author: IiANE, J.

text:
    R. R. DANCY & CO. v. ROSENBERG.
    (No. 6759.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 18, 1915.)
    1. Judgment ©=^126 — Default—Pkoof.
    Rev. St. 1911, art. 1902, as amended by Acts 33d Leg. c. 127 (Vernon’s Say les’ Ann. Civ. St. 1914, art. 1002), provides that the defendant in his answer either admit or deny each fact alleged in the petition or deny that he has any knowledge or information thereof sufficient to form a belief, and that any fact not denied by the defendant shall be taken as confessed. Rev. St. 1911, art. 1939, provides that upon default, in case the cause of action is unliqui-dated or be not proved by an instrument in writing, the court shall hear evidence as to ■damages and render judgment therefor, unless the defendant shall demand and be entitled to a trial by jury. Held, that as the amendment to article 1902 did not purport to change article 1939, defendant’s default in filing an answer did not admit allegations of plaintiff’s petition as to unliquidated damages, and plaintiff was bound to establish them by evidence, as in the past.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 223, 224, 228-230; Dec. Dig. <§=> 126.]
    2. Judgment @=^143 — Default — Setting Aside.
    Where defendants not only showed a meritorious defense, but offered an excuse for their default in filing answer, the default should be set aside and a new trial granted, where they agreed to go to trial at once.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. ©=>
    •Ajipeal from District Court, Harris County; William Mastersou, Judge.
    Action by G. A. Rosenberg against R. R. Dancy, Sr., and R. R. Dancy, Jr., copartners doing business as R. R. Dancy & Co. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Campbell, Sonfield, Sewall & Myer, of Houston, for appellant. A. W. Boyd and A. H. Jayne, both of Houston, for appellee.
   IiANE, J.

This suit was instituted by ap-pellee, G. A. Rosenberg against R. R. Dancy, Sr., and R. R. Dancy, Jr., composing the firm of R. R. Dancy & Co., to recover the reasonable value of services alleged to have been performed by said Rosenberg for appellants, Dancy & Co., of the alleged aggregate value of $988.50 and for 6 per cent, interest per annum thereon from September 27,1913. Ap-pellee’s petition was verified as required by article 1902, Acts 83d Leg. 1913, pp. 256, 257 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1902). Appellants were served with citation in manner and for the length of time required by law. The next term of the district court of Harris county in which this suit was filed, after service was had upon appellants, convened on the 5th day of January, 1914; neither of the appellants appeared, nor did either of them file an answer until after judgment liad been entered against them by default. The case was called on Wednesday, January 7, 1914, same being after appearance day of that term. When the case was called, at the request of appellee, Rosenberg, the court rendered judgment by default against appellants for the sum of $1,005.07, principal and interest, as prayed for, upon the verified petition of appellee Rosenberg without hearing any evidence. On the 8th day of January, 1914, appellants filed their answer setting up a meritorious defense to appellee’s suit, and on the same day filed their motion for new trial, and later, on the 12th day of January, 1914, they filed their second motion for a new trial, wherein they made the following assignments of error:

“Second. The court further erred in not set-' ting aside said judgment as prayed for in said motion hereinabove referred to, for the reason that it developed upon a hearing of said motion to set aside judgment that no evidence was offered by the plaintiff at the time judgment by default was entered in said cause, on, to wit, January 7, 1914; it being shown that at said time the court considered as true each and every allegation set forth in plaintiff’s original petition.
“Third. Because the court erred in rendering judgment by default in this cause upon the petition of plaintiff alone, unsupported by any evidence, since it was developed upon the hearing of motion to set aside the judgment, hereinbe-fore referred to, that the only contract, if any, which plaintiff had with defendants was $3 for each foreign invoice prepared by plaintiff, and the petition alleged the continuous employment at a reasonable compensation, which plaintiff alleges amounted to $75 per month. There was therefore a fatal variance between the allegations in plaintiff’s petition as sworn to by him and the testimony of the plaintiff on the stand.
“Fourth. The court further erred in not setting aside the judgment hereinbefore entered in this cause upon the motion to set aside herein-above referred to, for the reason that the answer as filed by the defendants herein was filed on the next day after judgment in this cause was taken. It further appeared that this court only convened on the 5th day of January, 1914, and judgment was taken by plaintiff on the 7th day of January, 1914, and motion to set aside and defendants’ answer was filed on the 8th day of January, 1914, and said answer sets up a good and meritorious defense to plaintiff’s suit, and because defendants are ready and willing to try said cause at this term of court, and at any day thereof that may be suggested by or agreed to by the plaintiff.
“Fifth. Because upon the hearing of the motion to set aside judgment on the 12th day of January, 1914, the defendants learned for the first time that absolutely no- evidence whatsoever had been offered by the plaintiff at the time the default judgment was taken in this cause on, to wit, the 7th day of January, 1914, and only learned upon the hearing of said motion that the court had rendered judgment in plaintiff’s favor against defendants purely and entirely upon the original petition of plaintiff as filed in this cause, without hearing any evidence of any kind or character whatsoever in support of the allegations contained in said pleading. That this fact was not known to defendants until after the hearing on defendants’ motion to set aside judgment had begun and during the progress of said hearing.”

It was the contention of appellee Rosenberg, that as his petition was verified, as pro: vided by article 1902, Acts 33d Leg. pp. 256, 257, and as appellants had not answered and had not denied the allegations of his petition, he was entitled to judgment by default upon his petition alone, without further proof; that said article 1902 authorized such default judgment, notwithstanding article 1939 of the Revised Statutes of 1911, which reads as follows:

“If in such case the cause of action is un-liquidated or be not proved by an instrument in writing, the court shall hear evidence as to the damages and shall render judgment therefor, unless the defendant shall demand and be entitled to a trial by jury.”

The court adopted the contention of appel-lee, and overruled both of appellants’ motions for new trial.

Article 1939, supra, was not amended, nor in any way affected by article 1902, Acts 33d Leg. The later act was intended to obviate and relieve the pleader of the necessity of making proof of those essential allegations, either in the petition or answer, not denied, after issues have been joined. It was obviously the intention of the Legislature, we think, to relieve the parties to the suit from burdening the record with testimony in support of allegations about which there was no dispute, after an answer had been filed; for it is provided by said article 1902 that “any fact not denied by defendant, or which he does not deny that he has any knowledge or information thereof sufficient to form a belief, shall be taken as confessed,” and it was clearly -not the intention of the Legislature, nor did it by this act authorize rendition of judgment by default upon verified petitions, other than where the demand of the plaintiff is liquidated or proven by an instrument in writing. We, therefore, think that the court below erred in rendering judgment for appel-lee by default, upon his petition, without proof of the matters therein alleged other than the petition, and that said court should have sustained appellants’ motions for new trial upon this proposition.

We also think that by their motions for new trial, as well as their answer filed in said cause, appellants show a meritorious defense to appellee’s suit, and that they also show some excuse, though weak, for not having filed their answer before judgment was entered against them, and as they agreed to go to trial at once on the issues joined, so as not to prevent a trial at the appearance term, the court should have sustained their motions for new trial. See Scottish Union & Nat. Ins. Go. v. Tomkies et al., 28 Tex. Civ. App. 157, 66 S. W. 1109, and authorities there cited; Pecos & N. T. Ry. Go. v. Faulkner, 118 S. W. 747; Springer v. Gillespie, 56 S. W. 369; Chicago Ry. Co. v. Anderson, 141 S. W. 513; Gillaspie v. City of Huntsville, 151 S. W. 1114.

Believing, as we do, that the trial court erred in rendering judgment by default upon the petition of appellee without further proof of the matters therein alleged, and that it also erred in not thereafter setting aside said judgment so rendered, for the reasons herein-before given, the judgment of the lower court is here reversed and the cause remanded.

Reversed and remanded.
      <g=^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    MOORE v. ROCKPORT HOTEL CO. et al.
    (No. 5411.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 17, 1915.
    Rehearing Denied March 24, 1915.)
    1. Mortgages '<§=>186 — Vendor’s Lien — Priority.
    A deed of trust dated June 12, 1911, acknowledged July 17th, and recorded July 21st, whereby a purchaser reconveyed part of the land conveyed to secure one of his vendors, gave the vendor a prior valid lien as against a mechanic’s lien claimed under a contract with a hotel company to which, when chartered, the purchaser conveyed by deed dated and acknowledged July 17th and recorded August 22d; since any one buying under the deed to the corporation was chargeable with notice of the time when its charter was procured, and since no one could have been misled by the fact that the deed of trust dated June 12, 1911, was not acknowledged until July 17th, the date of the deed to, and the charter of, the hotel company, so as to believe that the deed of trust was executed subsequent to the deed to the company.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 449-455; Dec. Dig. <§=>186.)
    2. Mortgages <§=>169 — Vendor’s Lien — Rights of Subsequent Lienor — Notice.
    On June 12, 1911, one M. and others conveyed to one D. certain land, and to secure payment of the purchase price, evidenced by twelve notes, three of which were due in 12 months and three each four months thereafter, expressly retained a vendor’s lien, which deed was filed July 20th, and on July 17th the vendors executed to the purchaser a release of the vendor’s lien notes, which release was recorded July 21, 1911. On June 12th the purchaser executed a deed of trust conveying the south half of the tract to secure payment of four promissory notes payable to the order of M., and due respectively 12, 16, 20, and 24 months after date, which deed was executed and acknowledged July 17th and recorded July 21st, and by deed dated and acknowledged the same day and recorded August 22, 1911, the purchaser conveyed to a hotel company. Held that, on the rec-' ords, a party contracting with the hotel company for the erection of a hotel on the north half and for a mechanic’s lien thereon, could not presume that the notes released were those described in the deed of trust lien, but was either chargeable with actual notice, or with constructive notice which in the usual course of business would have led to actual notice of M.’s pre-existing lien as against the south half.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 386-388; Dec. Dig. <§=>169.)
    Appeal from District Court, Aransas County; F. G. Chambliss, Judge.
    Action by C. J. Moore against Mary E. Davis as individual executrix of the will of A. L. Davis, deceased, and others. From the judgment, plaintiff appeals.
    Reversed and rendered.
    W. H. Baldwin, of Roekport, and E. B. Cocke, of San Antonio, for appellant. Spell & Sanford, of Waco, and A. L. Matlock, of San Antonio, for appellees.
   MOURSUND, J.

