author: PLEASANTS, C. J,

text:
    O’NEIL ENGINEERING CO. et al. v. CITY OF SAN AUGUSTINE et al.
    (No. 6647.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 10, 1914.
    Rehearing Denied Dec. 17, 1914.)
    1. Appeal and Error (§ 548) — Instructions —Bill ox Exceptions — Necessity.
    Error cannot be assigned on the charge of •the court or on the refusal of requested charges, unless a proper bill of exceptions has been taken in the trial court to the portion of the charge complained of or to the court’s action in refusing requested charges.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. 'Dig. §§ 2433-2440; Dec. Dig. § 548.]
    2. Contracts (g 280) — Engineering Service — Performance—Negligence.
    Where a contract employing engineers to construct a waterworks plant provided not only that the company should furnish plans and specifications for the work and a fcompetent superintendent, but gave it entire control and management of the work in constructing the system and the employment and control of the necessary labor, it was bound to exercise reasonable care in employing a competent superintendent and labor, and was liable to the city for any damage occasioned by a failure to do so.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1249-1280; Dec. Dig. § 280.]
    3.Principal and Surety (§ 82) — Bond — Performance ox Work.
    Where a contract employing engineers for the construction of a waterworks system not only required them to prepare proper plans and specifications, but gave them complete charge of the work of construction, the surety on a bond conditioned that the engineering company should faithfully comply with and fulfill all the terms and conditions of the contract was liable for loss to the city incident to the engineering company’s negligence in failing to provide a proper superintendent and labor in the construction of the work.
    [Ed. Note. — For other cases, see Principal and Surety, Cent'. Dig. § 127; Dec. Dig. § 82.]
    Appeal from District Court, San Augustine Comity; A. E. Davis, Judge.
    Action by the City of San Augustine and others against the O’Neil Engineering Company and others. From a judgment "for plaintiffs, defendants appeal.
    Affirmed.
    Harry P. Lawther, of Dallas, for appellants. Foster & Davis, of San Augustine, for appellees.

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

   PLEASANTS, C. J,

In December, 1908, appellee, as party of the first part, entered into a contract with appellant engineering company, the material parts of which are as follows:

“That the said party of the first part has this day employed the party of the second part as supervising and constructing engineers to prepare plans and specifications for the construction of a system of waterworks, to be erected and constructed in the city of San Augustine, San Augustine county, Tex., upon the following terms and conditions:

“First. The said party of the second part shall prepare and finish complete plans and specifications for the construction .and equipment of the proposed waterworks system, together with an estimate of same, which said estimate shall be guaranteed by a surety bond, and shall submit same to the party of the first part for their approval, and shall make such changes in plans as shall be desired by* the party of the first part.
“Second. When such plans and specifications shall be approved and accepted by the party of the first part, said party of the second part shall cause advertisements for bids of all of the material, machinery, and apparatus needed in the construction of said work to be inserted in the Manufacturers’ Record of Baltimore and the Engineering News of New York, to be at the expense of the party of the first part and to run not less than two weeks, said bids called for in said advertisements shall be addressed to the party of the first part, and shall not he opened until the day named in said advertisements, at which time, or if deferred by the party of the first part to a later date, said party of the second part by its officers, shall be present to assist the party of the first part in awarding contracts for the purchase of machinery, material, and apparatus needed in the construction of said waterworks system.
“Third. The party of the second part shall employ all labor that may be necessary in collecting material and constructing» said plant, and in doing so shall use local labor so far as possible, said labor to be paid for by the party of the first part, and shall also furnish a competent superintendent of same and of the work to be done in. the construction of said waterworks system, which shall include a competent superintendent, and such other superintendence as may be necessary at the expense of the party of the second part, and shall also at its expense furnish all tools necessary for the construction of said work, such as picks, shovels, plows, scrapers, lanterns, hammers, and .such like articles.”

As compensation for its services under said contract, the appellant engineering company was to receive “10 per cent, of the entire cost of the material, labor, machinery, apparatus, and all other things going into the cost of the construction of said work,” payable in installments; the times and amounts of such payments being specified in the contract. It was further provided in said contract that no liability should be incurred thereunder until the city could dispose of bonds to be issued for the purpose of constructing said system.

Acting under this contract, the engineering company, in February, 1909, prepared plans and specifications and an' estimate of the costs of the system, and submitted same to appellee. These specifications called for one artesian well 500 feet in depth, estimated to cost $1,500. Owing to the delay- in the issuance and sale of the bonds of the city, nothing further was done under this contract until 1911, when, after certain changes in the specifications, bids were advertised for all of the material and machinery, as provided in the contract. As finally adopted, the estimated cost of the system, exclusive of the commission to be paid the engineering company, was $20,434.37. The final specifications and estimate call for a well 500 feet in depth, to cost $1,500. The advertisement for bids made by the engineering company did not include a bid for the well; but a contract was made by the city, without consulting appellant, with a well borer by which he agreed to sink a 6-inch well for $2 per foot, the city to furnish the easing and the derrick to be used in the work, and also to pay the freight on the shipment of the well-boring machinery from Homer, La., to San Augustine. After the contract for the material and machinery and for the well had been let, the engineering company -executed and delivered to the appellee the following bond upon which the appellee Fidelity & Deposit Company of Maryland is surety:

“State of Texas, County of San Augustine.

“Know all men by these presents that we, O’Neil Engineering Company, as principal, and Fidelity & Deposit Company of Maryland, a corporation pf the state of Maryland, of Baltimore, Md., as surety, are held and firmly bound unto the city of San Augustine, San Augustine county, Tex., in the sum of five thousand ($5,-000.00) dollars, lawful money of the United States of America, well and truly to be paid to the said city of San Augustine, Tex., for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators, successors, and assigns, firmly by these presents.

“Signed and dated this 11th day of .August, A. D. 1911.

“The condition of this obligation is such that, whereas the said O’Neil Engineering Company has entered into a certain written contract with the said city of San Augustine, Tex., bearing date .the 17th day of December, A. D. 1908, covering the designing, supervising, and construction of a water system for the city of San Augustine, T'ex., as per contract hereto attached and made to form a part hereof: .Now, therefore, if the said O’Neil Engineering Company shall do and perform all things required of them by said contract, and shall in all things faithfully and honestly comply with and fulfill all the terms and conditions of said contract, then this obligation shall be null and void, otherwise it shall remain in full force and effect.

“It is specifically understood and agreed that the surety, Fidelity & Deposit Company of Maryland, does not guarantee the maintenance of any portion of the work after the completion of same, nor does this bond cover any provisions of ’ the contract respecting guarantee of efficiency or wearing qualities or for maintenance or repairs.

“In testimony whereof, witness our hands the day and year first above written.”

On April 26, 1912, after the completion of the waterworks system, the appellee brought this suit against appellants to recover damages for the alleged breach by the engineering company of its contract. The petition alleges the breach of the contract in the following particulars and sought to recover the items of damages specified:

(1) That the cost of the work exceeded the estimate in the sum of $1,117.07. (2) That under the terms of the contract the O’Neil Engineering Company was to furnish at its expense a competent superintendent of labor and work, and such other superintendence as might be necessary; -that in the course of the work the said O’Neil Engineering Company had employed as foreman and representatives three several men, who had been paid in the aggregate the sum of $378.-40 by the city, instead of by the O’Neil Engineering Company, as provided for in the contract. (3) .That the superintendent furnished by the engineering company was incompetent, and performed his duties in a negligent manner, and that by reason of the careléssness and negligence of said superintendent, who had authority from said defendant to employ and discharge the laborers necessary to perform the work of constructing said system, a large number of unnecessary laborers were employed to perform the work of ditching and laying the water pipes for said system; that said laborers were not required to do a full day’s work, and that said superintendent who had charge of said work did not give his attention to the same, but devoted a large portion of his time to his private business affairs and permitted the men employed to do said work, and whose wages were paid by appellee, to waste their time; that said work was conducted by said superintendent with reckless extravagance and utter disregard of the rights of appellee; and that, as a direct result of the manner in which the work was conducted in the digging of the ditches and laying the pipe, the cost of such work to appellee was $1,062.50 more than it would have been had said work been properly conducted. (4) That by reason of the incompetence. and negligence of said superintendent in supervising the sinking of the well for 'said system the appellee was compelled to expend for said well $2,118.54 more than it would have cost him but for the incompetence and negligence of said superintendent. ■ The petition admitted that appellee owed the engineering company a balance of $545.70 as commission under its said contract, and prayed for judgment for the damages above stated, aggregating $4,676.45, less the said sum admitted to be due defendant.

