpayment of this note, and all defenses on the ground of any extension of the time of its payment that may be given by the holder or holders to them or either of them.” In discussing this point in the case, we quote from the opinion as follows: “The third paragraph, however, in our opinion, states facts sufficient to constitute a defense to the cause of action. The term ‘any extension’ is used in the singular sense. It is not intended for an indefinite number of extensions of the time of payment. When the appellee, at the end of one year from the date of the' note, extended the time of payment until January 1, 1889, such extension was in accordance with the agreement of the parties, as we have before stated, and all the parties, including appellant Oyler were bound by it, and he was not thereby discharged. The agreement, however, contained in the stipulation in the note, was met and satisfied by that extension. The other extensions, or any of them, if made as alleged, had the effect of discharging him. Bank v. Chick, 64 N. H. 410, 13 Atl. 872. In Bogers v. Warner, 8 Johns. (N. Y.) 119, a letter of credit was given, stating: ‘Our sons wish to take goods of you on credit. We are willing to lend our names as security for any amount they may wish’ — and it was held: ‘The true construction of the letter of credit is that it is to be confined to the first parcel of goods.’ In another case a father wrote that he would hold himself accountable for ‘any sum’ that his son might become indebted, not exceeding $200; and it was held that' ‘the words are evidently satisfactory when any one indebtedness is incurred.’ White v. Reed, 15 Conn. 457. In another case the language was: ‘Í will guaranty the payment of any goods you may sell him’ — and it was held to refer ‘to but one transaction, and not to a number of transactions.’ Schwartz v. Hyman, 107 N. Y. 562, 14 N. E. 447. When the word ‘any’ is used in plural sense, a different rule applies; as, for instance, ‘any facts and circumstances.’ * * * The language of the stipulation, however, in this case, is not ‘any extensions,’ in the plural, but simply ‘any extension,’ in the singular. While the pleader in framing the third paragraph of his answer may not, in view of the conclusion reached by us, have proceeded in all respects upon a strictly correct theory, yet, as the facts pleaded, for the reasons stated, show, if true, that at least two unauthorized extensions of the time of payment have been made in such manner as to release the surety, the answer is sufficient to constitute a defense to the action.”

The case of Rochester Savings Bank v. Chick, cited above, was a suit upon a promissory note containing this provision: “All the signers agree to be holden should the time of payment be extended.” And in the opinion we read: “Clark had no knowledge of any of the extensions, and did not consent to any of them, except by the agreement in the note. That agreement could not have been intended for an indefinite extension of the time of payment, nor for a series of extensions, from time to time, indefinitely, so that the creditors and principle makers could, at their pleasure, always keep the surety liable, and forever prevent his enforcing payment -against the principal, or using the statute of limitations as a defense. Such a construction of the agreement in the note with such consequences cannot be adopted without clearly expressed intention to that effect in the agreement itself. The time of payment fixed upon in the note is six months, and the agreement ‘to be holden should the time of payment be extended’ naturally, and by the ordinary force of language taken in connection with the first part of the note, means a reasonable extension for a definite time, and not a series of extensions indefinite in number and endless in repetition. When the plaintiff, at the end of six months from the date of the note, extended the time of payment for a definite period of time, the extension was in accordance with the agreement of all parties. All parties were bound by it, and the defendant Clark was not thereby discharged, but the agreement in the note was met and satisfied by such an extension. Any further extension, upon a valid consideration and binding upon the plaintiff, made without the consent of the surety, had the effect of discharging him.” Hodge v. F. Bank, 7 Ind. App. 94, 34 N. E. 123; Lime Rock Bank v. Malett, 34 Me. 547, 56 Am. Dec. 673.

The rule is well founded that sureties are specially favored both by courts of law and equity, and requires that a contract of surety-ship must be strictly construed to impose upon the surety only those burdens clearly within its terms, and must not be extended by implication or presumption. State v. Evans, 32 Tex. 200.

In our opinion, the repeated extensions of the time of payment for a valuable consideration, made upon such terms as bind the bank, had the effect of releasing appellant, Vickery, and the judgment of the trial court as to him is reversed and here rendered, discharging him with his costs. The judgment in all other things is affirmed.


source: Caselaw Access Project

author: TALIAFERRO, J.

license: Public Domain

text:
    FORD et al. v. SUTHERLAND SPRINGS LAND & TOWN CO. et al.
    (Court of Civil Appeals of Texas. San Antonio.
    June 18, 1913.
    Rehearing Denied Oct. 15, 1913.)
    1. Action (§ 50) — Joinder—Separate Individual Demands.
    While the rule as to joinder of parties and; causes of action in Texas rests largely in the discretion of the court, yet parties standing in different relations to, and having separate and individual demands against, the defendant may not join in a single suit in which the defendant will be required to urge various distinct defenses, the rule being that all persons having an interest in the subject-matter may be joined ; but, if the right of action is in one person only, others cannot be joined with him as plaintiffs, the essence of the rights to join parties plaintiff being mutuality of interest existing as to-both subject-matter and remedy.
    [Ed. Note. — For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. § 50.]
    2. Action (§ 50) — Joinder—Parties and Interests.
    Where plaintiffs joined in an action, each, claiming 'to have a cause of action for damages amounting to $1,000 on each lot in a town plat purchased by him, resulting from the failure of defendant corporation to comply with its contract to make $50,000 worth of improvements on the streets, alleys, and park in the town, the demand of each was distinct from the demand of the others, the amount of damage to each lot depending on its location, surface, frontage, and the general nature of its surroundings, each, presenting a different set of facts and calling, for different evidence, so that there was no mutuality in their demands, though it was alleged that defendants were guilty of a conspiracy in selling the lots without intention to comply with their agreement to improve the same;. and hence there was no such mutuality of interest as authorized plaintiffs to join in the action.
    [Ed. Note. — For other eases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. § 50.]
    3. Dismissal and Nonsuit (§ 75) — Misjoin-der of Parties — Dismissal without Prejudice. .
    On sustaining a plea of misjoinder of parties, it was error to finally dismiss the action, but the court should have rendered judgment of dismissal without prejudice.
    [Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 169; Dec. Dig. §. 75.]
    Appeal from District Court, Wilson County ; F. G. Chambliss, Judge.

      .Suit by Charles E. Ford and others against the Sutherland Springs Land & Town Company and others. From a judgment of dismissal, plaintiffs appeal.
    Affirmed in part, and reversed in part.
    Fiset & McClendon, of Austin, for appellants. T. F. Mangum, of San Antonio, O. A. McCracken, of Floresville, and Semp Russ, of San Antonio, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALIAFERRO, J.

This suit was filed by Chas. E. Ford and wife and Chas. Morris and wife against the Sutherland Springs Land & Town Company, a corporation, and J. L. Kerr, I. T. Pryor, M. H. Townsend, Semp Russ, A. D. Powers, A. L. Matlock, J. H. Burton, W. E. Nelson, J. C. Nelson, H. P. Nelson, and H. A. Speer. It was alleged that the Sutherland Springs Development Company, a corporation not a party to this suit, had acquired a large tract of land in Wilson county, which it had divided into blocks and lots, streets and alleys, for a town site, and called it New Sutherland Springs. The tract of land was sufficiently described, and it was alleged that 150 acres thereof was designated and set apart as a public park, and the said corporation entered upon the enterprise of exploiting the new town of Sutherland Springs and selling the lots, placing agents in the field for that purpose and issuing and circulating attractive literature publishing the beauty of the said town and the value of the property offered by it for sale. That, for the fraudulent purpose of avoiding the dangers of loss and financial difficulties, said corporation on February 18, 1910, for a fictitious consideration, conveyed all the-land, which had not been already sold, to W. E. and H. P. Nelson, reciting a fictitious cash payment and taking their notes for $182,500, which notes, it was alleged, were in fact the entire consideration. That this conveyance was in pursuance of a “plan, scheme, and conspiracy entered into between said corporation and its directors and the said Nelsons to exploit the town site and for the purpose of preventing the said corporation and its stockholders from sustaining any loss by reason of the exploiting of said town site and to enable said corporation to take back, free from any claims of said Nelsons, so much of said town site as said Nelsons might dispose of, in case the said venture should prove unprofitable.”

It was further alleged that, after promoting the said town site scheme for a period without success, the Nelsons, conspiring with the officers, directors, and stockholders of the said Sutherland Springs Development Company, conceived the scheme of again transferring the said property in furtherance of their fraudulent plans. Whereupon they formed a corporation known as the Sutherland Springs Land & Town Company, with a capital stock of $100,000 fully paid up and nonassessable, the officers and directors of which corporation were the same as those of the Sutherland Springs Development Company. That the capital stock was claimed to have been paid up -in cash or valuable property, but that such claims were false and fraudulent in that no valué whatever was paid for said stock, but that, on the contrary, it was held by the stockholders and directors of the Sutherland Springs Development Company without any valuable consideration whatever, and that all of the holders of said stock were justly indebted to the corporation for the stock held by them. The names of such stockholders were given with the amount of stock held by each.