Appellant sued Mary E. Davis, as independent executrix of the will of A. L. Davis, deceased, on four notes aggregating §53,333.3Ei/3, and sought foreclosure of a deed of trust lien on the south half of a certain parcel of land in Roekport, known as “Rocky Point,” such foreclosure being prayed for as against said Mary E. Davis, her husband, W. R. Davis, Roekport Hotel Company, a corporation, Charles G. Johnson, and National Exchange Insurance <& Trust Company, a corporation.

The defendant National Exchange Insurance & Trust Company answered, alleging that on October 28, 1911, the Roekport Hotel Company was the owner of said tract of land known as Rocky Point, and that on said date such company and one R. S. Cobb entered into a written contract under which Cobb was to erect certain improvements upon said property and said company executed and delivered to him its three notes for $5,000 each, payable respectively in 12, 18, and 24 months; that said notes are unpaid except $2,500 paid January 27, 1913, and interest paid to September 27, 1913 ; that in said contract the Hotel Company gave Cobb a valid builder’s, mechanic’s and materialman’s lien upon said premises; that this defendant, for a valuable consideration paid by it to Cobb, became the owner and holder of said notes by purchase and transfer from Cobb before the maturity of either of them, and is now the legal owner and holder. It was further alleged that the lien granted in said deed of trust was released; that if not released in fact yet a release signed by appellant was filed the same day as the deed of trust which, on account of the similarity of the description of the notes therein described to those mentioned in the deed of trust, was calculated to lead this defendant, as well as R. S. Cobb, to believe, and did lead them to believe, that the lien created by the deed of trust was released, and plaintiff is therefore es-topped to assert such deed of trust lien as against this defendant’s mechanic’s lien. It was also alleged that the deed of trust was executed and delivered by Davis after he had conveyed the land to Roekport Hotel Company and therefore created no lien. Said answer contained cross-actions against Cobb, Johnson, and C. H. Moore, which were voluntarily dismissed, and therefore need not be further mentioned.

Roekport Hotel Company, by its answer, made the contentions: (1) That the deed of trust was released; (2) that at the time the deed of trust was executed and delivered the land had been conveyed -to it. It admitted the debts and liens claimed by Johnson and National Exchange Insurance & Trust Company.

Cobb, Johnson, and Moore adopted the allegations contained in the answer of Rock-port Hotel Company. Johnson in his answer sued Roekport Hotel Company upon a note for $10,000 executed by said company to him, and to foreclose, as against said company and plaintiff, a deed of trust lien upon the land known as Rocky Point, which lien lie alleged was subject only to that of tlie National. Exchange Insurance & Trust Company.

Various supplemental petitions and answers were filed, but we believe the above statement is sufficient to indicate what the issues were in the trial court.

The trial court instructed the jury to return a verdict in favor of all the defendants as against plaintiff, except the defendant Mary E. Davis, executrix of the estate of A. L. Davis, deceased, against whom they were to return a verdict in favor of plaintiff for the debt sued for. The verdict having been returned, judgment was entered dismissing the cross-actions of National Exchange Insurance & Trust Company against Cobb, Johnson, and C. H. Moore; awarding plaintiff the sum of $4,699.16 against Mary E. Davis, executrix; awarding the insurance and trust company $15,254.12 against the hotel' company, and foreclosing its lien; awarding Johnson $12,852 against the hotel company and foreclosing his lien subject to that held by the insurance and trust company. It was further adjudged that the liens of insurance and trust company and Johnson were superior to that asserted by plaintiff, and that such lien asserted by plaintiff be canceled and annulled as against Roekport Hotel Company. Plaintiff appealed.

Findings of Fact.

(1) On June 12, 1911, C. J. Moore, C. H. Moore, and Chas. G. Johnson conveyed to A. L. Davis the parcel of land known as “Rocky Point,” describing same by metes and bounds, as well as by reference to prior deeds thereto, and to secure the payment of the purchase price expressly retained a vendor’s lien. The purchase price was $10,000, evidenced by 12 notes for $833.33⅜ each, three of which were due 12 months, three 16 months, three 20 months, and three 24 months after date. The notes are described as “payable to the vendors herein or their order with 8 per cent, interest from date.” The deed contained the condition that within 90 days from its date Davis should begin the erection of a hotel building of brick or concrete upon said land to cost not less than $25,000 otherwise the title would revert to the grantors, unless Davis paid the grantors $5,000 in addition to the consideration above mentioned. This instrument was filed for record July 20, 1911, at 9 o'clock a. m.

(2) On July 17, 1911, O. J. Moore, O. H. Moore, and Chas. G. Johnson executed to A. D. Davis a release of the vendor’s lien retained in the deed from Davis to them dated June 12, 1913, in which release the notes are described as follows: “Twelve promissory vendor’s lien notes all dated June 12, 1911, and all payable to O. J. Moore, O. H. Moore, and Chas. G. Johnson or order.” It recites the payment of said notes to C. J. Moore, C. H. Moore, and Chas. G. Johnson, and releases | “all the right, title, interest and estate in and to the property above described which we have or may be entitled to by virtue of bd-ing the owners of said vendor’s lien notes.” This instrument was filed for record on July 21, 1911, at 8:35 a. m.

(3) A. L. Davis executed a deed of trust to W:. H. Baldwin, trustee, conveying the south half of the parcel of land known as Rocky Point, describing it by metes and bounds, the same being for the purpose of securing the payment to C. J. Moore of four promissory notes, payable to the order of C. J. Moore, described as follows:

“Each of said notes being for the sum of eight hundred and thirty-three and 83/mn dollars, each being dated June 12, 1911, each bearing interest at 8 per cent, per annum from date and each providing for 10 per cent, attorneys’ fees in case of default in payment, said notes being due respectively twelve, sixteen, twenty and twenty-four months after date with interest thereon from date until paid, at the rate of 8 per cent, per annum, said interest payable semiannually as it accrues, at the office of C. J. Moore in Roekport, Texas.”

This instrument is dated June 12, 1911, but was executed and acknowledged on July 17, 1911, and filed for record on July 21,1911, at 8:35 o’clock a. m.

(4) A. L. Davis, by general warranty deed dated July 17, 1911, conveyed to Roekport Hotel Company, a private corporation, for a recited consideration of $24,995 in hand paid, said entire parcel of land known as Rocky Point. This deed was acknowledged on July 17, 1911, and filed for record on August 22, 1911.

(5) The charter of Roekport Hotel Company was dated July 17, 1911, and was acknowledged by some of the signers on that date and by one on a date not shown by the certificate of the officer, but was not filed in the office of the secretary of state until August 19, 1911.

(6) On October 28, 1911, Roekport Hotel Company and R. S. Cobb entered into a contract whereby Cobb agreed to furnish all labor and material and to erect a three-story brick veneered hotel building to be erected upon property belonging to Rock-port Hotel Company, situated in Roekport, Aransas county, Texas, known as Rocky Point, and more particularly described as follows: “Said building to be erected on the north half of what is commonly known as ‘Rocky Point’ or the Roekport wharf property, said point containing one acre, more or less.” Then follows the description of said Rocky Point by metes and bounds. Roekport Hotel Company bound itself to pay $10,000 cash and to give three notes for $5,000 each, and granted to Cobb “an express mechanic’s and builder’s lien on said land above described and all improvements made thereon under and by reason of this contract.”

(7) On October 21, 1912, R. S. Cobb transferred to National Exchange Insurance & Trust Company said three notes for. $5,000 each, as well as the lien securing the payment thereof. The consideration paid was $9,000 in cash and $6,000 stock in said company. This transfer was filed for record on January 16, 1913.

(8) On July 19, 1912, Roekport Hotel Company executed and delivered to D. R. Scriv-ner a deed of trust upon the Rocky Point parcel of land, to secure the payment to Chas. G. Johnson of the note for $10,000 described in Johnson’s answer.

(9) No controversy exists concerning the amount of indebtedness claimed by each party, so it is unnecessary to describe the notes further than has been done in stating the pleadings.