In addition to a general demurrer, special exceptions, and general denial, the defendants further answered, specially denying that the cost of the plant had exceeded the estimate, that the plans and specifications of the O’Neil Engineering Company had only called for a well 500 feet deep 6 inches in diameter, estimated to cost $1,500, and that they could not be held responsible, and especially the surety company could not be held responsible, for any costs the city had been put to concerning said well after it passed a depth of 500 feet, that the three several men who had been paid by the city in the aggregate sum of $378.40 were not superintendents, but were simply straw bosses, and, under the terms of the contract, should have been paid by the city, as they were paid; specially denying that the said Greene performed his work in a negligent manner; and setting up that the amount paid out for the ditch pipe laying and reservoir work was much as was ordinary and customary under the circumstances ; and setting up various items in the total cost of the work which they claimed were extras not called for in the original plans and specifications, and due to changes therein made by the direction of the city of San Augustine; and setting up that the city was still due the O’Neil Engineering .Company a balance of $571.70 commissions provided for in the contract, for all of which they prayed judgment against the city.

The cause was submitted tó a jury in the court below upon special issues. The charge of the court, in so far as it relates to the questions presented by appellant’s assignments of error, was as follows:

“In this case the court submits to you for your finding certain questions, which you will answer in accordance with your findings. The burden of proof rests on the plaintiff the city of San Augustine to show .by a preponderance of the evidence the allegations in its petition, and, if it has failed to do this, the city cannot recover. ‘Negligence’ is the want of that care and diligence which an ordinarily prudent person would use under the same or similar circumstances. ‘Incompcteney’ is the want or lack of ability to do or perform a certain, thing. ,- ; .
“In this, case you are .charged that, under the contract introduced in evidence between the plaintiff and O’Neil Engineering Company, dated December 17, 1908, it was the duty of the engineering company to furnish a competent superintendent for the construction of the waterworks system and to furnish such other superintendence as the work required, and it was the duty of the engineering company to exercise in the supervision of the work the care and skill of an ordinarily prudent supervising engineer under the same or similar circumstances, and, if the said company has failed to exercise such care and skill in the particulars alleged in plaintiff’s petition, -and the plaintiff has been damaged thereby, the engineering company would be liable' therefor.
“Question No. 1: Was S. G. Greene negligent or incompetent in supervising the digging of the ditch and reservoirs and laying the pipe for the waterworks system? Answer this question ‘Yes’ or ‘No.’
“If you answer question No. 1 ‘Yes,’ then answer question No. 2; but if you answer question No. 1 ‘No,’ then you need not answer question No. .2.
“Question No. 2: Was the city of San Augustine damaged because of the negligence or iu-competency of S G. Greene in supervising the digging of ditches and reservoirs and laying the pipe ror the waterworks system for the city of San Augustine? Answer this question ‘Yes’ or ‘No.’
“Question No. 3: Did S. G. Greene cause the well to be drilled below 500 feet? Answer this question ‘Yes’ or ‘No.’
“If you answer question No. 3 ‘Yes,’ then answer question No. 4; but if you answer question No. 3 ‘No,’ then you need not answer question No. 4. ’
“Question No. 4: Was it negligence for Greene to cause the well to be drilled below 500 feet, under the circumstances? Answer this question ‘Yes’ or ‘No.’
“If you answer questions Nos. 3 and 4 ‘Yes,’ then you will answer question No. 5; but if you answer either questions No. 3 or No. 4 ‘No,’ then you will not answer question No. 5.
“Question No. 5: Was the city of San Augustine damaged because of the negligence of S. G. Greene in causing the well to be drilled below 500 feet? Answer this question ‘Yes’ or ‘No.’
“If you answer questions Nos. 3, 4, and 5 ‘Yes,’ then you will answer question No. 6; but if you answer any of the questions Nos. 3, 4, and 5 ‘No,’ then you need not answer question No. 6.
“Question No. 6: What was the amount of damages to the city of San Augustine because of the negligence or incompetency of S. G. Greene in causing the well to be drilled below 500 feet? Answer this question by giving the amount in figures.
“If you answer questions Nos. 1 and 2 ‘Yes,’ then answer question No. 7, but if you answer either questions 1 or 2 ‘No,’ you will not answer question No. 7.
“Question No. 7: What was the amount of the damages because of the negligence or incompetency of S. G. Greene in supervising the digging of the ditches and reservoir and laying the pipe for the waterworks system of the city of San Augustine? Answer this question by giving the amount in figures.”

The jury by their verdict answered the first five questions in the affirmative, and, in answer to the sixth and seventh questions, fixed the amounts of appellee's ‘ damage at $994 and $800, respectively. In answer to the eleventh question propounded to - them, they found that the total estimated cost of the waterworks system under the plans and specifications furnished by the engineering company was $20,500, exclusive of the com-inissions to the engineering company; and in answer to the twelfth, question found that the actual cost of the system to the city was $22,146.16. Upon the return of this verdict both parties asked for judgment thereon. The motion of defendants for judgment in their favor was refused and plaintiff’s motion granted. The judgment rendered was in favor of plaintiff for the sum of $1,794, the aggregate amount of damages found by the jury in answer to questions 6 and 7, and the further sum of $378.40, the amount shown by the evidence to have been paid by plaintiff to the three foremen whose wages plaintiff claimed should have been paid by the engineering company. From these aggregate amounts, $2,172, the sum of $571.70, the amount found by the jury to be due the engineering company as commissions, together with $52.70 interest thereon, was deducted, leaving a judgment in favor of the plaintiff against both defendants for the sum of $1,-543.97.

The sufficiency of the evidence to sustain the findings of the jury upon the issues submitted to them is not questioned by any of the assignments of error presented by appellants.

The first, second, third, and fifth assignments of error presented in appellants’ brief are as follows:

“First assignment of error: The court erred in submitting to the jury the question of Greene’s negligence, and in rendering judgment against appellants on account of same, especial- ' ly as to the fidelity and deposit company. Neither the contract between the city of San Augustine and the O’Neil Engineering Company nor the bond of the fidelity and deposit company guaranteed the city against the negligence of the superintendent furnished by the engineering company.
“Second assignment of error: The court erred in submitting to the jury, especially as against the surety company, the question of the negligence of Greene in causing the well to be drilled below 500 feet, and in rendering judgment against appellants on account of same; the plans and specifications which were approved and accepted by the city only calling for a 6-’ inch well 500 feet in depth, at an estimated cost of $1,500.
“Third assignment of error: The court erred in refusing to give to the jury special issue No. 9. requested by the defendants as follows: ‘Was Greene incompetent in the superintendence of the digging of the well' down to a depth of 500 feet’ ”
“Fifth assignment of error: The court erred in refusing to submit to the jury special issues Nos. 2 and 10, as follows :
“Special issue No. 2, requested by the defendants : ‘At the request- of the defendants, I submit to you for your finding the following question, in addition to the questions hereinbefore propounded to you, which you will answer in accordance with your finding: “Question No. 16: Did the city of San Augustine expect to obtain a flowing well at the depth and size which the defendant engineering company’s estimate of the well named in the plans and specifications upon which the total cost was based?”’
“Special issue No* 10, requested by the defendants:
“ ‘In considering your answer to question No. 3, you will take’ into consideration all of the circumstances of the case, the fact, if you find from the evidence that such was the fact, that all of the parties expected to obtain a flowing well at a depth of 500 feet, the quantity of water which you find from the evidence was found at depth of 500 feet, and whether or not what is known as a flowing well was, in fact, found at a depth of 500 feet) and if, from all the circumstances surrounding the situation, and looking at it from Greene’s viewpoint, you find from the evidence that a man of ordinary prudence and competence would have acted as Greene did, under the same or similar circumstances, you will answer this question, “No also, before determining your answer to this question, you will find from the evidence whether the water which was found which rose to the top of the pipe and trickled over was found at a depth of 500 feet or at a depth between 640 and 71Ó feet.’ ”