It was asserted that the said Land & Town Company was insolvent from the date of its organization, and that it had its birth in the fraud and conspiracy of the defendants to exploit the town site of New Sutherland Springs without loss or risk to said defendants and to give color of stability to their financial organization in its effort to sell the lots to the public.

It is alleged the scheme was again advertised, this time by the Land & Town Company, and alluring literature was issued; promises and representations were made as t-o improvements and betterments to be made upon said property, among which was a promise or guaranty, on the part of said Land & Town Company, to the purchaser of lots in said town site, that it would in good faith expend $50,000 cash in the improvement of the streets and alleys in said town site and upon the aforesaid park, and that by reason of such promises and guaranties many persons had bought lots in said town site, and that among such purchasers were the plaintiffs. The .numbers and descriptions of the lots- bought by plaintiffs were set out.

But it is alleged that the said Land & Town Company never carried out its said obligations and never was able to carry them out and wholly failed to perform its contract in any part with reference to such improvements, and that in a further effort to defraud plaintiffs and other purchasers of lots, and in furtherance of its fraudulent conspiracy with the other defendants, the said Land & Town Company in July, 1912, conveyed all the said property, including the park, except such lots as had previously been sold by it, to the Sutherland Springs Development Company in consideration of the cancellation of the $132,000 notes of the Nelsons, payment of which had been assumed by said Land & Town Company, and that the said development company, in pursuance and furtherance of said conspiracy, at once conveyed the said property to H. A. Speer, who paid no cash in the transaction but executed his notes in a large sum as consideration. To secure the payment of these notes to T. F. Mangum, to whom the notes seem to have been made or assigned, Speer executed his deed of trust with H. M. Hart as trustee.

Thereupon it is alleged that Speer, in the manner and for the purposes as before alleged, and in furtherance of the original fraud and conspiracy, began to advertise and exploit the town site and to sell lots, and that he continued to do so, and that he repudiates any and all obligations of the Land & Town Company or any other of said defendants.

It is further alleged that plaintiff Chas. E. Ford is also the owner of 10 shares of the stock of said Sutherland Springs Land & Town Company, purchased in good faith and for a valuable consideration from W. E. Nelson on December 19, 1910. That at that time he believed said corporation was solvent, and that the entire capital stock had in good faith been paid in, and that the representations of said company were true. As such stockholder, and to protect his rights as such, he prays that a receiver be appointed to take charge of the property of the Sutherland Springs Land & Town Company and to sue for such assets as it had fraudulently transferred and to sue for the unpaid balances due upon the stock held in said corporation by the various stockholders thereof.

Plaintiffs also allege that they have been damaged by reason of the fraudulent misrepresentations and conspiracy of said defendants in that each lot held by them would be worth $1,000 more than it is now worth if the defendant Land & Town Company had complied with its agreement with reference to making the improvements upon the streets, alleys, and parks, and they pray that their claims in the sums of $1,000 upon each lot be established as valid claims against said corporation and join in the prayer to have a receiver appointed, whose duty it shall be, among other things, to pay their claims aforesaid.

To plaintiffs’ petition the defendants presented the general demurrer and 36 special exceptions which assail every allegation of appellees’ petition. The court overruled the general demurrer but sustained all the special exceptions. The plaintiffs declining to amend, judgment was entered that the case be “finally dismissed and that the defendants go hence without day.”

By separate assignments of error the appellant assails the ruling of the court upon each separate special exception. We will first consider those assignments which present the issue of the misjoinder of parties, as upon that question the case must be decided.

The thirty-second assignment of error reads as follows: “The district court committed error in sustaining and in not overruling special exceptions numbered R, as set forth in defendants’ second amended original answer to plaintiffs’ second amended original petition, which said special exception reads as follows, to wit: ‘Defendants except to said petition and say that the plaintiffs ought not to recover as they sue herein for there is set up in said petition three separate and distinct causes of action which are entirely disconnected; and that plaintiffs in different capacities are suing for relief, part of the plaintiffs suing as alleged creditors of the corporation for the sum of $50,000 for improvements, and the plaintiff suing as a stockholder of said Town & Land Company and seeking to have the so-called park placed in the hands of a receiver as the property of said Town & Land Company, and the trial hereof will require three different verdicts entirely independent of each other.’ ”

The thirty-third assignment is as follows: “The district court committed error in sustaining and in not overruling special exception numbered W, as set forth in defendants’ second amended original answer to plaintiffs’ second amended original petition, which said special exception reads as follows, to wit: ‘Defendants except to all that part of said petition which asks damages for the failure to perform the contract, to expend the $50,000, for the reason that each cause of action in favor of each plaintiff is a separate and distinct cause of action, demanding separate performance, and that this is a misjoinder of said cause of action and would compel the court to try and submit its charge to the jury in a separate cause for each plaintiff, and the jury will be required to return a verdict separate and different for each plaintiff and in this way return more than one verdict in this cause for damages to the plaintiffs, who are not entitled to maintain their actions jointly, as appears from the allegations from such petition.’ ”

The rule, as it prevails in Texas as to the joinder of parties and causes of action, is not so strict as in some of the states and rests largely in the discretion of the courts. Craddock v. Goodwin, 54 Tex. 578; Morris v. Davis, 31 S. W. 850. But this does not mean that parties standing in different relation to and having separate and individual demands against the defendant may join in their action and maintain one suit against him in which he will be required to urge various distinct defenses. The rule is that all persons having an interest in the subject-matter of the litigation may be and should be joined. Wilson v. Hampton, 2 Posey Unrep. Cas. 426; Faulk v. Faulk, 23 Tex. 653. This rule is based upon the wise doctrine that multiplicity of suits should be avoided. But, if the right of action is in one person only, other persons cannot be joined with him as plaintiffs. Railway v. Gill, 2 Wilson Civ. Cas. Ct. App. § 175. The essence of the right to join parties plaintiff is the mutuality of interest, and the mutuality must exist as to both the subject-matter and the remedy sought.

In Keary v. Mutual Reserve Fund Life Ins. Co., 30 Fed. 359, in an action brought by several parties upon an insurance policy, the court said that though there may be a unity of interest in the subject-matter, if there is none in the recovery sought, the plaintiffs cannot join. If, for instance, one of the plaintiffs is paid, the others have no interest in and are not prejudiced by that payment; their demand is separate and cannot be joined in a single action. In Younkin v. Milwaukee Light, etc., Co., 112 Wis. 15, 87 N. W. 861, the Supreme Court of Wisconsin, in an action where several plaintiffs joined in a suit to abate a nuisance and also to recover damages to their respective lots of land, fronting upon the street 'charged to be affected by the maintenance of the nuisance, held that, while the action to abate the nuisance could be properly maintained by all the plaintiffs together, that for damages could not be, because: “Obviously the amount of damages to the respective lots must differ more or less, depending upon the amount of frontage, the location, the surface, the nature of the ground, etc., and to ascertain such damages with any degree of certainty would necessarily require a separate trial as to several, if not all, the lots in question”—citing Grand Rapids Water Power Co. v. Bensley, 75 Wis. 399, 44 N. W. 641; 2 Wood, Nuisance (3d Ed.) p. 1160, § 791; Murray v. Hay, 1 Barb. Ch. (N. Y.) 59, 43 Am. Dec. 773; Brady v. Weeks, 3 Barb. (N. Y.) 157; Lynch v. Railway Co., 129 N. Y. 274, 29. N. E. 315, 15 L. R. A. 287, 26 Am. St. Rep. 523; Demarest v. Hardham, 34 N. J. Eq. 469; 30 Cyc. 115. We have found no case in Tesas in which a similar state of facts is presented, but we have no doubt of the correctness of the rule as laid down in the Younkin Case, supra, and it is certainly sustained by the great weight of authority. In Paschal v. Dangerfield, 37 Tex. 273, which is nearer in its facts than any Texas case we have found, the court held that owners of several distinct parcels of land in an entire tract cannot, even under the liberal rules of practice in Texas, maintain a single joint suit for the recovery of the entire tract. Wachsmuth v. Sims, 32 S. W. 821; Anderson v. Telegraph Co., 84 Tex. 17, 19 S. W. 285; Blum v. Goldman, 66 Tex. 621, 1 S. W. 899; 23 Cyc. 425; Akins v. Hicks, 109 Mo. App. 95, 83 S. W. 75; 30 Cyc. 110 et seq.; Foreman v. Boyle, 88 Cal. 290, 26 Pac. 94; Brownell v. Irwin, 25 Ind. App. 395, 58 N. E. 263; Chitty on Pleading (Ed. 1883) 11; Gray v. Rothschild, 48 Hun, 596, 1 N. Y. Supp. 299.

