text:
    HOUSTON & T. C. R. CO. v. DIAMOND PRESS BRICK CO.
    (No. 1614.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 18, 1916.
    Rehearing Denied June 15, 1916.)
    Indemnity <5&wkey;9(l) — Construction—Scope op Diability.
    A contract by which defendant agreed to pay all costs of spur track and release the railroad from liability, loss, or damage by fire, whether caused by negligence of the road or not, and “to save the road harmless from all claims for damages growing out of construction, maintenance, or operation of the spur,” and to reimburse the road for amounts paid by it for such claims, did not render defendant liable for loss, due to the railroad’s negligence, except loss by fire, so that the road, having paid a judgment for personal injuries on the spur, could not recover from defendant, although the language of the contract was broad enough to cov-, er such liability, but was inequitable and burdensome.
    [Ed. Note. — Por other cases, see Indemnity, Cent. Dig. § 16; Dec. Dig.' &wkey;»9(l).]
    Appeal from District Court, Ellis County; P. L. Hawkins, Judge.
    Action by the Houston & Texas Central Railroad. Company against the Diamond Press Brick Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    April 5, 1910, appellant and appellee entered into a contract as follows:
    “This agreement, made and entered into by and between the Houston & Texas Central Railroad Company, hereinafter styled party of the first part, and Diamond Press Brick Company, a corporation having its principal office in the city of Perris, Ellis county, Texas, hereinafter styled party of the second part, witnesseth:
    “First. That the party of the first part agrees and binds itself to furnish the rails and all material and labor, except that hereinafter stated,' for and to construct a spur track not exceeding 1,130 feet in length, in city of Perris, Ellis county, Texas. The said spur track to connect with the main track of the party of the first part and to extend in a southerly direction on the east side thereof a distance of 1,130 feet as represented by a red line on the blueprint marked ‘Exhibit A’ hereto attached and made a part hereof.
    “Second. The party of the second part agrees to procure the right of_way for said spur track, including any and all ordinances, and county or municipal permits, without cost or expense to the party of the first part. The title to said right of way and the rights and permits so granted to be vested in the party of the first part, its successors or assigns.
    “Third. The party of the second part agrees to do the necessary grading, furnish the switch and cross-ties, and also expressly agrees to reimburse the party of the first part for all amounts expended by it for rail, labor, and other material used in constructing said track, but it is understood that the material in said track, when completed, shall be owned by the party of the first part, together with the entire control of same, and the party of the first part hereby reserves the right, and is duly authorized whenever, or at any time, it should seem proper or deem it necessary, for any reason whatever, and without let or hindrance from said party of the second part, to take up and remove the said spur track and all material used in its construction, and without being held liable to the party of the second part for any damages resulting therefrom.
    “Fourth. It is agreed and understood that the said party of the second part shall bear the expense of keeping the said spur track in good condition, and that it will, upon receipt of bills therefor, promptly reimburse the party of the first part for any and all expenses incurred by it for material and labor furnished in making such repairs as may be necessary to keep the said spur track in first-class condition.
    “Fifth. It is further agreed and understood that the party of the second part is to become liable for cars placed or upon the above-described track for its use and benefit, whether such cars are owned by the party of the first part or other railroad companies, and in the event of their damage or destruction by fire, or from any other cause growing out of the making of this agreement, the said party of the second part shall pay all bills for such damage or destruction upon presentation thereof: Provided, that where cars consigned to or intended for the use of others than the party of the second part and at its request are placed upon said spur track, the party of the second part shall be responsible for said cars the same as if they were consigned to or placed on said spur track for its use and benefit.
    “Sixth. It is further agreed and understood between the parties hereto that in consideration of the convenient facilities ■ afforded, and the benefits inuring to .the party of the second part by the construction of said spur track, that the party of the first part is hereby released from all liability on account of any loss or damage by fire to the property of the party of the second part, or to the property of any other person which may be in the care or control of the party of the second part, in any car or cars upon said spur track, or in any building now or hereafter erected adjacent to said spur track, or property which may be staked or stored near the same, whether such damage be occasioned by sparks from locomotives, the negligence of the agents or employes of the party of the first part, or otherwise.
    “Seventh. The party of the second part further agrees and obligates itself to save the party of the first part harmless from any and all claims for damages arising from any cause whatever growing out of the construction, maintenance, and operation of said spur track, including damages for injury to or killing of stock belonging to the party of the second part, its employes’ or tenants, whether such claim is made by any person, firm, corporation, or municipality. The party of the second part-further agrees and binds itself to reimburse the said party of the first part for any and all amounts it may be compelled to pay in settlement of any claim for which, under the terms of this agreement, the party of the second part would be liable.
    “Eighth. The right is given the party- of the first part at any time to make use of said spur track for the purpose of receiving and delivering freight from and to other patrons, to spring other spur tracks therefrom, or to extend the same: Provided, such use of the spur track or any extension thereof shall not unnecessarily interfere with the said party of the second part in the enjoyment of the benefits of said spur track: Provided further, that the party of the second part, in event of loss or damage to cars and their contents, shall only be liable for those which have been placed on said spur track, or any extension thereof, for its use, and those placed at its request as contemplated in article fifth hereof.
    “Ninth. In event the said spur track should be extended or other track sprung therefrom the party of the first part agrees to refund to the party of the second part the proportionate amount expended by the party of the second part for right of way and material and labor furnished by it on so much of the track as may be used in common with others, such proportions to be on a basis of the number of industries served or benefited by the said spur track, and the expense of the repairs to said track shall be proportioned in the same manner.”
    It appears from the pleadings that the spur track constructed by appellant in accordance with its undertaking in the first paragraph of the contract crossed a public road. In January, 1913, one Hamilton sustained injury to his person, which he claimed was due to the negligent failure of appellant to keep the crossing over the road in proper condition. He sued appellant, and recovered judgment against it for $1,430, which it paid. Appellant then brought this- suit against appellee to recover of it the $1,430 paid Hamilton, predicating liability as claimed against it on its undertaking in the seventh paragraph of the contract. Appellee excepted to the petition, .on the ground: (1) That it appeared from the allegations therein that appellee was a corporation, and did not appear it was authorized to contract as charged; (2) that it appeared from said allegations that the injury to Hamilton was due to appellant’s failure to properly maintain the spur track; and (3) if the contract should be construed as binding it to indemnify appellant against the consequences to third persons of its own negligence, that ap-pellee was without power to so bind itself. Answering the petition, appellee set out the contract in full, and alleged, among other things, that it was incorporated under the laws of Texas “for the transaction of any manufacturing business, and the purchase and sale of goods, wares, and merchandise used for such business, and that as a matter of fact its business is and always has been the manufacture and sale of brick, and that as such corporation it was not authorized to enter into any such contract.” In reply appellant admitted the contract to be as alleged by appellee, and that appellee was a corporation, and “was organized, among other things, for the manufacture of brick.” Appellant then alleged that the spur track was useful and necessary to appellee’s business as a manufacturer of brick, and therefore that it had a right to contract as it did, and further that appellee had enjoyed the use of the track for a long time, and was estopped from asserting that the contract under which it had use of same was ultra vires. The trial court was of opinion it appeared from the pleadings that appellant was not entitled to recover on the contract as it sought to, and, sustaining exceptions to the petition and a motion by ap-pellee that “the uncontroverted facts alleged in its answers, original and supplemental, especially its allegations as to the contract between it and plaintiff, be taken as confessed,” rendered judgment that appellant take nothing by its suit.
    Jno. T. Garrison, of Houston, and John H. Sharp, of Ennis, for appellant. G. 0. Groce, of Waxahaehie, for appellee.
   WILLSON, C. J.

(after stating the facts as above). It appeared from the pleadings that the recovery sought by appellant was of a sum it had to pay Hamilton because of its negligence resulting in injury to his person. The correctness of the court’s ruling therefore may be said to depend upon the answers which should be- made to these questions: (1) Did it appear that appellee undertook by the contract declared upon to bind itself to indemnify appellant against liability for personal injury to a third person due. to..appellant’s own negligence? (2) If it did, then did it so bind itself, or was its undertaking ultra vires?