It does not appear from the record that any bill of exceptions was taken by the defendants in the court below to the charge given by the court, nor to the refusal of the court to give the special charges requested by the defendants. It has i m held in a number of cases decided by the Courts of Civil Appeals for the Third, Fifth, Sixth, and Seventh Districts that under our present statute no complaint of error in the charge of the court or in the refusal of requested charges will be heard on appeal, unless a proper bill of exceptions is taken in the court below to the portion of the charge complained of, or to the action of the court in refusing requested charges when such action is assigned as error. Saunders v. Thut, 165 S. W. 554; Railway Co. v. Wadsack, 166 S. W. 42; Railway Co. v. Brown, 168 S. W. 867; Motor Co. v. Freeman, 168 S. W. 82; Railway Co. v. Barnes, 168 S. W. 992; Railway Co. v. Mallard, 168 S. W. 994. We think this is a fair and reasonable construction of the statute, and that such construction tends to further the evident purpose and object of.the Legislature in its enactment.

In the recent cases of Railway Co. v. Churchill, 171 S. W. 517, and Conn v. Houston Oil Co., 171 S. W. 520, this court approved and followed the rule announced in the cases above cited.

If, however, we could consider the assignments, we do not think they should be sustained. Under the contract before set out, the obligation of the engineering company was not limited to furnishing plans, and specifications for the work and a competent superintendent thereof, but they had entire control and management of the work of constructing the system and the employment and control of the labor necessary for such construction. This responsibility having been assumed by it, and being a material part of the consideration for the execution of the contract by the city, the company was required to use ordinary care and diligence in the discharge of its contract obligations, and would be liable to the city for any dafi> age caused by its failure to use ordinary care in the performance of any of its contract undertakings. ‘

The bond executed by the appellant surety company was conditioned upon the faithful performance by the engineering company of all of the requirements, terms, and conditions of its contract with the city, and under this bond the surety company is liable for any damages sustained by the city by reason of the failure of the engineering company to faithfully comply. with any of the requirements of the contract. We think the charge given by the trial court correctly applied the law to the facts disclosed by the evidence, and that the requested instructions were properly refused.

The fourth assignment complains of the refusal of the court to render judgment in favor of the defendants upon the findings of the jury that the total cost of the plant did not exceed the estimate furnished the city by the engineering company. This assignment is predicated upon the theory that the engineering company was not required under its contract to use any care in the employment of labor or in incurring expenses for the city further than to bring the total cost of the work within the amount of the estimate furnished by it. We do not think this is a proper construction of the contract. As we have before said, we think the company was bound under the contract to use ordinary care and diligence in the performance of its contract undertakings, and the fact that the city required it to guarantee that the work would not cost more than a stated amount did not authorize it to negligently spend an unnecessary amount in carrying out the contract, and thus increase the amount of its commissions.

This disposes of all of the assignments presented in appellants’ brief, and from the conclusions above expressed it follows that the judgment of the court below should be affirmed, and it has been so ordered. •

Affirmed.


source: Caselaw Access Project

author: PLEASANTS, O. J.

license: Public Domain

text:
    MAGILL v. RUGELEY, Sheriff, et al.
    (No. 6716.)
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1914.
    Rehearing Denied Dec. 10, 1914.)
    1. ATTORNEY AND CLIENT (§ 99)— ATTORNEY’S Authority — Settlement oe Judgment.
    An attorney at law has no authority to accept anything but money in payment of a judgment recovered by him on a claim left with him for collection, without his client’s express consent.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 196-2Q3; Dec. Dig. § 99.]
    2. Attorney and Client (§ 103) — Attorney’s Authority — Acts Beyond Authority-Acquiescence.
    Where an attorney at law, without authority, accepted certain trust .certificates in settlement of a judgment he had obtained for his client, who, when he first learned of the settlement, refused to accept the certificates, and in a few days placed the collection of the judgment in the hand's of other attorneys, there was no ratification of the settlement.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. § 154; Dec. Dig. § 103.]
    3. Attorney and Client (§ 77) — Authority oe Attorney — Apparent Authority.
    Where one was employed only as an attorney at law to collect a debt for his client, the debtor could not assume that the attorney had authority to accept anything but money in satisfaction, so that the rule requiring a principal to give notice of any limitation on the authority of a general agent, or one having apparent authority to make the contract in question, does not apply.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 88-90, 132, 136, 148, 149; Dec. Dig. § 77.]
    4. Attorney and Client (§ 99) — Authority oe Attorney — Collection oe Judgment-Joint Owner.
    Where a note, placed in the hands of an attorney for collection, provided for a 10 per cent, attorney’s fee, and the client agreed to pay the attorney such percentage and $60 additional, such agreement did not make the attorney a joint owner of a judgment in favor of the client for the amount of the note, principal, interest, and attorney’s fee, so as to entitle the attorney to make a settlement with the debtor by receiving trust certificates instead of money, under the rule that an accord and satisfaction with one of several joint creditors is a satisfaction of the debt.
    [Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 196-203; Dec. Dig. § 99.]
    5. Principal and Surety (§ 164) — Surety’s Liability — Judgment.
    Where a judgment against a principal and surety directed that execution should issue on the property of the surety, only in the event that property of the principal sufficient to satisfy the judgment could not be found, the return of several executions issued against the principal nulla bona was prima facie sufficient to authorize a levy on the property of the surety.
    TEd. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 456-465; Dec. Dig. § 164.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Suit by G. M. Magill against Frank Ruge-ley, sheriff, and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Gaines & Corbett, of Bay City, for appellant.
    Krause & Wilson, of Bay City, for ap-pellees.

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

   PLEASANTS, O. J.

This suit was brought by appellant to enjoin the execution of a judgment rendered by the district court of Matagorda county against appellant and others and in favor of S. G. Anderson, defendant in ¡this suit. The judgment sought to be enjoined was rendered on January 22, 1912, in a suit brought by S. G. Anderson against the Burton D. Hurd Land Company, as principal, and appellant G. M. Magill and others, as sureties, and was for the sum of $1,744.28. This judgment directs that execution issue upon the property of the sureties, only in event property of th,e principal sufficient to satisfy the judgment could not be found. In that suit E. E. Bateman was attorney of record for S. G. Anderson. Origi-. nal execution was issued on this judgment October 25, 1912, and an alias execution on March 17, 1913, which was returned not executed, “no property of the Burton D. Hurd Land Company being found.” Several subsequent executions were issued dnd returned not executed, “no property being found.”

The execution sought to be enjoined in this suit was issued on October 3, 1913, and was by defendant Bugeley, sheriff of Mata-gorda county, levied upon lots in the city of Bay 'City owned by appellant Magill. Plaintiff asked that the execution of the judgment be enjoined, and said judgment canceled and discharged of record on the ground that E. E. Bateman, the attorney of record for defendant Anderson in the suit in which said judgment was rendered, had on February 25, 1913, made a settlement of said judgment with the land company, and executed a written release of the judgment, reciting that it had been paid and satisfied in full. The defendant Anderson by proper plea denied the authority of Bateman to make said settlement and execute said release. By supplemental petition, the plaintiff alleged that Bateman was the attorney of record of the defendant Anderson, and had full and complete authority to make the settlement with the land company and release said judgment, and further that Bateman was also a joint owner with Anderson of said judgment.

The trial in the court below without a jury resulted in a judgment in favor of the defendants.

