author: BROOKE, J.

text:
    ROBINSON v. S. SAMUELS & CO.
    (No. 247.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 22, 1917.
    Rehearing Denied June 27, 1917.)
    1. Sales <&wkey;417—Actions—Sufficiency of Evidence.
    In a buyer’s action for breach of contract, evidence held sufficient to support special finding of jury that defendant agreed to ship good pickings.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. § 1173.]
    2. Sales <&wkey;422 — Actions — Special Findings of Jury—Consistency.
    In a buyer’s action to recover damages for breach of contract for sale of cotton, special findings of jury that plaintiffs knew, at the time they paid defendant the price, that certain pickings which plaintiffs’ agent had seen some time previously, found damaged, and reported to plaintiffs as damaged were included in the shipment, and also that plaintiffs did not'know at that time that such pickings were damaged, are not inconsistent where jury could have found from other testimony that plaintiffs’’ agent told defendant to have them reworked, and plaintiffs did not know that this had not been doné, and did not have notice of their real condition.
    [Ed. Note.—For other cases, see Sales, Cent. Dig. § 1204.]
    3. Sales <&wkey;176(6)—Acceptance by Buyer— Effect of Payment—Opportunity for Inspection.
    In an action for breach of contract to ship good pickings examined by plaintiffs’ agent in defendant’s warehouse, plaintiffs could recover, if they did not have notice of condition of goods at time they paid for them and had no opportunity of inspection, even though they knew that some of bales shipped were not those inspected at warehouse, but relied on defendant’s representations' that they were good, and rejected goods as soon as they knew their condition and demanded reimbursement.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 442.]
    4. Sales &wkey;416CD — Action eor Seller’s Breach — Evidence—Relevancy.
    In an action for breach of contract to ship good pickings, the exclusion of a telegram from plaintiffs to defendant offered for the purpose of showing that plaintiffs requested defendant to ship pickings under different designation entitling them to lower freight rate, is not error, where the telegram does not mention pickings, and may have referred to different goods.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1171.]
    5. Sales <&wkey;416(l) — Actions—Damages—Evidence.
    In an action to recover for breach of contract to ship good pickings, the difference between contract price and market price of goods actually received at time and place same were received, evidence as to what plaintiffs had done with goods received was properly excluded, on plaintiffs’ cross-examination, as irrelevant.
    [Ed. Note. — For other eases, see Sales, Cent. Dig. § 1171.]
    6. Witnesses &wkey;388(7) — Cross-Examination — Inconsistent Statements — Foundation.
    In an action for breach of contract to ship good pickings, court properly refused to permit defendant to cross-examine plaintiffs’ agent as to alleged difference between statement made by witness and statement made in a letter to defendant from plaintiffs, where it is not shown that witness had anything to do with statement in plaintiffs’ letter.
    [Ed. Note — For other cases, see Witnesses, Cent. Dig. § 1239.]
    7. Witnesses <&wkey;406 — Contradiction—Competency oe Evidence.
    In an action for breach of contract to ship good pickings, examined by plaintiffs’ agent in defendant’s warehouse the court' did not err in excluding testimony which would have contradicted testimony of plaintiffs’ agent as to number and condition of bales of pickings where it consisted of hearsay statements, irrelevant and immaterial, and not made in presence of' plaintiffs.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1276-1279.]
    Appeál from District Court, Harris County; Wm. Masterson, Judge.
    Action by S. Samuels & Co. against Joel Robinson and another. From a judgment in favor of plaintiffs, defendant Robinson appeals.
    Affirmed.
    Atkinson, Graham & Atkinson, of Houston, for appellant. B. F. Louis, of Houston, for appellees.
   BROOKE, J.

On June 28,1915, S. Samuels & Oo. filed this suit in the' Fifty-Fifth Judicial District Court of Harris county, Tex., against appellant, Joel Robinson, and also against the Houston & Texas Central Railway Company, to recover $1,318.67, as damages caused to the said appellees by reason of the fact that appellant had shipped to appellees 69 bales of damaged pickings not in compliance with a contract. After the evidence was closed, the court instructed the jury that there was no evidence against the railway showing any liability on its part, and a verdict was returned for the railway, under said instruction, and which instruction and verdict is not complained of by either appellant or appellees.

Appellees’ petition set out that they had purchased 100 bales of good pickings from appellant to be shipped from Waco, Tex., to Houston, Tex.; that the same was shipped to them by appellant, and a draft was drawn on them by appellant for $2,258.59, being the value of said pickings at 4 cents per pound; that appellees had paid the draft on presentation; that after they paid said draft they examined said pickings and found that 69 bales of it were not good pickings, such as they had contracted for, but were what is known as paper stock, worth not over 1 cent per pound in the Houston market, and that the other 31 bales were in accordance with the contract. Appellees also allege that the shipment was made and the draft drawn by appellant at Waco, Tex., on May 13, 1915; that prior to the shipment, appellant had represented that the pickings he was shipping to appellees were good pickings, and that when appellees found they were not good pickings, they telegraphed to appellant, demanding reimbursement for the amount of said draft, and freight charges, and advising him that unless they were immediately reimbursed for the amount of said draft, which was $2,016.-60, and the freight charges of $241.99, that they would’ dispose of or take said shipment of 100 bales at its value on the market and hold said appellant for the balance. It was further alleged that they took said pickings at their market value; the said 69 bales being taken at 1 cent per pound, and appellees asked judgment for the said sum of $1,318.67.

In response to this petition, after a general denial, appellant answered, and denies that he misrepresented the quality of the pickings, and denies that appellees bought the same relying on any representations made by him, and charged that all the pickings which were shipped by appellant to appellees had been examined by Jake Pizer, agent for appellees, and had been approved by him, and that same were purchased by appellees on tbeir own judgment and on the judgment of their said agent, after three careful examinations by said Pizer. Appellant further stated that he shipped to appellees the identical bales of pickings which had been examined and accepted by said Pizer; that there had been no change in the identity of said bales of pickings; that said bales were taken direct from the warehouse of appellant, in which they had been examined by said agent, and delivered to the Houston & Texas Central Railway Company for shipment; that the railway company issued its bill of lading therefor, showing the condition of said shipment, and that it was in bad condition, and attached his draft for the agreed price of said pickings to said bill of lading, and the same was paid by appel-lees with full knowledge of all the matters contained in said bill of lading.

Appellees, by a first supplemental petition, denied the matters set up in said answer; denied that the identical pickings which were shown to and examined by the said Pizer, agent for appellees, save and except 31 bales, were shipped to appellees; denied that the 69 bales complained of were ever seen by said Pizer, agent for appellees; denied that the said cotton -was in the warehouse at Waco when the said Pizer examined the said cotton in the warehouse, and charged that the said 69 bales had been shipped from other places than said warehouse. Appellees further charge that said 69 bales were only rotten stuff and paper stock, and were not taken to the railway as alleged, and were never in said warehouse; that the same should not be classed as pickings, good pickings or damaged pickings, and appellees denied that the notations on said bill of lading were sufficient to be notice to appellee of the worthless and rotten condition of said paper stock.

On the trial, and after hearing of the evidence, the cause was submitted to the jury on special issues, and a verdict returned thereon, and on motion of appellees a judgment was entered on said verdict in favor of appellees for the amount of said verdict and interest. A motion for new trial was made and overruled, notice of appeal given, and the cause is brought to this court for revision.

The charge of the court and the verdict of the jury was as follows:

Gentlemen, of the jury: This case will he submitted to you upon special issues, and your verdict will be in the nature of answers to questions which will be propounded to you by the court herein. Upon your answers to these questions, the judgment of the court will be entered. You are instructed that the burden of proof is on the plaintiffs to prove by a preponderance of the testimony the material allegations in their petition, and unless .you believe from the evidence that the plaintiffs have so proven their case, you will answer the issues herein submitted to you against them. You are charged that you are the sole and exclusive judges of the credibility of the witnesses and of the weight to be given to their testimony. You must receive and be governed by the instructions from the court as given you in this charge. The plaintiffs also sued the defendant Houston ■& Texas Central Railway Company, but inasmuch as in the opinion of the court the evidence does not show that the shipments in question were or could have been damaged while in said railroad’s possession, and does not show any liability on the part of said company in any of the particulars alleged by plaintiffs, no issue as to such company is or will be submitted to you; the issues being confined to the questions in dispute between the plaintiffs and defendant Joel Robinson. In this case the plaintiffs, S. Samuels & Co., sue the defendant Joel Robinson, and allege that on the - day of May, 1915, the defendant Joel Robinson sold to the plaintiffs 100 bales of good pickings and represented the 100 bales to be the same pickings as had previous thereto been seen by the agent of plaintiffs Jake Pizer, in the warehouse of defendant, in Waco, Tex., and that subsequently, upon arrival at Houston of the shipment made by the defendant Joel Robinson to plaintiffs, to fill such contract, it was found that there were only 31 bales of good pickings of the quality and grade as seen by plaintiffs’ agent, Jake Pizer, and that the remaining 69 bales so shipped by defendant Joel Robinson were not good pickings, but were badly damaged and rotten, and known as paper stock. The defendant Joel Robinson alleges that he did ship to plaintiffs, and that plaintiffs received the identical 100 bales of pickings that had previously been seen by plaintiffs’ agent, Jake Pizer, and denies that he misrepresented said pickings, or that plaintiffs purchased same relying on any representations of defendant.
Special issue No. 1: Prom the evidence, do you or do you not find that in the purchase and sale of the 100 bales of pickings between plaintiffs and defendant Joel Robinson that it was agreed that said defendant should ship to plaintiffs 100 bales of good pickings? In answer to this question you will say, “We find that such was agreed,” or “We find that such was not agreed,” according as you may find the facts to be.
“We find that such was agreed.
“J. G. Wells, Foreman- Jury.”
Special issue No. 2: Prom the evidence, do you or do you not find that in the purchase and sale of the 100 bales of pickings between plaintiffs and defendant Joel Robinson that it was agreed that said defendant should ship to plaintiffs 100 bales of pickings that plaintiffs’ agent, Jake Pizer, had seen in defendant’s warehouse in Waco, Tex.? In answer to this question you will say, “We find that such was agreed,” or “We find that such was not agreed,” according as you may find the facts to be.
“We find such was agreed,
“J. G. Wells, Foreman Jury.”
Special issue No. 3: The plaintiffs admit that 31 bales of the shipment to them by defendant under their purchase involved herein were good pickings and the kind and quality as seen by .their agent, Jake Pizer. Now from the evidence, do you or do you not find that the remaining 69 bales of such shipment delivered to plaintiffs were good pickings? In answer to this question you will say, “We find that they were,” or “We find that they were not,” as you may find the facts to be.
“We find that they were not.
“J. G. Wells, Foreman Jury.”
Special issue No. 4: Were the remaining 69 bales of such shipment delivered to plaintiffs the identical pickings seen and inspected by plaintiffs’ agent, Pizer, at Waco? Xou will let your answer be either, “We find that they were,” or “We find that they were not,” as you may find the facts to be.
“We find that they were not.
“J. G. Wells, Foreman Jury.”
If in answer to the preceding questions you have stated that the 100 bales of pickings were the kind agreed on between plaintiffs and defendant, and that same were the identical 100 bales of pickings which were examined by plaintiffs’ agent, Pizer, in Waco, then you need not answer the following question; but if you have answered either of the foregoing questions in the negative — that is to say, either that the 100 bales of pickings were not the kind and quality as agreed on between plaintiffs and the defendant, or that same were not the 100 bales as seen and inspected 'by plaintiffs’ agent, Pizer, at Waco — then state in answer to
Special issue No. 5: What damage, if any, have plaintiffs sustained by reason thereof? You will let your answer be either, “We find that plaintiffs were not damaged,” or “We find that plaintiffs were damaged in the sum of $-,” stating the amount that you may find from the evidence. In this connection you are instructed that the measure of damages, if any, would be the difference between the contract price and the market price in Houston of the goods actually received at the time and place same were received.
“We find that plaintiffs were damaged in the sum of $1,318.67.
“J. G. Wells, Foreman of Jury.”
Special issue No. 6: Did plaintiffs at the time and prior to the time they paid the draft drawn against them by defendant have notice of the actual condition of said pickings; either from information derived from their agent, Pizer, or from defendant, or from any other source? You will let your answer be" either, “They did,” or “They did not,” as you may find the facts to be.
“They did not.
“J. G. Wells, Foreman of Jury.”
Special issue No. 7: How many bales of good pickings, and how many bales of damaged pickings, if any, were placed by the defendant on the cars at Waco for shipment to plaintiffs at Houston? You will let your answer be, “We find there were - bales of good pickings, and —--- bales of damaged pickings,” inserting the number of each you may find from the evidence.
“We find there werei 31 bales of good pickings and 69 bales of damaged pickings.
‘■‘J. G. Wells, Foreman Jury.”
Special issue No. 8: Did the defendant Robinson make any false representations to the plaintiffs as to the character and quality of the 100 bales of pickings? You will let your answer be either, “He did,” or “He did not,” as you may find the facts to be.
“He did. J. G. Wells, Foreman of Jury.”
If you answer the last question in the negative, you need not answer the succeeding question ; but if you answer the same in the affirmative, then state in answer to
Special issue No. 9: Did the plaintiffs Sam-uels & Co. rely on such statement? You will let your answer be either, “They did,” or “They did not,” as you may find the facts to be.
“They did.
“J. G. Wells, Foreman of Jury.”
Special issue No. 10: Did the plaintiffs know at the time they paid the draft to defendant that the Taylor pickings were included in the shipment to them? You will answer “They did,” or “They did not,” as you may find the facts to be.
“They did.
“J. G. Wells, Foreman of Jury.”

The first assignment is numbered 10, and is as follows:

“The court erred in overruling defendant’s motion for a new trial, because the verdict of the jury was unsustained by the evidence, and against the weight and preponderance of the evidence, as to whether or not the 69 bales of cotton which were claimed by plaintiffs to he bad were the same bales that had been seen and inspected by Pizer, the agent of plaintiffs, who examined said cotton, when the evidence on the trial conclusively showed that Pizer had seen the cotton which was shipped by defendant to plaintiffs.”

The allegation of the petition was as follows:

“That heretofore, to wit, on or about the 6th day of May, 1915, the defendant, Joel Robinson represented to the plaintiffs and to the laintiff S. Samuels of said firm that he had on and for sale in his warehouse in the city of Waco, McLennan county, Tex.; 100 bales of good cotton pickings, a commodity well known in the cotton trade, as being a marketable grade of cotton picked from bales of cotton without damage and without what is known as paper stock therein; that these representations had been made on or about said date and for several days prior thereto, over the phone in conversation with the said Samuels, plaintiff herein, the said S. Samuels then being in the city of Houston,_Harris county, Tex.; and that on or about said date, the agent and representative of plaintiff was shown by defendant Joel Robinson 100 bales of pickings in his said warehouse in the city of Waco, which said pickings so shown to said agent, to wit, Jake Pizer, were good pickings, and of the kind and character represented by said defendant to the plaintiffs; and the said Joel Robinson also represented that the pickings contained in his said warehouse were of the kind and quality so seen by said representative.”

Said petition further stated that in reliance upon the representations of appellant, the appellees purchased the said 100 bales of good pickings represented to be of the grade as represented, and were the identical bales as seen by the agent of the plaintiffs.

The issue was whether or not the cotton was represented as being good pickings, and the pickings that Mr. Pizer had seen in the warehouse of the defendant at Waco, Tex. The court in its charge clearly defines the issue. The testimony will not be set out at length, but will be referred to briefly.

Samuels, the plaintiff who made the contract of purchase, testified that the purchase was made by telephone; Mr. Robinson .being at the time in Waco, and he in Houston. The witness stated that Mr. Pizer had been to Waco and examined the pickings, and made a report that it was good pickings. Further he testified:

“I called and got Mr. Robinson over the phone, and I asked him about the 100 bales of pickings Mr. Pizer had seen; in other words, I bought from him the 100 bales of good pickings, and I even remarked, ‘Be careful how you ship it; I want the good pickings Mr. Pizer has seen,’ so he sold it to me for 4 cents a pound. He stated to me he was selling me good No. 1 pickings. He said those were the same pickings that Mr. Pizer had seen. I agreed to pay him 4 cents f. o. b. Waco for it. * * * Relying upon getting the pickings Mr. Pizer had seen, and Mr. Robinson had sold me, I paid the draft; relying upon his (Robinson’s) representations. * * * I had a telephone conversation with Mr. Robinson at the time I bought that 10O bales of pickings from him; I think it was on May 6th, or the 5th. The substance of that telephone conversation was, he sold me 100 bales of pickings that Mr. Pizer had seen, and when I asked him is he going to ship me the pickings that Mr. Pizer has seen, and he said, T am going to ship you good pickings, the same bales Mr. Pizer has seen,’ and he said, ‘You just leave it to me,’ and I left it to him. tie says he is going to ship me good pickings; the same pickings which Mr. Pizer has seen, which were good pickings. I was relying on Mr. Pizer, and then on Robinson’s guarantee in order to help me make the trade.”

Mr. Pizer, the agent of S'. Samuels & Go., stated that he examined the pickings that Mr. Robinson bad in bis warehouse, and classed them up. He further testified:

“He had about 104 or 105 bales in Ms warehouse, and I called his attention to about 4 or 5 bales of paper stock in the lot; the balance were No. 1 and choice pickings. I called his attention to 4 or 5 bales of paper stock in the lot, and he told me not to look at those because they did not go; he was selling good pickings. I made three examinations of them; the pickings I saw were good No. 1 pickings. * * * I am positive, with reference to the number of bales in there, that there was not more than 104 or 105. In examining that cotton at Waco I did not see any pickings that I had previously seen at Taylor, Tex.; none of that class at all. In my judgment it would not have been possible in any manner for those Taylor pickings from the time I saw them there to have been among the 100 bales that I examined at Waco; those Taylor pickings were too damaged to ever make No. 1 pickings any more. I am positive of that. When Mr. Sam-uels was on a deal with him about a month later, I told him, again Mr. Robinson had 100 bales of No. 1 pickings in his warehouse, and that is when he bought them.”

Mrs. ICatie Robinson, wife of the defendant, testified that Mr. Pizer was in Waco the 1st of April, and examined the cotton in the warehouse, and that part of it was the cotton shipped from Taylor, Tex.