(10) Davis reported to C. J. Moore, C. H. Moore, and Chas. G. Johnson that he could not build the hotel except through a hotel company; thereupon they discussed ways and means of accomplishing the purpose, and it was finally agreed that Johnson and O. H. Moore should cancel their portion of the purchase-money indebtedness and take stock in the hotel company in lieu thereof, and that C. J. Moore should join in the release of the original purchase-money notes and take new notes secured by a deed of trust on the south half of the property, so as to leave the north half clear in order that a mechanic’s and materialman’s lien could be given thereon. In accordance with this agreement the release and the deed of trust ,and four new notes were executed contemporaneously, and Davis, on the same day, executed the deed to the Roekport Hotel Company. Davis being unable to pay the interest accrued on appellant’s four notes to date when new ones were signed, the deed of trust and new notes were dated back as of the same date as the deed and vendor’s lien notes. The release, deed of trust, and deed to the Roekport Hotel Company were all acknowledged before H. B. Baldwin, notary public. The deed of trust and new notes were at once delivered to C. J. Moore, but said Moore left the deed of trust with Baldwin to be filed for record by him, it being understood that the deed from the two Moores and Davis, which was unrecorded, should be sent to Baldwin from San Antonio, and should be recorded first. He filed the deed on July 20th and the deed of trust and release on July 21st. The deed from Davis to the Roekport Hotel Company was left in Baldwin’s charge, to be placed of record after the parties had finished the organization of the Roekport Hotel Company. His instructions were to hold the deed until the charter was procured, and after the charter was procured he filed the deed for record.

(11) Chas. G. Johnson had actual knowledge of the transactions stated in the preceding finding at the time the deed of trust was executed to him to secure the $10,000 note held by him.

(12) Roekport Hotel Company had actual knowledge through Chas. G. Johnson, one of its incorporators, of the transactions stated in finding No. 10 at the time it acquired title to the Rocky Point property.

(13) National Exchange Insurance & Trust Company had actual notice of the lien claimed by C. J. Moore by virtue of the deed of trust at the time it purchased the Cobb notes and lien.

(14) There is no evidence showing actual knowledge or notice on the part of Cobb of the lien claimed by C. J. Moore by virtue of the deed of trust at the time the mechanic’s lien, before described, was delivered to him.

Opinion.

The deed of trust executed by Davis to secure the payment to C. J. Moore of the debt sued upon by him created a valid lien upon the south half of the Rocky Point property. There is no evidence to the effect that the deed from Davis to the Roekport Hotel Company was even executed prior to the execution and delivery of the deed of trust; but regardless of whether it was or not, the evidence shows conclusively that it was the understanding and agreement of Davis, C. H. Moore, Johnson, and appellant that appellant was acquiring a deed of trust lien upon the south half of the Rocky Point property, and the conveyance to the Roekport Hotel Company was not delivered, there being no such company, but was placed in the hands of Baldwin to hold until such a company should be chartered by the state. He complied with this agreement, and did not file the deed until such charter had been procured, which was long after the deed of trust was recorded. Any one buying under that deed was chargeable with notice of the time when the charter was procured. No purchaser or creditor could have been misled or injured by the fact that a deed of trust dated June 12, 1911, was not acknowledged until July 17, 1911, the date borne by a deed from the grantor in the deed of trust to the hotel company. No one would be led by that fact to believe that the deed of trust was executed subsequent to the execution of the deed', and certainly as between Davis and appellant, the appellant acquired a valid lien by his deed of trust.

Johnson had actual notice of appellant’s lien at the time he acquired his lien. Both Johnson and Cobb were chargeable with notice of appellant’s deed of trust, which had been on record for some time when they acquired their liens. No release of the deed of trust was ever executed, but it is contended that Cobb was led by the condition of the records to believe that the deed of trust was additional security for four of the notes described in the vendor’s lien deed from C. J. Moore, C. H. Moore, and Johnson to Davis, and therefore the release of said notes described in said deed was a release of all liens held by appellant. Tke contention is sought to be based upon the principle of es-toppel. It is argued that the 4 notes deserib-ed in tlie deed of trust were of the same date and amount as the 12 notes described in the deed; that the due date thereof corresponded with the time at which the 12 notes mature in sets of three; that the deed merely recited that the 12 notes were payable to the vendors therein, without stating that each note was payable to all the vendors; that the release of the vendor’s lien and' the deed of trust were filed for record at the same time; that a deed appeared of record bearing the same date as the release, which deed purported to be a conveyance by Davis to Rock-port Hotel Company of all of Rocky Point for a cash consideration of $24,995, and any one examining the records would naturally be led to believe that Davis on that day received ample money to pay off all liens, and to conclude that the release was intended as a release of the deed of trust.

But the contention must be weighed in the light of all the facts, and we will call attention to other matters deemed to have a material bearing upon the question. The notes described in the deed of trust were recited to be payable to appellant, and not to appellant, Johnson, and C. H. Moore. In addition, it recited that the interest was payable semiannually at C. J. Moore’s office, and no such recital is found in the deed or release. While the deed described the 12 notes as payable to the vendors or their order, the release states plainly that said }2 notes were all payable to C. J. Moore, C. H. Moore, and Chas. G. Johnson, or order. The deed of trust was given upon the south half of Rocky Point, describing it by metes and bounds, and no reason is mentioned in any recorded instrument accounting for one of three joint owners taking a deed of trust upon a certain half of the land in addition to having a vendor’s lien with the two others who joined in the deed with him. The release contains no mention of the deed of trust, nor of any such notes as are described in the deed of trust. The release does not contain any general statements which might be considered as covering all indebtedness held against the land by the parties who signed the same. Its language is plain, and it only releases the lien created by virtue of the vendor’s lien notes described in the deed and described in such release. In addition Cobb was required to take notice of the statements made in the contract under which he acquired his mechanic’s lien. That contract, although it contains no designation of the particular point at which the hotel was to be erected, and though construed by the parties as giving a lien on all of Rocky Point, contains the significant statement that the building is to be erected upon the north half. The instrument was so drawn that it is not entirely clear that the lien was to be upon the entire parcel of land; and a doubt would naturally arise in the mind of any one reading it whether the intention was to give a lien upon the north half or the entire parcel. The mind would seek for a reason for the special mention of the north half, and the inquiry would naturally present itself whether the lien upon the south half was in fact released.

If this was a question of estoppel, it would also be material that appellant is not shown to have had any interest or part in the transaction by which Davis, on July 17th, executed a deed to Roekport Hotel Company, nor is he even shown to have had notice that such a deed was to be executed on that day.

Although two briefs have been filed in behalf of appellees, and much is said about es-toppel, no ease is cited in support of the theory that the principle of estoppel applies in this case. In fact only three cases are cited in behalf of appellees, each of which involved a question of notice, and in each the facts were entirely different from those in this case. We think the question of law arising upon this appeal is whether the condition of the record made by the deed to Davis, the release to him, and the deed of trust from him to appellant was such that it can be said that Cobb was not chargeable with notice of the existence of a valid deed of trust lien against the south half of Rocky Point. The record gave him notice of the creation of the deed of trust lien, and also notice that there was no release which mentioned such lien. The description of the notes in the release did not correspond with that of those described in the deed of trust in important particulars. Did he have a right to assume that the notes released were those described in the deed of trust or was he put upon inquiry to ascertain whether or not they were the same? The presumption is that they were not the same, because secured by separate instruments and one set was payable to three persons while the other was payable to one person. Could Cobb overlook these important matters and indulge the presumption that they were the same because of the same date, and corresponding in amount? We do not think so. We think he was absolutely chargeable with notice that no release had been made of the deed of trust lien, but, to say the least, he was certainly called upon to make inquiry, and that inquiry in the usual course of business would have been directed to the appellant. Had he made inquiry of appellant or of the Baldwins he would have ascertained the true facts. When there is anything in the recorded instruments which would put a prudent man upon inquiry, he is then chargeable with notice of whatever an inquiry would reveal.

“Whatever is notice enough to excite attention and put the party on his guard and call for inquiry is also notice of everything to which it is afterwards found that such inquiry might have led, although all was unknown for want of the investigation.” Skov v. Coffin, 137 S. W. 454; Wilkerson v. Ward, 137 S. W. 158; Loomis v. Cobb, 159 S. W. 307; Crane v. Wood, 138 S. W. 445.

No inquiry was made by Cobb. We conclude that Cobb had constructive notice of appellant’s lien. The same rule applies to National Exchange Insurance & Trust Company, Johnson, and the Rockport Hotel Company, but as to them need not be invoked because they had actual notice of such lien.

Appellant’s second assignment of error, which complains of the refusal to give a peremptory instruction in his favor, is sustained.