The evidence shows that E. E. Bateman, who was attorney of record for defendant in the suit in which the judgment sought to be enjoined was obtained, on February 25, 1913, accepted from the land company, in satisfaction of said judgment, trustees’ certificates of the nominal value of the amount due upon the judgment, and executed and delivered to the land company a full release of the judgment, signed by him as attorney of record for the defendant Anderson. Anderson testified that he never authorized Bate-man to accept anything but money in satisfaction of the judgment, and that the trustees’ certificates were never delivered to him, and he had never seen them. When he heard that Bateman had made a settlement of the judgment he went to see him in re.gard to the matter, and Bateman told him that he had taken the certificates, but they were not worth anything, and that he, Anderson, did not want them. Four or five days after this he employed other attorneys to represent him in collecting the judgment.

Bateman testified:

“I cannot say that Mr. Anderson ever authorized me specifically to accept the trustees’ certificates, but Mr. Anderson had left the matter entirely in my hands for collection, like any other client turns over a matter or note to me for collection.”

This evidence amply sustains, if it does not compel, the conclusion that Bateman had no express authority from appellee Anderson to accept anything but money in satisfaction of the judgment. It is well settled that an attorney at law has no right to receive anything but money in the payment of a debt intrusted to him for collection, without express authority from his client. Wright v. Daily, 26 Tex. 730; Portis v. Ennis, 27 Tex. 575; Anderson v. Boyd, 64 Tex. 108; Cook v. Greenberg, 34 S. W. 687.

There is no evidence showing acquiescence on the part of appellee Anderson in the settlement made by Bateman, and the testimony before set out, which is uncontradieted, shows that when he first learned of the settlement he refused to accept the certificates, and in a few days thereafter placed the collection of his judgment in the hands of other attorneys.

The question of apparent authority in Bateman to make the settlement is not raised by the evidence. His employment being only that of an attorney at law to collect a debt for his client, the debtor could not assume that he had authority to accept anything but money in satisfaction of the debt, and the rule which requires a principal to give notice of any limitation upon the authority of a general agent, or any agent who has apparent authority to make the contract in question, has no application.

The judgment in favor of appellee Anderson was for the amount of the principal, interest, and attorney’s fees due upon several notes which he had turned over to Bateman for collection. When he placed the notes in the hands of Bateman for collection he agreed to pay him, when collection was made, the 10 per cent, attorney’s fees provided in the notes and an additional sum of $60. This agreement did not make Bateman a joint owner with appellee of the notes nor of the judgment obtained thereon, and the undisputed evidence shows that no transfer or assignment of any interest in judgment was made to Bateman. Such being the facts, the principle invoked by appellant, that accord and satisfaction with one of several joint creditors is a complete extinction of the debt without any showing that the joint creditors who made the settlement had authority to act for the other joint owners, cannot be applied.

The return upon previous citations stating that no property of the land company could be found out of which the judgment could be made was prima facie sufficient to authorize the levy upon the property of the surety, and, in the absence of any evidence showing that the judgment could be collected from the principal, the levy upon and sale of the property of the surety to satisfy the judgment could not be enjoined.

We have not set out nor discussed in detail the several assignments presented in appellant’s brief, but in what has been said we have disposed of all of the questions presented by the assignments.

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

Affirmed.


author: HALL, J.

text:
    POLLARD v. ALLEN.
    (No. 656.)
    (Court of Civil Appeals of Texas. Amarillo.
    Oct. 31, 1914.
    Rehearing Denied Dec. 5, 1914.)
    1. Limitation ojt Actions (§ 102) — Causes of Action Baeeed by Limitation — TRUSTS.
    Plaintiff claimed that he turned over money to his uncle by having it placed to his uncle’s credit in the bank, in which it was deposited at his uncle’s request and on his uncle’s promise that he would put it on interest for plaintiff, and that plaintiff could have it back any time he wanted it or needed it. Held that, assuming that the transaction took place as claimed and that a trust was thereby created, such trust, though a direct or express trust, since it arose from an express agreement of the parties, was not a technical, continuing, and subsisting trust against which limitations would not run.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 494-505; Dec. Dig. § 102.]
    2. Limitation of Actions (§ 87) — Suspension — Absence from State — Nonresidents.
    The departure from the state of a nonresident, who had been temporarily present in the state, did no.t suspend the running of limitations against a cause of action against him.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 456-462; Dee. Dig. § 87.]
    .3. Limitation of Actions (§ 46) — Accrual of Cause of Action — Obligations Payable on Demand.
    Where plaintiff turned over money to his uncle on his uncle’s promise to put it in a bank on interest for plaintiff’s benefit, and to return it when plaintiff wanted it or needed it, there was an obligation payable on demand, against which limitations ran from the date of the receipt of the money by the uncle, or at least from the expiration of a reasonable time in which to make the agreed deposit.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 240-253; Dec. Dig. § 46.]
    Appeal from District Court, Sherman County.; D. B. Hill, Judge.
    Action by Frank M. Allen against James T. Pollard, executor. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    John H. H. Stahl, of Stratford, and Gold-stein & Miller and Turney & Burges, all of El Paso, for appellant. Tatum & Tatum, of Dalhart, for appellee.

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

   HALL, J.

Appellee instituted this suit in the district court of Sherman county against appellant September 28, 1912, to recover the sum of $4,165.50, with interest from September 11, 1907, at 6 per cent, per annum. Plaintiff alleged in substance the death of W. C. Thomas on the 30th day of March, 1912; the qualification of appellant as executor of Thomas’ estate; that during the winter of 1905 W. C. Thomas and plaintiff purchased a herd of cattle, paying therefor the aggregate sum of $900; that thereafter plaintiff purchased an additional interest to the extent of $400 from the said Thomas, and that thereafter during the winter of 1905 and 1906 the said W. C. Thomas gave to plaintiff all the interest which was then owned by the said Thomas in the said herd of cattle and delivered possession of the same to him ; that during the fall of 1906 the said Thomas purchased 100 calves, which he also gave to plaintiff; that on the 1st day of September, 1907, plaintiff was still the owner and in possession of both herds of cattle, and on or about the 10th day of September he sold the entire lot of cattle for $4,265.50 in cash, which he deposited in the First National Bank of Stratford, Tex., save and except $100 retained for his personal use; “that on or about the 11th day of September, 1907, the said W. C. Thomas, now deceased, stated that if the plaintiff would turn over to him the said sum of $4,165.50 then deposited in the bank aforesaid, he, the said Thomas, could and would put said money out at interest for the use and benefit of this plaintiff, and that this plaintiff could have any or all of said money at any time he requested or demanded the same from the said W. O. Thomas, and at any time he needed or desired the same, but that if he would turn it over to said W. G. Thomas at the time he could and would place it so that it could be drawing interest at all times and would be safe, but that the plaintiff should receive any or all of it back when he needed the same, or when he desired to have the same; that the said W. O. Thomas, now deceased, was an uncle of this plaintiff, and acting upon the said request, and in response to the said statements of the said Thomas, this plaintiff turned over and delivered to the said Thomas the aforesaid sum of $4,165.50, by having the First National Bank of Stratford, Tex., place the said sum of money to the credit of the said W. O. Thomas, in the presence of the said W. O. Thomas, for the uses hereinafter set forth.” Appellee further alleged that none of- said money had ever been repaid to him; • that after the said Thomas died in the state of Missouri, on or about the 30th day of March, 1912, plaintiff on or about the 23d day of September, 1912, presented his claim against the estate of the said Thomas, duly verified, to defendant Pollard, as executor of said estate, and that the same had neither been rejected nor allowed.

On January 12, 1914, the appellant filed his second original answer, in which he demurred generally and specially to plaintiff’s amended petition, on the ground that it was barred by the 2 and 4 year statutes of limitations. He denied every issuable fact pleaded by appellee, and averred that the cattle belonged to Thomas at the time they were sold; that the money derived from the sale belonged to Thomas, but that Allen had collected the same, and in transferring it from his account in the bank to Thomas’ account he did so in recognition of Thomas’ ownership thereof He also specially pleaded the statutes of limitations of 2 and 4 years in bar of plaintiff’s right to recover.