Mr. Joel Robinson, the defendant, testified that the 40 bales that he had in Taylor, Tex., were shipped to Waco and placed in his warehouse, and that the Taylor pickings were at the same place when Mr. Pizer came into the warehouse and examined the pickings, and that he sampled them. He stated that in the conversation over the phone, in which the deal was made, “the Taylor pickings were mentioned in that conversation; I told him the Taylor pickings included. I just made that reduction at the time because I was figuring in the Taylor pickings.” On cross-examination the defendant Mr. Robinson stated:

“I told Mr. Pizer when he was there that I had 200 bales in all, and could only sell him 150 bales; that I couldn’t sell him those 50 baled because they had to be worked over; that is what I told Mr. Pizer. Mr. Pizer seen the 50 bales in Taylor, and he examined them in my warehouse in Waco. I was not offering to sell them to him. He examined them anyway. I think he took samples from those, too. I am not positive about that. I thought I had 200 bales in my warehouse at that time, but I had 173. I saw that sample of stuff that Mr. Samuels had there; that paper stock or junk. I didn’t ship such stuff as that. I didn’t see it if I did. I wouldn’t have shipped stuff like that for pickings; no, sir; I would not. I shipped just what Mr. Samuels bought. I am satisfied I didn’t see any such stuff as was shown before this jury. If I had known that stuff was in that lot, if he had bought it, I would have shipped it in compliance with his contract. He bought the 40 bales; no, sir; I never seen such stuff as that. That is pretty bad stuff. I have seen pretty bad stuff in my life. * * _ * I never sold Samuels good pickings. I think I would not have shipped it to him under a contract of good pickings. I don’t know I would not. If he had bought it, I would. If he had bought good pickings, I would not have shipped him that 40 bales. I don’t know if Mr. Pizer saw any stuff like that in my warehouse or not. I just turned over the 1 whole warehouse to him and furnished him a negro. I didn’t see it. I didn’t see a piece of stuff like that in my warehouse. I don’t see no such stuff as that in the 40 bales.”

He further testified:

“The Taylor pickings were good pickings when I bought it. I bought it in July from the mayor of the town. When Mr. Pizer was there it was wet. They had had it out in the rain. The pickings was good, but it had to be worked over. Mr. Pizer told me to take it to Waco and work it over. He even helped me. I told him I was going to take it to Taylor and work it over; that is what he advised me. I said I would do it. I knew it had to be worked over to save them; to make them good pickings.”

From the testimony it is clear that the issue was sharply drawn, and that there was a sharp conflict, both as to the terms of the contract, and as to the pickings which Mr. Pizer, the agent of plaintiffs had seen in the warehouse at Waco. The answer of the jury to the special issue resolved the questions in favor of the plaintiffs.

We are of opinion, after careful examination of the testimony, as reflected by this record, that the verdict of the jury, having evidence to sustain it, and the evidence being sufficient, in onr opinion, to establish that the contract as found by the jury covered 100 bales of good pickings, cannot be disturbed by this court. It would be a useless consumption of time and space to attempt to set out the testimony of the various witnesses, and the inferences to he drawn therefrom, and, as before stated, we have reached the conclusion that there is testimony in the record to sustain the conclusion reached by the jury. Perhaps it may not be conclusive, hut, to say the least, it is sufficient to raise the is-sue that has been determined by the jury in favor of appellees. We find no merit in the assignment, and the same is overruled.

The fourteenth and fifteenth assignments of error, as presented by the brief of appellant, are as follows:

(a) “The court erred to the prejudice of this defendant in rendering judgment against this defendant upon the verdict of the jury for the reason that the answers of said jury to the issues submitted to it by the court are contradictory, and at variance in this: The court in special issue No. 6 submitted the question as to whether or not the plaintiffs at the time they paid defendant’s draft knew that the Taylor pickings were included in the shipment. To which issue the jury answered that plaintiffs did know such fact.”
(b) “The court erred in rendering judgment in favor of plaintiffs on the. verdict of the jury, and especially in rendering said judgment on special issue No. 10, because the testimony of the witness Pizer showed that he had seen the Taylor pickings, and knew they were damaged, and so informed his principal, the plaintiff herein, and the testimony of the witness S. Samuels showed that he knew the Taylor pickings amounting to 40 bales were damaged, and all of the testimony showed that the Taylor pickings were included in said shipment, so that the jury in one place finds that at the time the draft was paid, plaintiffs did not know that any of said cotton was damaged, and in another place finds that plaintiffs did know that said cotton was damaged at the time the draft was paid, which answers are contradictory, and irreconcilable, as shown in bill of exception No. 6.”

It is contended that the findings of the jury under special issues Nos. 6 and 10 present no contradiction, and are in no wise irreconcilable; in that, plaintiffs may have known, as foirnd by the jury, at the time they paid the draft of the defendant that the Taylor pickings were included in the shipment to them, and yet not have had notice, as the jury found, of the actual condition of such shipment, either from information derived from their agent Pizer, or from the defendant, or from any other source, and that inasmuch as the plaintiffs purchased from the defendant 100 bales of good pickings, to be the same pickings that were examined by their agent Pizer, in defendant’s warehouse at Waco, it was wholly immaterial whether they knew at the time they paid the draft that the Taylor pickings were included in the shipment to them or not. The contract did not expressly exclude Taylor pickings, and that if Taylor pickings complied with the kind and quality covered by the contract, the defendant would have had a right to ship the same.

The witness Pizer testified:

That he saw these pickings in Taylor, Tex., some time in December, 1914, and that at that time they were in a wet and damaged condition. “They were not No. 1 pickings. When I left Taylor those pickings were at the compress. I didn’t have any more to do with them after I examined them at that time.”

He further states:

That in his judgment it would not have been possible for the Taylor pickings to have been among the 100 bales he examined at Waco, for they were too far damaged at that time to have ever made No. 1 pickings any more. “Mr. Robinson said there that day they were No. 1 pickings; said, ‘That water don’t go in but a few inches,’ but 1 said, ‘That hurts them, unless you break the bales open and dry them out and rebale them’; and he said, T think I will do that; I will go to reworking them.’ That is as far as I talked to him about it. He didn’t go down to the depot and make out a bill of lading and get the freight agent to check them out. He left me and went up to buy some loose there. I don’t know whether he shipped them out that day or not. That is the last I heard. There was nothing said about them being shipped to Waco. He said he was going to rework them.”

Samuels testified:

That he did instruct his man, Pizer, to call upon the defendant about the date of the letter in evidence, to wit, November 29, 1914, and that his man told him that Robinson had a lot of pickings at ' Taylor which would turn to paper stock, if it stayed there much longer. “He didn’t tell me it was wet. If it stays out in the weather three or four months, it will turn to paper stock. I don’t think they were ready to turn into paper stock at the time he saw them, but they would if they stayed long enough. I didn’t deal with Mr. Robinson about the Taylor pickings at that time, and no other time.”

He stated further that:

The Taylor pickings would have to be “reworked to make pickings at the time my man seen them.” “Speaking about working pickings, it depends on what it is whether it is necessary to rework No. 1 pickings. This No. 1 pickings right here by me has been worked.”

He stated that the Taylor pickings were not mentioned to him over the phone at the time he made the purchase. He further stated that Mr. Robinson guaranteed the pickings “to be good pickings.”

ITrom the testimony it will be seen that the Taylor pickings were examined at Taylor, Tex., in November, 1914, and at the time they were wet, and Pizer, agent of the plaintiffs, advised the defendant to rework the pickings ; that the defendant thought they were good pickings. Therefore the findings of the jury would be consistent if it is remembered that from the testimony the jury could have reached the conclusion that the Taylor pickings had been moved to Waco and reworked, and that, although the plaintiff knew that the Taylor pickings were included, they did not know that they had not been reworked, or that their condition was such as to be worthless and rotten paper stock; and even with knowledge that the Taylor pickings were included, plaintiffs did not have notice of the real condition of the shipment. We believe that plaintiffs had a right to rely upon the contract, and that the pickings were of the kind and quality which he had purchased. The suit in this case was predicated only upon the difference in the contract price and the market value of the commodity delivered.

A careful examination of the entire record convinces us that there is no such conflict in the findings as would cause a reversal of this case. The assignments are overruled.

By the sixteenth assignment, complaint is made that the court erred to the prejudice of appellant in rendering judgment against appellant for damages based upon 69 bales of damaged pickings for the reason that the finding of the jury in answer to special issue No. 10 shows that at the time the draft was paid by plaintiffs, they knew that the 40 bales of Taylor pickings which were damaged were included in said shipment, and therefore plaintiffs, if entitled to recover at all, are only entitled to recover damages based upon 29 bales of damaged cotton, all of which matters were called to the attention of the court in the motion for a new trial.

The proposition is:

“If appellant was guilty of fraud in shipping cotton that was not up to the contract, such as the Taylor pickings, and if before they paid the draft appellees knew that said cotton had been shipped to them, which was not up to contract, and if, knowing such fact, ap-pellees paid the draft, then they have no cause of action for damages against appellant, and cannot recover anything by reason of having purchased the Taylor pickings.”