The contract should not be so construed “as to render it oppressive or inequitable as to either party, or so as to place one of the parties at the mercy of the other, unless it is clear that such was their manifest intention at the time the agreement was made.” 2 Elliott on Contracts, § 1521. It is plain that, if the contract should be construed' as binding appellee to indemnify appellant against the consequence of its own negligence, it would place appellee at. the. mercy of appellant, and easily could be made to operate oppressively and inequitably against it. Therefore it should not be held to have that effect, unless it is clear from its language that the parties, when they made it, intended it to operate that way. It will be noted .that by the- terms of the contract the spur track was to be-constructed' by appellant, but wholly at appellee’s expense, and, when constructed was to become and be appellant’s property, and under its¡ “entire control.” Appellant was to determine when and how it should, be repaired, and have such repairs made as were neees-.sary to keep it in “first-class condition,” but at appellee’s expense. Appellant was to be released from, all liability on account of loss by fire of property belonging to appellee or in its care or control, etc., whether .such liability was due to negligence of its agents or employes, “or otherwise.” Harsh and inequitable as the terms stated appear to be,, .it is manifest from the language used that the parties intended so to bind themselves. But that they intended by the seventh paragraph in the instrument to bind appellee to indemnify appellant against the consequences of its negligence resulting from other causes than fire is not at all manifest. On the contrary, the reasonable meaning of that paragraph, construed with the one preceding- it, is that appellant was not to be liable for damages caused by fire due to its negligence, and was to be saved harmless from any and all other claims for damages against it not based on its negligence, “growing out of the construction, maintenance, and operation of said spur track.” To construe it as meaning that appellee was to indemnify appellant against liability to third persons for personal injuries to them resulting from its negligence in the construction, maintenance, and operation of the track, we think would be unreasonable. “Every presumption,” said the court in Mynard v. Syracuse, etc., R. R. Co., 71 N. Y. 180, 27 Am. Rep. 28, “is against an intention to contract for immunity for not exercising ordinary diligence in the transaction of any business, and hence the general rule is that contracts will not be so construed, unless expressed in unequivocal tefms.” There is no doubt the language of paragraph 7 is broad enough to bind appel-lee to indemnify appellant against the consequences of its own negligence, but it is not believed it should be construed as manifestly' showing the intention of the parties to have been that it should so operate. “When general words,” said the court in the case cited, “may operate without including the negligence of the carrier or his servants, it will not be presumed that it was intended to include it.” And see Perry v. Payne, 217 Pa. 252, 60 Atl. 553, 11 L. R. A. (N. S.) 1173, 10 Ann. Cas. 589; Mitchell v. Railway Co., 124 Ky. 146, 74 S. W. 216; Railway Co. v. Cornell, 54 Hun, 292, 7 N. Y. Supp. 557; 6 R. C. L. 727; 5 Elliott on Contracts, § 4007; 22 Cyc. 85. If appellee could bind itself to do so, the words used in paragraph 7 of the contract undoubtedly operated to bind it to indemnify appellant against any liability it might incur in the construction, maintenance, and operation of the spur track not due to its negligence. Such, we think, should be held to have been the intention of the parties. Having reached this conclusion, it is not necessary to determine whether the contract was ultra vires as to appellee or not.

The judgment is affirmed.
      <j&wkey;For other oases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HODGES, J.

license: Public Domain

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. CORNELIUS.
    (No. 1628.)

    (Court of Civil Appeals of Texas. Texarkana.
    June 1, 1916.
    Rehearing Denied June 15, 1916.)
    1. CONTINUANCE t&wkey;34^-ABSENCE OF WITNESS —Admission That Absent Witness will Testify as Alleged.
    The mere admission that an absent witness would, if present, testify to the facts set out in an application for a continuance is no sufficient reason for refusing a continuance.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 114; Dec. Dig. <&wkey;>34.]
    2. Continuance <&wkey;25 — Absence of Witness —MATERIALITY OF TESTIMONY.
    The refusal of a continuance to secure the attendance of absent witness who would testify that plaintiff’s condition was due to injury received prior to entering defendant’s employ held not error, where on the trial defendant’s witnesses testified that plaintiff was suffering from no injury, and that at the time he entered defendant’s employ a thorough physical examination disclosed no injury.
    [Ed. Note. — For other cases, see Continuance, Cent. Dig. § 73; Dec. Dig. <&wkey;>25.]
    3. Appeal and Error &wkey;>1043(7) — Harmless Error — Refusal of Continuance.
    Defendant cannot complain of error in refusing a continuance to take the deposition of an absent physician, where with the consent of plaintiff such physician’s written certificate was used before the jury; the only substantial difference between that and a deposition being that the former was not under oath.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4121; Dee. Dig. «&wkey;1043 (7).]
    4. Appeal and Error &wkey;>1058(2) — Harmless Error — Exclusion of Evidence Covered by Other Testimony.
    Refusal to permit defendant’s physician to state “whether in his opinion the complaints of pain made by plaintiff during a physical examination were real, or whether he was suffering from pain or just complaining,” held not prejudicial error, where other testimony of such physician fully answered the question.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4291; Dee. Dig. <5&wkey; 1058(2).]
    5. New Trial <&wkey;44(3) — Misconduct of' Jury — Discussing Improper Issues — Evidence — Sufficiency.
    Evidence of misconduct of jury in discussing improper issues during consideration of case held not sufficient to require the verdict to be set aside and a new trial granted.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 82-84; Dec. Dig. <&wkey;>44(3).]
    Appeal from District Court, Hunt County; A. P. Doboney, Judge.
    Action by John Cornelius against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff and an order denying a new trial, the defendant appeals.
    Affirmed.
    Chas. C. Huff, of - Dallas, and Dinsmore, Mc-Mahan & Dinsmore, of Greenville, for appellant. Evans & Shields, of Greenville, for appellee.

      Writ of error pending in Supreme Court.

   HODGES, J.

This appeal is from a judgment in favor of the appellee for $11,000 as damages for personal injuries. In his petition it was alleged that appellee had been employed by the appellant as a fireman, but was later, and at the time of the injury, performing the duties of an engine watchman at McKinney, Tex.; that the locomotive he was watching ran between McKinney and Green-ville, and was laid over at night at the former place; that his duties required him to remain in and on and about the engine through the night, for the purpose of watching it, and also to go upon the tender and shovel coal to the front, and to build a fire and have steam up in the morning; that there was situated on the engine, on the left-hand corner of the tender, a water cooler, setting on a wooden box; that during the night, and while in the performance of his duties, appellee was passing from the tender to the engine cab, and placed his hand on the water box to steady himself, when the water box, being unfastened, “toppled and caused the plaintiff to fall to the ground”; that the fall resulted in—

“bruising and lacerating the muscles, nerves, ligaments of the lumbar, sacral, and dorsal region of the back, and bruising and lacerating the cartilage along and. between the bones of the spinal column, and injuring and bruising and contusing the covering and the substance of the spinal cord and the nerves that lead off therefrom.”

The negligence alleged was the failure to have the water cooler securely fastened. The appellant filed its answer at a time when the act of March 3, 1913, was in force, and replied specifically to each allegation in the petition, and by other special pleas. The appellant admitted that the appellee at the time alleged was in its employ as alleged; admitted that the location of the water cooler and box was as stated, but alleged that it was placed there by the enginemen for their convenience, and not by defendant; that the box was fastened by a wire passing around it which held it firmly in position. It averred that if the plaintiff was injured as alleged it was the result of his own negligence. It denied specifically all the allegations of injury, averring that the plaintiff was an able-bodied man and then in good condition. A trial before a jury resulted in the verdict above mentioned.

At the first term of the court after the suit was filed the appellant applied for a continuance, for the purpose of procuring the testimony of Dr. W. N. Lemmon, whose residence, it was alleged, was in Manilla, Philippine Islands. According to the aver-ments of the application, the appellant desired to take the deposition of this witness and by him prove the following facts:

“That he examined the plaintiff, John Cornelius, under the name of J. E. Cornelius, on the 22d day of November, 1901, and that at that time he found a rigidity of the left lumbar muscles, intensely tender or painful; pain also over corresponding vertebrae; these conditions being produced by a rupture of the erector spinal muscle. The right side of corresponding area on opposite side of spine was flaccid. Analysis showed specific gravity 1,020; alkaline reaction; no sugar; no albumen; that 12 or 15 days after this first examination, on examining the urine, he found specific gravity 1,030, sugar 2 per cent., or 2 grains to each ounce of urine, which condition persisted after the said witness made the third examination. That the condition of the plaintiff’s spine was such at that time that in the said witness’ judgment it would affect the .plaintiff’s back as long as he lived, and that it was the opinion at that time that the diabetic condition the plaintiff was then in would eventually cause his death if all worry was not eradicated, and his diet did not clear the sugar from his urine, which in the witness’ judgment, was exceedingly doubtful.”

A written certificate, signed, by Dr. Lem-mon, and which furnished the basis of the application, was appended as an exhibit to the motion for a continuance. The action of the court in overruling this motion is the first assigned error. The bill of exceptions reserved contains the following recital as to the conditions under which this ruling was made:

“After the application for continuance and the contest thereof were presented and read to the court, plaintiff’s counsel announced in open court that the plaintiff would, in avoidance of the application for a continuance, admit that Dr. Lemmon would, if his testimony should be taken, testify that he examined the plaintiff in 1907, as is set out in the copy of a statement by Dr. W. N. Lemmon dated December 18, 1907, and attached to the application for a continuance, and that it was true that this statement was the opinion'of Dr. Lemmon; that it was true that he gave it as his honest opinion of the man’s condition on the 18th day of December, 1907, and that he would so testify. Whereupon the court asked plaintiff’s attorneys if they would permit defendant to read to the jury the copy of the statement of Dr. Lemmon attached to the application for a continuance; that the plaintiff’s attorneys announced that they would consent that the defendant might so use the copy; whereupon the court stated that, in view of plaintiff’s admission and agreement, he would overrule the motion for the application for a continuance.”

It appears from the statement of facts before us that the appellant afterwards did introduce in evidence the written statement referred to. Appellant contends, however, that the admissions made by the appellee and the use of this statement did not supply the full value of the evidence it expected to secure from the deposition of Dr. Lemmon, and therefore the refusal of the court to grant the continuance applied for was reversible error.

It is well settled that merely admitting that an absent witness would, if present, testify to the facts set out in an application for a continuance does not furnish a legal reason for refusing to grant the continuance. If the testimony in such instances is material, the party desiring to use the witness has the right to all the benefit that may result from the presence of the witness in testifying under oath before the jury. This is based upon the common experience which teaches that testimony given orally in the presence of a court or jury is often far more impressive than the same facts presented in the usual manner by an agreement reduced to writing or formally stated by the attorneys.