In reply to the second amended original answer, appellee filed his first supplemental petition, in which he pleaded the absence of Thomas from the state of Texas from the time of the alleged payment of the money to him until his death, except for a period of about 2 weeks, and that by reason of the absence of the said Thomas from the state of Texas the. statutes of limitations did not run, except for about 2 weeks, during which time Thomas was in the state. In response to this supplemental petition, appellant filed his first supplemental answer, in which he denied that Thomas was ever a resident of the state of Texas, temporarily or otherwise, but that for 60 or 70 years before his death he resided continuously in the state of Missouri, and not elsewhere.

The case was submitted upon the following special issues in substance:

First. “Was the $4,165.50 the property of Allen on or about September 11, 1907?” To which the jury answered, “Yes.”

Second. “Was it the agreement and understanding between Allen and Thomas that Thomas would keep this sum for Allen, and return same to him when called upon or requested to do so by Allen?” To which the jury answered, “Yes.”

Third. “Has Thomas, or any one for him, ever returned the $4,165.50 or any part thereof, to Allen? If so, what amount?” To which the jury answered, “Yes; $1,000.”

After the jury had retired, they returned and propounded to the court the following question:

"If we answer special issue No. 1 ‘Yes,’ have we the privilege to deduct from the $4,165.50 the $1,000 that Allen received?”

In reply to this question the court instructed them as follows:

“You will simply answer special issue No. 1, referred to, ‘Yes’ or ‘No,’ as from the evidence before you you find the facts to be, and for further instructions you are referred to the instructions heretofore given you.”

Upon motion of appellee the court entered judgment in his favor for the sum of $3,165.-50, and all costs.

The undisputed' evidence shows that Thomas was never a resident of the state of Texas, at least since 1906; that he was nev-. er in the state but once since- the alleged delivery of the money by Allen to him, and at that time he merely passed through on his way to Mexico. From the record it is clear that. appellee’s cause of . action was barred unless the relation of trustee and cestui que trust existed between Thomas and Allen, under an agreement creating a technical continuing trust. The testimony bearing upon this issue is solely from the witness Allen, and is as follows:

“I had no understanding or agreement with him [Thomas] about this money until after they [the cattle] were sold. I put the money in the bank here, and he asked me to take it to Missouri. He said, ‘Frank, I will take this money to Missouri and put it in the bank on interest for you.’ I said, ‘All right,’ and let him have it. He said I could have it any time I wanted it, or needed it. I did not need it. I have not gotten any of that money back. * * * The last time I saw Mr. Thomas was in the fall' of 1908, in California, Mo., at which time we talked "about the money I let him have at his home. He said he had that money out on interest up there for me, and that I could have it if I wanted it, then or any other time, just like he had always stated.”

On cross-examination:

“I have not a scratch of a pen to show that Mr. Thomas owes me any money only the bank books. I have never asked him to repay that money from the time I let him have it until he died. I didn’t think it was necessary. I asked him about the interest once. In 1908 I talked to him about it. I never asked about paying interest — never asked about repaying any part of the money. The only time I had any talk with him with reference to it was in 1908, at his home, from the time I let him have it. I do not know whether it was in September or October, 1908, that I was at his home. He lived four years from September, 1908, and during all that time I never as much as chirped about this money to him; I did not need it; I didn’t say a word to him about it one way or other. I didn’t know how much interest it was bearing; if it was bearing any, I never asked him. I claim to have $4,000 that was to be kept on interest, and never inquired whether it was bearing interest. I never asked who it was loaned to. I did not know where it was loaned. I didn’t think it was necessary, for the five years I claim to have had this money loaned, to know how much interest it was bearing, or whether it was loaned out, or to whom. For five years I claim this money was loaned out. I didn’t know how much in-tei’est it was bearing, or whether it was loaned out, or to whom. It is true that not until after this old man died did I begin to agitate this question. * * * Nobody was present when I talked to Mr. Thomas about this money. I talked to him in the yard; nolmdy was present. * * * I have alleged, it is true, that Mr. Thomas requested me to turn over the $4,165.50 to him, and that he would put said money out at interest for my use and benefit, and that I could have all or any of the money at any time. I testified in my direct examination that Mr. Thomas told me that he would put it in the bank for me on interest. His agreement was th'at he was to take it back to Missouri and deposit it on interest in the bank for me. Nothing was said about it being subject to my check. He said I could draw on him any time I wanted money. Nothing was said about checking on the account. The agreement was that he was to take it back and deposit it on interest for me in the bank. He may have done that for all I know. I asked Mr. Pollard for a settlement; for all I know, that money is deposited in the bank on interest for me to-day. When he stated he was going to take the money back , to Missouri and deposit it in a bank on. interest for me, nothing was said about what bank. 1 naturally .thought it would be a. bank in .Cali-forma, Mo. He said he was going to take it home, and California, Mo., was his home. Our agreement was that he was to deposit it on interest' in the bank at California, Mo. I do not know that it is not still there on interest for me; for all I know, it may be on interest for me to-day; for all I know, Mr. Thomas may have done the very thing that I claim he agreed to do.. Nothing was said about the money being subject to my check when it was deposited in the bank in Missouri. He said to draw on him if I needed it. He said he would deposit the money, and X could draw on him when I needed it. X may have answered the sixth interrogatory in my deposition (if it reads that way), that he was going to Missouri and suggested to me that he would take this money to Missouri with him and place it on deposit there for me. I didn’t loan him the money, but simply placed it to his credit in the bank, in order that he might take it to Missouri, where he said he would place it to my credit on interest, so that I could draw on it any time that I wanted to. My answer to the sixth interrogatory means practically the same thing as what I now say. Under my conception of the truth, both statements are true. I say I didn’t loan the money .to him. In answer to the fourth interrogatory of my deposition, my answer is: ‘I was in Texas at the time I loaned it to him in cash.’ That was not correct. I swore two or three times that it was not a loan, and he knows it. I didn’t say in one place that it was a loan; he took it down that way. I told him I would not swear it was a loan. My signature is to the deposition. I signed the papers. I told him it was not a loan; told him five or six times during the deposition, and he said it was all right.”

We think the rights of the parties to this litigation must necessarily turn upon the construction of the contract detailed by Allen. In Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315, our Supreme Court construed two instruments in writing of substantially the same tenor as the agreement between Allen and Thomas, as shown by the above-quoted testimony. The instruments upon which the Eborn Case was founded are as follows:

“Borrowed and received from William Eborn $900.00, which I promise to return when called for, with interest. Eeb. 3, 1846. [Signed] Thomas Eborn.
“Received of William Eborn $6,500.00, which I promise to invest in lands, or return the same when called for, with interest. May 14, 1846. [Signed] Thomas Eborn.”

Zimpelman, as administrator, pleaded the defense of limitation, and Associate Justice Gould, delivering the opinion of the court, said:

“The claim as presented was a money demand, barred upon its face. The $900 borrowed, to be returned ‘when called for,’ ‘created a cause 'of action from its date, and against it the statute runs from that time.’ Cook v. Cook, 19 Tex. 436. The receipt, or second instrument, is like the receipt which was before the court in Mitchell v. McLemore, 9 Tex. 151. In that case the receipt was for money to be invested in paying government fees for Texas scrip, placed in the party’s hands for location, and it was held that if, after the lapse of a reasonable time, the agent had failed to apply the money as required, he was in default, and the statute commenced to run without demand. It was held, further, that even if a demand was necessary ‘the plaintiff should have made it within time to have brought his suit before the statute had interposed a bar from the time the default occurred.’ After the lapse of a reasonable time to invest in lands, the money became due without demand; and even if demand were necessary, four years, the ordinary period of limitation to suits on written instruments, was long enough to allow for its being made. Regarding Mitchell v. McLemore as a case in point, and following that case and Wingate v. Wingate, 11 Tex. 430, we hold that the claim as presented, and as sued on, was not an express trust, but was an ordinary moneyed demand, barred by limitation, unless there was a sufficient acknowledgment to support the action.”