On the contrary, it is urged that the jury having found that the agreement between the plaintiffs and the defendant was that the defendant should ship the plaintiffs 10Q bales of good pickings, and should ship the 100 bales that plaintiffs’ agent Pizer had seen in the defendant’s warehouse at Waco, Tex, the plaintiffs had. a right to rely upon the performance of the contract toy defendant, and, even with the knowledge that the Taylor pickings were included in the shipment, at the time they paid the draft, they had the right to assume that the Taylor pickings would conform to the terms of the contract, and that the evidence shows that as soon as the plaintiffs ascertained the condition of the shipment, they refused to accept the same as being in compliance with the contract, and demanded reimbursement; and the fact that the plaintiffs paid the draft in reliance upon the defendant’s representations, without having an opportunity to examine the shipment, would not deprive them of the right to reject the same as soon as the shipment was examined and not found in accordance with the contract and representations, and to subsequently, upon defendant’s refusal to repay the amount paid, dispose of said shipment and hold defendant for the damage.

There were no exceptions to the charge of the court. Under special issues Nos. 1, 2, 3, and 4, the jury found that appellant agreed to ship plaintiffs 100 bales of good pickings, and the pickings that plaintiffs’ agent J. Pizer had seen in appellant’s warehouse at Waco, Tex., and that 69 bales of the cotton shipped were neither good pickings, nor the pickings seen or so inspected by said agent at Waco. In answer to special issue No. 6, the jury found that plaintiffs did not have notice from any source of the condition of the pickings at the time the draft was paid, and in answer to special issues 8 and 9 found that defendant made certain representations to the plaintiffs as to the character and quality of the 100 bales of pickings, and that the plaintiffs relied upon the same.

From the evidence it appears that the draft introduced was paid on the 14th day of May, 1915; that the 100 bales were shipped on May 13, 1915; and that the shipment arrived in Houston about May 20, 1915, indicating that the draft was paid before the shipment could have been examined. The plaintiffs wired the defendant by telegram on May 20, 1915, as follows:

“Hundred bales pickings arrived. They are not what our man examined there. We are holding same subject to your order. You must reimburse us for amount you drew on us and freight charges. Particulars mailed.”

On June 7th plaintiffs wrote the defendant, again demanding reimbursement.

As heretofore stated, the Taylor pickings had been examined by Pizer in November or December, 1914, and from that time until the 'draft was paid, it does not appear that any. further examination was made by him, or that he knew of their condition. It is evident that the Taylor pickings may have undergone changes from the time Pizer saw them before the payment of the draft. It is, however, plain that as soon as plaintiffs learned of the condition of the shipment, they notified defendant by telegram, and defendant was asked to reimburse the plaintiffs, and upon his refusal suit was filed. No profit was asked, and therefore defendant could sustain no loss, as he gets the value of the product. A careful examination will show that there is no merit in the assignment, and therefore the same is overruled.

The first and second assignments of error are as follows:

(a) “The court erred to the prejudice of this defendant in excluding from the evidence the telegram of plaintiffs to the defendant, of date May 6, 1915, upon objection of counsel for plaintiffs as shown by bill of exception No. 1.”
(b) “The court further erred in excluding said telegram for the reason that said, telegram related to the matters in controversy, tended to sustain defendant’s contentions, and further showed that plaintiffs requested of this defendant to make a false bill of lading in having his cotton shipped as linters, showed generally that he was not a witness whose testimony should be credited by the jury, as it constituted a part of the transaction of which plaintiffs now complain in bill of exceptions No. 1.”

The bill is as follows:

“Be it remembered that, on the trial of the above entitled and numbered cause, defendant Joel Robinson offered in evidence the following telegram: ‘Houston, Texas, May 6, 1915. Joel Robinson. Letter rec’d. If you will wire lowest price, landed Houston, may be able to trade with you. You can ship as linters. [Signed] S. Samuels & Co.’ And when said telegram was offered in evidence, objeStion was made to its introduction by counsel for plaintiffs on the ground that the same was irrelevant and immaterial, which objection w,as sustained by the court and said telegram was excluded, to which ruling of the court the said defendant then and there excepted, and here and now tenders his bill of exceptions, and asks that the same be allowed.”

We have tried faithfully to find relevancy in the proposed testimony, but have utterly failed to do so. It seems that the view of appellant is that the telegram was an attempt to perpetrate fraud on the railroad by Sam-uels & Co., because linters are entitled to a lower freight rate than pickings, and this telegram shows that appellees were rea'dy to engage in any fraud which might be profitable to them. No attempt is made to show that there was any relation whatever between the contract made over the phone by the parties and to the telegram offered in evidence. There is, to say the least of it, in any view that may be taken, no relevancy and no materiality to the matters in controversy here. The assignments are overruled.

As shown by the brief of appellant, the third and fourth assignments of error complain as follows:

(a) “The court erred to the prejudice of this defendant in refusing to permit counsel for defendant to cross-examine plaintiff S. Sam-uels as to what said Samuels had done with the paper stock or cotton in question, for the reason that the said Samuels had testified that said paper stock or cotton was worth only one cent a pound, and this defendant had the right to cross-examine him fully as to all matters which would throw any light on the value of said cotton, and the court erred in refusing this defendant the right to cross-examine said plaintiff, as shown toy bill of exceptions No. 2.”
(b) “The court further erred in refusing this defendant the right to cross-examine said plaintiff as to what he had done with the cotton which he claims was damaged after he had expressed his opinion that it was worth only one cent a pound, because this defendant had the right under the law to thoroughly search the memory and conscience of plaintiff to see whether he was telling the truth about the value of said cotton. Said plaintiff would have answered that he did not know anything about what he had done with said cotton, and would have concealed from the court and jury all information as to what he had received from said cotton, and his testimony would have shown that he was unworthy of belief.”

The bill of exceptions is as follows:

“Be it rem'embered that, on the trial of the above entitled and numbered cause, when plaintiff- S. Samuels was on the witness stand, counsel for defendant on cross-examination asked him, the said Samuels, what he did with the paper stock he had received 'from Robinson. The plaintiff by counsel objected to any answer being made by plaintiff to said question on the ground that said question was irrelevant and immaterial, which objection was sustained by the court, and the said plaintiff S. Samuels was not permitted to answer said question, to which action of the court said defendant by counsel then and there in open court excepted, and here and now tenders his bill of exception, and asks that the same be allowed.”

No attempt is made to show what was expected to be proven, and in our opinion the market value would -not be dependent upon what 'disposition the plaintiffs may have made of the shipment. The issue submitted in connection with the court’s charge was: “What damage, if any, have plaintiffs sustained by reason thereof?” In this connection the jury was instructed as follows:

“In this connection, you are instructed that the measure of damages, if any, would be the difference between the contract price and the market price in Houston of the goods actually received at the time and place same were received.”

No exceptions were taken to the charge of the court, and we are unable to see how the issue could be in any wise affected by what was done with the shipment in question. If the plaintiffs had sold the cotton and received less than the market value therefor, it would have been inadmissible, for the defendant’s liability would not have been thereby increased. The market value of the stuff, therefore, was in no wise dependent on what became of the stuff itself. We find no merit in the assignments, and they are therefore overruled.

Complaint was made by the fifth assignment that there was error in the court sustaining the objection of plaintiff’s counsel in cross-examination of the witness Pizer as to the matters contained in bill of exception as follows:

“Be it remembered that, on the trial of the above cause when Pizer, witness for plaintiffs, was on the stand and on cross-examination defendant by counsel called his attention to the letter from plaintiffs to defendant, dated April 17, 1915, which letter stated that a great many of this defendant’s bales of cotton would have to be reworked, and when the witness Pizer had testified that only 4 or 5 bales needed to be reworked, he was asked the question how he explained the difference between his statement and the statement in the said letter from S. Samuels & Co., to defendant, the questions and answers thereto were objected to by plaintiffs as being irrelevant and immaterial, and further that this witness could not tell what was in the mind or contemplation of Samuels & Co., which objections were sustained by the court and said evidence excluded, to which, ruling of the court defendant by counsel at the ■time excepted, and here and now tenders his bill of exception, and asks that the same be allowed.”

Complaint is made because of au alleged difference between a statement made by the witness and statement made in the letter, not from witness, but from plaintiffs. No connection is shown, and neither was it shown that the witness knew or had any knowledge or had anything to do with the statement of plaintiffs in their letter. It was clearly inadmissible. The assignment is overruled.

The seventh and eighth assignments of error are as follows:

(a) “The court erred to the prejudice of this defendant in sustaining the objection of counsel for plaintiffs to the testimony of the witness Baker Hoskins, in answer to the fifth, sixth, seventh, and eighth direct interrogatories for the reason that said evidence tended to show the number of bales of cotton in defendant’s warehouse at Waco, and the condition thereof, prior to, at, and subsequent to the time said cotton was examined by said Pizer, and because said answer tended to contradict the testimony of said Pizer, and the exclusion of said answer was prejudicial to this defendant.”
(b) “The court erred to the prejudice of this defendant in sustaining the objection of the counsel for plaintiffs to the testimony of the witness Baker Hoskins in answer to the third cross-interrogatory propounded to him, for the reason that the same tends to contradict the testimony of the witness Pizer as to the number of bales in defendant’s warehouse and the condition thereof, at, prior to, and subsequent to the time same was examined by the witness Pizer, and for the reason that said testimony tends to sustain the testimony of the defendant Robinson that plaintiffs paid a lower price for the cotton bought from this defendant than did the witness Hoskins, because of the fact that the cotton sold to plaintiffs was sold at a lower price than sold to the witness Hoskins.”