In the present case the appellants each claimed to have a cause of action for damages amounting to $1,000 upon each lot purchased by him, resulting from the failure of the appellant corporation to comply with its contract to make $50,000 worth of improvements on the streets, alleys, and park in the town of New Sutherland Springs. The demand of each plaintiff Was separate and distinct from the demand of the other. The amount of damage to each lot would depend upon its location, surface, frontage, and general nature of its surroundings; each presenting a distinct set of facts and calling for different evidence. One could have been paid his claim in full, and the other would have been in no way affected by the payment. There was no mutuality between them in their demands unless it can be said that the alleged conspiracy of the defendants was the basis of the action and created a mutuality of interest. But it has been held that such a ground is not sufficient to justify the joining of several plaintiffs in a single action where their rights are in fact general. Younkin v. Light Co. and Gray v. Rothschild, supra. We conclude, therefore, that there was an improper joinder of parties plaintiff herein, and the court did not err in sustaining appellees’ special exception No. R. The thirty-second and thirty-third assignments are overruled.

The thirty-fifth assignment is as follows: “The district court committed error, at all events, in this: ‘If it should appear that the trial court correctly held that there was a misjoinder of parties, then the proper order to have entered in said cause was an order dismissing said suit without prejudice to the rights of the plaintiffs to file separate suits; and it was error for the court to enter a general order finally dismissing plaintiffs’ case.’ ” This assignment is well taken and is sustained. The judgment entered by the court was practically a final adjudication of the cause, though it purported to be a dismissal. It read: “It is further considered, adjudged, and decreed by the court that said cause be, and the same is, hereby finally dismissed, and that the defendants go hence without day,” etc. The court, upon sustaining the plea of misjoinder of parties, should have dismissed the case without prejudice to the rights of the plaintiffs to enter and maintain separate suits.

The other assignments of error are sustained. They present in the aggregate what is a general demurrer to the petition. A petition in a separate action brought by one of the plaintiffs in this case against the same defendants would not be subject to a general demurrer, and it would be vain for us to attempt to anticipate the pleadings in subsequent litigation by passing upon the sufficiency of every allegation in the pleadings.

The judgment of the district court is affirmed in so far as it sustained the exception as to misjoinder of parties and actions but is reversed in other respects, and it is the order of this court that the cause of action of appellants be dismissed from the district court without prejudice to the right of appellants-to bring any separate actions they may desire in the premises.


author: HUFF, C. J.

text:
    GRAY v. LUMPKIN & THOMAS.
    (Court of Civil Appeals of Texas. Amarillo.
    July 5, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. PRINCIPAL AND AGENT (§ 124) — EMPLOYMENT op Physician — Apparent Authority op Agent — Evidence.
    Evidence of the employment by IC, an employe .of defendant, of plaintiff physicians to render services to an injured employé of defendant, being within the apparent authority of IC, so as to render defendant liable for the services rendered, held sufficient to go to the jury.
    [Ed. Note. — For other cases, see Principal •and Agent, Cent. Dig. § 724; Dec. Dig. § 124.]

      2. Physicians and Surgeons (§ 24) — Employment— Liability por Services.
    The employment of plaintiff physicians by defendant to treat his injured employé continued while the case demanded their services or till they were discharged by defendant, so that he not having discharged them but merely informed them, while treating the employé, that he would not pay them, as he had not employed them, he was liable for their further treatment ■of the employé up to the time he was in eon-■dition to be dismissed from further treatment.
    [Ed. Note. — For other cases, see Physicians .and Surgeons, Cent. Dig. §§ 53-62; Dec. Dig. :§ 24.]
    Appeal from Potter County Court; W. M. Jeter, Judge.
    Action by Lumpkin & Thomas against W. H. Gray. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Lloyd Fletcher, of Amarillo, for appellant Hugh L. Umphres, of Amarillo, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUFF, C. J.

On a former day of this court we dismissed the case because the transcript and appeal bond from the justice and county courts was not in the transcript in this case. Appellant, upon motion for rehearing and by petition for writ of certiorari, brought up ■duly certified copy of the transcript and appeal bond, and upon hearing we granted the motion for rehearing and ordered the appeal bond and transcript so attached to his petition to be filed as a part of the record in this •case and ordered that the case be taken upon the original submission.

One Boatman, an employé on W. H. Gray’s (appellant’s) ranch, had his leg broken by a horse falling on it. A Dr. Roland, a local physician, was called to the ranch and gave temporary treatment, when appellant decided to send the injured man to St. Anthony’s .Sanitarium, at Amarillo, for further care and treatment. For that purpose he placed the injured man in charge of Henry Kerr, another employé, to carry him to St. Anthony’s Sanitarium, and at the same time wrote and delivered a letter to Kerr, addressed to doctors at Amarillo, together with a letter written by Dr. Roland. The letters appear to have been lost, and the contents of the letters are not shown by the evidence. One was written by appellant Gray and the other by Dr. Roland, at the request of appellant, for the purpose of showing what had been done and to be delivered to the doctor taking charge of the case. There appears to be no dispute in the testimony but that appellant intended and did pay for the care of Boatman at the sanitarium and paid other expenses, and that it was his purpose to pay the doctor’s bill, provided, as contended by appellant, the doctor addressed in the letter attended the case. The appellees, Lumpkin & Thomas, treated the case and charged $110 for their services, which the evidence uncontrovertedly shows to have been reasonable. The question in this case is narrowed practically to one question of fact, whether the appellant employed or authorized Kerr tó employ .appellees. Appellant testified by deposition that he addressed the letter to Drs. Walker and Johnston, authorizing either to treat the case, and had they done so he would have paid the bill. The evidence by appellees and'by appellant appears that Dr. Thomas was at the sanitarium when the patient arrived and that as an act of humanity gave a hypodermic to relieve his present suffering. He had been brought overland in a wagon some distance from the ranch to the sanitarium. Dr. Walker was not at the sanitarium at the time of the arrival of the patient. The letter by Gray was on a slip of paper which was mislaid. Dr. Thomas, after administering temporary relief, phoned Dr. Walker. Some one at that time told Dr. Thomas, and it appears also such statement was made in the presence of Dr. Lumpkin at the time, that the letter in question was addressed to Drs. Walker, Johnston, or Thomas, and upon su.ch information they proceeded to treat or operate upon Boatman. Dr. Walker came to the sanitarium and assisted in the operation by administering an aniesthetic. Dr. Walker testified that the letter from Dr. Roland was addressed to Drs. Walker, Johnston, or Thomas. This letter was written at the request of Gray and sent by him with Mr. Kerr. The jury were also warranted in finding from the testimony that Kerr, who brought Boatman in from the ranch for treatment and care, requested Lumpkin & Thomas to treat the case. The doctors at the time evidently understood that appellant had requested either of the three doctors to treat the case. Dr. Walker evidently so understood the letter and left the case with Dr. Thomas, who had first ministered to the injury.

The master as a rule is not, in the absence of an agreement or some stipulation, under legal obligation to furnish medical attendance for an employé who falls sick or is injured while engaged in bis duties. Railway Co. v. Hennegan, 33 Tex. Civ. App. 314, 76 S. W. 453; Davis v. Forbes, 171 Mass. 548, 51 N. E. 20, 47 L. R. A. 170; 26 Cyc. 1049. In this case there is no question that appellant at the time proposed to pay the bill for the doctors’ services, if certain doctors were employed. The issue, therefore, was sharply drawn as to whether Dr. Thomas, of the partnership of 'Lumpkin & Thomas, was one of the doctors named by appellant. The jury settled this question adversely to appellant’s contention. If Thomas was one of the doctors authorized and he undertook the case, then we think appellees should recover for their services. Complaint is made to the charge of the court, which is to the effect that if Kerr employed appellees, and that his act in so employing them was within the apparent scope of his authority, then appellees could recover. While there is a dispute as to whom the letter was addressed, it is un-controverted that appellant employed Kerr to take Boatman to the sanitarium for care and treatment and after arriving there the man who was suffering from the injury was relieved by appellees, at his request. Dr. Walker was not then at the sanitarium. The evidence does not show that the letters by appellant limited Kerr’s authority. We think under the facts the court was not in error, in submitting the question of whether Kerr was acting within the apparent scope of his authority. True, appellant testified that he instructed Kerr to first deliver the letter to Walker if he could be found, and, if not, to Dr. Johnston. We think under the circumstances in this ease that justice and humanity demanded prompt attention. No injury being shown appellant, he should not complain. There is no question made as to the reasonableness of the charges made for the services; none made that appellant did not authorize Kerr to employ medical assistance. The only controversy is a quibble whether the letter was addressed to two er three doctors. When life is at stake, or great bodily suffering, demanding immediate relief, an exact adherence to the letters of instruction should not be demanded from the agent or from those dealing with him. Laws are doubtless enacted and should be administered for the welfare of humanity, and in a case of this kind we feel that the services and skill of the appellees should be compensated when secured under the circumstances here shown. Texas Building Co. v. Albert et al., 57 Tex. Civ. App. 638, 123 S. W. 716.