Conceding that the testimony of appellee, Allen, shows an express or direct trust, still we think it must be classed with those trusts to which our courts have held a plea of limitation applies. Granting that the jury’s finding upon the second special issue evinces an express trust rather than a loan, yet it is not such a trust as falls “within the proper, peculiar, and exclusive jurisdiction of courts of equity,” but is cognizable at law. The case of Wingate v. Wingate, supra, is in point. R. P. Wingate sued his brother for the possession of a slave. The defendant set up limitations, and to avoid this plea the plaintiff offered in evidence a writing as follows:

“I acknowledge to have received of my father, Walter Wingate, Sr., his negro boy Boston, for whose labor I agree to pay him at the rate of $6.00 per month, until called for. Columbia, La., April 8, 1841. [Signed] E. T. Wingate.”

Wingate, Sr., died in 1844, and the suit was fileu in 1849. The trial court sustained the plea of limitation, holding that the written receipt created an express trust, which continued until demand. Lipscomb, Justice, reversed the judgment, saying:

“That the agreement of the son (A. T. Win-gate) constituted him a trustee for his father, to some extent, is admitted, because every bailee is, in some sense, a trustee; but it does not follow that every kind of trust forms an exception to the operation of the statute of limitations. If so, half the business transactions of men would be removed from its influence; and the doctrine has been settled, by a train of decisions from the case of Lockey v. Lockey, Prec. in Ch. 518, decided by Lord Macclesfield, down to the present time, that to remove a trust from the operation of the statute, it must be such a trust, technically, as is created by the mutual confidence of the parties, such as equity alone can take cognizance of and afford redress. If it is a trust that common-law courts could give relief, the statute will run, although the party may have sought his remedy by a suit in chancery. In such cases, the fact of the suit being brought in the court of chancery, will not defeat the statute. It can be avoided only by a technical trust, of which the courts of common law could afford no relief. When it is laid down that, so long as a trust is continuing and subsisting, the statute does not commence to run between the cestui que trust or his assigns and their trustee, the doctrine applies to such eases only as are strictly and technically trusts created and sustained by the principles of equitable jurisprudence, exclusive of and in contradistinction to trusts of common-law cognizance; and even in such cases the statute would eom-.mence to run from the time the trustee disavowed the trust, or did any act conclusively showing that he did not hold as trustee. If the legal title is in one. in trust fox another, the trust could not be enforced hut by a resort to equitable jurisdiction. This would be a case where the trust would be a continued equitable trust. The statute would not run in favor of the cestui que trust or his assigns, until the trustee had clearly avowed that he did not hold as trustee, but in adverse right to the trust claim. If one man receives into his possession the money or chattels of another, it would create a trust; but suppose he goes further, and writes to the other that he had so received his money. Here would be a declaration of a direct trust, but not such a trust as would be unaffected by the statute of limitations, because suit could be brought in a court governed by the rules of the common law. It is important in all cases of trust, in inquiring whether the statute can be pleaded, to bear this distinction in the mind: If there is a remedy at law, that is, on the principles of the common law, in contradistinction to equity jurisprudence, the fact of there being such remedy brings the trust within the statute. In Kane v. Bloodgood, 7 Johns. Ch. (N. Y.) 90, 11 Am. Dec. 417, a case which the late Chancellor Kent has, by the display of his talents and great research on the subject of the statute of limitations as a bar to trusts, coupled with the immortality of his own great name, the Chancellor says: T cannot assent to the proposition that all cases of direct and express trust, arising between trustee and cestui que trust, are to be withdrawn from the operation of the statute of limitations, notwithstanding a clear and certain remedy exists at law. The word “trust” is often used in a very broad and comprehensive sense. Every deposit is a direct trust. Every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is fe trustee, and may be sued, either at law for money had and received, or in equity as trustee, for a breach of trust. Willes, C. J., in Scott v. Swoman, Willes, 404, 405. The reciprocal rights and duties founded upon the various species of bailments and growing out of those relations, as between hirer and letter to hire, borrower and lender, depositary and the person depositing, a commissioner and an employer, a receiver and giver in pledge, are all cases of express and direct trust; &nd these contracts, as Sir William Jones observes (Jones on Bail-ments, 2), are among the principal springs and wheels of civil society. Are all such cases to be taken out of the statute of limitations, under the motion of a trust, when one of the parties solicits his remedy in this court? A review of the decisions will enable us, as I apprehend, to deduce from them a safer and sounder doctrine, and to establish upon the solid foundation of authority and policy this rule: That trusts, intended by courts of equity not to be reached or affected by the statute of limitations, are those technical and continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction of this court.’ ”

Judge Lipscomb then applies the principles announced to the facts and holds that the written acknowledgment relied upon is not evidence of such a trust as takes it out of the statute of limitation and continues, using the following language:

■ “There is no pretense but that there was ample remedy on the principles of the common law, to the father whilst he lived, and to his assigns after his death, and that, if a trust it was not such a trust, as gave ‘peculiar and exclusive jurisdiction to the court of equity.’ There _ was no legal title in the defendant that made it necessary for the chancery jurisdiction to look behind. ' The title was acknowledged to be in the elder Wingate, and the defendant, the son, had only the possession, and the statute would have commenced the moment that a right to sue the defendant, according to stipulations of the contract, had accrued.”

In a note appended: to' this case Judge Lipscomb refers to the-case of Tinnen v. Mebane, 10 Tex. 246, 60 Am. Dec. 205, sa-ying it bad been decided while he was absent, and that if he had seen it before writing the opinion in the Wingate Case he would not have considered it at all necessary to again discuss the question of continued trusts. In the Tinnen Case, supra, Chief Justice Hemp-hill says:

“The rule that trusts are not affected by statutes of limitation was in the earlier cases very loosely expressed, and gave rise to erroneous decisions. Chancellor Kent, having been misled by them in the case of Coster v. Murray, 5 Johns. Ch. [N. Y.] 522, examined the subject very elaborately in the case of Kane v. Bloodgood, 7 Johns. Ch. [(N. Y.) 90, 11 Am. Dec. 417], and in a review of the cases, laid down the rule that trusts, not affected by statutes of limitation are those technical and continuing trusts not at all cognizable at law, but which fall within the peculiar and exclusive jurisdiction of courts of equity. * * * All trusts which are cognizable at law are not withdrawn from the operation of the statute. Persons who receive money to be paid to another, or who misapply money placed in their hands for a particular purpose, or the reciprocal rights and duties founded upon the various species of bailments, as between hirer and letter to hire, * * * depositary and persons depositing, etc., are cases of express and direct trusts, but being cognizable at law, or within the reach of the statute. The subject has been so much discussed that, he states, where there is a separate chancery jurisdiction and statutes of limitation are restricted to actions at law, the rule is of easy application. All implied and constructive trusts, all which are cognizable at law, are subject to the bar of limitation; and equity applies the same limitation to equitable demands that is applied in analogous cases at law. It is only where the trust is the mere creature of equity, exclusively cognizable within that jurisdiction, and is a subsisting, continued, and acknowledged trust, that the statute has no operation. It is more difficult, in our system of procedure, to apply the rule. The' chancery and common-law jurisdiction are here blended. The doctrine that the trust must be exclusively within the jurisdiction of equity to save it from the statute has very little application in a system of jurisprudence where there is no exclusive equity jurisdiction, and where the statute applies to all subjects within its provisions, irrespective of whether they involve legal or equitable rights, and whether elsewhere they be cognizable at law or in equity. No doubt, with us, the statute extends to all cases in which it is admitted to be applicable in other common law states. How much more it may embrace has not been determined. That portion of the rule which requires the trust, not barrable by time, to be subsisting, continued, and acknowledged, is of more universal application; and, in all cases which come properly within the definition, and are not repugnant to either the express provisions or policy of the statute, there is no doubt that lapse of time would not be permitted to operate as a bar.”