The bill shows the following:

“The following is the fifth interrogatory and the answer thereto: Interrogatory: State whether Mr. Robinson told you anything about any of the cotton toeing shipped in from any other town, and, if so, what town did he say it had been shipped from, and how many bales did he say, if any, had been shipped. Answer: Mr. Robinson told me that some of this cotton had been shipped in from Taylor, and S. Samuels & Co.’s man had been there and figured on buying the lot of cotton. I do not remember what number of bales he told me had been shipped in from Taylor.
“The following is the sixth interrogatory and the answer thereto: Interrogatory: If you bought any of said cotton, for whom did you buy it? Answer: I bought 100 bales of the cotton from Joel Robinson, the same to be No. 1 pickings.
“The following is the seventh interrogatory and the answer thereto: Interrogatory: If Joel Robinson said anything as to who he was going to sell the balance of said cotton, then- state the name of the party be proposed to sell it to. Answer: He told me before I bought any of the cotton from him that he had been figuring on selling the whole lot to S. Samuels & Co., and after I had bought the 100 bales he told me that he was going to sell a certain number of bales to S. Samuels & Co., and that if I did not need the whole 100 bales at this time that he would lite to reserve SI bales so that he could complete the number of bales _ that he had sold to Samuels & Co., which I did. I received at this time 69 bales, and he afterwards delivered the other 31 to me.
“The following is the eighth interrogatory and the answer thereto: Interrogatory: How many bales of cotton did you take from said warehouse? Answer: I took 69 bales from the warehouse at this time.
“The following is the third cross-interrogatory and answer thereto: Interrogatory: What price did you pay Joel Robinson for the 69 bales delivered to you? Answer: I think that it was 4% cents per pound, but am not positive of this; it might have been 5*4 cents per pound; I could look up my records and tell exactly.”

All of this testimony, as shown by the bill, was hearsay, irrelevant, and immaterial, and not made in the presence of the plaintiffs. There was no mistake on the part of the court in sustaining the objection. The assignments are overruled.

The last proposition seems to be a blanket proposition, and says that the evidence, if not conclusively to the effect that the defendant agreed to sell the plaintiffs 100 bales of good pickings, certainly raises the issue of fact for determination by the jury.

We have examined carefully this entire record. There is no doubt in our minds that the appellant has received a fair and impartial trial. The matters were presented to the jury, and have been found against the contention of appellant. We have heretofore stated that the answers of the jury were consistent, easily reconcilable, and there .was no error on the part of the court in entering the judgment upon- the verdict of the jury, and, therefore, the record reflecting no material error such as would warrant this court in reversing . this cause, the judgment of the lower court is in all things affirmed. It is so ordered.
      cS=3S'or omer cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: KING, J.

license: Public Domain

text:
    COMMERCIAL GUARANTY STATE BANK v. CREWS.
    (Court of Civil Appeals of Texas. Beaumont.
    June 22, 1917.)
    1. Corporations . i&wkey;99(l) — Stock—Issue op or Subscription por.
    Where the company had never been incorporated, and the stock was not to be delivered until the notes were paid, notes, reciting that they were given for stock in the company, were not given for stock issued in a corporation, within the meaning of the Constitution and statutes making notes so issued invalid.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. § 444.]
    2. Bibbs and Notes i&wkey;342 — Notice op Defenses — Evidence.
    Recital in a note that it is one of a series given for stock in the S..Company did not give pureshaser notice of any defenses that could be urged against the original payees.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 830-841.]
    3.Bibbs and Notes <&wkey;327 — Innocent Pur-> chaser.
    One who, without knowledge or information of any defense against the original holder, purchases a note for value before maturity, is protected as an innocent holder.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 792.]
    Appeal from Nacogdoches County Court; J. F. Perrette, Judge.
    Suit by the Commercial Guaranty State Bank against H. C. Crews. Judgment for defendant, and plaintiff appeals.
    Reversed and rendered.
    Blount & Strong, of Nacogdoches, for appellant. S. M. Adams, of Nacogdoches, for appellee.
   KING, J.

Appellant brought this suit in the- county court of Nacogdoches county on two promissory notes executed by appellee, of date June 2, 1913, for the sum of $100 each, payable to B. F. ■ Moore and J. O. Marshall, or order, and due November 1, 1914, and November 1, 1915, respectively, alleging that it became the owner of said notes before maturity, paying value therefor. Ap-pellee answered that said notes were executed to said Moore and Marshall for stock in the Sacul Gin & Manufacturing Company, and that said stock was never issued to defendant, and that therefore the consideration of said notes failed, and further that the bank was not an innocent purchaser for value without notice. Appellant, in its supplemental petition, alleged that it was an innocent purchaser and holder of said notes before maturity for value, without notice of the defenses urged by defendant. The case was tried before the court without the aid of a jury, and judgment rendered in favor of defendant. The trial court filed the following conclusions of fact and of law:

“Conclusions of Fact.
“I find that defendant, H. C. Crews, on the 2d day of June, 1913, made, executed, and delivered to B. F. Moore and J. C. Marshall his three promissory notes, payable to B. F. Moore and J. C. Marshall or order; and I further find that the plaintiff, the Commercial Guaranty State Bank of Nacogdoches, Texas, before the matui-ity thereof and for a valuable consideration paid at the time of said purchase, purchased and is now the owner of two of said promissory notes so made and executed by said defendant, Crews; said two notes so purchased and owned by said plaintiff being of the tenor and effect as follows:
“ ‘$100.00. Sacul, Texas, 6/2/1913.
“ ‘Nov. 1, 1914, after date, for value received, I promise to pay to B. F. Moore and J. C. Marshall, or order, one hundred dollars at Sacul Guaranty State Bank, to bear interest at the rate of 8 per cent, per annum from date, and further hereby agree that if this note is not paid when due to pay all cost necessary for collection, including ten per cent, for attorney’s fees. TMs note is one of a series 'of three notes given for stock in the Sacul Gin & Mfg. Oo.
“ ‘No. 2. [Signed] H. 0. Crews.’
“ ‘$100.00. Sacul, Tex., 6/2/1913.
. “ ‘Nov. 1, 1915, after date, for value received, I promise to pay to B. E. Moore and J. C. Marshall, or order, one . hundred dollars at Sacul Guaranty State Bank, to bear interest at the rate of 8 per cent, per annum from date, and further hereby agree that if this note is not paid when due to pay all costs necessary for collection, including ten per -cent, for attorney’s fees. This note is one of a series of threo notes given for stock in the Sacul Gin & Mfg. Oo.
“ ‘Hue 11-1-1915. [Signed] H. O. Crews.
“ ‘No. 3.’
“I further find that at the time of the purchase of said two above-described notes by said Commercial Guaranty State Bank, plaintiff, that said notes were at said time delivered to said bank by said B. E. Moore and J. O. Marshall, and that said B. E. Moore and J. O. Marshall at said time duly indorsed each of said notes by writing their names across the back thereof in the following manner: ‘B. E. Moore— J. C. Marshall.’ I further find that said Commercial Guaranty State Bank, plaintiff, did not purchase the other note, which was executed by said Crews to said B. F. Moore and J. O. Marshall, and at the time of its purchase of the above two described notes knew nothing of the execution, or of the contents, condition, and due date of said other note, except such notice as appeared on the face of the two notes purchased. I further find that at the time said notes were executed and delivered by the said I-I. O. Crews to said J. C. Marshall and B. F. Moore that J. C. Marshall, one of the payees in said notes, represented to the said H. O. Crews that the Sacul Gin & Manufacturing Company was an existing corporation, and that tho consideration of said notes was to be twelve shares of stock in said Sacul Gin & Manufacturing Company at twenty-five dollars ($25.00) per share. I further find that it was the understanding and agreement by and ' between the said J. C. Marshall and B. E. Moore, the payees in said notes, and H. O. Crews, at the time said notes were executed, that said twelve shares of stock in the Sacul Gin & Manufacturing Company was not to be delivered to said H. C. Crews until said notes wore fully paid by him, but that said stock, when made out in favor of H. C. Crews, was to be attached to and retained as security for the payment of said notes. I further find that no stock was attached to the above-described two notes when purchased by and delivered to plaintiff. I further find that no charter was ever obtained for said Sacul Gin & Manufacturing Company, and the same was never incorporated,, but that said Sacul Gin & Manufacturing Company, with J. C. Marshall as general manager-, operated a gin for two seasons, and procured a book that contained blank certificates for shares of stock in said company, and that it also procured a seal, which had impressed on it ‘Sacul Gin & Manufacturing Company, a Corporation’; and I find that one stock certificate was made out and signed up‘in favor of one J. H. Cole, purporting to be a stock certificate in said Sacul Gin & Manufacturing Company, and which certificate was signed ‘B. F. Moore, President — J. C. Marshall, General Manager and Secretary,’ and had said seal impressed thereon, and this was the only certificate of stock, shown by the evidence to have been made out and signed up in favor of any one in said Sacul Gin & Manufacturing Company.
ÍT further find that said twelve shares of stock nor any part thereof was ever delivered to said H. C. Crews. I further find that at the time the defendant, H. C. Crews, executed said notes that he believed said Sacul Gin & Manufacturing Company was a corporation. I further find that the plaintiff, Commercial Guaranty State Bank of Nacogdoches, Texas, on November 24, 1913, and before the maturity of either of said two notes purchased by it, became the purchaser and holder of said two notes sued on, and that said bank paid a valuable consideration therefor, and it was an innocent purchaser of said notes for value, without notice of any defense thereto, or fraud, or misrepresentations practiced or made in procuring the execution of said notes; and I find that said bank had no notice at the time it became the purchaser of said notes of any fact that would indicate that said notes were not binding and valid obligations against the defendant, unless the following clause in said notes was sufficient to give said bank such notice: ‘This note is one of a series of three notes given for stock in the Sacul Gin & Manufacturing Company.’
“I further find that said notes are wholly unpaid, and that plaintiff, since the maturity of said notes, has demanded of defendant the payment of same.
“Conclusions of Law.
“I conclude, as a matter of law, that said notes are void, and therefore uncollectible, for the reason that they recite in their face that they are given for stock in tho Sacul Gin & Manufacturing Company, and I further conclude as a matter of law that the recitations in said notes that they were, given for stock in the Sacul Gin & Manufacturing Company was sufficient to put the bank on notice that said notes were void.
“Í therefore find that plaintiff is not entitled to recover in this cause.”