It appears from the appellant’s testimony that before Boatman was discharged from treatment appellant informed appellees that he would not pay them as he had not employed them to treat Boatman. Upon this proposition appellant requested the court to charge the jury they could not allow appellees for anything after such denial of liability. He did not discharge appellees from the case but denied that appellees were ever in his service. Had they quit the case it would, under the statement of appellant then made, have amounted to an admission that they were never in his employment. We do not think the court erred in refusing the requested charge. The jury having found that ap-pellees were employed to treat the case, that employment continued while the case demanded their services or until they were discharged by appellant. Where two or more persons enter into a contract of a continuing nature, one of them cannot, by his own act, discharge himself from liability and put an end to the contract, without the consent of the other, unless there is an express power of defeasance reserved in him. 1 Addison on Contracts, 361. If the appellees had undertaken to treat the case under an employment to do so, as found by the jury, they were legally bound to continue until the patient was in condition to be dismissed from further treatment. Dale v. Donaldson, 48 Ark. 188, 2 S. W. 703, 3 Am. St. Rep. 224, and authorities cited; Potter v. Virgil, 67 Barb. (N. Y.) 578.

We find no such error presented in the trial of the ease as requires a reversal, and the case will therefore be affirmed.


author: HALE, J.

text:
    FT. WORTH & D. C. RY. CO. v. WININGER.
    (Court of Civil Appeals of Texas. Amarillo.
    June 28, 1913.
    Rehearing Denied Oct. 11, 1913.)
    1. Railroads (§ 350) — Injuries to Persons on Tracks — Contributory Negligence— Customary Use oe Track.
    ■ It is not contributory negligence, as a matter of law, to cross railroad tracks at a place not a crossing, though there be other ways of crossing which are both safe and convenient, where people are accustomed to cross the tracks where there are no crossings with the knowledge and consent of the company.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.]
    2. Trial (§ 253) — Instructions—Contributory Negligence — Ignoring Issues.
    In an action against a railroad company for injuries received while crossing its track at a place not a crossing, where the issue of contributory negligence was clearly raised by the pleadings and evidence, it was reversible error to refuse defendant’s request for an affirmative charge upon that issue.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    3. Trial (§ 242) — Injuries to Persons — Instructions — Form—“Cured.”
    An instruction allowing compensation for nursing and attention to plaintiff’s child until “cured” of injuries received in crossing defendant’s railroad at a place not a crossing is not erroneous, because, her limb having been amputated, defendant claims she would never be “cured,” as “cured” means the act of healing, to heal a wounded limb, and the jury could not have construed it as contended.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. § 242.

    For other definitions, see Words and Phrases, vol. 2, p. 1786.]
    4. Trial (§ 252) — Instructions—Applicability to Evidence.
    In an action for injuries received in crossing a railroad track at a place not a crossing, an instruction allowing reasonable compensation for necessary artificial limbs already purchased or that might be required was reversible error, where there was no evidence that the amount paid for artificial limbs already purchased was reasonable.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    5. Trial (§ 252) — Instructions—Conformity to Evidence.
    Where there was no evidence that the plaintiff, in an action for injuries received by his ¿hild while crossing a railroad at a place not a crossing, suffered any mental anguish, there was ao error in refusing to instruct that the jury should not take into consideration any mental anguish suffered by plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    Appeal from District Court, Donley County; J. N. Browning, Judge.
    Action by E. H. Wininger against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, the defendant appeals.
    Reversed.
    See, also, 151 S. W. 586.
    H. B. White, of Clarendon, Turner & Wharton, of Amarillo, and Thompson & Bar-wise, of Ft. Worth, for appellant. D. W. Odell, of Ft. Worth, and A. T. Cole, of Clarendon, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      Eor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HALE, J.

This suit for damages for personal injuries was instituted in the district court of Donley county by appellee against appellant railway company, alleging that the personal injuries were sustained by plaintiff’s’ daughter, Halys Wininger, April 25, 1909.

In his first amended original petition, ap-pellee alleges that he lived in the northeast portion of the city of Clarendon; that appellant’s line of road ran through the town from southeast to northwest, separating ap-pellee’s residence and other residences from the main portion of the town; that the main portion of the town was southwest from where appellee lived; that appellant’s depot was located on the south side of appellant’s track on what is known as Kearney street, and north of the business portion of the town; that Carhart street was two blocks east of Kearney street, and that from Carhart to Garnett streets, a distance of about three-fourths of a mile, there was no public crossing over appellant’s track; that between Carhart and Garnett streets appellant had several switch tracks; that on the date of the accident in question and long prior thereto appellee, together with his daughter, Halys Wininger, and other people of Clarendon residing in the vicinity of ap-pellee, had habitually used appellant’s track and right of way between Carhart and Gar-nett streets as a place to cross on foot, and that they had been so using the same with the knowledge, consent, and acquiescence of appellant for many years prior to the date of the accident in question; that the fences along appellant’s right of way between Car-hart and Garnett streets had gaps in them and places where the public went through the same onto and across appellant’s right of way going to the main part of Clarendon and returning from same.

Appellee further alleged that by crossing, the appellant’s right of way between Carhart and Garnett it was a more convenient way for going to school, town, etc., for appellee and others residing in that vicinity than going over other ways; that on the 25th of April, 1909, with his daughter, who was then about five years of age, appellee started to Sunday school near the business portion of the town on Kearney street in a southwesterly direction from appellee’s home on the south side of appellant’s track; that at the time appellee left his home that Garnett street was obstructed by a train of cars extending across it on appellant’s main line, and by reason of such obstruction appellee and his said daughter started in a southwesterly direction along a path which led to and entered upon appellant’s right of way; that they walked along appellant’s right of way in a westerly direction until they came to an opening between a string of cars on which appellee alleged was track No. 2, and that, as appellee’s daughter, Halys, was attempting to cross said track between said ears, appellant’s servants and employes negligently, and without warning or signal of any kind, caused said cars to be moved, causing the said Hal-ys to be run over, and causing her foot and leg beiow the knee to be mangled; that appellant’s brakeman and conductor in charge of the train in-question knew that appellee’s-daughter, -Halys, would probably attempt to cross said track at the time and place referred to, or could have ascertained the same by the exercise of ordinary care on their part by keeping a proper lookout, but that said conductor and brakeman failed to do so, and negligently gave the signal to the engineer to start said train in question, without keeping a lookout for appellee’s daughter, and without giving any warning or signal to her of the intended movement of said cars, all of which appellee alleged was negligence on the part of appellant’s brakeman and conductor; that said conductor and brakeman knew of the presence of appellee’s daughter on appellant’s track at the time in question, and knew that the public in general was accustomed to cross said tracks at said place, but notwithstanding that they or either of them caused said cars to be moved, without blowing the whistle on the engine, or without ringing the bell, or giving any other signal or warning of the movement of said cars, and without having a lookout at the rear end of the cars, all of which is alleged to be negligence and the direct and proximate cause of the injuries sustained by ap-pellee’s daughter; that the engineer and fireman on the train in question were in such position that they could not see the appellee and Ms daughter, and by reason thereof appellant’s employés were guilty of negligence in moving the train without ringing the bell or blowing the whistle; that by reason of the movement of the cars aforesaid appel-lee’s daughter, Halys, had her leg caught by the wheel and crushed and mangled, making it necessary to have said limb amputated below the knee; that appellee paid $100 for surgical attention in having said limb amputated; that it was necessary to have the limb amputated the second time, which was at the reasonable value of $100, and that he also paid $50 for medicine and nursing; that appellee waited upon the said Halys for five days immediately after the injury in question, and that his time was reasonably worth $2 per day, and that appellee’s wife waited upon said Halys 30 days exclusively, which appellee alleges is reasonably worth $30; that he had to purchase artificial limbs for his said daughter, and will have to continue to do so until she reaches the age of 21 years, and alleged that the original cost of such limbs was $75, which was a reasonable price therefor, and that it will cost appellee $25 a year to maintain such artificial limbs. Appellee further alleged that he was entitled to the services of said Halys from the date of her injury until she became 21 years of age, which services would have been of the reasonable value of $2,500, and that by reason of her maimed and crippled condition it has and will in the future require extra attention to care for her, which extra attention appellee alleged has been and will continue to be at the reasonable value of $10 per month until said cMld arrives at 21 years of age. The total damages were laid at the sum of $7,000.