The facts in the case of Phillips v. Holman, 26 Tex. 277, show that Phillips transferred to Holman certain shares of stock which Holman agreed to use “as in his judgment would make it most profitable or productive.” Tbe profits were to be divided equally between them. Tbe suit was against Holman, wbo, it was alleged, bad disposed of tbe stock at a profit of $2,150. Tbe statute of limitations of four years was pleaded as a defense. Bell, Justice, said:

“Tbe only questions which we deem it necessary to discuss in this case, arise upon the plea of the statute of limitations. We do not think that the contract between the parties created in Holman that kind of ‘technical and continuing trust’ which cannot be affected by the statute of limitations. It is true the contract did not contemplate any particular period of time within which it was to be performed; but it nevertheless implied that it should be performed within a reasonable time, and devolved upon Holman the obligation ’ after the lapse of a reasonable time to, account to Phillips upon the contract. The time when the statute of limitations would begin to run upon this contract would perhaps be when Phillips would be entitled to call upon Holman for an account, and to enforce an account. This right would arise in Phillips, either because a reasonable time had elapsed for Holman to have performed the contract by disposing of the certificates of stock which were placed in his hands, or because he had in fagt made some disposition qf the stock, of which Phillips became informed.”

Without quoting from tbe authorities further, this rule is further elucidated in Bridgens v. West, 35 Tex. Civ. App. 277, 80 S. W. 419; Hightower v. Hester, 15 S. W. 415; Kennedy v. Baker, 59 Tex. 154; Cone v. Dunham, 59 Conn. 145, 20 Atl. 311, 8 L. R. A. 650, and note; Philips v. State ex rel. Harter, 5 Ohio St. 122, 64 Am. Dec. 636; Miles v. Thorne, 38 Cal. 335, 99 Am. Dec. 391.

The temporary presence of Thomas, who is clearly shown by the evidence of Allen to have been a nonresident, did not suspend the statute on his subsequent departure from the state. Wilson v. Daggett, 88 Tex. 375, 31 S. W. 618, 53 Am. St. Rep. 766. Thomas having undertaken to repay the money to Allen when he wanted it makes it an obligation payable on demand. Pitschki v. Anderson, 49 Tex. 1; Kampmann v. Williams, 70 Tex. 568, 8 S. W. 310; Swift v. Trotti, 52 Tex. 503. These cases hold in effect that'limitation runs from the date of the receipt of the money by Thomas. However, if it be contended that limitation did not begin to run until after the money had been deposited in a • bank for Allen, under the rule, Thomas would be granted a reasonable time in which to make a deposit, and limitation would begin to run at the expiration of that time. The uncontradicted evidence shows that one day was a reasonable time in which to make the deposit.

Perry on Trusts, § 23, announces the rule that private trusts which concern individuals are limited in their duration; All kinds of bailments and deposits come within the jurisdiction of the law. These are in effect personal trusts, with which equity does not deal. Simkins on Equity, 146.

If the transaction in question created a trust, it, of course, was a direct or express trust, since it arose from express agreement of the parties; but the authorities quoted warrant us in holding that it was not such a technical, continuing, and subsisting trust as would exempt' it from the bar of the statute.

Appellant urges that the court should have directed a verdict, based upon the answer of the jury to the second special issue, and we are inclined to the opinion that this contention is sound. However, we have thought it best to detail the evidence and quote at length from the authorities applicable to the facts.

We conclude that the judgment must be reversed, and here rendered for the appellant.

Reversed and rendered.


author: LEVY, X

text:
    KEASLER v. WRAY et al.
    (No. 1255.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 5, 1914.)
    1. Marshaling Assets and Securities (§ 1) —Nature and Scope of Remedy.
    The doctrine of marshaling assets will not be applied in favor of a party whose equities are inferior to that of others claiming the same securities.
    ' [Ed. Note. — For other cases, see Marshaling Assets and Securities, Cent. Dig. § 1; Dec. Dig. § 1.]
    2. Chattel Mortgages (§ 225) — Sale of Property — Consent of Mortgagee — Rights of Junior Mortgagee.
    By a sale of a part of mortgaged chattels with the mortgagee’s consent, but without waiving lien, neither the mortgagee nor mortgagor injured or displaced any right of a junior mortgagee in respect to the security acquired under a mortgage made thereafter on the property not sold.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 468-470; Dec. Dig. § 225.]'
    3. Chattel Mortgages (§ 225) — Sale of Property — Consent of Mortgagee — Title and Right of Buyers.
    Where -a mortgagee of chattels consents to a sale of a part thereof, but without waiving lien, the buyers may require the mortgagee to first exhaust the lien on the remaining property before having recourse to the property sold, and, if that is sufficient to satisfy the debt, they become tbe absolute owners free from the lien.
    [Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 468-470; Dec. Dig. § 225.]
    4. Marshaling Assets and Securities (§ 2) —Claim Founded on Contract.
    Taking a junior mortgage on the remainder after a sale of a part of mortgaged chattels with the senior mortgagee’s consent would not so far overcome the prior equities of the buyers, as to compel .marshaling in favor of the junior mortgagee against them, for marshaling is not founded on contract, nor is it a vested right or lien, but rests on equitable principles.
    [Ed. Note. — For other cases, see Marshaling Assets and Securities, Cent. Dig. § I; Dec. Dig. §2.]
    5. Marshaling Assets and Securities (§ 4) —Claims in Hands of one Person.
    A junior mortgagee, who took a mortgage on the remainder after a sale of a part of mortgaged chattels, with the senior mortgagee’s consent, but without waiving lien, and who later took an assignment of the senior mortgage, being the holder of both claims, could not invoke the doctrine of marshaling securities as against the equities of the buyers.
    [Ed.' Note. — For other cases, see Marshaling Assets and Securities, Cent. Dig. § 4; Dec. Dig. •§ 4.]
    6. Payment (§ 39) — Application oe Payments.
    The application of a payment as intended and agreed cannot be diverted without the debtor’s consent.
    [Ed. Note. — For other cases, see Payment, Gent. Dig. §§ 104-114; Dec. Dig. § 39.]
    '7. Chattel Mobtgages (§ 210) — Payment op Debt — Application Between Mortgages.
    Where mortgaged property is turned over to the mortgagee to apply the proceeds on the mortgage debt, a junior mortgagee, who acquires the property with notice thereof, on taking an assignment of the debt and senior mortgage, must apply the proceeds accordingly to discharge the debt secured by the senior mortgage.
    [Ed. Note. — For other cases, see Chattel Mortgages, Dec. Dig. § 210.]
    Appeal from District Court, Cass County; U. F. O’Neal, Judge.
    Suit by T. B. Keasler against C. P. Wray .and others to recover on notes, and for other relief. From a. judgment for defendants, plaintiff appeals.
    Affirmed.
    On November 2, 1911, C. P. Wray, as principal, and T. E. Wray, as surety, executed to the First National Bank of Hughes Springs ten promissory notes. As a further security in the payment of the notes, C. P. Wray on November 4, 1911, executed a mortgage to the bank on. seven mules, two wagons and harness, and a shingle mill and its machinery and usual attachments. On April 29, 1912, 0. P. Wray, as principal, and T. J. Wilson, as Surety, executed to the bank a note for $132.-50 due 30 days after date, and this note was by agreement secured by the mortgage of November 4, 1911. In June, 1912, O. P. Wray by permission of the cashier of the bank made sale of the shingle mill and its machinery and usual attachments to A. B. Bennett and A. H. Wiley. At the time of the sale of the shingle mill and outfit to Bennett and Wiley, the first six of the series of ten promissory notes had been paid to the bank, and there were four of the, series unpaid, but only one of the four was yet due besides the note for $132.50. The cashier at the time of granting permission to sell the shingle mill ■stated that the bank “would not waive its mortgage, but there was sufficient property to pay them without the shingle mill.” On June 15, 1912, after the sale of the shingle mill to Wiley and Bennett, C. P. Wray executed to T. B. Keasler a note for $640.12 and .secured the same by a second mortgage on the seven mules, two wagons, and harness described in the first .mortgage. On August ■6, 1912, about two months after O. P. Wray had sold the shingle mill and outfit to Wiley and Bennett, the appellee C. P. Wray turned over to the bank the seven mules, two wagons, and harness covered by the mortgage, together with two notes for $100 each, for the purpose of having sale made of the property, the notes collected, and 'the proceeds arising therefrom to be' applied to the payment of the five notes mentioned above. At the same time, Wray turned over to the bank as a payment a credit in his favor at the bank of $38. Four of the five notes were due and payable at the time the property was turned over to the bank for sale; the note for $132.-50 having a credit payment thereon of $86.70. After the property was turned over to the bank to pay the indebtedness, and about August 14, 1912, T. B. Keasler, without the knowledge of C. P. Wray or his sureties, or Wiley and Bennett, bought of the bank the five notes held and owned by it, and had said notes and mortgage assigned to him by the bank. After T. B. Keasler came into the possession of the property through delivery by the bank to him, he sold some of the property, and bartered some, and realized out of all the property the net sum of $901. Out of the sum realized from the sale of the property the appellant applied the same first to his own debt and then on the notes purchased from the bank, leaving a balance due on the bank notes. Appellant brought the suit to recover on the notes purchased from the bank against the makers and the sureties and to foreclose the first mortgage, and against A. B. Bennett and A. H. Wiley for the value of the shingle mill and outfit alleged to have been converted by them. The defendants answered that the property sold by the plaintiff had been turned over by C. P. Wray to the bank to be sold and collected and the proceeds to be applied to the payment of the bank debt, and that the proceeds should have been applied by the plaintiff first to the bank debt. The defendants Bennett and Wiley answered that the shingle mill and outfit were sold to them by permission of the bank, which held the mortgage; that the second mortgage did not embrace the property; and that they had the right to have the mortgage as originally executed to the bank exhausted on all of the property and first applied to payment of the bank debt. 'C. P. Wray further claimed that the property was more than sufficient to pay both the debt of the bank and of the plaintiff, and prayed for judgment over and against plaintiff for $501. The case was tried to the court without a jury, and he made findings of fact and conclusions of law, and entered judgment for the defendants. The findings of fact are. not challenged, and are substantially given above.
    Henderson & Bolin, of Daingerfield, and Mahaffey, Thomas & Hughes, of Texarkana, for appellant. O’Neal & Allday, of Atlanta, 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