The judgment of the trial court being erroneous in so far as it fails to establish and foreclose the lien held by appellant under his deed of trust and to declare it the first lien upon the south half of the property known as “Rocky Point” will be reversed, and this court, proceeding to render such judgment as should have been rendered by the trial court, will enter judgment as follows: That the cross-actions of National Exchange Insurance & Trust Company against R. S. Cobb, C. H. Moore, and Chas. G. Johnson be dismissed without prejudice; that C. J. Moore, appellant, recover of Mary E. Davis, independent executrix of the estate of A. L. Davis, deceased, the sum of $4,699.16 with interest thereon at the rate of 8 per cent, per annum from September 9, 1914, together with his costs incurred in the trial court, and that he take nothing as against W. R. Davis, who was made a party pro forma; and, further, that appellant have judgment against said Mary E. Davis, executrix, the Rockport Hotel Company, the National Exchange .Insurance & Trust Company, and Chas. G. Johnson establishing and foreclosing his deed of trust lien upon the south half of the Rocky Point property, and adjudging the same to have priority over the liens of said National Exchange Insurance & Trust Company and said Chas. G. Johnson; that National Exchange Insurance & Trust Company recover of Rockport Hotel Company $15,254.12, with 8 per cent, interest thereon from September 9, 1914, and for foreclosure of its mechanic’s lien upon the Rocky Point property, subject to appellant’s said deed of trust lien upon the south half thereof; that Chas. G. Johnson recover of Rockport Hotel Company $12,852 with interest thereon at the rate of 8 per cent, per annum from September 9, 1914, and for foreclosure of his deed of trust lien upon the Rocky Point property, subject to appellant’s lien and the lien of National Exchange Insurance & Trust Company.
      <S=>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    DAUGHERTY v. LEEWRIGHT.
    (No. 6724.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 17, 1915.)
    1.Specific Performance <©=>121 — Contracts —Evidence.
    In a suit for specific performance, evidence held to show that defendant did not agree to sell his land upon the terms insisted upon by plaintiff.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 387-395; Dec. Dig. <©=>121.]
    2. Brokers <©=>91 — Authority — Effect of Custom.
    Where the authority of a broker, which was express and unequivocal, did not provide for the furnishing of an abstract by the vendor or the giving of it to the purchaser for his examination, a general custom among land dealers to that effect’ did not warrant the broker in contracting to do so.
    [Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 134; Dec. Dig. <©¿>91.]
    3. Frauds, Statute of <©=>106 — .Contracts for Sale of Land.
    Where a landowner executed and signed a written proposal for the sale of his property, there is no contract enforceable against him unless the purchaser in writing accepts the proposal; for it is not a memorandum of the terms of the sale within the statute of frauds (Rev. St. 1911, art. 3965, § 4).
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 193, 210, 211; Dec. Dig. <S=>106.]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Action by J. S. Daugherty against L. J. Leewright. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    E. B. Pickett, of Liberty, for appellant. Stevens & Stevens, of Liberty, for appellee.
   PLEASANTS, C. J.

This suit was brought by appellant against appellee to compel specific performance of a contract for the conveyance of a tract of 198 acres of land, and, in the alternative, to recover damages for the alleged breach of said contract by appellee. Plaintiff’s petition alleges in substance: That on September 25, 1913, the defendant, acting by and through his duly authorized agent, D. L. Burch, entered into a written contract and agreement with appellant to sell him the tract of 198 acres of land described in the petition, for a consideration of $20 per acre, payable one-half cash, and the remainder in three equal annual installments, with interest thereon at the rate of 8 per cent, per an-num, appellant to assume a balance of the purchase money due on said land to the state of Texas, amounting to the sum of $400; that shortly after making said written contract, and on the same day, appellee through his said agent agreed to furnish appellant with an abstract of title to said land and allow him 30 days for examination thereof if appellant would then pay him the sum of $100, the balance of the cash payment for said land to be made in 30 days; and that this agreement was made in the presence and with the knowledge of appellee. It is then alleged that plaintiff paid the $100 to appel-lee’s said agent, but that appellee declined to accept same, and refused to carry out his said contract. Plaintiff also pleaded that it was necessarily implied as a part of the contract for the sale of the land that the ap-pellee, the seller, would furnish abstract of title, and would allow the purchaser a reasonable time to examine same, and that this was the general and usual custom at that time in Liberty and Harris counties in the sale of lands in said counties, and said custom generally prevailed throughout said counties, and that 30 days was a reasonable time to allow for the examination of an abstract of title in such cases.

In the eighth paragraph of the amended petition the plaintiff in the alternative alleged that, if it should be determined that the said Burch, in participating in the said transaction alleged, was not the agent of defendant, but acted in such matters as the agent of the plaintiff, then only in the event that it be so determined that said Burch was not, in fact, the agent of the defendant, but was, in fact, the agent of plaintiff, when he acted in the transaction, the plaintiff alleged that the defendant, acting for himself, made and entered into with plaintiff the contract above set forth.

The defendant in his answer denied that the contract had been entered into as alleged by plaintiff, and denied that it was implied that the defendant would furnish the plaintiff with an abstract of title, or that he ever agreed expressly or impliedly to accept $100 as earnest money and allow plaintiff 30 days or a reasonable time within which to examine the title, and further denied that he authorized D. L. Burch to act for him as his agent in any manner, or to furnish an abstract of title. The defendant also denied any knowledge of $100 received by D. L. Burch, and denied that he ever authorized Burch to accept said amount of money.

The ninth paragraph of the defendant’s answer was as follows:

“The defendant now says and alleges, in answering paragraph 8 of plaintiff’s amended petition, that he believes, and so charges, that the plaintiff, J. S. Daugherty, and D. L. Burch conspired and acted together in an effort to compel this defendant to convey said tract of land upon other terms and conditions which were not agreed by this defendant, and that, in truth and in fact, said D. L. Burch never was the agent of this defendant, and this defendant denies that he ever authorized him so to act, but, in truth and in fact, he was the agent of plaintiff, and that he was receiving some compensation unknown to this defendant from plaintiff in the event that he consummated a purchase of said land from defendant. Defendant admits that he is the owner of the land described in plaintiff’s amended petition, and that he was, on the 15th day of September, A. D. 1913, and prior thereto, owning and holding and enjoying the same as his homestead, and that on or about the 25th day of September, A. D. 1913, this defendant was desirous of locating permanently in North Texas, and there acquiring a new homestead, but, in order to g;et the home he wanted in North Texas, it was necessary that a quick sale of his Liberty county homestead be made, and that he at that time was willing to sell said tract of land in Liberty county, described in plaintiff’s amended petition, for $20 per acre net to him, and that he was willing to take one-third cash and the balance in three annual payments bearing 8 per cent, interest, but that he only offered this land for sale at that price and on those terms for a period of four days, and that he offered to sell same to D. L. Burch and plaintiff, J. S. Daugherty, at $20 per acre, one-third cash and the balance in three equal payments at 8 per cent, interest, but that said D. L. Burch failed and refused to pay this defendant one-third of the contract price, whereupon he stated to them that, unless they paid him in cash one-third of the total consideration, the deal would be declared off, and that it was mutually agreed and understood by and between the plaintiff and his defendant that the deal for the purchase by the plaintiff of this tract of land from the defendant was at an end, and this defendant avers that the plaintiff nor D. L. Burch never tendered to him an amount of money equal'to one-third of the total consideration for said tract of land, which consideration was to be $20 per acre net to the defendant. This defendant now invokes the aid of article 3965, § 4, of the Revised Statutes, and says that he never entered into a written contract, nor agreed by .a memorandum in writing to convey said tract of land to said plaintiff according to the terms and conditions as alleged by plaintiff, nor did he authorize in writing, or verbally, the said D. L. Burch to act for him in entering into any such contract with the plaintiff.”

Plaintiff by supplemental petition denied the several averments of defendant’s answer before set out.

The trial in the court below resulted in a verdict and judgment in favor of defendant. The facts shown by the evidence adduced upon the trial are as follows: A day or two before the 25th day of September, 1913, D. L. Burch informed appellee that he thought he had a buyer for his land, and appellee told him to go ahead, and if he could make a sale of the land it would be all right with him. After this conversation Burch, on September 25th, sent his wife to appellee to ascertain if he 'still wanted to sell his land. Appellee, in response to Mrs. Burch’s inquiry, executed and delivered to her the following instrument for delivery to her husband:

“Dayton, Texas, 9 — 25—1913.
“This is to certify that I, L. J. Leewright, agree to sell all of that tract of land in section 1008 belong' to me being 198 acres for the sum of 20 dollars per acre net to me, terms as follows one third cash in hand and the balans in three annual payments bearing 3% interest.
“[Signed] L. J. Leewright.”

After this writing was obtained from ap-pellee by Burch, he wrote appellant offering the land for sale as follows:

“Sept. 26th, ’13.
“Mr. J. S. Daugherty, Houston, Texas — Dear Sir: I drop you a line this morning telling you that I have made the deal with Mr. L. J. Leewright for his land he says you can have it at 20/00 per acre net to him turms as follows, one third Cash in hand and balance in three annual Payments being 8% interest.
“Please let me no at once if you want the land 196 acres section 1008 as I may be able to sell it to the man in Stilson he wanted ours and oblige. Mr. D. L. Burch.
“Mr. Daurghty.
“Mr. Leewright say their is $400 dollars against the land off state money and he says that is to be above the 20 dolrs net to him.
“Please let me hear from you at once.”