By its second amended original answer appellant excepted generally and specially; denied generally the facts set up, and specially. pleaded that, if appellee’s daughter sustained the injuries alleged, the same were caused by the negligence of appellee in permitting and inducing his daughter, Halys, to attempt to cross appellant’s track at the time and place in question, and that appellee was guilty of negligence in inducing and permitting his daughter, Halys, to attempt to cross under appellant’s ears at the time and place in question. All of which appellant alleged was negligence on the part of ap-pellee, and was the direct and proximate cause of the injuries sustained; that the attempt of appellee and his daughter to cross under and between the string of cars in question was so sudden that the servants and employés of the appellant did not and could not in the exercise of ordinary care on their part know of the perilous condition of appellee’s daughter, nor of her intention to cross between said cars or under said cars, in- time to have stopped the train and avoided the accident. And the appellant further specially pleaded that by reason of all I of the aforesaid facts the appellee, as well as his daughter, Halys, were guilty of contributory negligence in the manner and way they attempted to cross the track at the time and place in question; that when appellant’s employés .in charge of the train saw appellee and his child upon the right of way there was a safe and convenient place for them to have traveled between tracks Nos. 2 and 3 while going through appellant’s yards; that during the time its employés saw said appellee and his daughter in the yards they were going in a westerly direction, parallel with the tracks, and towards a public crossing at the west end of the yards, and that said axjpellee did and had the right to rely on the presumption that appellee and his daughter would go to said public street before attempting to cross the track, and that the street was a safe and convenient place for them to have crossed said track; that by reason of appellee and his daughter not pursuing said course, but in attempting to cross the tracks at the place they did, each of them was guilty of contributory negligence. The answer further specially denied that its yards at the place of the accident were commonly used by the public as a crossing, etc. It is further alleged that ap-pellee was guilty of negligence in permitting said child to go upon the tracks and through its yards, and in going and taking said child upon and through the yards; that at said, time there were other and convenient ways which' were not' dangerous by which they could have gone from their home to Sunday school without having to cross the switch-yards and tracks, and that if they had taken such other ways they could have crossed at a public street crossing, and in failing to take such ways they were guilty of contributory negligence; that immediately prior to the time of the accident appellee had his daughter by the hand, and just prior thereto he negligently let go or permitted Halys to jerk her hand loose from appellee’s and attempt to cross said track between the opening and the cars without having hold of her hand, wMch constituted contributory negligence.

The first assignment of error is predicated on the refusal of the court to peremptorily instruct the jury to return a verdict for the defendant, because the evidence showed that plaintiff in going from his home to Sunday school could have gone another and different way or ways, and that such other way or ways were safe and convenient; it being urged under two propositions following this assignment that such exercise of discretion on the part of appellee constituted negligence as a matter of law. After reading the Byrd Case, 102 Tex. 263, 115 S. W. 1163, 20 L. R. A. (N. S.) 420, 20 Ann. Cas. 137, and other related authorities, cited in appellant’s brief, it is difficult to conclude that this assignment is not well taken.

We, however, in prosecuting the investigation further, have found, the case of Thompson & Ford Lumber Company v. Thomas, 147 S. W. 296, where writ of error was denied by the Supreme Court, in which Reese, Justice, uses this language; “The second assignment of error presents substantially the same question. Appellant’s contention is not supported by the record as to conclusive effect of the testimony on this point. It is true that ordinarily the railway tract was not "a safe place to walk; but the evidence presents the issue that it was constantly used by persons employed in the mill just as appellee was using it with appellant’s consent, and that this- was known to those operating the engine and cars in question. While, in the exercise of due care, it was appellee’s duty to use his senses of sight and hearing to discover the approach of the train, there is evidence to indicate that he did so, and that the accident was due to the failure of those operating the engine to give warning, by ringing the bell or blowing the whistle, of the approach of the cars. It is not the law that a licensee using the track as a passage way, because it is accompanied with some danger, by that fact alone, as a matter of law, is guilty of contributory negligence which would prevent a recovery in case he is injured. This would put a licensee on the same footing • with a trespasser. By the third assignment of error appellant presents the proposition that it conclusively appears from the evidence that there was sufficient space besides defendant’s road where plaintiff could have walked, and where his companion did walk at the time, and that if he had so walked he would have suffered no injury. By the fourth assignment of error the proposition is presented that the great weight and preponderance of the evidence showed that there was a convenient and accessible pathway along the entire length of defendant’s track, and by the side thereof, where the plaintiff could have walked in safety, and that it was not necessary for him to walk between the rails, and that it conclusively appears that if he had used such pathway he would not have been injured. If it be the law that a person using the railway track as a pathway by permission of the railway company (that is, a licensee as to such use), who is injured while so doing, as appellee was, must be considered guilty of contributory negligence in such use of the track, if there is a way along the side of the track, or elsewhere, by which he can possibly travel, then appellant’s contention must be sustained, and, for a like reason, in no conceivable case would such a licensee be entitled to recover. We can hardly imagine a ease where it was impossible for such person to travel by the side of the track and out of danger, or to reach his destination by some other way than by using the track. We do not understand that any of the decisions of this state have one so far. The opinion in the case of Texas Midland R. R. Co. v. Byrd, 102 Tex. 263, 115 S. W. 1163 [20 L. R. A. (N. S.) 429, 20 Ann. Cas. 137], must be considered in connection with its peculiar facts. The person injured was walking on a railroad bridge, 200 feet in length. To avoid being struck by an approaching train, he jumped from the bridge, and was injured. The case seems to have been ruled upon the proposition that the danger of using the bridge as a pathway was so obvious under any circumstances, and was known by the plaintiff to be so, that the plaintiff was guilty of contributory negligence in so using it when he was not compelled to do so. In the case of M., K. & T. Ry. Co. v. Wall, 102 Tex. 362, 116 S. W. 1140, it was distinctly held, as we understand the opinion, that it was a question for the jury as to whether a person of ordinary prudence would have walked upon or near the track upon which the train was approaching, when he could, by walking between the tracks, have been in a place of safety. The evidence disclosed that the space between the tracks was surfaced up and furnished a good roadway. The facts in the case of St. Louis & San Francisco R. R. Co. v. Mathis, 101 Tex. 342, 107 S. W. 530, were that an engineer in the employ of appellant, in going from the roundhouse of a railroad company to the station at night to catch an outgoing train, took a way usually and customarily traveled, which ran near a turntable pit. The night was dark and there were no lights to light up the ground at and in the vicinity of the pit. Plaintiff fell into the pit, and was injured, and the negligence was alleged to be the failure to have the grounds lighted. One of the defenses was assumed risk in voluntarily choosing an unsafe way. In answer to certified questions, the Supreme Court held that the evidence disclosed that there was another way by which plaintiff could have traveled, and that, under the facts shown, the trial court should have instructed a verdict for defendant, on the ground that plaintiff knew or must necessarily have known that the turntable pit and the yards in the immediate vicinity were unlighted and dark before he received his injuries, and therefore assumed the risk. We think that case is distinguishable from the present case. The only negligence charged to the defendant company, the failure to have the grounds lighted up, was known to the plaintiff. The danger arising from this negligence was known. In the present case the negligence charged is not the unsafe condition of the way, but the act of running upon appellee without the warning signals. The way was not unsafe but for this act of negligence, which ap-pellee had no reason to anticipate. A few seconds’ warning would have enabled ap-pellee to put himself in a perfectly safe place, and it was only tlie negligent failure to give the warning that gave rise to the danger. In this, also, the facts of this case distinguish it from the Byrd Case, supra, where the plaintiff had to jump from the bridge to save himself from the collision. In the Mathis Case the danger under the known conditions was known to the plaintiff.”

Appellant’s second, third, and fourth assignments complain of the failure of the court to charge upon the defense of contributory negligence, and to give one of three charges requested by appellant upon that issue. The issue was clearly raised by the pleadings and the evidence, and the authorities are abundant holding that appellant was entitled to an affirmative charge upon the issue, and we think the court’s failure to do so is reversible error. M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 639, 35 S. W. 1058; M., K. & T. Ry. Co. v. Rogers, 91 Tex. 52, 40 S. W. 956; St. Louis & S. W. Ry. v. Hall, 98 Tex. 480, 85 S. W. 786; Tex. Trunk Ry. Co. v. Ayres, 83 Tex. 269, 18 S. W. 684; St. L. & S. W. R. Co. v. Kern, 100 S. W. 971; Ft. Worth & D. C. Ry. Co. v. McCrummen, 133 S. W. 899; G. H. & S. A. v. Worth, 107 S. W. 958; Ft. Worth & D. C. v. Taylor, 153 S. W. 355; G. H. & S. A. v.” Washington, 94 Tex. 510, 63 S. W. 534.

It is urged under the fifth assignment that the court erred in charging the jury in the thirteenth paragraph of the main charge on the measure of damages to allow the plaintiff all “just and reasonable compensation for necessary nursing and attention to the child until cured,” and contends that the child, having had her limb amputated, will never be cured. This is a strained construction to place upon the word “cured.” As used in this paragraph of the charge we must give it' the first definition found in Webster’s Dictionary, which is: “A healing ; the act of healing; restoration to soundness from a wound; to heal a wounded limb”—and the jury could not reasonably have construed the charge otherwise.

Appellant’s sixth and seventh assignments of error attack the charge of the court with reference to the issue of surgeon’s fees and the expense of artificial limbs. The evidence discloses that plaintiff had bought some artificial limbs prior to the date of the trial, for which he had paid $75 each, and had paid $100 to Dr. Hamm for amputating the child’s limb. The court instructed the jury that they could allow appellee reasonable, just, and proper compensation for necessary artificial limbs already purchased and which he might be required to purchase in the future until she arrived at the age of 21 years. There is no evidence in the record that these amounts are reasonable and there is therefore no basis for the charge. Appellee having expressly refused during the oral argument of this case to enter a remittitur, this error is sufficient to require a reversal.

The eighth, ninth, and tenth assignments of error are without merit, and are overruled.

The eleventh assignment of error is a complaint because the court refused a special instruction to the effect that the jury should not take into consideration any mental. anguish that plaintiff may have suffered. There was no evidence upon which to base any such charge, and the court did not err in refusing it.