But the first question, and the one which seems to be decisive in this instance, is this: Was the testimony material, and is it probable that it would have led to the rendition of a different verdict had it been introduced in the form desired by the appellant? It is evident that the only purpose of this testimony was to prove that the appellee was injured in his back in 1907, about eight years prior to the time he now claims to have been injured, and that this old injury was that from which he was suffering at the time of the trial. In other words, the testimony of Dr. Lemmon was to be used to disprove the existence of the injury sued for. During the progress of the trial the appellee was examined in the presence of the jury by •two physicians selected by the appellant. Both of these thereafter testified that they found no evidence of any injury whatever, and their testimony clearly indicated that the appellee was then feigning injury. Two other physicians, called by the appellee, testified that he was injured. These physicians stated that in examinations made previous to the trial they found discoloration on the small of the bach, in the lumbar region, where the appellee complained he felt pain. They also testified that his accelerated pulse rate under pressure indicated that the pain was real and not feigned. There was other testimony introduced by the appellant which tended to corroborate its experts above referred to. In other portions of the appellant’s brief it now insists that the verdict rendered was unsupported by the evidence, one reason being that the great weight of the evidence shows that the appellee was not suffering from any injury at the time of the' trial! It is made clear that, according to appellant’s contention, the appellee was suffering from no injury, and even the conditions about which Dr. Lemmon would testify had entirely disappeared at the time of the trial. The appellee testified that when he applied for work under the appellant, Dr. Cantrell, appellant’s examining physician, gave him a thorough examination, and found no objection to his physical condition. Dr. Cantrell also testified upon the trial, and did not deny that statement. The issue seemed to be, was the appellee at the time of trial suffering from any injury at all? not whether the injury of which he complained was an old one or new. In view of the facts upon which the verdict must rest, we are of the opinion that the testimony of Dr. Lemmon, had it been admitted, would not have changed the result of the trial.

But even if it were otherwise, the appellant is not now in an attitude to complain of the failure to secure Dr. Lemmon’s deposition. Upon the trial it used the written statement theretofore made by Dr. Lemmon, and thus got before the jury the very facts which it expected to prove by taking his deposition. The only substantial difference between this statement and the deposition it expected to secure was that the statement was not sworn to, and the deposition would have been. It is not likely that a jury would have attached such importance to the formalities of an oath and would have given the deposition more credence than it did the certificate admitted upon the trial. There was no reversible error in overruling the application for a continuance.

Dr. Cantrell was one of the physicians selected by the appellant to examine the ap-pellee in the presence of the jury. During the course of his examination he testified as follows:

“I do not find a single objective symptom that shows he has been injured in his back. I took his pulse rate after I made the examination; it was about 85. From the examination I have made of this man I do not think he is now suffering from any injury in his back; that is my judgment. If the examination had caused him pain to any marked degree, I think his pulse rate would have been higher than what I found it to be. I did not find any evidence of pain in the pulse rate; it was not present. If there had been pain, I would have found a rigidity of the muscles; that is, when I pressed his back, if it had produced pain, the muscles would have contracted; the muscles would have guarded against the pain, like anything else in the body contracting to protect the parts. If a man is injured in the back such as will produce pain under pressure, it is a very marked symptom that the pressure will increase the pulse rate. If you make pressure over the point of location of the pain, if the injury is real, it will increase the pulse rate.”

Counsel for the appellant asked the witness to—

“state whether or not in his opinion the complaints of pain made by the appellee during the examination were real, or whether he was suffering from pain, or just complaining.”

Upon objection the court refused to permit the witness to answer the question, and that ruling is the basis of another assignment of error. The manifest purpose of securing the opinion of the witness in this instance was to inform the jury that the appellee was not in fact suffering any pain at the time the examination was made. The witness had already made that as clear to the jury as was necessary under the circumstances. Giving his opinion would have been but a substantial reiteration of what he had already stated. If the appellee complained at a time when he was suffering no pain, the inference that he was feigning is irresistible. The ruling of the court is not therefore such error as would require a reversal of the case.

It is also insisted that the court should have granted a new trial because of the misconduct of the jury in discussing improper issues during the consideration of the case. The court made what appears to us a thorough inquiry into this alleged misconduct, and the evidence adduced justified the conclusion that there was not such misconduct as required him to set aside the verdict.

There are other assignments of error, all of which have been fully considered, but it is not necessary to notice them in detail.

The judgment of the district court is affirmed.
      <®cs>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    GARVIN et ux. v. GARVIN et al.
    (No. 1621.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 15, 1916.)
    1. Vendor and Pueohaseb &wkey;>269 — Default Judgment — Remedies of Vendob.
    When a purchaser of land defaults in the payment of the purchase price, the vendor may elect to sue on the note and foreclose his lien, or to sue for the land itself.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 759-763; Dec. Dig. &wkey;>269.]
    2. Vendor and Pueohaseb <&wkey;280(l) — Default Purchaser — Remedies of Vendor-Election.
    A suit to foreclose a vendor’s lien for the unpaid purchase price of land is not such an election of remedies as will prevent the vendor from amending his petition and asking for a recovery of the land.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 784, 785, 789; Dec. Dig. <@^280(1).]
    3. Vendor and Purchaser <&wkey;299(3) — Purchaser’s Default — Remedies of Vendor-Pleading.
    The vendor’s right to recover land for the purchaser’s default in the payment of the purchase price is not dependent on a plea of limitations by the purchaser to a recovery on the purchase-money note, and therefore the purchaser may withdraw the plea of limitation and plead facts showing himself entitled to retain the land by paying the balance due thereon.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 841; Dec. Dig. <&wkey;> 299(3).]
    4. Vendor and Purchaser <&wkey;299(3) — Default Judgment — Remedies of Vendor-Pleading.
    In an action by vendor for the recovery of land, evidence lielcl sufficient to sustain a finding that conveyance by vendor was not in trust and that default of purchaser was made under such circumstances as would entitle the vendor to a foreclosure for the amount due, but not a recovery of the land.
    [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 841; Dec. Dig. &wkey;> 299(3).]
    Appeal from District Court, Navarro County ; H. B. Daviss, Judge.
    Action by Patrick Garvin and wife against Joseph L. Garvin and others. From a judgment for plaintiffs, both plaintiffs and defendants appeal.
    Affirmed.
    Patrick Garvin was the owner of 255% acres of land, and he, joined in the deed by his wife, conveyed the tract of land to the appellee, their son, on June 15, 1895. The deed is in ordinary form, and recites the consideration to be the assumption of an outstanding vendor’s lien note in favor of Chas. H. Allyn, and a further sum of $2,280.80 evidenced by a note payable 12 years after date of the deed. A vendor’s lien is expressly reserved in the deed to secure the payment of the purchase money. On February 21, 1914, the appellants brought the suit, alleging that the title was conveyed to Joseph L. Garvin in trust, in order that he might manage and control the property, and they prayed that the legal title be placed in them and divest-. ed out of the defendant, and that the defendant be declared as trustee holding the title for them. In the alternative the plaintiffs alleged that they executed to the defendant a deed to the land, and stated the consideration, and that the defendant had failed to pay same; and asked for judgment for the land or, in the alternative, for the amount of the note, interest, and attorney’s fees and a foreclosure of the vendor’s lien note. Plaintiffs in paragraph 9 of their supplemental petition withdrew the alternative pleading for foreclosure of the lien and order of sale. Defendant by answer alleged that the deed was made and delivered as a conveyance of bargain and sale, and admitted that he executed the note as a part of the consideration, but denied that the note should bear any interest before maturity. Defendant further denied that he had failed and refused to pay the note, but on the other hand, he says, he paid large amounts on the note for the support and maintenance of plaintiffs by agreement to that effect. The defendant averred that, if it be determined that he owes plaintiffs anything, he is ready and willing and offers to pay same. It is not material to set out further matters pleaded by appellants and appel-lee in supplemental petition.
    The case was tried on special issues. The jury made the findings that the deed from the plaintiffs to the defendant was intended as a conveyance of the property, and was a fee-simple deed, and was not made and delivered upon trust; that the plaintiffs after the deed was delivered did not continue to occupy and possess the land, or claim the same in their own right, but that plaintiffs’ occupancy was by permission of the defendant, and in recognition of his title and ownership. The jury further found that the amount due and unpaid to O. H. Allyn was $880.40, and that the defendant owed on his own note the sum of $2,289.90, but that the defendant had paid the interest on the $2,-289.90 to date of trial by the support and maintenance of the plaintiffs. The jury further found that it was not agreed that the defendant should have credit on his $2,289.90 note for the support and maintenance of the plaintiffs; that the defendant had not paid any more than the amount of interest on the note, and that he owed the principal sum of the note and the attorney’s fees. The evidence supports these findings of the jury, and such findings are here adopted.
    Richard Mays, of Corsicana, for appellants. Callicutt & Johnson, E. O. Call, and D. B. Cobb, all of Corsicana, for appellees.
   LEVY, J.

(after stating the facts as above). Appellants insist that they were entitled to have a judgment for the land itself, and that it was error to award a foreclosure of the vendor’s lien. The defendant pleaded the statutes of four years’ limitation; and the plaintiffs in their supplemental petition, paragraph 9, withdrew the alternative plea of their petition to have foreclosure of the vendor’s lien. The defendant afterwards, by consent of the court, withdrew and abandoned the plea of limitation. The court did not, we think, err in this respect. When the purchaser has made default in the payment of the purchase price of land, the vendor has the election of suing on the note and to foreclose his lien, or to sue for the land itself. Branch v. Taylor, 40 Tex. Civ. App. 248, 89 S. W. 818.