In its first and second assignment of erors appellant contends that the court erred in holding that, because said notes recited on their face that “they were given for stock in the Sacul Gin & Manufacturing Company,” they were void. We sustain these assignments, as the trial court found it to be a fact that said Sacul Gin & Manufacturing Company was in fact never incorporated, and therefore, under said finding of fact, the notes in question were not given for stock issued in a corporation, and for the reason that the court found as a fact that it was agreed between the defendant and the payees in said notes, at the time they were executed, that said stock was not to be delivered until said notes were fully paid, and therefore, under said findings of fact, it appears that said notes were not executed for stock issued in a corporation, in contemplation of the Constitution and statutes of this state, and were not void, but were valid and legal obligations.

Article 12, section 6, of the Constitution, declaring that stocks and bonds issued without money paid therefor, etc., shall be void, has received judicial construction in several recent opinions of the Courts of Civil Appeals of this state, and we do not deem it necessary to discuss the question as to the notes in question being void, but will content ourselves with citing the case of Commonwealth Bonding & Casualty Company v. Hill, 184 S. W. 247, wherein Chief Justice Huff, of the Amarillo Court, gives a very able dis-mission, and draws the distinction‘between the giving of notes for stocli issued-, and the execution of notes for subscription for stock; also in this opinion the ease of Farmers’ & Merchants’ State Bank v. Falvey, found in 175 S. W. 833, is referred to, as well as a number of other decisions. From these decisions, it appears to be the settled rule of law in Texas that notes executed on a subscription for stock in a corporation are not void, but enforceable, and that where stock in a corporation is not delivered to the purchaser, but is attached to notes executed therefor as collateral security, that the same is' not stock issued, but is treated as a subscription for stock, the delivery of which is contingent upon the payment of the notes executed therefor.

The court, in its conclusions of fact, found as a fact that-the Sacul Gin & Manufacturing Company was never incorporated, and further that it was the understanding between appellee and the payees in the notes sued on, at the time of the execution of said notes, that said stock was not to be delivered to defendant until said notes were fully paid.

By its third and fourth assignment of errors, appellant contends that the court erred in holding that the recitation in said notes that “they were given for stock in the Sacul Gin & Manufacturing Company” was sufficient to put plaintiff on notice of the defenses to said notes that were urged by the appellee. Under the findings of fact by the court, we think that these assignments should also be sustained. The trial court found as a fact that appellant was an innocent purchaser before maturity, without notice of any defense to said notes, unless said recitation was sufficient to give notice. The recitation in each of the notes.is as follows:

“This note is one of a series of three notes given for stock in the Sacul Gin & Mfg. Co.”

Does this give actual notice of any defense that could have been urged by the appellee herein against the original payees in the notes? AVe think that such recitation cannot be viewed so as to sustain the conclusions of law of the trial court. Said recitation did not give plaintiff any notice whatever of any misrepresentation made by the payees of the notes, or of any defense that could be urged thereto at the time plaintiff purchased same and paid value therefor before maturity. The notes on their face were not payable to the Sacul Gin & Manufacturing Company, but were payable to B. F. Moore and J. C. Marshall, and would therefore indicate that, at the time said notes were executed, Moore and Marshall owned stock in said company, and had transferred the same to the defendant. The trial court found as a fact that, when the notes were executed, Marshall and Moore, the payees in said notes, represented to appellee that the Sacul Gin & Manufacturing Company was then an existing corporation, and further found that said statement was untrue, and that said company was in -, fact never incorporated; but these representations were never brought home to the appellant, and it knew nothing of said alleged misrepresentations, unless the recitations in the notes were sufficient to give such notice.

If a purchaser of commercial paper has no direct knowledge or trustworthy information of any defense which the maker may have against the original payee, and acquires such paper before maturity for value, and for sufficient consideration, he is protected as an innocent purchaser. Mulberger v. Morgan, 47 S. W. 379; Hassard v. May, 152 S. W. 665; Adoue v. Tankersley, 28 S. W. 346; Hardie v. Wright, 83 Tex. 345, 18 S. W. 615.

We are therefore of opinion that the court, under his findings of fact, should have rendered judgment for plaintiff; and, the record disclosing that the case was thoroughly developed upon the trial in the lower court, we reverse the judgment of the lower court, and here render same in favor of appellant.
      &wkey;3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SAN ANTONIO, U. & G. R. CO. et al. v. HALES.
    (No. 5866.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 16, 1917.
    On Motion for Rehearing, June 30, 1917.)
    1. Appeal and Error <&wkey;925(l) — Appearance — Peesumptions.
    Where appellants had appeared by answer in the case, in the absence of evidence to the contrary, it will be presumed on appeal that they were present at the trial, and had notice that appellee was seeking to foreclose a lien.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3729.]
    2. Pleading &wkey;>240 — Amendment oe Petition — Notice to Adverse Party.
    A defendant who has been cited, but has not been answered, must be notified of every amendment which sets up a new cause of action or requires ,a more onerous judgment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 636-641.]
    3. Pleading t&wkey;240 — Amendment . oe Petition-Notice to Adverse Party.
    Where defendant has pleaded to the action, the only notice of an amendment, which sets up a new causo of action or requires a more onerous judgment against him, to which he is entitled, is the order of the court granting leave to file the amendment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 636-641.]
    4. Pleading <&wkey;>240 — Amendment—Notice to Adverse Party — New Cause oe Action.
    Where plaintiff’s original amended petition contained a prayer for general relief and pleaded facts indicating that he was entitled to foreclosure of the lien, the second amended petition did not, because it contained a specific prayer for a foreclosure of the lien, sot up a new cause of action or require of defendant more onerous proof entitling him to notice of the second amendment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 636-641.]

      6.Appeal and Error &wkey;>1109(S) — Determination of Cause — Errors Not Requiring Reversal.
    In a suit by a contractor against a railroad company and its receiver for services for construction of a portion- of the roadbed, that the judgment was erroneously entered against the receiver is an error which may be corrected on appeal without a reversal of the entire judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 453S.]
    6. Railroads t&wkey;159(5) — Lien for Labor— Railroad Equipment and Right of Way.
    Under Rev. St. 1911, art. 5640, giving all mechanics, laborers, and operatives who have performed labor, etc., in the construction, operation, or repair of any railroad a lien prior to all others upon such railroad and its equipment, nothing but the railroad right of way and equipment is subject to lien.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 491.]
    7. Railroads <S=olS8 — Lien for Labor — Pleading — Description of Property.
    In a suit against a railroad company for services for construction of roadbed, wherein it was sought to foreclose a lien on the railroad’s property, the allegation that all the property was subject to the lien would include right of way and equipment, and was, in the absence of an exception, a sufficient description.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 618-621.]
    On Motion for Rehearing.
    8. Railroads <&wkey;159(4) — Parties Entitled to Liens — Contractors.
    Rev. St. 1911, art. 5621, providing for a lien for any person or firm, lumlber dealer or corporation, artisan, laborer, mechanic, or subcontractor who may labor or furnish material, etc., for improvement or repair of any building whatsoever, and giving to one who may furnish any material for the construction or repair of any railroad a lien, does not give a contractor a lien for services rendered' in constructing the roadbed or laying out the railroad of a raiload company; the only lien being for materials furnished.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 489; 490-.]
    9. Words and Phrases — “Original Contractor.”
    An “original contractor” is one who for a fixed price agrees to perform certain work or furnish certain material.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second .Series, Original Contractor.]
    10. Railroads <&wkey;159{4) — Liens for Labor-Parties Entitled — Contractors.
    Rev. St. 1911, art. 5640, giving all mechanics, laborers, and operatives who have performed labor or work with teams, tools, or otherwise in construction, operation, Or repair of any railroad a lien, does not give a contractor a lien for services rendered in constructing the roadbed or laying out a railroad for a railway company.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 489, 490.]
    Appeal from District Court, Live Oak County ; F. G: Chambliss, Judge.
    Suit by L. G. Hales against the San Antonio, Uvalde & Gulf Railroad and others. Judgment for plaintiff, and defendants appeal.
    Reversed, with one exception, and judgment rendered.
    Mason Williams and J. C. Hall, both of San Antonio, for appellants. W. W. Caves, of Oakville, Paul.W. Evans, of Laredo, and John Baker, of Beeville, for appellee.
   FLY, C. J.