We think the court’s charge upon the measure of damages was correct, and properly submitted every element raised by the pleadings and evidence, and the remaining assignments are therefore overruled.

Because of the errors pointed out, the judgment is reversed, and the cause remanded.


author: HENDRICKS, J.

text:
    BOWLES v. BELT et al.
    (Court of Civil Appeals of Texas. Amarillo.
    June 14, 1913.
    On Motion for Rehearing, Oct. 11, 1913.)
    1. Judgment (§ 788) — Lien — Unrecorded Deed—Notice.
    As between the holder of an unrecorded deed and a subsequent judgment creditor of the grantor, who has abstracted his judgment on the record of the county in which the land is situated, the burden is on the holder of the unrecorded conveyance to prove notice to the judgment creditor before or at the time of the registration of his judgment lien.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1368, 1369; Dec. Dig. § 788.]
    2. Judgment (§ 788)—'Transcript—Filing— Unrecorded Deed—Notice.
    Where the person in possession of land in controversy, as tenant of D., had no knowledge that D. had conveyed the land by an unrecorded deed reserving a vendor’s lien to secure purchase-money notes transferred to another, at the time a creditor holding a judgment against D. abstracted the same on the record of the county in which the land was located, the tenant’s possession was not notice to the judgment creditor of the transfer of the notes so as to subject the lien of the judgment to that of the lien notes.
    [Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1368, 1369; Dec. Dig. § 788.]
    3. Notice (§ 6)—Facts Putting on Inquiry.
    Whatever is sufficient to put a subsequent purchaser or creditor on inquiry is sufficient to affect them with notice only of such facts as they might bo presumed to have learned on reasonable inquiry.
    [Ed. Note.—For other eases, see Notice, Cent. Dig. §§ 4-7; Dec. Dig. § 6.]
    4. Judgment (§ 527)—Effect—'“Final Judgment.”
    Where, in a prior action, defendant filed a counterclaim, and the court trying the cause without a jury found facts in favor of plaintiff, and that there had been no accounting between plaintiff and defendant of the proceeds due each, derived from the business referred to in the cross-action, and that the question of damages, if any, as alleged by defendant, was not a part of the suit and would be a question to be determined in a suit between defendant and a certain corporation, wherefore the court found against defendant as to damages under the facts and pleadings in the cause, a judgment reciting that “all matters of fact” as well as of law having been submitted to the court, etc., it was of the opinion that the law was with the plaintiff and therefore adjudicated that plaintiff recover of defendant $702, etc., should be regarded as having finally determined the cross-action and was a final judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 970; Dec. Dig. § 527.

    For other definitions, see AVords and Phrases, vol. 3, pp. 2774-2798; vol. 8, p. 7663.]
    5. Judgment (§ 2S5) — Index—Initial Let-tebs.
    Where an abstract of judgment was alphabetically indexed as provided by statute, so that any person on inspection could arrive at the names of plaintiff and defendant in alphabetical order, the initial and marginal letters placed on the record for convenience did not constitute a part of the index.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 561; Dec. Dig. § 285.]
    On Motion for Rehearing.
    6. Judgment (§ 788) — Lien—Deed—Failure TO RECORD — VENDOR’S LIEN.
    The rule that an equitable vendor’s lien, which attaches to real property by virtue of a sale thereof, will prevail against a judgment lien where notice of the unrecorded equitable lien has been given before sale does not apply to a contractual vendor’s lien expressed and reserved in an unrecorded deed as against a judgment creditor of the grantor whose judgment is recorded before notice of the conveyance.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1368, 1369 ; Dec. Dig. § 788.]
    Appeal from District Court, Lubbock County; W. R. Spencer, Judge.
    Action between Frank Bowles and O. C. Belt and others. From a judgment in favor of the latter, the former appeals.
    Reversed in part, and affirmed in part.
    Bean & Klettj of Lubbock, for appellant. W. D. Benson and W. H. Bledsoe, both of Lubbock, for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

This cause arose as follows: On May 18, 1910, J. J. Dillard was the owner of block 236, in the town of Lubbock, Lubbock county, Tex., and upon said date conveyed the same by deed to N. Frank Faulk, said deed having been recorded on June 18, 1910; as a part of the consideration for the conveyance of this land, Faulk executed and delivered to Dillard three promissory vendor lien notes for the sum of $800 each, and upon the same day of the execution and delivery of the deed (that is, May 18, 1910) J. J. Dillard sold and transferred, in writing, said vendor lien notes to O. C. Belt, which written transfer was filed for record June 16, 1910, in the Deed Records of Lubbock county, Tex.

On June 7, 1910, C. W. Holt recovered judgment against J. J. Dillard in the district court of Lubbock county, Tex., for the sum of $702, with 6 per cent, interest; and on June 11, 1910, an abstract of this judgment was filed, recorded, and indexed in the abstract of judgment records of said county. This judgment, in the ease of Holt v. Dillard, was affirmed on appeal by the Court of Civil Appeals of the Second Supreme Judicial District at Ft. Worth. After the return of the mandate from said court, an execution was issued on November 3, 1911, and levied upon the block of land conveyed by Dillard to Faulk as the property of the judgment debtor, J. J. Dillard, and which was purchased at execution sale on - 3, 1911, by Frank Bowles, the appellant herein, who received a sheriff’s deed to said property. The cause was tried by the court without the assistance of a jury, who rendered judgment in favor of the appellee Belt upon his suit for foreclosure of said vendor lien notes; and the issue involved in this case is the question of priority and superiority of the said vendor lien notes as against the abstract of judgment lien recorded and indexed and under which the appellant Bowles de-raigns title.

The district court found that C. W. Holt, who was the judgment creditor in the other cause, in which judgment was rendered against Dillard for the sum of $702, had notice, when he abstracted his judgment lien, of appellee Belt’s vendor’s lien for the reason that the property was then in possession of one Shackelford, who was holding as the tenant of Faulk, the vendee in the deed from Dillard; the vendor lien notes having been reserved in this particular deed.

First. It is now the settled law of this state that the holder of a prior unrecorded deed from a debtor, against whom a judgment has been rendered, is required to prove notice of his right to the property to the judgment creditor at the time of or before the attaching of the judgment lien. There seems to be some uncertainty and confusion with reference to the burden of proof upon the question of notice as between the holder of an unrecorded conveyance and a subsequent judgment creditor who has abstracted his judgment upon the record of the county in which the land is situated; a seeming uncertainty only, for the reason that the Supreme Court, in the case of Barnett v. Squyres, 93 Tex. 193, 54 S. W. 241, 77 Am. St. Rep. 854, and Turner v. Cochran, 94 Tex. 480, 61 S. W. 923, definitely settled the proposition that the burden is upon the holder of the prior unrecorded conveyance to impute notice to the judgment creditor before or at the time of the registration of his judgment lien. See Johnnie Floyce Rule v. T. J. Richards, 159 S. W. 386, decided by this court May 17, 1913, not yet officially reported, in which Chief Justice Huff gives a brief summary of the conflict.

Upon a consideration of tile record in tMs cause, we hold that the testimony is insufficient to support the trial court’s finding that the judgment creditor, O. W. Holt, had notice, when he fixed his judgment lien, of the vendor’s lien held by appellee Belt. It is noted that the deed from Dillard to Faulk and the transfer of the vendor’s lien notes from Dillard to appellee Belt, although executed before the abstract of the judgment was recorded, were not placed of record, however, until after the registration and indexing of said judgment against Dillard, and consequently some character of notice aliunde the record to the judgment creditor is necessarily required at the time the judgment lien is fixed in order to postpone the Men of the abstract of judgment to the vendor’s lien owned by Belt. The holder of the vendor’s lien attempts to do this by asserting that a party by the name of Shackelford, who was in possession of this property and the tenant of Dillard, at the time Dillard conveyed the land to Faulk, thereafter and before the abstracting of the judgment lien had attorned his tenancy to Faulk and was the latter’s tenant at the time Holt abstracted his judgment; and, on account of the possession of the tenant, notice was imputed to Holt, the judgment creditor, of the deed and also the vendor’s lien notes in the deed. Shackelford, who was the father-in-law of Dillard, began his occupancy of this property some six or seven years before the trial of this cause in 1912 and testifies that he knew nothing of the sale from Dillard to Faulk when it was made, and that the first time he heard of it was the first of the year 1912, and says, “As a matter of fact, I thought Dillard was the owner of it up to the time of this suit,” which was filed October 12, 1911. It is true that the county clerk informed Shackelford that Mr. Dillard had conveyed the property and that the deed was of record. But upon this matter he said: “As to what I knew about some sort of lien on that place and when I first heard of it, I disremember. My first knowledge was: I think Mrs. Boyd was county clerk. She asked me if Dillard had sold the place and I told her I didn’t know anything about it, and she said she thought there was a deed on record.” The judgment having been abstracted as a judgment lien against Dillard prior to the time that the deed from Dillard to Faulk and the transfer of the vendor lien notes from Dillard to Belt were placed of record, the statement of Mrs. Boyd, the county clerk, necessarily gave the information to Shackelford, with reference to the conveyance, subsequently to the time that the judgment lien was abstracted; the statement was made after the deed was recorded, and the deed was recorded after the creditor’s lien was filed.