   LEVY, X

(after stating the facts as above). The court pronounced the legal effect of the facts found by him to exist to be in denial of the right of the plaintiff to have a judgment against the defendants in the suit. The appellant insists by' his two assignments of error that the court did not give the proper legal effect to the facts found to exist. Appellant insists that, holding as he did the debt of the bank as well as that of his own with the several securities given for the payment of each, he has the right to have the securities for the payment of either debt marshaled in such manner as to most fully protect him. Concluding as we do that the court’s decision should be sustained, we overrule the two assignments.

It is believed that under the facts the appellant could not claim the benefit nor invoke the rule of marshaling securities. The equities of the defendants in point of fact are found by the court to be superior to that of appellant, and this would be sufficient to deny the application of the doctrine in favor of appellant.

It appears from the facts that the property covered by the mortgage to the bank covered mules, wagons, and a shingle mill and its attachments. The mortgage subsequently given to the appellee covered the same mules and wagons, but did not cover the shingle mill and attachments. The first mortgage was executed November 4, 1911. About June 6, 1912, and when about one-half of the indebtedness that the mortgage was given to secure was paid, the mortgagor sold by permission of the bank the shingle mill and attachments covered by the mortgage to Wiley and Bennett. It,would be required to presume, in support of the court’s judgment; that about June 6, 1912, the shingle mill sale was effected, for the court finds that “about two months after the shingle mill had been sold the defendants A. P. Bennett and A. H. Wiley and O. P. Wray turned over to the First National Bank of Hughes Springs, Tex.,” the property mortgaged, and the evidence is without dispute that the date the property was turned over to the bank was August 6, 1912. The appellant’s mortgage was executed June 15, 1912. Therefore at the time of the sale of the shingle mill neither the bank nor the mortgagor injured or displaced any right of the appellant in respect to the security. The appellant at the time of the sale stood towards the transaction as any other stranger would do having no rights therein.

But rights arose in favor of Wiley and Bennett in regard to the security covered by the mortgage, which must be taken into account and considered; as the court did, as a right next to the lien of the bank. Acquiring the property by permission of the bank, and at a time that no junior mortgage existed against any of the property and when sufficient of the original indebtedness had been reduced by payment to leave the value of the mules and wagons more than sufficient, as a fact, to pay off the balance due, Wiley and Bennett would be in an equitable position to require of the bank, had it undertaken to satisfy its existing debt under the mortgage, that- it first exhaust its lien upon the personalty covered by the mortgage before having recourse to the shingle mill. This would be so for the reason that the permitted sale of the property operated as an equitable limitation upon the remedy of the bank to disturb the rights of Wiley and Bennett further and to a greater extent than to apply the shingle mill to the satisfaction of the indebtedness existing, failing the sufficiency of the remaining personalty to satisfy same. If the other property was sufficient to pay the existing original indebtedness, as was the proof here, then, as against both the mortgagor and the bank, Wiley and Bennett would have become the absolute owners of the shingle mill free from the mortgage lien of the bank.

In order to .displace and defeat this equitable situation of Wiley and Bennett against the bank in respect to the shingle mill, the appellant has to .rely alone upon the fact that he was a junior lienor upon the mules, and that subsequently on August 14,, 1912, he became the purchaser of the bank of the existing indebtedness and the mortgage. The fact of taking a junior mortgage, being after the sale to Wiley and Bennett, would not so far overcome the prior equities of Wiley and Bennett as to compel marshaling in favor of appellant against Wiley and Bennett, for marshaling is not founded on contracts, nor is it a vested right or lien, but rest's on equitable principles alone. 26 Oyc. 928; 6 Pomeroy’s Equity Jur. 867.

By subsequently purchasing the bank’s debt and security, appellant was not in a better position to invoke, as against the equities of Bennett and Hill, the benefit of the doctrine sought to have applied. He in fact was in the position then of one person having two claims against another person. Being in that position, appellant could not invoke the doctrine of marshaling securities, for the rule is not applicable when the two claims are in the hands of the same person. In order to obtain the relief, “the parties must be creditors of the same debtor, and both funds must belong to one debtor.” 3s Pomeroy’s Eq. Jur. 868.

And neither was there error in concluding, as involved in the court’s conclusion, that appellant by his subsequent purchase of the bank’s debt and lien was not entitled, under the facts, to be protected by substitution or subrogation under the mortgage. The court finds:

“That about two months after the shingle mill had been sold by defendant O. P. Wray to defendants Wiley and Bennett, C. P. Wray turned over to the First National Bank of .Hughes Spring's, Tex., the seven mules, two. wagons, seven sets of harness, also two notes for $100, and a credit at the bank of $38 for the purpose of said personal property being sold by the said bank and the said notes being collected and the proceeds thereof to be applied to the payment of the five notes executed by said C. P. Wray and others to said bank, which notes are described in the bank mortgage, and being the five notes sued on herein.” And “I find that, after said property had been turned over to the said First National Bank of Hughes Springs to pay said indebtedness, the plaintiff, without knowledge of the defendants herein, bought from the bank the five notes held by it, being the five notes described in the plaintiff’s petition and the five notes sued on herein, and had said notes and said mortgage to said bank assigned to him by the First National Bank of Hughes Springs.”

After the appellee came into the possession of the property, he, as found by the court, “sold some of the property and bartered the balance, and realized out of all the property the net sum of $901.” Finding, as the court did, that C. P. Wray, the debtor, directed the manner in which his payment was to be applied, and that the bank accepted and undertook to make appropriation as directed and intended by the debtor, Wray, the bank would have to apply it accordingly. The application of the payment as intended and ágreed cannot be diverted without the consent of the debtor. Taking the property and acquiring the debt with notice, as the court was authorized to find, of the intention and agreement to make application of the proceeds of the property to the bank’s debt, the appellant could take no position inconsistent with the application of the payments in the particular way. The court therefore may, at the instance of the debtor, enforce, as he did, the appropriation of the funds under the agreement of the bank to the discharge of the specified debt, and in so doing the debt would appear, according to the evidence, fully discharged. As the debt of the bank was fully discharged by applying the payment as directed and agreed, the mortgage would be released, and as a consequence the maker of the note, the sureties, and Wiley and Bennett would be discharged. The effect of the court’s conclusion was this result, and should be sustained.

The judgment is affirmed.