This is a suit instituted by ap-pellee, primarily against the railroad company, Duval West, receiver,' Word & Lee, and J. E. Franklin to recover the sum of $10,539.56 for grading and constructing a portion of the roadbed of said railroad. ' The pleadings cover 42 pages of the transcript; the second amended petition, on which the cause was tried, having been filed on the day the cause was tried. In that petition A. R. Ponder, receiver, appears as a defendant in addition to the other defendants named. When the cause came up for trial, the suit was "dismissed as to Word & Lee and J. E. Franklin, and prosecuted to judgment as to the railroad company, Duval West, and A. R. Ponder, as receivers. Judgment was rendered against the railroad company and Du-val West and A. R. Ponder, as receivers, in the sum of $4,950, with $871.50 interest, amounting in the aggregate to $5,791.50, and all costs of suit, and a mechanics’ and laborers’ lien was foreclosed on the property of the railroad. The cause was tried on October 31, 1916, and appellants, on November 2, 1916, filed a motion for new trial, which was overruled on same day.

This cause was filed on October 27, 1914, but no lien of any kind was ever asserted until October 31, 1916, in the second amended original petition. There was no description of any property upon which the lien was ■sought to be foreclosed, save and except “all of the property of every kind, character, ana description” of the railroad company. The judgment foreclosed a lien on all the property of the railroad company.

There is nothing in the record that shows -that the appellants were not present at the trial of the cause and participated therein. Appellants were in court and presumably present when the cause was tried, appellants had appeared by answer in the case, and in the absence of evidence to the contrary it will be presumed that appellants were present at the trial and had notice tnat appellee was seeking to foreclose a lien on the railroad property. It is stated in the motion for new trial that appellants made no appearance in the cause after the filing of the amendment, but the motion is not verified in any manner, and it was overruled by the court. It will be presumed that personal appearance was made.

It is the rule in Texas that a defendant who has been cited, but has not answered, must be notified of every amendment which sets up a new cause of action, or requires a more onerous judgment against him; but if he has pleaded to the action, the only notice to which he is entitled is the order of court granting leave to file the amendment. Rabb v. Rogers, 67 Tex. 335, 3 S. W. 303. There is in effect a recital that appellants did appear, for it is recited in the judgment:

“And said defendants San Antonio, Uvalde & Gulf Railroad Company, Duval West and A. R. Ponder, receivers of said railroad, and J. E. Franklin having filed their separate answers herein by and through their attorneys, Williams and Hartman and Siddall, and no jury being demanded, said case was submitted to the court as to all questions of both law and fact.”

The facts alleged in the first amended original petition were substantially the same as the allegations in the second amended petition, with the addition in the latter of a prayer for a foreclosure of the constitutional lien. There was in each petition a prayer for general relief, and the facts pleaded indicated that appellee was entitled under the statute, as a contractor, to the foreclosure of a lien for the labor performed by him on the roadbed of the railroad company, and making a specific prayer for a foreclosure of the lien did not set up a new cause of action. Lee v. Boutwell, 44 Tex. 151. The proof in the case was not rendered more onerous for appellants by the allegations of the amended petition; for, if the facts of either of the petitions had been proved, the same testimony to defeat the action would have been required from appellants. There was in the second amended petition merely an enlargement of the specific relief sought, and no new cause of action was introduced. Chapman v. Sneed, 17 Tex. 428; Porterfield v. Taylor, 60 Tex. 264; Raleigh v. Cook, 60 Tex. 438.

There should have been no judgment against the receiver, as the cause of action accrued before the receivership was created. The suit was improperly instituted against them. Andrews v. King, 170 S. W. 862; Railway v. Vivian, 180 S. W. 952. That error can, however, be corrected by this court, without a reversal of the entire judgment.

The law as embodied in article 5640, Revised Statutes, gives—

“all mechanics, laborers and operatives who may have performed labor, or worked with tools, teams or otherwise, in the construction, operation or repair of any railroad, locomotive, ear or other equipment of a railroad, and to whom wages are due or owing for such work, or for the work of tools or teams thus employed, or for work otherwise performed, shall hereafter have a lien prior to all others upon such railroad and its equipments for the amount due him for personal services, or for the use of tools or teams.”

That article has been construed to give a lien only on the right of way and movable equipments of the railroad. Bank v. Railway, 95 Tex. 176, 66 S. W. 203.

The allegation that all of the property was subject to the lien would include right of way and equipments, and would, in the absence of an exception, be a sufficient description. Nothing but the right of way and equipments would be subject to the-lien, however.

There is no statement of facts, and the findings of fact of the trial court are not assailed, except as to the' agency of Lee, and they are, of course, approved by this court as its conclusions of fact.

The judgment adjudicated all issues. On March 31, 1916, appellants filed an answer in which judgment was asked, in the event of recovery against them, for a judgment against Franklin and Word & Lee. The same attorneys who represented appellants represented Franklin and Word & Lee. The last two named were dismissed from the suit, without protest on the part of appellants, and it does not appear that they were not present at the trial. The court found that Word & Lee were agents for the railroad company in employing appellee, and that they alone acted in making such employment. Under the facts as found by the court, and they must stand in the absence of a statement of facts, appellants had no cause of action against Franklin and Word & Lee, and the court did not err in dismissing the suit as to them.

The judgment adjudging the railroad company indebted to appellee in the sum of $5,791.50, with interest at 6 per cent, per annum from October 31, 1916, and as to the dismissal of J. E. Franklin and Word & Lee from the suit, is affirmed, but in other respects is reversed, and judgment here rendered that appellee have a foreclosure of his statutory lien on the right of way and movable equipments of the railroad company, that he take nothing as to Duval West and A. R. Ponder, receivers, and that he pay all costs arising from impleading J. E. Franklin and Word & Lee and the receivers in the lower court, and all the costs of this suit in this court.

On Motion for Rehearing.

The conclusions of fact of the trial judge show that appellee was a contractor, and appellee insists in his answer to the motion for rehearing that his rights are fixed by the terms of article 5621, formerly 3294, rather than by those of article 5649. The first-named article provides for a lien for “any person, or firm, lumber dealer, or corporation, artisan, laborer, mechanic, or subcontractor, who may labor or furnish material, machinery, fixtures or tools to erect any house or improvement or to repair any building or improvement whatever.” That part of the article refers specifically to one class of improvements and gives a lien to the persons named. Then it. gives a lien to the same persons or corporations to secure labor, material, machinery, fixtures, or 'tools to erect or repair levees, etc. It also gives a lien to any one who may “furnish any material for the construction or repair of any railroad within this state under of by virtue of a contract with the owner, owners, or his or their agent, trustee, receiver, contractor or contractors.” There is no provision whatever made in that article for a lien to a contractor; the only thing for which a lien on railroads is provided being for material. We have been cited to no case in which it was held that there was any lien given against a railroad for services rendered by a contractor in constructing the roadbed or laying the track of a railroad: Mechanics and laborers who build machine shops, roundhouses, etc., for a railroa'd are governed by the first part of the article in question in regard to houses or improvements. Bank v. Railway, 95 Tex. 176, 66 S. W. 203.

The article as originally passed in 1889 gave no lien for material furnished a railroad, but in 1895 the act was amended by inserting that portion in regard to railroads. The object and intent of that amendment is clearly indicated by the déelaration in the emergency clause that there was “no law on the statute books extending the material-man’s lien to railroads.” Acts 1895, p. 194. There was no mention of contractors in the amendment, arid neither are they referred to in the amendment of 1913. Appellee alleged and the court found that he was a contractor and built a certain portion of the railroad under a contract.

An original contractor is one who, for a fixed price, agrees to perform certain work or furnish certain material. Van Horn v. Day, 148 S. W. 1129. Appellee at first claimed a lien under article 5621, but,'in a reply to a supplemental motion for rehearing, claims it also under article 5640.

In our former opinion we felt disposed to hold that appellee had a lien under article 5640, Revised Statutes, but a reconsideration of that article as well as the decisions thereunder convinces us that appellee has no lien under the terms of that statute. That law was passed in 1879 and amended in 1889, and has not. since been amended, and clearly has reference to none others than laborers, mechanics, and operatives to whom wages are due for their work or for their teams or tools. It has been held that the statute did not include teams furnished by a subcontractor, but only applies to men performing labor for railroads with or without teams. Krakauer v. Locke, 6 Tex. Civ. App. 446, 25 S. W. 700; Railway v. Foley, 30 Tex. Civ. App. 129, 69 S. W. 1030; Railway v. Read, 154 S. W. 1027. Appellee has no lien under that article of the statutes^ and we' conclude that he has no lien on the railroad property to secure his debt.