Associate Justice Gaines of the Supreme Court, in Collum v. Sanger Bros., 98 Tex. 162, 82 S. W. 460, as to notice of this character, says: “That possession by a tenant is equivalent to the possession of his landlord as to the question of notice is the settled law of this court.” Also see Glendenning v. Bell, 70 Tex. 633, 8 S. W. 324; Woodson v. Collins. 56 Tex. 175.

Whatever is sufficient to put a subsequent purchaser or creditor upon inquiry is sufficient to affect them with notice of all those facts which they might be presumed to have learned upon reasonable inquiry. What facts would the lien creditor, prior to and at the time he abstracted his judgment lien, have learned in this instance in prosecuting an inquiry of Shackelford, who was in possession during said time? The response by Shackelford to an inquiry, not having the knowledge with reference to the conveyance from Dillard to Faulk, or of any sale of the land, would necessarily have been that he was holding the land, for Dillard, the judgment debtor, and that so far as he knew Dillard was the owner of the property; Shackelford did not know of any outstanding unrecorded interest in any one to this land. Dillard testified: “Mr. Shackelford was on the property at the time I made the transfer and continued to reside there when I transferred the note to Belt, through Benson as his agent.” Shackelford also stated that he “was simply holding possession of that property for whoever it belonged.” These conclusions, however, are not sufficient to impair the cogency and conclusions of the testimony of Shackelford as to whom he was really holding the land for and as to the condition of his tenancy according to his knowledge as to the owner of the land at the time the abstract of judgment lien was fixed; and the record is devoid of any intimation that Shackelford at the time the deed was made by Dillard to Faulk, or subsequently thereto for that matter, made an attornment of his tenancy to Faulk, who, in so far as this record indicates, has never collected rent from Shackelford or paid any attention whatever to the property personally or by agent.

The evidence in this cause shows: That when Dillard conveyed the property to Faulk he negotiated the sale of the three vendor’s lien notes to Belt, executed by Faulk; and that Belt at the time was represented by W. D. Benson, and before the transfer of the notes Benson made the inquiry of Dillard, For whom was Shackelford holding the land? That Dillard informed him (Benson) that Shackelford, the tenant, was holding the land for Faulk, and which seems to be insisted upon in this cause as a circumstance to prove notice to the judgment creditor upon the proposition of diligence and the duty of inquiry. Appellee does not cite authorities for this position, and we are unable to find any. Justice Williams said in the ease of Paris Grocery Co. v. Burks, 101 Tex. 111, 105 S. W. 175, which involved a contest between an attaching creditor and the holder of an unrecorded conveyance; the language being referable to the duty of the creditor:

“He is not required to institute inquiries as to tile existence of rights of which there is no evidence upon the records, unless there be some fact which he knows or should know sufficient to excite inquiry in the minds of prudent persons.” It is settled in this state, in regard to matters affecting the title to land, that it is the policy of the law to require transactions involving lands or interests therein to be placed upon the public records and derive titles therefrom; and except when the question of notice, valuable consideration, and good faith are involved, and certain equitable titles not susceptible of registration, the record title controls. The leading case of Moran v. Wheeler, 87 Tex. 185, 27 S. W. 54, illuminates the principle — a case where a fraudulent release of vendor lien notes was of record at the time a mortgage was placed upon the land, and the innocent mortgagee, affected by the status of the record only, not having any knowledge of the outstanding vendor lien notes in the hands of a transferee, had a prior lien as against the vendor lien; the latter not having been transferred in writing and not of record. We believe the logic of the Moran-Wheeler Case and the case of Rogers v. Houston, 94 Tex. 403, 60 S. W. 870, also by the Supreme Court, is against the contention of appellee that the judgment creditor should have inquired of J. J. Dillard. If the creditor had gone to the record, he would have seen the title was in Dillard. In the latter case was involved conflicting interests in land and also the burden of proof, and the Supreme Court announced the principle directly that a party was not required to go further than the record to find out if a transfer of a vendor lien note had been made. We do not think in this cause because the evidence indicates that Dillard had told Benson, Belt’s agent, that Shackelford was holding the land for Eaulk, and that it could be reasoned that he would have told the judgment creditor the same thing, or would have informed him that he had conveyed the land if he had inquired, proves notice or imputed notice in this character of case. There is nothing shown in this record of any circumstance or fact, known by the judgment 'creditor, to excite inquiry by him that Dillard had sold the land, or that Dillard would inform him that Shackelford was holding the land for Eaulk. If one dealing for land would not have to inquire if a vendor’s lien note had been sold by the apparent holder of record of the note, when the record does not indicate it, we are unable to hold that Holt would have to inquire of Dillard if he had sold the land, or for whom Shackelford was holding the land, when the record is entirely consistent with Dillard’s ownership of the land and without any suggestive circumstance, imputed to Holt, to make such an inquiry. We sustain appellant’s assignment and propositions upon this matter.

Second. The appellant assigns error to the action of the court in finding that the judgment in the cause of Holt v. Dillard (upon which the abstract of judgment lien is predicated) is not a final judgment. If not a final judgment, of course it is fundamental that the abstract of judgment lien fails, and we quote an appropriate part of the judgment in that cause necessary to the discussion of that question: “On this the 7th day of June, 1910, same being a regular term of this court, the above-entitled cause came on for trial, and came the plaintiff and the defendant, each in person and by attorneys, and announced ready for trial, and a jury being waived, and all matters of foot as well as of law being submitted to the court, and the court; having heard the evidence and argument of counsel, is of the opinion that the law is with the plaintiff. Wherefore it is ordered, adjudged, and decreed by the court that the plaintiff, O. W. Holt, do have and recover of and from the defendant, J. J. Dillard, the sum of $702, with interest thereon from date hereof at the rate of 6 per cent, per annum, and all costs of suit, for which plaintiff may have execution.”

The plaintiff’s petition in that cause (i. e., Holt v. Dillard) is not in the record of this cause, but we find from the conclusions of the judge, who tried that cause without a jury in evidence in this record that the plaintiff Holt and the defendant Dillard were officers of a corporation engaged in the abstract business, and who evidently were in control of the business of said corporation as the court found an agreement between Holt and Dillard that the proceeds derived from the abstract business of said corporation should be divided between them; he further found, however, that plaintiff Holt owned a set of abstract books for the purpose of making abstracts of lots in the town of Lubbock and the additions thereto; and he further declared in that cause that “the fees of the abstract of the Lubbock town lots should be individually the property of plaintiff,” and also found an agreement to that effect, as well as another agreement that the fees of abstracts to lands, exclusive of the lots, should be the property of the corporation. Defendant Dillard pleaded a cross-action in that cause, alleging a written contract with reference to certain duties of plaintiff as to the abstract books of the corporation and a violation by plaintiff of the obligations in said contract, and further stated in said cross-action that, as to the abstracts of the town lots, he was entitled under the contract to the use of same for his private and professional work without charge, and that under said contract they were to divide the fees earned by the corporation, and that the fees for abstracts of the town lots were to belong to plaintiff, alleging a further breach of said contract with reference to the abstracts for the town lots by plaintiff, depriving him (Dillard) of the use of same, which allegations in said cross-action, germane to the question of the finality of tlie judgment, are the only ones we think necessary to set out, although said pleading contains more extended averments. The trial court in that cause further* found as follows: “The abstracts to the town lots were prepared by the plaintiff and the work amounted to the sum of $702” — which he found belonged to the plaintiff; and he further found: “That there has not been an accounting between plaintiff and defendant of the proceeds due each, derived from the business of the Western Abstract Company (the corporation), and that the question of damages, if any, as alleged by defendant in his cross-action, is not a part of this suit, and that same would be a question to be determined in a suit between defendant and the Western Abstract Company, and therefore find against the defendant as to damages under the facts and pleadings in this cause.”

“One of the accepted definitions of a final judgment is that it is ‘the awarding of the judicial consequences which the law attaches to facts.’ ” Land & Loan Co. v. Winter, 93 Tex. 563, 57 S. W. 41.