And it has been decided that suing to foreclose a vendor’s lien is not such an election of remedy as prevents the vendor from amending his petition and asking for a recovery of the land. Cattle & Pasture Co. v. Boon, 73 Tex. 548, 11 S. W. 544. It is not, therefore, necessary to the vendor’s right to recover the land that the vendee first plead the statute of limitation to the purchase-money note. It is merely inequitable to allow the purchaser to have the land and not pay for it, and that is the only force of a plea of limitation against the purchase-money note. Consequently the appellee’s plea of limitation against the note may, by consent of the court, as was done here, be by him withdrawn and abandoned; and such withdrawal and abandonment would not work, it is believed, any injury to the legal rights of the appellants. And the appellants may not predicate the right to recover the land, for a court of equity may not enforce the right on the part of the vendor to rescind and recover the land, if there be pleading and facts, as here, which make it inequitable so to do. In this case, the appellee pleaded payment of the purchase-money note, and—

“prays the court to find that said note has been long since paid off and discharged; but if there be anything remaining on said note after allowing all of the credits to which this defendant is entitled, and which may be shown by the testimony, that this defendant is ready and willing to pay the plaintiffs whatever amount may be found by the court to be due to them, if any.”

And while there was testimony on appellants’ part, going to show an agreement supporting his answer of payment in kind of the note, the appellee denied such agreement and the jury found against the defendant’s contention. Thus the appellee’s act of default in the payment of the note, occasioned by his understanding respecting an agreement of payment, was not inconsistent with an intention on his part to be further hound by the terms of the sale of the land. And the trial court decided that under such circumstances the contract of sale may not be treated as rescinded and the appellee deprived of the land, but that the appellants may have the remedy of foreclosure and sale of the land if the appellee did not pay off his land •note. Therefore the judgment of foreclosure could properly be referred, we think, to the pleading of and the facts offered by appellee in respect to the cause of the default of payment of the notes. It is sufficient to support the judgment of foreclosure.

We have considered all the assignments of error presented by the appellants, and think they should be overruled.

The appellee filed cross-assignments of error, which we have considered, and conclude that reversible error is not presented, and overrule them.

The judgment is affirmed.
      ®=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes.


text:
    PLANTERS’ COTTON OIL CO. v. GUARANTY STATE BANK OF MERTENS.
    (No. 1592.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 1, 1916.)
    1. CORPORATIONS <&wkey;374^CHARTER POWERS— Construction.
    A corporation for the “manufacture of cotton seed oil and cotton seed products and the ginning of cotton, with power to purchase, or construct and maintain mills and gins for such purpose, and with power to purchase such goods, wares, and merchandise used for such business,” is not empowered to buy and sell baled cotton for speculation.
    [Ed. Note. — Por other eases, see Corporations, Cent. Dig. §§ 1517, 1518; Dec. Dig. &wkey;374.]
    2. Corporations <&wkey;374^-IiiPLiED Powers.
    Implied or incidental powers of a private corporation include those usually and customarily attending the business for which it is organized, and those necessary to enable it to fully perform the undertaking designated in the charter.
    [Ed. Note. — Por other eases, see Corporations, Cent. Dig. W 1517, 1518; Dec. Dig. &wkey;374.]
    3. Corporations &wkey;5374^-lMPLiED Powers— Remote Benefit.
    Although by buying and selling baled cotton, a corporation might benefit itself by enlarging the local cotton market, such is not an implied power of the corporation organized to manufacture cotton seed products; the promotion of its business by such method being too remote.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 1517, 1518; Dec. Dig. <S&wkey;374.]
    4. Corporations <&wkey;374r — Implied Powers— Remote Benefit — Speculation.
    Under Rev. Civ. St. art. 1164, providing that no corporation shall use its assets for any purpose other than to accomplish the legitimate objects of its creation or those authorized by law, a corporation for manufacture of cotton seed products cannot speculate in cotton, that being a hazardous business.
    [Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 1517, 151S; Dec. Dig. &wkey;>374.]
    5. Corporations i&wkey;413 — Liability for Acts of Agents — Constructive Notice.
    Without actual authority, the general agent of a corporation cannot by contract bind the corporation for money borrowed and used for a purpose outside the charter powers; one who deals with a corporation being charged with notice of limitations of powers by charter.
    [Ed. Note. — Por other eases, see Corporations, Cent. Dig. §§ 1647-1649; Dec. Dig. &wkey;413.]
    6. Corporations &wkey;413 — Liability for Acts of Agents — Constructive Notice.
    If a corporation agent duly authorized to borrow money on its credit does so and uses it for a purpose outside the charter powers, the corporation is liable by estoppel, since it cannot avoid liability on the ground of its own wrongful misappropriation of the money.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1647-1649; Dec. Dig. <&wkey;>413.]
    7. CORPORATIONS <&wkey;432(l) — Liability por Acts op Agents — Constructive Notice-Burden op Proof.
    One who lends money on corporation credit to its agent has the burden of proving that the agent was authorized to borrow for the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1718, 1726, 1743, 1762; Dee. Dig. &wkey;432(l).]
    8. Corporations <&wkey;425(6) — Liability por Acts op Agents — Constructive Notice— Evidence.
    Since the general manager could not himself bind the corporation by borrowing money for a purpose outside the charter powers, his authorization of an agent by acquiescence in so borrowing does not estop the corporation to deny liability; the authority to manage the corporation under Rev. Civ. St. art. 1159, being fixed in, and nondelegable by, the directors.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. § 1705; Dec. Dig. &wkey;>425(6).]
    9. Corporations <&wkey;426(10) — Liability por Acts op Agents — Estoppel — Acceptance op Benefits.
    The doctrine that a' corporation, having accepted benefits of an unauthorized act of its agent, is estopped to deny consequent obligations, has no application where no benefits, but only liabilities, resulted.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1702, 1704, 1714; Dec. Dig. &wkey;> 426(10).]
    10. Principal and Agent <&wkey;155(l) — Power to Borrow Money — Ratification.
    Unauthorized lending of money to an agent for use of the principal is not a lending to the principal, unless ratified by him, or unless the money is used in promoting business the agent is authorized to conduct.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 574, 578; Dec. Dig. <&wkey; 155(1).]
    11. Corporations <&wkey;427 — Liability for Acts op Agents — Estoppel — Acceptance op Benefits.
    In order to be relieved of the obligations arising from unauthorized acts of its agent, the corporation must return what it has received therefrom.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1745-1747; Dec. Dig. &wkey;427.]
    12. Corporations &wkey;?427 — Liability for Acts of Agents — Estoppel — Acceptance op Benefits.
    Where a corporation pays a debt under the impression, that it was contracted in due course of business by its agent, when in fact it was for money borrowed for a purpose beyond the charter powers, it can recover the amount so paid.
    [Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1745-1747; Dec. Dig. <&wkey;>427.]
    13. Corporations <&wkey;414(l) — Ultra Vires Acts op Agents — Liability—Notice.
    Where a corporation agent is authorized to draw checks and create an overdraft in the due course of business, but without notice to the bank, he draws such a check for a purpose outside the charter powers, the bank can recover the amount from the corporation, since the agent’s act was in the apparent scope of his authority.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1640; Dec. Dig. <&wkey;414(l).]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Action by the Planters’ Cotton Oil Company against the Guaranty State Bank of Mer-tens, wherein defendant filed a cross-bill. Judgment against plaintiff in the original action, and for defendant on its cross-bill, and plaintiff appeals.
    Judgment reformed.
    Wear & Frazier, of Hillsboro, for appellant. R. M. Vaughan, of Hillsboro, P. W. Robertson, of Miami, and J. D. Abney, of Hillsboro, for appellee.
   HODGES, J.