If, as we think, appellee ha'd no lien under the, statute, then it follows that the amendment filed by him was of effect, but bore on its face a fundamental defect, and conse-' quentíy could not have affected appellant in any manner. Appellant therefore has no cause of complaint as to not having notice of the filing of the amendment.. It does not affect it in any manner. ,■ ■

The motion for rehearing' is granted, our former judgment set aside, and the judgment of the lower court is reversed except as to dismissal of Wor'd, Lee, and Franklin, and judgment here rendered that appellee have and recover of the railway company the sum of $5,791.50, with interest at 6 per cent, from October 31, 1916; that he take nothing as to the receivers, West and Ponder, nothing as to the lien claimed by him, and pay all costs in this behalf expended in this court, as well as in the lower court, as to the receivers.
      ®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gx^>For other cases see same topic and KEY-NUMBER in all Key-Numfcered Digests and Indexes


author: RAINEY, C. J.

text:
    GENERAL BONDING & CASUALTY INS. CO. v. HARLAN.
    (No. 7623.)
    (Court of Civil Appeals of Texas. Dallas.
    June 30, 1917.)
    1. Principal and Surety <&wkey;>100(i) — Building Contract — Relation op Surety.
    • Where a building contractor in a contract agreed to pay off and discharge claims for labor and material used in the building, and if he failed to do so that the owner at his option might pay off all such claims as should be liens on the property, and that the contractor should be liable only to refund to the owner money so paid, and that the contractor and surety on his bond shall be liable to said owner for the amount so expended, and the condition of tho surety’s bond was that the contractor shall perform all obligations imposed upon him by the contract, as the bonding company became liable only for such claims as became liens on the property, where the owner purchased bricks which he was authorized only to select under the contract, and made himself liable therefor, he violated the contract, and, ■ no lien having been established, released the surety.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 162.]
    2. Principal and Surety &wkey;>121 — Building Contract — Relation op Surety.
    Where an owner was negligent in a suit by materialmen claiming liens _ on his property and seeking foreclosure in not setting up in such suit that he had paid certain amounts and other defenses which he might have made, he was not entitled to any relief against the surety on the contractor’s bond.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 29S-301.]
    3. Principal and Surety <@=»160 — Evidence —Admissibility.
    In an action against the surety on a contractor’s bond, evidence that the owner at the direction of the contractor procured brick believing that brick had already been purchased by tho contractor, and the evidence of the seller of the brick that the contractor had never purchased any brick from it was properly 'excluded as irrelevant and an attempt to bind the bonding company by an oral agreement between the owner and contractor to which the bonding company was not a party, and of which it had no information and which it did not. ratify.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 436^438.]
    . Appeal from Dallas County Court; T. A. Work, Judge. ,
    Action by Harry Harlan against the General Bonding & Casualty Insurance Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.'

      T. L. Camp and Walter M. Nold, both of Dallas, for appellant. W. P. Donalson, of Dallas, for appellee.
   RAINEY, C. J.

This is an appeal from a judgment against appellant in favor of the appellee for $350.

Appellant contracted with one McMahan for the building of a dwelling house in consideration of $4,200. After partly completing the house, McMahan, the contractor, being insolvent, abandoned the contract, he having been paid $3,245. Before this, at McMahan’s solicitation Harlan had purchased certain brick which went into the house. Besides the ijrice of the brick McMahan owed bills to the amount of $1,410 for material which he was under contract to furnish, and which was used in the house. After McMahan threw up the contract Harlan expended $499.-65, leaving in his hands $265.35 of the contract price, less $190, which the parties agreed was to be deducted from the contract price. After this the seller of the brick sued Harlan and recovered a judgment for $350, which Harlan paid.

Upon entering the building contract with Harlan McMahan executed a bond with the appellant as surety for the faithful performance of said contract, conditioned as follows:

“The condition of the above obligation is such that if the above-bound O. F. McMahan shall well and truly perform and. fulfill all the obligations imposed upon him in a certain contract of even date herewith between said. O. F. ’McMahan and Harry Harlan, a copy of which said contract is hereto annexed, then this obligation shall be void; otherwise to remain in full force and effect.”

The 'building contract, section 9, provides that:

“The owner agrees to pay the contractor for the work aforesaid, subject to additions or deductions, on account of alterations as hereinbe-fore provided, the sum of four thousand .two hundred and no/100 dollars as follows: Each week during life of this contract and progress of work architect shall make estimate for actual labor done and material furnished and issue his certificate for 75 per cent, the actual cost thereof, retaining at option of owner 25 per cent, of contract price until completion of contract, and owner shall pay said 75 per cent, estimate upon said estimate in lawful money of U. S. A. Remainder of contract price retained by owner shall be paid in lawful money of the United States of America within five days after wor-k is completed, except the owner shall have the right to retain any sums necessary to pay off just and unsatisfied claims against the contractor for the labor and material used on said work; also may at his option retain the sum of 10 per cent, of the total contract price and 10 per cent, of any price made for extra work for a period of thirty days after completion of contract. The contractor hereby agrees -to pay all subcontractors and laborers and material-men for all work, labor, and material furnished or used in said building within ten days after completion thereof, and if he fails to do so, the owner, at his option, may pay off all such claims as may become liens [on] his property, and the contractor shall be liable to the owner and shall refund to tho owner any money so paid out by the owner in satisfaction of such claims against the contractor, and the contractor and surety on his bond executed herewith shall be liable to said owner for the amount of all such amounts so expended.”

A trial was had before the court without a jury, and judgment rendered for Harlan for $350 against appellant, from which this appeal is prosecuted.

Only one assignment of error with proposition thereunder is presented by appellant, as follows:

“The court erred in rendering a judgment against this defendant because it affirmatively appears from the- agreed statement of facts that the building was constructed free and clear of any mechanics’ or materialmen’s liens, the existence of which would be necessary to fix any liability on this defendant under the contract of McMahan and the bond of this defendant.”

The proposition is:

“It affirmatively appearing from the agreed statement of facts that the building was constructed free and clear of any mechanics’ or materialmen’s liens, the existence of which would 'be necessary to fix any liability on this defendant surety under the building contract of O. F. McMahan and the 'bond of this defendant predicated thereon, it was error for the trial court to render judgment against this defendant.”

It will be noted that the contractor was only bound to pay off and discharge such claims for labor and material furnished or used in the building, and for such “as may become liens [on] his property” and paid by Harlan the bonding company became liable. There was no lien for the $350 fixed upon Harlan’s property, and Harlan, under the evidence, having made himself liable in purchasing the bricks, thereby violated the contract and released the surety. He was not obligated, to purchase the bricks but was under the contract only authorized to select them. In selecting them he was negligent in not having them charged to the contractor, instead of to himself.

He was also further negligent when sued in Boatman Hardware Company and Others v. McMahan, claiming liens to the amount of $1,410, and seeking a foreclosure, in not setting up in said suit that he had paid the $350, and in pleading that he held $265.35, which he did not ask to be applied on the payment of the $350, but instead he paid said $265.35 into .court for said creditors. This amount of $350 was owing by McMahan, and if Harlan had so pleaded when sued as to the $265.35 he should have been protected in that suit to that extent.

We are inclined to the opinion that under the circumstances Harlan was not entitled to any relief against the appellant, and therefore not entitled to recover.

This suit is a branch of another case which we affirmed in part and reversed and remanded in part as to Harlan at a former term of this court. See Harlan v. Fuel & Supply Co., 160 S. W. 1142. In reversing that case, where the facts as to Harlan against the bonding company were somewhát different from the instant case,-we fell into error as to the relief he was' entitled to. In so far as that case is in conflict with the views here expressed, it is overruled.

The appellee has filed cross-assignments of error complaining of the court in not admitting certain evidence of appellee, as follows:

“That ’said McMahan, in directing him, said Harlan, to go and select the brick in question, stated to him, said Harlan, that he, said McMahan, had purchased said- brick from the Texas Fuel & Supply Company, and that he, said McMahan, had arranged for their payment; that lie, said Harlan, .believed such statements of said McMahan to be true, and acted upon such statements and belief in going to the Texas Fuel & Supply Company and in selecting said brick.”

Also the evidence of L. Fife, as follows:

“That he (Fife) was the manager of the Texas Fuel & Supply Company, and that said Mc-Mahan was not known to the Texas Fuel & Supply Company, or its officers, until long alter said brick had been delivered and placed in the building in question, and that said Mc-Mahan had never purchased any brick from said Texas Fuel & Supply Company, and had never made any arrangements to purchase any brick from said company.”

The objection made to said evidence was:

“That same was irrelevant and immaterial, and because it would be an attempt to bind the bonding company by an oral agreement made between Harlan and McMahan to which the bonding company was not a party, and had no information thereof, and did not ratify same, and it would be an attempt to' fix the bonding company’s liability on a written contract by parol evidence.”

We are of the opinion that the court ruled correctly in not admitting said testimony, in that the testimony was irrelevant.

The bonding company was only liable under the terms of its contract, which was in writing, and the evidence sought to be introduced tended to show a parol contract between McMahan and Harlan which showed McMahan’s liability to Harlan, but, as we understand it, could in no way affect the bonding company.

The written contract stipulated that Harlan could select the brick that was to be used in the building, but not that he should purchase them. That he made himself liable for the purchase of same is not in accord with the written contract with the bonding company, and, no 'lien having been established, therefore no recovery under the circumstances can be had.

The judgment is therefore reversed, and judgment here rendered for appellant.
      —ifnr other cases see same topic and KÉY-NUMBER in all Key-Numbered Digests and Indexes