Of course it is essential to the finality of the judgment in the cause of Holt v. Dillard that the cross-action in that proceeding should have been disposed of. A study of the statute with reference to “counterclaim” indicates that set-off and reconvention and all other adversary actions by the defendant in the cause is comprehended whenever suit is brought for the “recovery of any debt due by judgment, bond, bill or otherwise * * * subject- to such limitations as may be prescribed by law.” Article 1327 of the Revised Civil Statutes of 1911, which has been the law for quite a number of years, recites that where, upon the trial of the issue, “if the defendant shall establish a demand against the plaintiff exceeding that established against him by the plaintiff, the court shall render judgment for the defendant for such excess” ; and by article 1328 it is prescribed that the party in whose favor final judgment is rendered shall also recover his costs unless it should be made to appear on the. trial that the counterclaim of the defendant was acquired after the commencement of the suit, in which event, if the plaintiff establishes a cause of action existing at the time of the commencement of the suit, the latter shall recover his costs. These are the only statutory prescriptions with reference to judgments upon issues of this character. Our statute prescribes that the trial judge shall, at the request of either of the parties, state in writing the conclusions of fact found by him separately from the conclusions of law, to be filed with the clerk and to constitute a part of the record of the cause; and, in ill cases where the conclusions of fact found by the judge are separately stated, the “court shall render judgment thereon." (Emphasis is ours.) This was amended in 1907 (article 2075, Rev. Civ. Stat. 1911) by allowing the court ten days after adjournment of the term “at which a cause may be tried in such court in which to prepare his findings of fact and conclusions of law in cases tried before the court, when demand is made therefor.” (Underscoring is ours.) This record does not indicate whether the conclusions of fact and law of the trial judge in the proceeding mentioned were filed during the term of court or after the same had expired. The obligation is imposed upon the trial judge to render judgment upon the conclusions of fact and law prior to the time of the amendment when the court filed said conclusions during term time, and the amendment giving the court ten days after the adjournment of the term in which to prepare his findings of fact and conclusions of law presupposes pre-existent conclusions of fact and of law upon which the judgment had been rendered, but the preparation of which may be deferred in accordance with the extension of time after the adjournment of court granted by the Legislature, an embodiment of matters in writing which the trial judge had found preliminary to the pronouncement of his judgment and upon which the same was based. If there was a recitation in this judgment distinctly finding an -equivalent conclusion, which we discern from the conclusions found by the trial judge in a separate instrument, as to his declarations against the cross-action, we think it would be indisputable that the judgment in this cause would be a final one; if that be true, an analysis of this record with reference to which (the conclusions of fact of the trial judge) we are able to look to as a part of the record we think becomes just as much a part of the judgment in this cause as if there had been a specific recitation and finding contained in the judgment itself; and we believe this would be true whether you construe the finding of the trial judge one of fact or law. The judgment says, “All matters of fact, as well as of law, were submitted to the court;” and that the court had heard the evidence, which, taken in connection with the findings of fact, thoroughly indicate that the court did dispose of the cross-action in that cause, and the pronouncement of the judgment of $702 in favor of the plaintiff against the defendant, with the costs of suit clearly to our minds, upon the record, is a declaration of the court disposing of' the matter.

We have a line of authorities which state where the finding of a jury, under the issues submitted to them, could not have been arrived at without finding another fact not expressed but necessarily included in the verdict, judgment will be rendered as if that fact had been positively found, and the verdict in that kind of a case is a final verdict disposing of the issues involved. Pearce v. Bell, 21 Tex. 688. The case cited was an action for debt, foreclosure of mortgages, resulting in a general verdict of the jufy in favor of tile plaintiff for a certain sum of money; and Chief Justice Roberts says: “By looking into the pleadings, then, it is manifest beyond a doubt that the jury passed upon the mortgages, as well as on the note, and must have equally found in favor of the plaintiff upon them as for his debt. The question of law is: Shall the verdict, deficient in not expressly finding one of the issues in the case, receive the benefit of the light thus reflected upon it by the pleadings, so as to supply by intendment, that which is not expressed in it but which necessarily follows from that which is expressed, viewed in connection with the pleadings?” 21 Tex. 691. The Supreme Court held in that case that judgment could be rendered foreclosing the lien in the mortgages on account of the pronouncement of the jury’s verdict having been a disposition of that issue. There is another line of cases in this state, illustrated by Davies v. Thompson, 92 Tex. 393, 49 S. W. 215, where the plaintiff in a cause of action presents more than one cause of action for recovery, and the judgment awards him a recovery upon one but is silent as to the other, the judgment is prima facie an adjudication that plaintiff was not entitled to recover upon such other cause. The case cited, decided by Chief Justice Gaines, refers to the decision of Judge Denman, Rackley v. Fowlkes, 89 Tex. 613, 36 S. W. 77, as a previous announcement of the same rule. In this record the judgment upon the face of it is clearly a final judgment and may only be questioned by referring to the record for the pleading of the defendant by injecting- his cross-action as an element of disturbance in that respect. We are not deciding that those who deal with abstract of judgment liens are not required to go further than the face of the judgment for the purpose of ascertaining its finality in order to ascertain the vitality of the lien itself but merely suggest that in some instances it might propound an inexpedient policy to demand diligence of that character.

Without attempting a discussion of the numerous cases and drawing distinctions and discriminations with reference to interlocutory and final judgments and whether or not there is a conflict between the holding of this court and some other Court of Civil Appeals, we think, and so hold, that, as applied to the particular record in this cause, the judgment as disclosed here is final.

Third. We do not agree with the appellee in this case in his contention with reference to improper indexing of the abstract of this judgment. The initial letters referred to by appellee as a part of the index we do not think constitute a part of the record of an abstract of judgment or of the index to same, and the marginal letters could be nothing more than a convenience attached by the clerk to the index itself for the purpose of more readily finding the name of the plaintiff and the defendant. The index here seems to have béen alphabetically arranged under the statute, and any person, who upon inspection arrived at the names of the plaintiff and the defendant, found a proper index, we think, properly arranged in substantial compliance with the statute. We think appellee is insisting upon an index which the statute does not prescribe. Our conclusions necessarily require a reversal and partial rendition of this cause.

Judgment having been rendered by the trial court in favor of the appellant, Bowles, against the defendants, J. J. Dillard, N. Frank Faulk, W. G. Naion, Geo. L. Beatty, and J. R. Shackelford, upon his cross-action, it is ordered by this court that the judgment to that extent be affirmed, and further ordered that the appellant, Frank Bowles, do have and recover of the appellee O. C. Belt the land in controversy herein upon his cross-action, and that said appellee pay all the costs of this appeal.

On Motion for Rehearing.

The appellee, in his motion for rehearing, upon the question of priority of liens involved in this case, insists that we have overruled the holding of the Supreme Court of the state in the case of Senter v. Lambeth, 59 Tex. 260.

The higher court held in that case that the equitable vendor’s lien which attaches to realty by virtue of the sale itself, contradistinguished from a contractual lien, would prevail against a judgment lien where notice of the unrecorded equitable lien was given before the sale. The Supreme Court, in the course of that opinion, said; “The evidence of the vendor’s lien in this case was not recorded nor was it in the form in which it existed (being the lien springing by operation of law out of the transaction between the parties) susceptible of registration.” The other cases cited by appellee in reality, upon a careful reading of the facts, announced the same principle which, with reference to equitable interests in lands not susceptible of registration, has been the settled law of this state for many decades. This doctrine is not. contravened by us; this is a contractual vendor’s lien expressed and reserved in the deed and recognized in the notes, and which character of lien is regarded, especially with reference to the assignment of same, in the nature of a mortgage, susceptible of registration, with the same penalty resultant from a lack of registration as of other legal interests, when, as to an opposition claimant of a legal interest or lien, notice or a valuable consideration is not shown to exist. It is not to be overlooked, and the original opinion in this case was intended to be equally bottomed on that fact, that the deed from Dillard to Faulk, through which Belt claims his vendor’s lien, although executed, was not recorded until after the registration of the abstract of judgment; Paulk could not have prevailed with his title, being the vendee of Dillard, without imputing notice to the judgment lien holder at the time the latter abstracted his judgment; and, if the holder of the unrecorded title would be cut off, why not the holder of an unrecorded express lien, dependent upon said title, when it also is neither recorded nor notice of same imputed to the creditor when the latter’s lien was fixed? It was the duty of Belt to see that this deed, by virtue of which he held the vendor’s lien, was upon the record or that the opposition claimant, when he recorded his judgment, had notice of the Paulk deed or of the vendor’s lien in order to eliminate Bowles, the holder of said judgment. The legal literature of appellee, the earnestness and ability of counsel, and the luxuriance of authorities presented on rehearing, which we think inapplicable upon the particular point, impel us to a reiteration of what we deem to be a plain principle of law.

The appellee again vigorously insists we have overruled numerous decisions of the Courts of Civil Appeals, and some decisions announced by the Supreme Court, upon the question of the finality of a judgment on account of the lack of a literal and express recitation finding against a cross-action injected into that case and which became necessary to be reviewed in this record. Every decision cited by appellee involving an affirmative, adverse action was reviewed by us, although not mentioned in our original opinion; and we believe we are not in conflict, even with the spirit of the principles announced by the Supreme Court, and we thought then and believe now that an attempted systematic analysis of the conceptions of the higher court, expressed and implied in these holdings, would be impracticable; and that an indulgence of legal dialectics with an almost interminable review of the numerous Court of Civil Appeals decisions, upon the matter of final judgments, would be equally useless and unavailable.

We insist that the particular judgment reviewed herein, with the particular record, giving an exposition of the meaning of said judgment, has never been passed upon by any Court of Civil Appeals, and a review of this record strengthens, rather than diminishes, our convictions on this subject, and the motion for rehearing is overruled.