The appellant is a private corporation, organized under the laws of Texas to engage in the operation of an oil mill and cotton gins, with-its principal office at Frost, in Navarro county, Tex. In connection with its oil mill located at Frost the appellant owned and operated a cotton gin located at Mertens, Tex., only a few miles distance from Frost. This gin plant was commonly known as the “Planters’ Gin Company,” and was from some time in 1906 to March, 1914, under the management and control of an agent, Joe R, Read. From 1903 till about the first of the year 1913, G. L. White was the appellant’s president and general manager, and appears to have been given by the board of directors general supervision of the affairs of the company. As such manager he had the supervision of the appellant’s gin plant at Mertens, and hired the local manager, and fixed his salary and the terms of his employment. In 1906 White •employed Read to take charge of the gin plant at Mertens at a salary of $100 per month during the business season, which extended over six months of each year. This contract appears to have been renewed annually without any express agreement. Read was given the general authority to supervise the Planters’ Gin, including power to hire and discharge subordinate employés, make repairs, buy cotton seed, pay off the em-ployés, and make the necessary financial arrangements with banks for the money - required in carrying on the business of operating the gin. It also appears that White while manager permitted Read to purchase for the gin company cotton in the seed, and, to a limited amount, lint cotton in hales. However, it is not shown that any definite limits had been fixed to the amount of cotton which Read might purchase. In the spring of 1913 White and his associates, who owned 51 per cent, of the stock in the appellant company, sold their interest to John R. Griffin and his associates. Griffin then succeeded White as president ánd general manager. Read was soon thereafter employed by Griffin for the season beginning in the summer or fall of 1913, apparently upon tlie same terms embraced in his contracts with White. It does not appear that there was at that time any understanding between Read and Griffin that Read should carry on the business of buying cotton, as had been done under the management of White. There is no satisfactory evidence that Griffin then knew that Read had theretofore purchased cotton in bales for the account of the appellant and as an incident to the business of operating the gin plant. The evidence shows that for several years it had been the custom of Read, as the local manager of the gin plant, to carry accounts in the name of the Planters’ Gin Company with one of the local banks of Mer-tens, and to borrow money on the credit of the appellant when needed to pay the current expenses of operation, in making repairs, and also for purchasing cotton in the seed and in bales. His accounts were divided into what he calls the “overdraft account” and a “bill of acceptance.account,” which were kept separate on the books of the bank. The overdraft account represented money advanced Read on checks drawn by him to pay for the purchase of cotton seed and the general expenses of operating the plant, including his salary and the wages of other employés. The “bill of acceptance” account represented money advanced to Read by the bank to pay for cotton purchased by him for the Planters’ Gin Company. The dealings with reference to that account were explained as follows: When Read bought one or more bales of cotton a draft was drawn by the seller on the Planters’ Gin Company for the agreed price, in favor of the local bank, and the weigher’s certificate was attached. Upon the margin of the printed draft Read would write his name under the printed word “accepted.” The bank would then cash the draft for the seller of the cotton, and enter the transaction upon its books in proper form. When the cotton was sold the proceeds were applied as a credit on that account. The ap-pellee bank was organized as a state banking institution a year or two before Griffin became appellant’s manager, and R. O. Hooks was its cashier in the active management of its affairs. J. R. Read was one of the stock-' holders; and immediately upon the organization of the bank he opened with it accounts for himself and the gin company, which he represented. In August, 1913, Read began to buy for account of the appellant in the name of the Planters’ Gin Company lint cotton in bales, which was paid for by the appellee bank under a special arrangement for cashing drafts accepted by Read in the manner above described. Between that date and some time in the early part of January following the aggregate amount of money advanced by the appellee to Read for the purchase of cotton, including interest and some other small charges, was $40,552.11. Nearly all of this cotton purchased was in bales, only a few purchases being in the seed. The aggregate amount realized from the sale of the cotton thus purchased amounted to $36,-901.20, which was applied as a credit on this account, leaving a balance due appellee of $3,650.91. This balance remained upon the appellee’s books as a charge against the appellant, and is one of the items sued for by the bank. In November, 1913, before all of the cotton was disposed of, the price of cotton having depreciated, Hooks, the cashier of the appellee bank, demanded of Read that he place to the credit of the “bill of acceptance” account the sum of $1,000. In order to secure the money for that purpose Read drew a draft in favor of the appellee against the appellant for that sum. This1 draft was aft-' erwards collected by the appellee, after passing through the usual commercial channels, and the proceeds applied as a credit on the “bill of acceptance” account. 'During the same month, 1913, Read drew a check on the appellee bank in favor of M. W. Lovell for the sum of $400, which was paid and charged to the appellant’s “overdraft” account. There is some conflict in the evidence as to the nature of the debt for the payment of which this check was drawn. About the close of the ginning season in 1914 the books of the appellee bank showed a balance due from the Planters’ Gin Company on the “overdraft” account of $606.30, and $3,650.91 due on the “bill of acceptance” account, the latter for money which had been advanced to pay for the purchase of cotton. Payment of the last-mentioned sum was demanded of Read, who referred the matter to Griffin. Griffin claims that this was the first intimation he had that Read had been engaged in buying and selling cotton in bales. This led to an inquiry by Griffin into the dealings of Read with the appellee bank, and a controversy arose as to whether or not the appellant was liable for the advances made to Read to enable him to buy cotton. Upon his request Griffin granted time to confer with his board of directors in order to determine whether or not payment should be made. Later it was decided by Griffin and his associates that they would not pay the sum demanded, but instead would claim reimbursement for money which had theretofore been paid out on the draft drawn by Read against the appellant for $1,000 and for the check of $400 which Read had given to Lovell. Accordingly this suit was instituted by the ■ appellant against the appellee, seeking the recovery of those two items. It was alleged in substance that the draft for $1,000, drawn by Read in November, 1913, was paid by the appellant in ignorance of the purpose for which the money was to be used; that the proceeds of the draft were knowingly received and applied by the appellee either upon a claim it held against Read personally or upon an account against the appellant made by Read without authority and for which the appellant was not responsible. Substantially tbe same averments were made relative to tlie $400 covered by the check given by Read to Lovell. The appellee answered by appropriate averments, putting in issue all the material facts upon which the appellant sought a recovery. It also in the form of a cross-action sought to recover the entire balance due from the appellant as disclosed by its books. The cross-bill sets out a history of Read’s connection with the Planters’ Gin Company and his dealings with the appellee in behalf of that company, and alleges that Read was fully authorized by the appellant to incur in its behalf the debts for which it sued. Supplemental pleadings were filed, in which the appellant alleged that the acts of Read in contracting for advances to enable him to deal in cotton were not only unauthorized by the appellant, but exceeded the powers granted in its charter. To this the appellee replied, alleging that the appellant had received the benefits of the contracts made for it by Read and was es-topped from pleading a want of authority on the part of Read or that the contracts were ultra vires, and that it was also estopped by reason of the manner in which it had conducted itself in permitting Read to transact the business of buying and selling cotton. A trial before a jury resulted in a verdict in favor of the appellee against the appellant for the sum of $2,128.60, and also against the appellant on its demands in the original suit for $1,400.

The liability of the appellant for the debt claimed in this controversy and its right to recover the sum for which it sues depend upon the power of the agent, Joe R. Read, to bind the company in the contract he made iñ its name with the appellee bank. In view of the pleadings denying the existence of that power and the grounds upon which that denial is placed, it becomes necessary to examine the provisions of the charter under which the appellant was then doing business. The following portions of that charter were offered in evidence:

“(V) The government of this corporation shall be vested in a board of directors to consist of nine (9) members, and the following, all of whom reside at Frost, Navarro county, Texas, shall constitute such board for the first year of its corporate existence, to wit: J. F. Henderson, J. R. Slay, G. J. Heflin, J. A. Gillean, J. M. Scott, J. M. Sharp, H. P. Ross, S'. S: Hooser and W. T. Bromley.

“(II) The object of this corporation and the purpose for which the same is organized, is the manufacture of cotton seed oil and cotton seed products and the ginning of cotton, with power to purchase or construct and maintain mills and gins for such purpose, and with' power to purchase such goods, wares and merchandise used for such business.”

In construing the corporate powers of the appellant the court gave the following as a part of his main charge:

“You are instructed that the original charter and amendments thereto of the Planters’ Cotton Oil Company (which is the corporate name of the appellant) read in evidence before you confers on the Planters’ Cotton Oil Company the power and authority to manufacture cotton seed oil, cotton seed products, the ginning of cotton, the power to purchase or construct and maintain mills and gins for such purpose, the power to purchase and sell such goods, wares and merchandise used for such business, and the power to engage in the purchase and sale of baled and seed cotton, and authority through a duly authorized agent to contract for loans of money with which to enable it to accomplish the legitimate object of its creation, or to be used in the transaction of its authorized business as hereinbefore stated: but does not confer on the Planters’ Cotton Oil Company the power to sell cotton short and on consignment and holding baled cotton for speculation purposes.”

This charge in effect told the jury that the business of buying and selling spot cotton for profit was within the charter powers of the appellant. In other portions of the charge the court instructed the jury that the appellant was liable for the money so advanced if Read in procuring the lloan acted within the actual or the apparent scope of the powers conferred upon him by the corporation. The verdict of the jury was manifestly influenced by the construction which the court placed upon the charter powers of the appellant company, and induced the’finding that Read acted at least within the apparent scope of his authority.

We have no hesitancy in holding that the construction placed by the court upon the appellant’s charter is erroneous and led' to an improper determination of the material issues of fact involved. The appellant was not organized for the purpose of becoming a trading corporation to buy and sell for profit, but a manufacturing concern. Its authority to purchase indluded the necessary machinery and equipment and such goods, wares, and merchandise as were to be used for its business — that is, for the business of producing cotton seed oil and the concomitant products from cotton seed, and the ginning of cotton in the seed. This enumeration would necessarily include cotton seed, and probably might be so extended as to include unginned cotton. The authority to purchase these articles was not only expressly given, but would be implied as incidental and essential to the lawful enjoyment of the franchise granted. But cotton which had already been separated from the seed constituted no part of the material upon which the corporation was to operate, and the handling of such an article could not directly, or incidentally, advance the purpose for which it was organized. In that .state the article supplied neither cotton to be ginned, nor seed to be crushed. It seems to be conceded that the appellant’s charter contained no express authority to embark in that particular line of business, but, it is contended, such authority was implied, inasmuch as it operated to enhance the appellant’s main undertaking. In a general way it may be said that the implied or incidental powers of a private corporation include those things which usually and customarily attend the business for which the corporation is organized, and also that -which is necessary to en-' able the corporation to fully perform the undertaking designated in the charter. Northside Ry. Co. v. Worthington, 88 Tex. 562, 30 S. W. 1055, 53 Am. St. Rep. 778; People v. Gas Co., 130 Ill. 268, 22 N. E. 798, 8 L. R. A. 497, 17 Am. St. Rep. 319; Nicollet National Bank v. Frisk-Turner Co., 71 Minn. 413, 74 N. W. 160, 70 Am. St. Rep. 334. See, also, Fidelity Trust Co. v. Louisville Gas Co., 118 Ky. 588, 81 S. W. 927, 111 Am. St. Rep. 302, and the numerous authorities cited in the notes appended. In the first case referred to above Chief Justice Gaines quotes as follows from Green’s Bryce Ultra Vires:

“Whatever be a company’s legitimate business, the company may foster it by all the usual means. But it may not go beyond this; it may not, under the pretext of fostering, entangle itself in proceedings with which it has no legitimate concern. In the next place, the courts have however, determined that such means shall he direct, not indirect; that is, that a company shall not enter into engagements as the rendering of assistance to other undertakings from which it anticipates a benefit to itself, not immediately, but mediately, by reaction, as it were, from the success of the operations thus encouraged — all such proceedings inevitably tending to breaches of duty on the part of directors, to abandonment of its peculiar objects on the part of the corporation.”

Continuing, the court said:

“In short, if the means be such as are usually resorted to and a direct method of accomplishing the purpose of the incorporation, they are within its powers; if they be unusual and tend in an indirect maimer only to promote its interest, they are held to be ultra vires.”

There is nothing in the record on this appeal which justifies the conclusion that corporations like the appellant have usually engaged in the business of buying lint cotton for any purpose after it has been baled. Hence the implied power here claimed cannot be placed upon that ground.

The next question then is: Did the business of purchasing such cotton solely for the purpose of being sold again tend to promote or foster the business for whicn the appellant was organized? While' the making of marginal profits in such dealings might enrich the corporation • and its stockholders, such benefits would come from an independent enterprise, and not as a result of the manufacturing operations for which the appellant was chartered. But it is suggested that the appellant might lawfully engage in .the business of buying lint cotton in order to establish a cotton market, through which medium its supply of cotton to be ginned would be materially increased. Clearly any undertaking which had that effect would tend to promote the appellant’s main business; and if such was its direct and immediate results, the benefit might be such as to warrant the undertaking. While there is no satisfactory evidence that any such benefits accrued, either directly or remotely, by reason of the appellant’s entering the market at- Mertens, we may concede that its operations as a cotton buyer did tend to enlarge the local demand for cotton, and in that way cause a larger ‘supply to be brought to Mertens- and placed upon the market, and through that channel ultimately increase the supply of seed cotton for appellant to gin, and seed to be crushed. Still, the benefits do not come within the rule quoted above. Buying and selling cotton in bales is usually classed and followed as a distinct occupation. The establishment and maintenance of cotton markets results from the pursuit of that business. It follows then that in order for the appellant to secure the increase in the supply of material to be used in its manufacturing operations it must invest a part of. its capital in a separate and distinct enterprise, and in that way establish or enlarge the local market for an article which it did not use in its business, and thus indirectly or mediately secure the benefits sought. It appears to us that even if the suggested benefits followed they would be such remote consequences, and flow through such a circuitous channel, as to fall outside of the accepted rule. Moreover, the stockholders of private corporations have a right to object to the investment of their corporate funds in speculative and hazardous enterprises. It is a matter of common knowledge that the buying and selling of cotton is attended with great risks. The venture is one too perilous for the investment of trust funds by an agent without express authority from his principal. If there is any business from which a corporation chartered for other purposes should be forcibly separated, it is that of speculating on the cotton market. The record shows that in this instance about $40,000 was advanced to Read and charged to. the Planters’ Gin Company in what is called the “bill of acceptance” account, from some time in the early part of August to the close of the cotton season. If the appellant could buy and sell cotton so extensively as these advances indicate was done, it is difficult to fix any limit beyond which it might not go. Thus the way would be made easy for staking the entire credit of the corporation upon the fluctuations of the cotton market. It is the policy of our laws to confine private corporations •to the particular franchise granted in their charter! Article 1164 of the Revised Civil Statute is as follows:

“No corporation, domestic or foreign, doing business in this state, shall employ or use its stock, means, assets or other property, directly or indirectly, for any other purpose whatever than, to accomplish the legitimate objects of its creation or those permitted by law.”

If we are correct in saying that the buying and selling of cotton in bales, in a manner wholly disconnected with the enterprise specified in the appellant’s charter, was beyond its corporate powers, it follows as a logical sequence that Read, the agent who carried on that business, could not without actual authority bind his principal in a contract for money borrowed and used for that purpose. One who deals with a corporation is charged by law with notice of the limitations upon the powers granted in the charter by virtue of which it exists. First National Bank v. Kiefer Milling Co., 95 Ky. 97, 23 S. W. 675; Kraniger v. People’s Building Society, 60 Minn. 94, 61 N. W. 904; 7 Ruling Case Law, § 515, and cases referred to in the notes. Those who deal with the agent of the corporation cannot assume that he has authority to do something which is extraordinary or unusual, or which exceeds the powers granted in the charter. Franco-Texan Land Co. v. McCormick, 85 Tex. 416, 23 S. W. 123, 34 Am. St. Rep. 815; American Rio Grande Loan & Irr. Co. v. Mercedes Co., 155 S. W. 286; Hayward Lumber Co. v. Cox, 104 S. W. 403. In the first case referred to above Chief Justice Stayton quotes approvingly the following language:

“A party dealing; with an agent is not entitled to assume the existence of any extraordinary state of facts in order to bring the acts of the agent within the scope of his apparent authority. Hence, if an act performed by an agent of a corporation would be in excess of the company’s charter, or the agent’s authority, except under extraordinary circumstances, the company can be held bound by such act only provided these extraordinary circumstances did exist.”

He’then continues:

“If the power to be exercised be not clearly within the express or fairly within the implied powers given by the charter, nor within the grant of power, with its necessary incidents found in the appointment, nor within the apparent power of the agent, however that may be exhibited, but be a power which for its existence must invoke some extraordinary state of facts not of a nature to be known to the agent only, and clearly out of the usual course of business, then it would seem to be the duty of a person seeking to acquire rights through the exercise of the power to inquire as to its existence and as to the facts which bring it into being.”

It is true the appellant had authority under its charter to borrow money, and would be liable for its repayment, regardless of the purposes for which the money borrowed had been used. If Read in contracting with the appellee bank to cash the drafts drawn by him in payment of his cotton purchases had acted under competent authority from the corporation itself, there would be some reason for holding the corporation liable upon the ground of estoppel, even though the contract was ultra vires. For having the power to obtain loans, it could not defeat the demand for repayment by pleading that it had misappropriated the money or used it for an unauthorized purpose. But the appellee had the burden of proving Read’s authority in this instance to make the contracts upon which it sues. Rector v. Mulford (Mo. App.) 185 S. W. 255. That burden could not he discharged by merely showing that the appellant’s general manager had theretofore permitted or had authorized Read to enter upon that line of business. The manager himself could not assume that authority, and would therefore be powerless to confer it upon another. The authority of an agent to bind a private corporation in an ultra vires contract must come from the corporation itself — from the governing body, at least, if not from the stockholders — and not solely from some official whose powers are limited by the charter or by-laws of the concern. Lincoln Realty Co. v. Kentucky Title S. B. & T. Co., 169 Ky. 840, 185 8. W. 156; Franco-Texan Land Co. v. McCormick, 85 Tex. 416, 23 S. W. 123, 34 Am. St. Rep. 815. The power to manage the corporate affairs is placed by our statute in the board of directors. Article 1159, Rev. Civ. Stat. This authority is one which cannot be delegated to others. Tempel v. Dodge, 89 Tex. 69, 32 S. W. 514, 33 S. W. 222. An agent is never presumed to have authority to do something which is known to be beyond the power of his principal when his principal is a corporation of limited power. 4 Thompson on Corporations, § 4900. Hence the rule founded upon the apparent power of the agent has no application. In this case the evidence affirmatively shows not only that the appellant’s board of directors never authorized the speculative enterprise engaged in by Read, but that, with the possible exception of the member who happened to be the manager at the time, none of them knew that Read was engaged in that business till demand was made for repayment by the bank. A meeting of the directors wás then held and Read’s contracts theretofore made with the bank were repudiated.

But it is contended that even if the contracts made by Read were ultra vires and also without any actual authority from the corporation itself, the appellant is nevertheless estopped to plead either of those defenses because it has received the benefits of those transactions. The rule of estoppel invoked in the above proposition has so frequently been applied in this state to contracts like the present, which do not violate any law, or public policy, that it is unnecessary to refer to authorities in support of it. The facts, however, do not make it applicable in this instance. The record shows that without consulting the appellant’s general manager, or its board of directors, Read made the arrangements with the appellee’s cashier, Hooks, by which the bank was to furnish him the money with which to pay for the cotton bought on the appellant’s account during that cotton season. The account of these advances was kept on the books of the bank separate from all other charges made for money supplied to Read as the appellant's agent. As the cotton purchased was sold by Read the proceeds were presumably applied as a credit on this particular account; none of it being used for any other purpose. The balance here sued for is what remained after deducting all the credits from the cotton sales. From this it follows that the appellant did not receive any benefit from Read’s transaction with the appellee for which it should be required to account before repudiating his acts. As we have seen, such benefits as may have resulted from a stimulated market, even if there was any proof that these accrued, would be too remote to constitute an estop-pel. The unauthorized lending of money to an agent for the use of his principal is not a lending to the principal unless ratified by the latter or unless the money is used in the promotion of the business which the agent is authorized to conduct. In short, an agent cannot embark upon an unauthorized enterprise, borrow money for that purpose on the credit of his principal,' exhaust the money so borrowed in that enterprise, and estop the principal from repudiating his whole conduct solely upon the ground that the principal had been the beneficiary of the transaction. Gal., etc., Ry. Co. v. Allen, 42 Tex. Civ. App. 576, 94 S. W. 417. To hold otherwise would put it within the power of agents to bind their principal in every money-lending contract, regardless of the extent of the agent’s transgression.

The liability of corporations upon ultra vires contracts which have been executed by the other party rests wholly upon estop-pel. In order to be relieved of the burden which it has voluntarily assumed, the offending corporation must restore what it has received. Corporations are merely required to be just and honorable in their dealings with others, and are not allowed to profit by their own transgressions. When not estopped upon some of the grounds recognized by law, they may plead the want of corporate authority in defense of contracts made by their agents. The reasons for granting this relief are thus stated by a high authority:

“(1) The interest of the public, that the corporation shall not transcend the powers granted.
“(2) The interest of the stockholders, that the capital shall not be subjected to the risk of enterprises not contemplated by the charter and therefore not authorized by the stockholders in subscribing for the stock.
“(3) The obligation of every one entering into a contract with the corporation to take notice of the legal limit of its powers.” 7 Ruling Case Law, § 977, and cases there cited.

We therefore conclude that the appellant was not bound by the' contracts made by Read, and the judgment rendered against it is erroneous. It logically follows also that the appellant was entitled to recover back the sum of $1,000, which had been paid by it upon the draft drawn by Read in favor of the appellee, the proceeds of which were applied to a reduction of this unauthorized account. If the appellant could have resisted the collection of that sum upon the ground thát it was' an unauthorized debt, the bank after collection had no ‘ fight to retain the money under’ the conditions attending its payment. The cashier of the appellee bank knew the purpose for which this draft was drawn, and that it was to be applied by him upon a debt for which the appellant was not liable. The appellant through its proper officers paid the draft in ignorance of the facts, doubtless assuming that Read, the agent, required that amount of money in the legitimate operation of the plant under his control. Interstate National Bank v. Claxton, 97 Tex. 569, 80 S. W. 604, 65 L. R. A. 820, 104 Am. St. Rep. 885.

The appellant also sought in its petition a recovery for the item of $400 charged against it in the “overdraft account” upon the books of the bank. This was the amount paid to Lovell to cover margins on cotton held by a commission house. The evidence fails to show that the appellant has ever in fact paid that sum. It seems that at the institution of this suit that item was still carried on the “overdraft” account sued on by the appellee in its cross-action. The evidence shows that Read had authority to draw checks upon the appellee bank, even to the extent of creating an indébtedness against his principal, for money to be used in the operation of the gin plant. , It was also shown that this particular check was paid by the bank without any notice that it was not for expenses incurred in the ordinary operation of the gin plant. The giving of the • check was apparently within the scope of Read’s authority. The appellee is therefore entitled to be protected by its lack of notice that he was actually transcending his power. See Interstate National Bank v. Claxton, supra; 4 Thompson on Gorp. § 4930; also 5 Thompson on Corp. § 6041.

Upon the whole case we conclude that the appellant is entitled to recover of the appel-lee the sum of $1,000, less the sum of $606.-30 due upon the “overdraft” account in favor of the appellee after excluding the sum of $3,650.91 transferred thereto from the “bill of acceptance” account. This, by mathematical computation, will leave a balance due the appellant of $393.70, for which judgment will here be rendered. Except as indicated above, the appellee is entitled to no relief on its cross-action. -

The judgment of the trial court will therefore be reformed accordingly, and the costs of this appeal adjudged against the appellee.
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author: LAÑÉ, J.

text:
    KIEFFER v. KEOUGH.
    (No. 7188.)
    (Court of Civil Appeals of Texas. Galveston.
    June 9, 1916.
    Rehearing Denied June 29, 1916.)
    1. INNKEEPERS &wkey;>13—LÍEN EOR HOTEL BILL' —“Hotel/’
    A rooming house, where both furnished and unfurnished rooms are rented by the day, week, or month, and bell-boy service, lights, water, heat, phone and laundry service furnished, held a “hotel” within Vernon’s Sayles’ Ann. Civ.

      St. 1914, art. 5663,' providing hotel keeper’s lien for unpaid hotel bill.
    [Ed. Note — For other cases, see Innkeepers, Cent. Dig. §§ 42-46; Dec. Dig. <S&wkey;13.
    For other definitions, see Words and Phrases, First and Second Series, Hotel.]
    2. Innkeepers <&wkey;13 — Lien eob Unpaid Hotel Bill — “Guest.”
    A person who rented an unfurnished room at such hotel by the month, and furnished the same with his own furniture, and received the other services of such hotel, held a guest, and his property subject to a lien for his unpaid hotel bul.
    [Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 42-46; Dec. Dig. <@==513.
    For other definitions, see Words and Phrases, First and Second Series, Guest.]
    3. Innkeepers <&wkey;13 — Lien—Ownership oe Property — Notice of Proprietor.
    Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 5663, property in the possession of hotel guest is subject to a hotel keeper’s lien, though it belonged to a third person, if the proprietor had no notice of the true ownership.
    [E'd. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 42-46; Dee. Dig. <§=>13.]
    Appeal from District Court, Harris County ; Chas. E. Ashe, Judge.
    Action by John KiefCer against E. T. Keough. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    W. E. Monteith, of Houston, for appellant. Cooper & Merrill, of Houston, for appellee.
   LAÑÉ, J.

For a statement of this case we here adopt the findings of fact filed by the trial court, together with such additional statements as is necessary to make said statement complete, as follows:

Some time prior to February 1, 1912, and ever since said date, John KiefCer, the defendant, has been the proprietor and manager of a rooming house called Hotel Strat-ford, situated in the city of Houston, Harris county, Tex., at No. 414 Fannin street. Between February 1, 1912, and October 1, 1912, defendant’s principal business as proprietor and manager of said house was renting furnished rooms to guests by the day, week, or. month, furnishing- the occupants of said rooms bell-boy service, lights,, water, heat, and phone service, taking laundry for guests and sending it out for them and paying the bills when it was returned, charging same to the guests of the respective rooms. At said, time defendant had eight or ten unfurnished rooms, which he rented unfurnished when tenants could be secured, and during said time defendant had a fixed rate for each class of accommodation, a certain rate for certain rooms by the day, week, or month furnished, and certain rate for unfurnished rooms, and the rate charged the plaintiff was the usual rate charged guests for unfurnished rooms. On or about February 1, 1912, for a consideration of $30 per month, the defendant rented plaintiff, upon a monthly rental, certain of said unfurnished rooms for housekeeping purposes, with all the .other conveniences, rights; and privileges of guests occupying the furnished rooms of said house, and a few days' afterwards plaintiff, who was then and is now a married man, moved into said rooms with his wife, and continuously occupied and used same as living and housekeeping rooms for himself and wife until about the 1st day of October, 1912. Plaintiff and his wife, during his occupancy of said rooms', furnished same at their expense with suitable household furniture and furnishings for housekeeping purposes, and all of said household furniture and furnishings on the several dates inquired about herein belonged to the plaintiff, E. T. Keough, except the piano, sewing machine, bedding, and linens which then and now belong- to plaintiff’s wife as her separate property, having been acquired by her before her marriage to the plaintiff. Upon leaving said property and premises on or about October 1, 1912, plaintiff was indebted to the defendant in-the sum of $82.50 for room rent and laundry bills. Plaintiff at this time attempted to move the said furniture and' belongings of himself and wife, but was forcibly prevented from doing so by the defendant, who has ever since retained and held the same, claiming a hotel keeper’s lien thereon to secure the said sum of $82.50 due as aforesaid. During none of the times or dates mentioned herein did the defendant in the conduct and management of said house serve meals or refreshments of any kind to his guests. The plaintiff and his wife are the owners of all the property sued for and described in.the trial pleadings of the plaintiff, and the defendant is forcibly holding and retaining the same, claiming a hotel keeper’s lien thereon to secure said $82.50. Appellant’s hotel was advertised, and maintained as an European., plan hotel. It had a sign across its.,door and in. front of its main entrance, to wit, ’ Stratford Hotel. It was held out to" the public generally by its proprietor as .a hotel for guests. It was conducted and maintained like other European plan hotels were conducted and maintained. A hotel clerk was employed who kept a regular hotel register of all guests, and all guests who applied for accommodation were received to the capacity of said hotel. The lien asserted by appellant upon Said property was, by virtue of article 5663, Vernon’s Say les’ Statutes, which provides that:

“Proprietors of hotels and boarding houses shall have a special lien upon all property or baggage depbsited with them for the amount of the charges against them or their owners if guests at such hotels and boarding houses.”

On the 29th day of September, 1914, E. T, Keough filed his petition .before A. R. Ham-blen, judge of the Eleventh district court of Harris county, in which he alleged that appellant, Kieffer, was. doing business under the name of the Stratford Hotel, that he was a married man, tile head of a family, and that the property in question was and is his household furniture and exempt from forced sale, etc., and, further, that appellant was unlawfully withholding said property from him. He prayed for a mandatory injunction to compel appellant to restore to him said property, and for the possession of the same, and that in the event said property could not be recovered, he have judgment against appellant for $1,000, the alleged value of the same. Appellant answered, setting up the facts as found by the court, and also set up his lien and prayed for its establishment by the court. The cause was tried before the court without a jury, who rendered judgment, refusing the alleged lien, and in favor of appellee, Keough, for the title and possession of the property sued for, and awarding a writ of possession and mandatory injunction prayed for, commanding appellant to forthwith deliver to appellee, Keough, the property in question. From such judgment John Kieffer has appealed.

The trial court filed his findings of facts as set out in the first part of this opinion, and has filed the following conclusions of law:

“I conclude as matter of law that the kind of house the defendant was running was not a hotel or boarding house within the purview of the statute giving such persons a lien upon the effects of guests for their charges, and was not an inn or tavern at common law, and that he is not therefore entitled to any lien on the property or chattels of the plaintiff now in his possession, and that the plaintiff for himself and wife is entitled to recover the possession thereof.”

Appellant presents two assignments of error by which he contends that the trial court erred in concluding that the evidence shows that the Stratford Hotel was not a “hotel or boarding house” as these terms are used in article 5663, Vernon’s Sayles’ Statutes, and. in rendering judgment for appellee upon such conclusion. Appellee’s contention is that said Stratford Hotel is a lodging house, and not a “hotel or boarding house” as those terms are used in said article 5663, and therefore appellant had no lien on his household goods deposited in the rooms of said hotel, while appellant’s contention is that said hotel is a “hotel” as that term is used by said statute. These contentions constitute the matter presented for our decision. If the Stratford Hotel was, at the time E. T. Keough and wife began the occupancy of some of its rooms, under the terms and conditions as shown by the evidence, a “hotel or boarding house,” as these terms are used in said article 5663, and continued to be such until they left the same, and they occupied said rooms as guests of said hotel, the property in question is subject to the lien asserted by appellant, Kieffer. It follows then that the important and controlling questions are: First, was the Strat-ford Hotel a “hotel or boarding house” as those terms are used in said article 5663? and, second, did Keough and wife occupy rooms therein as “guests” as that term is used in said article? In the case of Nelson v. Johnson, 104 Minn. 440, 116 N. W. 828, 17 L. R. A. (N. S.) 1259, the Supreme Court of Minnesota said:

“In early days and under primitive conditions it was necessary, in order to bring a place within the legal definition of an inn, and to charge the keeper thereof with liability as such, that lodging, food, drink, and stable should be furnished to travelers. But as cities grew, and modes of living, travel, and transportation of persons changed, the legal definition of an inn (hotel or boarding house in the instant case) was modified thereby, and a bar to supply guests with drink, and a stable for the care of their horses, are now no longer essential requisites of an inn. Why, then, should a dining room, or a café, or restaurant, to supply guests with food be now held an essential requisite of an inn or hotel? The reason for holding that the supplying of guests with food is a necessary requisite of an inn (hotel) has as effectually ceased as it has to the supplying of drink and stabling.”

It has also been held that the proprietor of a hotel conducted on the European plan is responsible for his guests’ effects as an innkeeper. Krohn v. Sweeney, 2 Daly (N. Y.) 200; Bullock v. Adair, 63 Ill. App. 30; Johnson v. Chadbourn Finance Co., 89 Minn. 310, 94 N. W. 874, 99 Am. St. Rep. 571. In the case of Johnson v. Chadbourn Finance Co., supra, the Supreme Court of Minnesota held that a building, the upper floors of which were used for sleeping apartments, and 'the lower floor for an office by the proprietor, was a hotel, when the business was concededly conducted as other hotels are conducted, except that the proprietor did not furnish meals for the guests. In speaking of this case the same court, in the case of Nelson v. Johnson, supra, said:

“The logic of that case, however, leads directly to the conclusion that supplying, guests with meals is not now one of the essential requisites of a hotel, in order to charge the proprietor thereof with the liability of a keeper of a common inn.”

In the case of Fay v. Pac. Imp. Co., 93 Cal. 253, 26 Pac. 1099, 28 Pac. 943, 16 L. R. A. 188, 27 Am. St. Rep. 198, it is held that a hotel is none the less one because in some respects it may be conducted differently than other public hotels, so long as it is held out to thé public as a place for the entertainment of all persons who may have occasion to patronize it; that modes of entertainment alter with the fashion of the age, and to preserve a clear definition is not easy; that it is not wayfarers or travelers from a distance that at the present day give character to an inn, the point being rather that people resort to the house habitually, no matter whence coming or where going. In Bernstein v. Sweeny, 33 N. Y. Super. Ct. (1 Jones & S.) 271, 274, it is held that the term “hotel,” within the meaning of a statute, includes the class of hotels commonly known as “European.”

While there is much conflict in the decisions of the courts of the various states as to the proper definition of a “hotel,” as that term is now used in the statutes, we think the great weight of authority supports the definition given by the cases above cited. We therefore hold that the building of appellant, Kieffer, in which appellee, Keough, deposited the property in, question is a “hotel,” as that term is used in said article 5663 of our statute.

We now come to the more difficult question; that is, Were E. T. Keough and wife “guests” of said hotel as that term is used in said statute? Again, on this question we find much conflict in the decisions of the courts. The word “guests” is defined in the cases cited below as follows: A guest is a lodger at a hotel. Comer v. State, 26 Tex. App. 509, 513, 10 S. W. 106, 107 (citing Webster Diet.). A "guest” is defined as a visitor sojourning in the house or entertained at the table of another. Odell v. New York Cent. & H. R. R. Co., 18 App. Div. 12, 45 N. Y. Supp. 464-465 (citing Cent. Diet.). A “guest” is defined as “a traveler who lodges at an inn or tavern with the consent of the keeper.” State v. Johnson, 4 Wash. 593, 594, 30 Pac. 672, 673 (citing Black’s Law Diet. tit. “guest”). The term “guest” in- . eludes a traveler who goes to a house held out to be an inn for the purpose of receiving such entertainment as he has occasion for. Pinkerton v. Woodward, 33 Cal. 557, 597, 91 Am. Dec. 657. The guest comes to the inn without any bargain for time, and remains without one, and may go when he pleases, paying only for the actual entertainment which he receives; and the fact that one stayed a long time at an inn is not sufficient to make him a boarder, and not a guest Schoecraft v. Bailey, 25 Iowa, 553, 555; Metzer v. Schnabel, 23 Mise. Rep. 698, 52 N. Y. Supp. 105. “Guest,” as the term is used in speaking of a guest of an inn, would include one who resided at a hotel, paying $6 a week for his room, which he had been informed was the regular price to a guest, although he stayed at the hotel for a period of a month. Smith v. Keyes, 2 Thomp. & C. (N. Y.) 650, 651. Mere fixing of the price to be paid does not make the person a boarder, rather than a guest, so as to render the house a boarding house, rather than an inn. In re Brewster, 39 Misc. Rep. 689, 80 N. Y. Supp. 666 (citing Hancock v. Rand, 94 N. Y. 1, 7, 46 Am. Rep. 112). Where a person rented a room, which was cared for by the hotel keeper, but no particular time had been bargained for, though the price had been agreed upon in advance, he was a guest, as far as the liability of the hotel keeper for loss of his effects was concerned. Metzer v. Schnabel, 23 Misc. Rep. 698, 52 N. Y. Supp. 105. Any one away from home,. receiving accommodations at an inn as a traveler, is a guest, though he be a townsman or neighbor. Walling v. Rotter, 35 Conn, 183, 185. In view of the conflicting definitions given to the word “guest” as it is used in article 5663, supra, by the courts, and in view of the facts of this case, we feel that both justice and common sense dictate that we should hold that appellee E. T. Keough and wife were guests of Hotel Stratford while they occupied rooms therein, and that appellant John Kieffer, has a statutory lien on the property in question, and we therefore so hold.

It may be stated here that the lien given to proprietors of hotels by article 5663, Vernon’s Sayles’ Statutes, may attach to property in possession of his guests though it belongs to a third person, provided the proprietor of such hotel had no notice of the fact that said property belonged to such third person. . Mfg. Co. v. Miller, 52 Minn. 516, 55 N. W. 56, 21 L. R. A. 229, 38 Am. St. Rep. 568, and cases there cited by counsel for appellant. Having concluded that the Stratford Hotel is a “hotel” as that term is used in the statutes, and that appellee E. T. Keough and wife were “guests” of said hotel, as that term is used in said statute, while occupying the rooms therein, we further conclude, under the facts of this case, that appellant, Kieffer, has a lien upon the property in question. We therefore hold that the trial court erred in rendering judgment in favor of E. T. Keough for the title and possession of said property free from appellant’s said lien. In view of the fact, however, that appellant, Kieffer, pleaded the appellee, Keough, was indebted to him in the sum of $119 and made no prayer for judgment therefor in the lower court, we are in no position to render judgment therefor in this court, and until appellant recovers judgment for his claim he is not entitled to the establishment of his lien given by the statute to secure the payment of said claim. We therefore do no more than reverse the judgment rendered by the trial court, and here render judgment that appellee, E. T. Keough, recover nothing by his suit, and that the appellant, Kieffer, go hence without day, and that he recover his costs incurred from appellee E. T. Keough.

Reversed and rendered.
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