The offer so made by Burch to appellant was accepted by telephone conversation between appellant and Burch. At the time the offer was accepted it was further agreed between Burch and appellant that appellee would furnish appellant an abstract of title and allow 30 days for examination thereof. Appellant’s testimony was:

“Mr. Burch called up by telephone and wanted to know whether I had received his letter or not, and I told him that I had, * * * and I asked him what about an abstract, and asked how long he would give in which to make the cash payment, * ⅜ ⅜ and I told him I wanted 30 days. He agreed that it was customary and would give it; that he would grant it. I told him then if he would do that I would take the land, and would put up $100 "as a guaranty that I would take the land, and would make the cash payment within 30 days if the title was good, if the abstract showed a good title, and told him to bring Mr. Leewright up and let us enter into a contract completing this transaction or agreement. ⅝ ⅛ * Mr. Burch said he would see him and let me know. It wasn’t a'great while after that when Mr. Burch called me up again and told me Mr. Leewright did not want to come up. * * ⅞ I asked him whether or not he had stated to Mr. Leewright that he was to furnish an abstract of title and give me 30 days time in which to make the remainder of the cash payment, and he told me that he had. * * * I went to Dayton after having this conversation with Mr. Burch over the telephone, and Mr. Leewright and Mr. Burch met me at the station when the train that I went on arrived there. ⅜ ⅜ ⅞ After Mr. Leewright objected to the execution of it [a contract], and had left there, I signed the contract myself, and gave Mr. Burch the $100 in cash to tender the contract to Mr. Leewright and tender the $100 as purchase price, which I understood I agreed to pay in closing the transaction. Mr. Lee-wright never tendered me any abstract of title to fie property, and never tendered me any deed to the -property, but I was situated so I could have paid the balance of the purchase money according to the terms of the trade, and was willing to pay it, and am now. I am as well able now as I was then. * * * I asked Mr. Burch over the telephone whether he had expressed to Mr. Leewright what he was to give me — furnish me with this abstract and allow me 30 days’ time in which to do this — and he said he had, and when I got there, he [Leewright] wouldn’t do it, and I felt that Mr. Leewright hadn’t treated me the correct way about it. * * * I am willing now to sign vendor’s lien notes for the unpaid portion of this purchase money under the terms of the agreement with Mr. Burch, and will do so if Mr. Leewright will consummate the trade according to the terms of that agreement. Prior to going to Dayton there was nothing said about a 15 or 4 day limit. I had already positively accepted the proposition Mr. Burch had made_, and was ready, willing, and able to go on with the contract, and am still ready, able, and willing to do so.”

The defendant testified that he never agreed to sell his land on any terms except those stated in the instrument given Mrs. Burch; that, his object in selling his land was to secure money to buy a home in Hopkins county, where he had been living for several years; and that, unless he could get one-third of the price of his land in cash, he could not purchase the place he wanted to buy in Hopkins, and his only object in selling his land would not be accomplished if the time of the first payment of one-third of the purchase money was extended 30 days. He further testified that he never authorized Burch to agree to furnish an abstract. This testimony is uneont'radicted. Burch does not testify that defendant authorized him to make the agreement with plaintiff to furnish the abstract and allow him 30 days in which to examine the abstract and close the trade. He says that when he made this agreement with plaintiff over the telephone defendant was in the. telephone office near the door of the telephone booth, which was not closed tight, and he thinks Mr. Leewright understood the agreement, as he was listening. He also says:

“While I was talking to Mr. Daugherty over the. telephone I communicated to Mr. Leewright what he was saying, and he did not in any manner oppose giving an abstract.”

Burch further testified that before he approached defendant on the subject of selling his land he had a conversation with plaintiff looking to the purchase of this land; that plaintiff was at witness’ house, and had just completed the purchase of a tract of land from him, and he asked plaintiff if he would like to buy more land on about the same terms, and plaintiff told him he would pay him a commission of one-half of 5 per cent, if he would buy defendant’s land for him. Plaintiff testified that he did not understand that Burch was acting as his agent, but if he got the land for him he was to pay Burch a commission of one-half of 5 per cent. Burch did not expect any compensation from defendant, and the latter testified that Burch told him that he was not getting anything out of the deal.

Upon this evidence no other verdict than one in favor of defendant could have been properly rendered. We think this evidence conclusively shows that defendant never agreed to sell his land upon the terms insisted upon by plaintiff, and did not authorize Burch to make such agreement for him. The only authority given Burch by defendant was express and unequivocal in its terms, and no general custom among land dealers as to the seller furnishing an abstract and giving time for its examination could enlarge that authority. The evidence introduced as to such custom only goes to the extent of showing that in most cases contracts for the sale of land provided for 'the furnishing of an abstract by the seller and giving time to thé purchaser for its examination, and that 30 days was not an unusual or unreasonable 'time for such examination. It is manifest that proof of the fact that contracts of this kind usually provided for furnishing an abstract and giving time for its examination does not require that in every contract for the sale of land such provisions must be implied. The plaintiff in this case did not rely upon any such custom, and before agreeing to take the land required that such provision be inserted in the contract. In the case of Oolvin v. Blanchard, 101 Tex. 235,106 S. W. 324, our Supreme Court quotes and applies the following rule stated by Mr. Pom-eroy in his work on Specific Performance:

“Mr. Pomeroy expresses the rule applicable to this ease as follows: ‘Where the delegation of authority is express and special, the other party dealing with the agent cannot fall back on any larger implied powers, the limitations may relate to the manner and form of execut-mg the contract, as well as the substantial terms which it shall contain; and in such a ease the agent must keep within the restricted authority conferred upon him, and strictly pursue the method prescribed by his instructions.’ Pomeroy, Specific Performance, 114, § 77; Thomas v. Joslin, 30 Minn. 3S8 [15 N. W. 675]; Holbrook v. McCarthy, 61 Cal. 216.”

We think this rule is equally applicable to the facts of this case as to those in the case cited. We are further of the opinion that the court could have properly instructed a verdict for defendant because there was no acceptance by plaintiff in writing of defendant’s offer to sell. Plaintiff testified that he signed a contract which he had prepared, and delivered it and $100 earnest money to Burch. This was after defendant had refused to sell his land upon any other terms-than those stated in the instrument given to Mrs. Burch, and after the agency of Burch (if, in fact, he was ever the agent of defendant) had terminated. The contract prepared, and signed by plaintiff provided that the defendant should furnish an abstract, and allowed plaintiff 30 days in which to make the qash payment, and contained other provisions not contained in the instrument executed by defendant. There is no evidence that this contract was delivered or tendered to defendant after plaintiff signed it, and if it could be regarded as a sufficient acceptance of defendant’s offer, if delivered or tendered to defendant, the fact that it was not so delivered or tendered would make it ineffectual as such acceptance. In the case of Patton v. Rucker, 29 Tex. 402, our Supreme Court says:

“In order to their enforcement by the courts, contracts for the sale of lands must be evidenced by writing. Where the writing relied on contains all the particulars of a concluded, contract, it is sufficient if it be signed by the party against whom it is sought to be enforced; but if, instead of being evidence of a concluded agreement, whatever may be its form, it is really a mere proposal, such a writing is turned into an agreement, and can be enforced in equity by the other 'party only by his acceptance of it in writing.”

The instrument executed by defendant 'is clearly only a mere proposal, and does not evidence a concluded contract. It is wholly different from a receipt or a note given for the purchase money of land, which recites and evidences a concluded agreement, and may therefore be enforced against the party who signs it. The instrument signed by d • ■ fendant being only a proposal or offer to sell his land upon the terms named therein, and no acceptance thereof in writing by the plaintiff being shown, it is unenforceable. Foster v. New York & Texas Land Go., 2 Tex. Civ. App. 505, 22 S. W. 260.

These conclusions make it unnecessary for us to discuss the several assignments presented in appellant’s brief.

If any error is shown in the rulings of the trial court, such error was harmless, because, upon the undisputed evidence, no other judgment than one in favor of defendant could have been properly rendered. It follows that the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.
      <©=>For other eases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    BEAUMONT, S. L. & W. RY. CO. v. MOORE.
    (No. 6612.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 22, 1915.
    Rehearing Denied Feb. 25, 1915.)
    1. Railroads <§=216 — Construction op Spur Tracks — Contractual Obligations.
    A railway company, contracting with a lumber company for the construction and operation of a spur track for the exclusive benefit of the lumber company, is under no contract obligation to furnish cars for a subsequent seller of timber to the lumber company to be delivered on board cars on the spur track.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 713 ; Dec. Dig. <®=216.]
    2. Carriers <§=40 — Obligation to Furnish Cars — Spur Tracks.
    A railway company, contracting with a lumber company for the construction and maintenance of a spur track for the exclusive benefit of the lumber company, is under no obligation to one as a member of the public to furnish cars for the shipment of freight from the spur; for railroads need only furnish cars for the shipment of freight at stations or points on their roads provided for the service of the public or where the railroads are in the habit of accepting freight from any person offering same for transportation.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 120-122; Dec. Dig. <®=40.]
    3. Carriers <®=44 — Construction of Spur Tracks — Obligation to Furnish Gars.
    Where a railway company contracted with a lumber company for a spur track for the exclusive benefit of the lumber company, and thereafter the lumber company contracted for the purchase from a third person of logs to be delivered on board the railway company’s cars on the spur, the third person, making no demand on the railway company to furnish any specified number of empty cars at the spur, but only complaining that not enough cars were furnished, and that those furnished and loaded were not transported promptly, had no cause of action against the railway company.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120-122, 230; Dee. Dig. <®=44.]
    4. Carriers <®=44^-Breach of Contract-Special Damages.
    A railway company, contracting with a lumber company to construct and maintain a spur track for the exclusive use of the lumber company, is not liable for damages claimed by a subsequent seller of timber to the lumber company, .to be loaded on cars on the spur, in the absence of proof that the railway company had notice of the contract of sale and of facts which would cause damages for failure to furnish cars.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120-122, 230; Dec. Dig. <®=44J
    Appeal from District Court, Liberty County; J. L. Llewellyn, Judge.
    Action by A. I. Moore against the Beaumont, Sour Lake & Western Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.

      Andrews, Ball & Streetman, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. Marshall & Harrison, of Liberty, for appellee.
   PLEASANTS, C. J.

This is a suit to recover damages, brought by the appellee against the appellant.

Plaintiff’s amended petition, upon which the case was tried, alleges, in substance, that in February, 1911, he entered into a contract with the Bradford-Hicks Lumber Company by which said company purchased from plaintiff the timber upon a tract of 153 acres of land in Liberty county, and agreed to pay plaintiff therefor the sum of $7 per 1,000 feet, delivered on board defendant’s cars on Bradford’s spur of defendant’s railway in Liberty county, and said logs of timber, when so delivered, were to be transported by defendant over its railway to the sawmill of said lumber company at Dyers-dale, in Harris county. It is further alleged that in fulfillment of said contract plaintiff, during all the time between June 9 and September 27, 1911, had sufficient logs to have made delivery thereof in accordance with his said contract to the amount of 15,000 feet per day, exclusive of Sundays, but that, because of the failure and refusal of defendant to furnish sufficient cars at said spur to transport plaintiff’s logs, and the failure to promptly transport the cars after they were loaded, plaintiff was greatly hindered and delayed and caused much expense in making delivery of logs under his said contract.' It is alleged that there were 78 days in all, excluding Sundays, between June 9, 1911, and September 27, 1911; that plaintiff would have loaded and shipped 15,000 feet per day, except for the fact alleged that defendant on said days negligently, carelessly, and deliberately failed and refused to furnish cars “whereby plaintiff could and would have transported 15,000 feet of logs per day under his contract with the Bradford-Hicks Lumber Company.” The measure of damages is alleged as follows:

“Now, plaintiff shows that, by reason of the failure and refusal of said defendant company to furnish him cars as aforesaid on the dates hereinbefore set forth, and by reason of the refusal and failure of the defendant company to remove and transport the cars of logs loaded by plaintiff, and ready for shipment to Dyers-dale, Tex., on the dates hereinbefore set forth, the plaintiff has been damaged in the sum of $4,095, that being the value of plaintiff’s time, and the expenses of the plaintiff during the said 78 days hereinbefore set forth while the plaintiff was waiting for defendant company to furnish cars and remove loaded cars as above set forth.
“Plaintiff further shows that, had said defendant company furnished him cars and removed said loaded cars during said 78 days, he would have and could have realized out of his contract the amount above set forth, to wit, $4,-095, more than plaintiff has and did realize out of said contract with Bradford-Hicks Lumber Company, more particularly setting forth the items of damage suffered by plaintiff as mentioned in this sixth paragraph. The plaintiff says that his actual expenses during the 78 days mentioned were $594; that the value of his time was $565; and plaintiff says that he had, during said time, 24 head of oxen, 4 head of mules, 4 well-equipped log wagons, with all other equipment necessary for logging work and hauling work, by which plaintiff would and could have realized out of during the said 7$ days, but for defendant company’s failure and refusal to remove cars and furnish cars as aforesaid, $3,629.50. Plaintiff further shows that the above items of actual expenses were incurred by paying drivers, feed of teams, value of plaintiff’s time as set forth, and that the value of said teams and wagons during said time are reasonable charges and prices. Plaintiff further shows that after deducting his expenses, $594.50, that he was damaged by reason set forth herein in the sum of $4,095.
“Plaintiff now shows the court that during the 78 days the Bradford-Hicks Lumber Company would have received and paid the plaintiff for the logs at least 15,000 feet per day, and that plaintiff, during all of said time, was in a position to deliver said logs, and could have and would have delivered same if he could have gotten cars from defendant company.
“Plaintiff further shows the court that, in order to carry out the contract aforesaid with the Bradford-Hicks Lumber Company, it was not possible for him, during the said 7$ days or any one of said . days, to engage in any other work or utilize the teams or wagons during that time for any purpose whatsoever.”

Damages were laid in the sum of $4,095, and judgment asked in that amount.

In addition to a general demurrer, special exceptions, and general denial, the defendant pleaded, in substance, as follows:

“That Bradford spur, from which the logs were being shipped, was built for the sole and exclusive use and benefit of the Bradford-Hicks Lumber Company, said company assisting in the expense of its construction, and that plaintiff was a total stranger to the contract and agreement between the representatives and officials of the railway company and the representatives and officials of the lumber company with reference to said spur; that the manager for the Bradford-Hicks Lumber Company was vested with the authority to direct the movement of the logs handled from said spur, it being further stipulated that the logs should be moved in sufficient quantities to log the saw mill. If the logs were not moved in sufficient quantities for that purpose, it was provided that notice should be given by the lumber company, and the service would be improved accordingly; furthermore, that plaintiff was' only an agent or employs of the Bradford-Hicks Lumber Company in the matter of loading said logs at Bradford, having no rights in the spur, and no right to demand that cars be placed for his benefit, and no right to ask or require the movement of such logs as were placed any more rapidly than said Bradford-Hicks Lumber Company desired and requested same to be moved.”

The cause was tried in the court below with a jury, and verdict and judgment rendered in favor of plaintiff for the sum of $1,560.

The undisputed evidence establishes the following facts: The spur known as Bradford’s spur, and upon which plaintiff contracted to deliver the logs sold by him to the lumber company and load same on cars to be provided by the lumber company, was constructed under a contract made by appellant and the lumber company some time prior to the contract between the lumber company and plaintiff. The contract under which the spur track was built provided that the lumber company would do the grading and furnish the ties, and that the railroad company would furnish the rails and the labor necessary to complete the track. The spur was built exclusively for the benefit of the lumber company, to facilitate the transportation for it of timber purchased near said spur, and it was expressly agreed that the railroad company would not be required to give any special service on said spur, but that cars taken from said spur would only be taken by the regular local freight trains. Mr. Hall, the superintendent of the railway company at the time the spur was constructed, testified:

“I built the spur known as Bradford’s spur, in Liberty county. It is located about two. miles west of Hardin, between Hardin and San-dune. This spur was built for the Bradford-Hieks Lumber Company, who own and operate a mill at Dyersdale, and they applied to the company for this spur, stating that they had bought a tract of timber that they wished to log to the Dyersdale mill. That statement was made to the general manager. There was an agreement entered into for the building of this spur. It was entered into at Beaumont, Tex., and there were present at the time Mr. Hicks, of the Bradford-Hieks Lumber Company, one ot the owners, and Mr. Wurtzbaugh, who was their manager, also Mr. Elliott, the general manager of the railroad company, Mr. Anderson, chief clerk to the general manager, and myself. At that time the arrangement was made that the spur would be put in as required by the company, the lumber company doing the grading and furnishing the ties; the railroad company to furnish the rails and lay them. It was further understood that we would furnish cars to the lumber company, which they would equip, and which would be used in that service, these cars to be moved back and forth by the local trains, with no special service; that is, that they would only be moved on such trains as could handle them. It was understood that they would not be moved on through trains, which was part of the consideration for putting in this spur, and was also understood that no special service would be demanded or required. The station nearest to Bradford from where general freight is handled is Hardin. There is no agent at Bradford spur; it being a blind siding. The character of shipments made from Bradford spur have been logs, and a few cars of wood. The Bradford-Hieks Lumber Company have shipped from there, and the Thompson-Eord people made some shipments from there, but I told the manager of that company that they could not use this spur without permission from the Bradford-Hieks Lumber Company. We knew no one else than, the Bradford-Hieks Lumber Company in connection with the pútting in of that spur. The agreement was with them. We dealt with Mr. Wurtzbaugh, their manager, and it was understood that he was to be the representative of the lumber company with reference to the handling of those shipments. It was understood that Mr. Wurtzbaugh was to direct the movement of those ears. When they were emptied at the mill he would direct where they would be taken for loading. This company had other spurs upon which they were operating at the time, and Mr. Wurtzbaugh, to my knowledge, was directing the movement of cars, to other points at the same time, and in a similar manner. There were some three or four places. Bradford spur was not designated on any timetable as a station from which general shipments would be made, and general shipments were not, in fact, made from there — nothing but logs. Everything that moved from there moved under a bill'of lading made out by whoever loaded the ■freight. The shipper would make out the bill of lading and present it to the conductor passing;, or put it in the box there for that purpose, and he would pick up the bill of lading and take it to Huffman; all the billing was done at the next station west. * ⅜ ⅜ I never saw Mr. Moore until a few days ago; never made his acquaintance before. I had no notice from any one of contract arrangements between A. I. Moore and the Bradford-Hieks Lumber Company concerning the shipment of logs from Bradford spur. I knew nothing about that.”

The manager of the lumber company, Mr. Wurtzbaugh, corroborated the testimony of Mr. Hall as to the terms and conditions of the contract under which the spur was constructed. He further testified:

“Our agreement with the railroad was that we were to require no special service; that is, we were to take local train service with our logs. If they came along and logs were loaded, and they could pull them, we could expect them .to pull them. * * ⅜ We were to take them when they could get them to us. We were not logging enough for them to put on a train, you understand, just to haul our logs, and they could not afford for their through trains to stop and pick up logs; it would delay them too much; and if we would agree to just take local service they would gladly haul our logs for us; and we agreed to it, and, of cqurse, if it hurt us (and it did; I will admit it hurt us), we had no 'complaint to make. We probably lost a little time at the mill. They were living right up to their agreement with us in all those shipments of logs, because we agreed to take local service. They did not tell us how often they could bring them, but would do us just like they did others. I could not tell you just when this understanding was had with reference to the time we agreed to have the spur put in. It was understood that they would allow us to put it in, or help put it in, under those conditions, and that if we would take local service for the shipment of the logs. It is the best I can state it. Mr. Moore ’was not a party at all to that agreement, and had nothing to'do with it as far as my knowledge is concerned. The contract with Mr. Moore was later. We had hauled no logs prior to making this contract with him.”

The witness Wurtzbaugh, as well as plaintiff himself, testified that all the logs were ultimately loaded and hauled and paid for.

The contract of sale of the timber executed by plaintiff to the lumber company, after describing the land from which the timber was to be taken, and reciting that plaintiff had purchased said timber from parties named in the instrument, contains the following recitals and provisions:

“The said Bradford-Hieks Lumber Company has agreed to advance me the sum of six hundred ($600.00) dollars for the purpose of paying the purchase money therefor to the above-mentioned parties who sold me said timber, ánd it is also agreed and understood that I am to with all due diligence cut, haul, and load said timber on said ears provided by said company on the Beaumont,_ Sour Lake & Western Railway, at a new siding or spur, about one and one-half miles east of Sandune, and about seven and one-half miles northeast of the town of Liberty. And in consideration for said timber so delivered, and for the cutting and loading thereof, the said company is to pay me the sum of seven ($7.00) dollars per thousand feet therefor, provided, however, the company shall retain $2.50 per thousand feet on each thousand feet cut and delivered until they receive in that manner the full sum of six hundred ($600.-00) dollars to pay them that amount advanced. to me as aforesaid, and thereafter I am to be paid the full sum of seven ($7.00) dollars per thousand feet for all of said timber remaining.”

Plaintiff testified that he made several complaints to the defendant of its failure to furnish sufficient cars and to more promptly transport the cars loaded by him. One of these complaints was made by letter addressed to Mr. Hall, superintendent or manager of defendant company. He also complained by letter to the man who succeeded Mr. Hall, and complained several times to Mr. Bye, defendant’s station agent at Hardin, which was the nearest station on defendant’s road to said spur.

Evidence was introduced, over defendant’s objection, which is sufficient to sustain the finding that, by reason of the failure of defendant to furnish more cars and to more pronrptly transport the cars loaded by plaintiff at said spur, he sustained damages as alleged in his petition in the amount found by the jury. The evidence also shows that Mr. Barrett and Mr. Baines were engaged in logging for the lumber company at the time this spur was put in, and the special purpose of the lumber company in obtaining the spur was to facilitate the handling of the Barrett and Baines logs. Because of its advantage to Barrett and Baines in carrying out their contract with the lumber company, they assisted said' company in constructing said spur. Plaintiff testified that he voluntarily paid Barrett $20 as compensation for the work done by him in constructing said spur, but there is no evidence that either the defendant or the lumber company had any notice of the fact that he had contributed anything towards the construction of the spur.

It would serve no useful purpose to set out and discuss the various assignments of error-presented in appellant’s brief. We think the evidence fails to show any liability of defendant for the damages claimed by plaintiff, and appellant’s several assignments complaining of the refusal of the trial court to instruct the jury to return a verdict for the defendant must be sustained.

is clear that appellant was under no contract obligation to plaintiff to furnish cars or to receive and transport freight for him from Bradford’s spur. The contract be-beappellant and the lumber company was not made for plaintiff’s benefit, and he was an entire stranger thereto. It is not even shown that at the time this contract was made the contract between the plaintiff and the lumber company was in contemplation of either of them, and the undisputed evidence .shows that the defendant had no notice that plaintiff had any present or prospective in-inin said contract. In his contract with the lumber company plaintiff recognizes the fact that appellant was under no obligation to furnish cars for shipment of logs from Bradford’s spur by stipulating that the cars for such shipments were to be furnished by the lumber company.

We think it equally clear that defend-defendwas under no obligation to plaintiff as a member of the public to furnish cars for shipment of freight from said spur. Bail-Bail-are only required by law to furnish cars for the shipment of freight at stations or points on their road provided for the serv-servof the public, or where the railroads are in the habit of accepting freight from any person offering same for transportation. The spur in question was a private track built for the sole and special use of the lum-lumcompany, and was under the exclusive control of that company. The railroad com-comcould not, without violating its con-conwith the lumber company, which had assisted in.the construction of the spur, place ears thereon for the use of shippers gener-generunless by permission of said company.

In addition to this it is shown by the evidence that plaintiff was not offering any freight for shipment from said spur. Under his contract with the lumber company the logs became the property of the company when placed on the cars at the spur, and the company was to furnish the cars upon which the logs were to be loaded, and no demand is shown to have been made by plaintiff of defendant at any time to furnish him any specified number of cars at said spur, but only a complaint that not enough cars were furnished and those furnished and loaded were not transported as promptly as they should be. A complete answer to this complaint is that the appellant was under no contract obligation to furnish cars for the prompt moving of timber purchased by the lumber company, and if it had been, ap-pellee was not a party to that contract, and could claim no rights thereunder, and ¡appellant was under no legal obligation to furnish cars to appellee l'or shipment of freight for him from said spur, and no sufficient demand was made upon it by appellee to furnish him cars for such shipments.

There is another obvious reason for holding that the appellant is not liable for the damages claimed by appellee. Such dam-damare special in their nature, not such as would usually and probably result from de-dein the transportation of timber, and, if appellant owed a duty to appellee to furnish more cars and to more promptly transport the loaded cars from said spur, it could not be held liable for the damages claimed by appellee for its failure to perform this duty because it had no notice of the contract be-beappellee and the lumber company and no knowledge of the facts which would make the damages claimed by appellee the probable result of such failure on the part of appel-appellant. Calvit McFadden, 13 Tex. 324; Ex-ExCo. v. Darnell, 62 Tex. 640; Bailway Railway Co. Belcher, 89 Tex. 428, 35 S. W. 6.

It follows from these views as to the rules of law applicable to the undisputed facts disclosed by the record that the judgment of tlie court below should be reversed1, and judgment here rendered for the appellant; and it has been so ordered.

Reversed and rendered.
      <Sn»For other oases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    PORT HURON ENGINE & THRESHER CO. v. McGREGOR et al.
    (No. 6754.)
    (Court of Civil Appeals of Texas. Galveston.
    Feb. 2, 1915.
    Rehearing Denied March 4, 1915.)
    1. Chattel Mortgages <&=o283 — Foreclosure —Stay of Execution — Action on Super-sedeas Bond — Evidence.
    Evidence, in an action on a bond staying execution of judgment of foreclosure of a mortgage lien on a certain traction engine, held to sustain a finding that its actual value and sale price at the time of sale, notwithstanding deterioration from use, was greater than at the time sale was stayed by the bond.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 569, 572; Dec. Dig.
    283.]
    2. Chattel Mortgages <©=^283 — Foreclosure —Stay of Execution — Action on Super-sedeas Bond — Damages.
    The measure of damages recoverable on a supersedeas bond staying execution of judgment of foreclosure against personal property is the difference between the amount it would have sold for when the bond was given and the amount it sold for.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 569, 572; Dec. Dig. <S^> 283.]
    3. Chattel Mortgages <S=^>283 — Action on Supersedeas Bond — Pleading.
    In an action for damages against defendants whose bond had stayed execution of judgment of foreclosure against personal property, where the petition did not seek a recovery of interest, eo- nomine, plaintiff was not entitled to interest as a matter of law from the execution of the bond.
    TEd. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 569, 572; Dec. Dig. 283.] 1
    Appeal from District Court, Montgomery County; D. B. Hightower, Judge.
    Action by the Port Huron Engine & Thresher Company against John G. McGregor and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    S. A. Crawford, of Conroe, for appellant. A, D. Kayser, of Conroe, for appellees.
   McMEANS, J.

Plaintiff, Port Huron Engine & Thresher Company, instituted this suit against John G. McGregor, J. O. I-I. Ben-nette, and John C. Williams, as principals, and H. C. Addison and R. E. McKibbin, Jr., as sureties, on a certain supersedeas bond for damages. It was alleged that plaintiff, on July 31, 1908, recovered a judgment in the district court of Montgomery county against one S. W. Perkins for the sum of $2,466.56 and for foreclosure of a mortgage lien on certain machinery and appliances, and especially a 26 horse-power steam traction engine, said judgment of foreclosure alleged to have run against John G. McGregor, J. O. H. Bennette, and John C. Williams, defendants in this cause; that said three last-named defendants prosecuted an appeal to the Court of Civil Appeals at Galveston. Plaintiff further alleged: That this judgment of foreclosure as against said traction engine was prevented from being carried into execution by sale of said engine under an order of sale issued on the 1st day of September, 1908, by reason of said defendants, McGregor, Bennette, and Williams, as principals, and Addison and McKibbin, Jr., as sureties, executing and filing a supersedeas bond payable to the defendants in said first-named cause, conditioned that said McGreg- or, Bennette, and Williams, as plaintiffs in error in said cause—

“shall prosecute their writ of error with effect, and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against them, they will perform its judgment, sentence or decree and' pay all such damages as said court may award against them; and that said plaintiffs in error shall, in case said judgment is affirmed, pay [to the defendants in error in said suit] the value of the rent or hire of said engine in any suit which may be brought therefor.”

That said bond was filed on the 12th day of September, 1908, and superseded and prevented the execution of the judgment of foreclosure in said cause. Plaintiff alleged a breach of conditions of said bond, in that defendants in said suit did not prosecute their writ of error with effect, in that the Supreme Court of Texas (131 S. W. 398) about the 2d day of November, 1910, affirmed the judgment of the district court of Montgomery county, and alleged that the defendants did not perform the judgment of the Supreme Court as stipulated in said super-sedeas bond. Plaintiff alleged that sale under the judgment of foreclosure, after the Supreme Court had affirmed the judgment of the district court of Montgomery county, was made on the 20th day of July, 1911, at which said traction engine brought the sum of $500.01. Based on the foregoing facts plaintiff alleged damages in three separate alternative counts:

(a) Plaintiff prayed to recover the difference between the judgment in the suit referred to, to wit, $2,466.56, and the sale price of the traction engine, $500.01; that is, the sum of $1,965.55 with legal interest thereon from the date of said judgment July 31, 1908.

(b) In the alternative plaintiff prayed for the recovery of the difference between the value of the traction engine at the time of the execution of said supersedeas bond, September 13, 1908, and its value at the time it was sold under said judgment of foreclosure, July 20, 1911, which difference was alleged to be $1,499.99.

(c) Plaintiff, in further alternative prayer sought to recover the value of the rent, hire, and use of said traction engine from the 12th day of September, 1908, to the filing of the mandate of the Supreme Court in the district court of Montgomery county, June 16, 1911.

(d) Plaintiff also prayed for further damages against the defendants McGregor, Williams, and Bennette in the sum of $700 for the “careless way in which they allowed said engine to stand out and take the weather, and exposed to the sun and rain.”

The court sustained defendants’ exceptions to the damages alleged as described in paragraphs (a), (c), and (d) above, of which no complaint is made in plaintiff’s motion for new 'trial, nor on this appeal. No recovery of interest on the value of the engine was sought by plaintiff. The case was tried before the court without a jury, and resulted in a judgment for defendants, from which the plaintiff has appealed.

In accordance with the request of the plaintiff the trial judge reduced to writing and filed his findings of fact, which we here copy:

“First. I find that plaintiff recovered judgment in the district court of Montgomery county against S. W. Perkins on the 31st day of July, 1908, with foreclosure of a mortgage lien on certain property, including a Port Huron 26 horse-power traction engine, as against the defendants John G. McGregor, John O. Williams, and J. O. H. Bennette.
“Second. I find that said last-named defendants, as principals, and defendants H. C. Addison and R. E. McKibbin, Jr., as sureties, executed and filed a supersedeas bond, superseding said judgment for foreclosure, and that sale thereunder of said traction engine was prevented by the making and filing of said bond, substantially as alleged in plaintiff’s third amended original petition.
“Third. I further find that said John G. Mc-Gregor, J. O. H. Bennette, and John 0. Williams, as principals on said supersedeas bond and defendants in said suit, prosecuted their writ of error, and that the Supreme Court of Texas, about June 16, 19ll, affirmed the judgment of the district court of Montgomery county, reversing the judgment of the Court of Civil Appeals, which said last-named judgment reversed and rendered the judgment of the district court of Montgomery county, and further find that the mandate of the Supreme Court so affirming the judgment of the district court of Montgomery county as aforesaid was filed in the district court of Montgomery county on June -, 1911.
“Fourth. I find that sale was made under the judgment of foreclosure on the 20th day of July, 1911, and that said traction engine brought, at said sale, the sum of $500.01.
“Fifth. I further find that the preponderance of the testimony shows that said Port Huron 26 horse-power traction engine was worth more on the market at the time it was actually sold than it was on the 12th day of September, 1908, when its sale was prevented by the filing of the supersedeas bond.
“And I further find that the price at which said traction engine sold on the - day of ■-. 1911, is probably a larger sum than it would have brought had sale been made in September, 1908.
“And I further find that the actual value of said engine, for the use to which it could be put in Montgomery county, was greater when sale was actually made in -, 1911, than was the case in September, 1908.-
“Sixth. I. therefore, find that plaintiff was not damaged by reason of the filing of the su-persedeas bond and the postponement of the sale.”

Appellant by its first assignment of error complains of the action of the court in rendering judgment for the defendants, the contention being that the evidence showed that there was a deterioration of the engine in question, and that damages naturally and proximately resulted to appellant by the defendants withholding the engine from appellant without lawful right.

Appellant, on January 12, 1907, sold the engine to S. W. Perkins on credit, taking a mortgage upon it to secure the payment of the purchase money. By this transaction the legal title passed to Perkins.

In the suit afterwards filed by appellant the mortgage lien was foreclosed, and thereafter the appellees, McGregor, Bennette, and Williams, who had been made parties defendant in the foreclosure proceedings, appealed, suspending the execution of the judgment by giving a proper supersedeas bond. The ease was finally determined in 1911 in favor of appellant, and. the decree of foreclosure was then executed by the sale of the engine under an order of sale issued out of the trial court. The question at issue in the present case is whether the engine would have sold for a greater amount if the execution of the judgment had not been suspended by the giving of the supersedeas bond than it did sell for. If so, then appellant’s damage would have been the difference between the amount it would have sold for and the amount it did sell for, if the damages sought were such as could have been recovered upon the bond, a question we are not called upon to decide. We have examined the testimony in the record and find there is ample evidence to support the findings- of the trial judge that the engine was worth more on the market at the time it was sold than it was on the 12th day of September, 1908, when its sale was prevented by the filing of the supersedeas bond, and the price for which it actually sold was probably a larger Sum than it would have brought had sale been made in September, 1908. The explanation of this, as made by some of the witnesses, is, in effect, that the panic of 1907 and 1908, producing as it did a great stringency in the money market, lessened the price of all commodities, and especially of lumber; that the engine was purchased for the purpose of being used in the manufacture of lumber, and that there was no other practical use in that section to which it could be applied; that there was but little demand for lumber, hence the engine, in the .circumstances, could not have been sold to advantage at that time; whereas, in 1911, when it was sold, the panic was over, money was-more plentiful, the demand for lumber greater, and in consequence the engine brought more than it would have sold for had the sale taken place in 1908. There was testimony that would have justified the finding that the engine would have sold for a larger sum in 1908 than it did in- 1911, but this amounted to only a conflict in the evidence, and the conflict was settled by the court in favor of appellees.

Even if the evidence, as contended by appellant, shows that between the time the sale was prevented by the execution of the super-sedeas bond and the time of the sale the engine deteriorated from use, this of itself would not give rise to a cause of action in favor of appellant, if it be a fact, as the court found, tile market value of the engine at the time of the sale was greater than when the judgment was suspended by the bond; and if it be a fact, as the court found, it probably sold for more than it would have brought had the judgment not been superseded. The assignment is overruled, as is also the third assignment,*which presents' substantially the same point in a different form.

The second assignment complains that the court erred in not allowing interest at the legal rate on the value of the engine from the time defendants took charge of the same upon the execution of the supersedeas bond in September, 1908, until the same was returned in June, 1911. Appellant in its petition did not seek a recovery of interest. The question then arises, Is appellant entitled to interest as a matter of law from the time of the execution of the supersedeas bond? Appellant relies on the cases of Railway v. Jackson, 62 Tex. 209, and Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666, neither of which supports its contention. We shall not enter into a discussion of the question generally as to when interest is allowed as a matter of law, but will content ourselves with the statement that neither the cases cited nor any of those that we have seen has interest eo nomine, or by way of mulct or punishment, been allowed under facts similar to the facts in this case. The appellant was not the owner of the engine, for he had parted with the title when he sold it to Perkins, nor was he entitled to the possession upon, the foreclosure of his mortgage. It was a mere mortgagee, and was not therefore deprived of the possession of property, as in case of conversion. Its only right was to have it sold in order that the proceeds of the sale should be ajiplied upon the payment of its debt; and the fact that the defendants, who were not its debtors, nor with whom did appellant have any contractual relation, by giving the supersedeas bond suspended the execution of the judgment until their right to it, as asserted in the trial court, could be determined on appeal did not render them liable to the payment of interest as a punishment for delinquency or injustice. Watkins V. Junker, 90 Tex. 584, 40 S. W. 11. Certainly appellant, under the facts of this case, was not entitled to interest in the absence of any claim therefor in its pleadings. Railway v. Poyner, 109 S. W. 1004. The assignment is overruled. We think the judgment of the court should be affirmed; and it has been so ordered.

Affirmed.
      <&3jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes