author: PLEASANTS, C. J. PER CURIAM. GRAVES, J.

text:
    McNEILL et al. v. ST. AUBIN et al.
    (No. 7630.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 10, 1919.
    On Rehearing, Feb. 7, 1919.)
    1. Wills <&wkey;441 — Construction — Intent of Testator.
    The primary rule is to give the instrument the effect intended by the testator, and this interpretation must be ascertained from the language used, the nature and extent of the property bequeathed, the status and surroundings of the beneficiaries, etc.
    2. Trusts <&wkey;136 — Passive Trust.
    Where a testator devised to trustees for named minor grandchildren one-fourth of his estate, and authorized such trustees, who were also executors, to sell any part of the estate, held that the trust canngt be considered as passive, and so the guardian of the minor grandchildren cannot recover the property.
    3. Wills <&wkey;686(3) — Construction — Trusts — Duratio n .
    Where a testator devised property in trust for his minor grandchildren, though the will did not expressly limit the trust to the minority of the beneficiaries, it must be so construed, and when any of the beneficiaries come of age, or, if a female, marries, the trustee should turn over to such beneficiary his or her share of the property.
    Graves, J., dissenting on rehearing.
    Appeal from. District Court, Brazoria County; Samuel J. Styles, Judge.
    Suit by Lottie R. de St. Aubin, guardian of the persons and estates of Annie Lee Cox, and others,' against J. C. McNeill, Sr., and others, executors and trustees. Prom a judgment for plaintiffs, defendants appeal.
    Reversed and rendered.
    Wilson & Pollett, of Angleton, for appellants.
    Linn & Austin, of Bay City, for appellees.
   PLEASANTS, C. J.

This suit was brought by the appellee, guardian, joined pro forma by her husband, against appellants, who are execut&rs and trustees under the will of C. R. Cox, deceased, for a construction of said will and to recover of appellants for the use and benefit of Annie Lee Cox, Lottie May Cox, and Christopher Randolph Cox, the minor wards of plaintiff, the inoney and property bequeathed to them by said will and now in the hands of said executors and trustees.

Defendants (now appellants), J. C. McNeill, Sr., Louis J. Wilson, and M. B. Williamson, as such independent executors and trustees under the will of said C. R. Cox, deceased, answered by general demurrer, general denial, and further admitted that said C. R. Cox died testate, leaving a last will and testament, that said will had been duly admit,ted to probate;, that they were named and appointed as such independent executors of and trustees under said will, and duly qualified as such, and are now acting as such; and that they have in their hands as such trustees under the will of said C. R. Cox, deceased, for the use and 'benefit of said Annie Lee Cox, Lottie May Cox, and Christopher Randolph Cox, certain money and vendor’s lien notes; and further answered that they are desirous of having said will of said C. R. Cox, deceased, construed, but they specially deny the allegations of plaintiffs to the' effect that said trust funds should be surrendered and delivered by them as such trustees to the guardian of said minors; and they ask that they be authorized and directed to pay their attorney’s fee and costs of this suit out of said trust fund.

The trial in the court below resulted in a judgment construing the will in accordance with plaintiffs’ contention and directing the defendants to turn over the property and money to the plaintiff guardian, but allowing defendants to pay out of said trust funds $250 fees to their attorney in this suit and all costs of .the suit.

There is no issue of fact in the case, and the only question presented for our determination is the proper construction of the will.

The facts as found by the trial court are as follows:

“First. I find that C. R. Cox, Sr., died testate in Brazoria county, about the-day of December, A. D. 1912, and by his last will and testament nominated and appointed the defendants, J. C. McNeill, Louis Wilson, and M. B. Williamson, independent executors and trustees of his said will without bond or security, either as executors or as trustees. I further find that the said will was duly probated by the county court of Brazoria county, and that said McNeill, Wilson, and Williamson qualified as executors of said estate, and ever since, and now are, the duly qualified and acting executors thereof under the terms of the will.
“Second. I find that by articles 2, 3, 4, and 5 of said will the said testator devised and bequeathed three-fourths of his estate by absolute and unconditional title to four of his children,'respectively named in said articles, to wit: Sallie C. Norris, one-eighth; Josephine B. Rogers, one-eighth; Mamie W. Williamson, one-fourth; Fannie C. McNeill, one-fourth. And 1 further find that the devisees named and the estate covered by said articles is in' no manner affected by this suit.
“Third. X further find that article No. 6 of said will, which is the basis of this suit for the construction of the said will, provides as follows: ‘I do will and bequeath to J. C. Mc-Neill, Sr., Louis J. Wilson and M. B. Williamson, as trustees, for the use and benefit of Annie Lee Cox, Lottie May Cox and C. R. Cox, Jr., children of my deceased son, C. R. Cox, Jr., one-fourth (⅛) of all the estate and property, real and personal and mixed, of which I may die seized and possessed or which I may own or be entitled to at the time of my death. In the event of the death of either the said Annie Lee, Lottie May, or C. R. Cox, Jr., the bequest mentioned in this item 6th, shall be used by said trustees for the benefit of such of said three children of my deceased son, C. R. Cox, Jr., as may survive.’
“Fourth. I find that article No. 7 of said will provides as follows, to wit: ‘I hereby appoint J. C. McNeill, Sr., Louis J. Wilson and M. B. Williamson, in whom I have full faith and perfect confidence, joint and several independent executors of this my last will and testament, and X do hereby specially exempt the said J. C. McNeill, Sr., Louis J. Wilson and M. B. Williamson, and each of them, from giving any bond or security either as executors or trustees under this will, and I do now specially provide that no action shall be had in any court in i-elation to my estate or the settlement thereof other than the probate of this my last will and testament and the return of an inventory and appraisement of my estate. I do further provide that all titles, rights, and powers vested in said J. C. McNeill, Sr., said Louis J. Wilson and said M. B. Williamson as such executors and trustees under this will, are vested in them severally as well as jointly, and in the event of the death, resignation, or failure to act either of my said executors or trustees the survivor or other executors or trustees herein named shall have full power and authority to perform all the acts, and he vested with all powers, rights, titles and discretions herein conferred upon them.’
“Eifth. I find that article No. 8 of said will provides as follows, to wit: T do hereby give and grant to said J. C. McNeill, Sr., said Louis J. Wilson and said M. B. Williamson, jointly and severally, full power and authority, in their capacities as executors, or executor, trustees or trustee, to make sale and conveyance of any part of my estate, real and personal, in such manner, at such times, at such prices, and on such terms, as in their or his judgment may seem proper, and to execute all necessary deeds of conveyance and bills of sale, and to receive the purchase money for real and personal property sold, and generally to do and perform all such acts, and make such sales of my estate as they may deem best, and to sell and 'convey all the property of my estate, and to receive and I do specially authorize my said executors and trustees hereinbefore named, jointly and severally, to make partition of my estate, and make partition of the proceeds thereof according to the foregoing provisions of my will.’
“Sixth. I further find that by article No. 9 of said will the testator intentionally omitted and cut off from any benefits under his will two of his daughters, to wit, Mrs. Hattie O. Hinkle and Mrs. Carrie L. Mather, and also the children of another deceased daughter, to wit, Mrs. Minnie C. Beese.
“Seventh. I find that the defendants, as executors, acting under the powers given them in the will, took possession of the property, real and personal, belonging to the estate, and have sold or contracted for sale all the estate except two small tracts of inconsiderable value, one of which is situate in Brazoria county, and the other in Lee county, Tex., and have received and distributed to the beneficiaries about $40,-000 of the purchase money so received from such contracts of sale; and that such part of the sales as are not yet completed by conveyances is merely delayed pending the perfecting of titles to the tracts of land involved, and which is now in course of completion.
“Eighth. I find that the defendants, executors aforesaid, acting under the powers conferred upon them by the will, as such executors, have received the proceeds of such sale, and have made two distributions among the devi-sees mentioned in said will, to wit, three-fourths of the amount (net) distributed was delivered and paid over to the devisees named in articles Nos. 2, 3, 4, and 5 of the will; and one-fourth of the amount (net) thereof, amounting to the sum of $12,472.68, was turned over by said executors, to themselves as trustees, for the use and benefit of Annie Lee Cox, Lottie May Cox, and C. R. Cox, Jr., plaintiff’s wards, and that said sum was deposited by them as trustees in bank on time deposit at 4 per cent, interest, and that said sum is still on deposit.
“Ninth. I find that the defendants, J. C. Mc-Neill, Sr., Louis J. Wilson, and M. B. Williamson, as trustees, now have cash in bank to their credit ⅛ sum of $12,686.26 upon which interest is payable at the rate of 4 per cent, per annum from July 10, 1917, to them as trustees for the use and benefit of Annie Lee Cox, Lottie May Cox, and C. R. Cox, Jr., plaintiff’s wards; and I find that said trustees also have in their possession and control certain vendor’s lien notes aggregating the sum of $432.55, which were executed by C. L. de St. Aubin and his wife, Lottie R. de 'St. Aubin, payable to John Southerland and purchased of Ed. Kilbridge, the then legal holder thereof, by said trustees, said notes being secured by the vendor’s lien on lot No. 12, and the west half of lot No. 11, in block No. 35, of Bay City, Matagorda county, Tex.
“Tenth. I find that Lottie R. de St. Aubin, plaintiff, is the duly qualified and acting guardian of the persons and estate of the minors, Annie Lee Cox, Lottie May Cox, and C. R. Cox, Jr., children of C. R. Cox, Jr., deceased, the devisees named in article sixth of the said will of C. R. Cox, Sr., deceased, and that said Lottie R. de St. Aubin, guardian, is so- qualified and' acting under the orders and jurisdiction of the county court of Matagorda county, Tex.
“Eleventh. I find that Lottie R. de St. Au-bin was guardian of the persons and estates at and before the death of the testator C. R. Cox, Sr., deceased, and that said testator knew that she was acting in that capacity.”

The primary rule to be observed in the construction of a will is to give to the instrument the effect intended by the testator, and this interpretation must be ascertained from a consideration of the language used by the testator in the will, the nature and extent of the property bequeathed, the status and surroundings of the beneficiaries, • and any arid all circumstances connected with the making of the will which in any way tend to disclose the testator’s intention and assist in understanding the language of the will as the testator intended it to be understood.

With this rule in mind, we do not ' think the construction of the provisions of the will above set out presents a question of much difficulty.

In the sixth paragraph of the will the testator in clear and unambiguous language bequeaths to appellants as trustees for the use and benefit of his three named minor grandchildren one-fourth of all of his estate, which the evidence shows consisted of lands, cattle, and money of the aggregate value of more than $50,000, and directs that if either of the three minor beneficiaries should die the bequest should be used by the trustees for the benefit of such of said children as might survive. In the next paragraph he appoints appellants, in whom lié declares lie lias full faith and perfect confidence, joint and several executors of his will, and then directs that no bond or security of any hind shall be required of appellants, either as executors or trustees, and that no action shall be had in any court in relation to his estate or the settlement thereof other than the probate of the will and return of an inventory and appraisement of the estate. He then directs and declares that the title, rights, and powers vested in appellants as executors and trustees are vested severally as well as jointly, and in event of the death, resignation, or failure of any one of them to act as such executor or trustee' the surviving or remaining executor or trustee shall have all of the powers, rights, and authority conferred upon all of them. In the next paragraph appellants are given jointly and severally, both as executors and as trustees, the fullest power to sell and convey any portion of the estate and receive the purchase money therefor, and generally to do and perform all such acts and make such sales of the estate as they might deem best. He then directs that the estate or the proceeds arising from its sale shall be partitioned by appellants “according to the foregoing provisions of this will.”

It is manifest from the will itself that it was the intention of the testator to confer upon appellants rights and powers and impose upon them duties in addition to those of independent executors of the will, with power to -take' possession of the estate, settle its affairs, and make partition of the property of the estate, or of its proceeds if they should deem it best to sell the property. If this was all he intended why was the one-fourth interest in the estate bequeathed to them in trust for the use and benefit of the minor grandchildren, and why was he so careful in every provision of the will in which rights and powers are conferred on appellants to expressly state that such rights and powers were conferred on them as executors and as trustees? It would be a strained and unreasonable construction of the will to say that the testator meant nothing by bequeathing the property to appellants as trustees, and by repeatedly emphasizing the fact that as to the one-fourth interest in the estate bequeathed to the minor grandchildren they occupied a position different from that of executors of the will with the powers before stated, and this is the effect of the construction placed upon the will by the trial court.

Appellee, who is the mother of these minor children, was their duly and legally appointed guardian, and was acting as such at the time this will was executed. The testator knew this fact, and we must presume that he knew, if he only intended to give the appellants power as independent executors to settle his estate and make partition thereof as directed by the will, it was wholly unnecessary to bequeath the property to them in trust for the use and benefit of the minors, and entirely unnecessary to give them the power to sell the property as trustees for the minors. We must, if we can, give full effect to all of the provisions of the will and assume that the testator has some purpose and intent in each and all of the directions expressed in the will. We do not think the intention of the testator in making the provisions above set out is far to seek. Such intention is made clear by the provision in the sixth paragraph of the will, above set out, that in event of the death of any of the named minor beneficiaries, the property bequeathed to the appellants as trustees shall be used by them for the benefit of such of said beneficiaries as shall survive. We think this provision clearly shows that the trust created by the will is more than a mere dry, passive trust, but one which imposed upon the trustees the duty to use the property for the benefit of the beneficiaries. The illuminating effect of this provision of the will is not lessened by the suggestion of appellee’s counsel that it only gives appellants the right to -use the property for the benefit of the minors in event of the death of one of them, and, under the rule “expressio unius est exclusio alterius,” must be regarded as a definite restriction upon the power to use. The rule quoted can have no application here. If there was nothing else in the will or in the circumstances disclosed by the evidence to indicate that appellants were given powers greater than those conferred upon them as executors of the will, it may be this rule of exclusion could be applied, but, considering the will as a whole, in the light of all of the circumstances attending its execution,, it could not be held with any show of reason that the testator intended that the appellants could not hold and use the estate-for the benefit of the beneficiaries unless one of them died. It seems to us that such construction of the will is not permissible-upon any sound theory or under any established rule of construction.

We think a fair construction of the will' sustains appellants’ contention:

“That under its provisions one-fourth of the-estate of the testator was vested in them, and in the survivors or survivor of them, jointly and severally, as trustees for the use and benefit of said Annie Lee Cox, Lottie May Cox,, and C. R. Cox, Jr., children of C. R. Cox, Jr., the deceased son of C. R. Cox, or such of them as may survive, and that said trustees, and survivors or survivor of them, jointly and severally, are by said will authorized, empowered, and required to hold and possess such one-fourth of' said estate until said Annie Lee Cox, Lottie-May Cox, and C. R. Cox, Jr., or such of them as may survive, shall reach the age of 21 years, and that during the minority of said beneficiaries-of said trust said trustees, and the survivors or survivor of them, jointly and severally, are authorized and empowered to make sale and conveyance of the whole or any part of such one-fourth of the estate of said O. R. Cox, deceased, real and personal, in such manner, at such times, and on such terms as in their or his judgment may seem proper, and to execute all necessary deeds of conveyance and bills of sale, and to receive- the purchase money for real and personal property sold, and generally to do and perform all such acts and to make all such sales of such one-fourth of said estate as they or he may deem best, and also to use such one-fourth of said estate for the benefit of said Annie Lee Cox, Lottie May Cox and C. R. Cox, Jr., or such of them as may survive, as they or he may deem best, and also to make partition of such one-fourth of said estate among said Annie Lee Cox, Lottie May Cox, and C. R. Cox, Jr., or such of them as may survive, or to sell such one-fourth of said estate and to receive the purchase money and make partition of the proceeds thereof among said Annie Lee Cox, Lottie May Cox, and C. R. Cox, Jr., or such of them as may survive.”

The will does not expressly limit the duration of the trust to the coming of age of the minor beneficiaries, but it must be so construed, and, when any of said minors becomes of age, or his or her disability is removed, or either of the minor girls marry, it would then be the duty of the trustees to turn over the property bequeathed to such beneficiary.

The principles and reasoning upon which our conclusions are based are illustrated by the cases of Lanius v. Fletcher, 100 Tex. 550, 101 S. W. 1076, and Beckham v. Beckham, 202 S. W. 517. None of the cases cited by appellee sustains the judgment of the trial court.

The judgment of the court below is reversed, and judgment here rendered construing the will in question as above indicated.

Reversed and rendered.

On Rehearing.

PER CURIAM.

Motion for rehearing refused.

GRAVES, J.

(dissenting).

Being convinced

upon rehearing that our former construction of the will here involved was erroneous, and that the motion for rehearing should be granted and the trial court’s judgment affirmed, it becomes a duty under the statute to enter of record the grounds of my dissent from the court’s order overruling the motion.

Feeling that I cannot otherwise better do that, the liberty is taken of here adopting, with very slight changes, and as embodying my own view of the proper construction to be placed upon the will, the following able argument made by counsel for appellees upon rehearing:

“There can be no possible contention that article 8 of this will did not create a trust for the whole estate; and appellants were .therein named as trustees for all the devisees. It definitely provided a termination, or an act of termination, for such trust, and there can be no doubt that the appellees recognized and obeyed its provisions to the extent of three-fourths of the estate. There is not an expression or a provision in the entire will indicating or supporting the theory that the trust for the minor children was to exist for a moment longer than was required for the completion of the trust in behalf of the remaining devisees under such general and controlling trust.
“The will itself indicated the purpose and intent and the wisdom of this general trust over the whole estate, and in providing that it should remain in the hands of the trustees, named and authorized as trustees, until partitioned and distributed by them.
“When a testator in language showing anger and bitterness, and without the least expression of valid reason therefor, cuts off three of his children from any benefit under his will, it does not require a wise man to foresee litigation over such a will at the instance of the injured ones, and the result foreseen was not absent from this case. Certainly it was wise to secure the continued possession of his estate in the hands of his trustees, not executors, until they could partition and distribute.
“If within the four corners of the will the motive and intent of the testator can be found, then it is not permissible to go .outside and give effect to circumstances, conditions, or facts, which may or may not have been even remotely considered by the testator when he made the will. In fact, such a course is dangerous in the extreme, and will almost inevitably result in a construction of his will never dreamed of by him.
“Was it not wise for the testator, in view of the possibility or probability of prolonged litigation over the will, to cover his whole estate into the hands of trustees under a personal and specific express trust? Certainly, for executors, as such, can 'only perform certain duties and exercise certain powers, which must be performed within a reasonable period of time; they can also be deprived of control and possession at any time under the law by devisees, creditors, or heirs; not so a trustee under an express trust containing broad discretion, complete confidence, adequate powers of sale at discretion, and directing a certain discretionary act for the termination of the trust. It cannot be contended for an instant that the testator did not recognize the difference in powers and authority, and the difference in security and safety of his estate in the hands of trustees rather than executors, for he names them as executors and trustees everywhere that the performance of any of those trust acts is involved or authorized; beyond that, he gave no directions to appellants as executors. Article 8 of the will is illuminating on this issue, for it contains the only active trust provided for in this will. It is inconceivable that an executor, as executor, could be invested with the unbridled powers named in this will, viz.: ‘To sell the estate, or any part of it, at such times, at such price, and on such terms as to him or them may seem proper, and then to partition the same in his discretion among the devisees.’ As a matter of fact, the law protects devisees, heirs, and creditors, and allows them to relieve such executor of his powers and secure possession of the estate. There can be no doubt that this law was enacted as a means of relief from just such unbridled authority in executors, when independent of the control of the court by the terms of a will. But if such powers are given to a trustee, they cannot be interfered with by any one so long as actual fraud is absent.
“We most earnestly submit that this testator, having provided this trust for his whole estate, having placed it in the hands of appellants as trustees, and having provided that partition thereof should end the trust, this provision for partition covered and applied to the interest of these minor children, as well as to all other devisees, unless there can be found in the will some other express power extending the trust over that portion of the estate owned by the minors. The general trust covering the whole of the estate created in article 8, the powers therein given of sale and partition, and the act of termination therein provided must govern the construction of the whole will, for therein is indicated the final and controlling purpose and intent of the testator. We submit that there is not a line, syllable, or word in the entire will which can reasonably or consistently be construed as a power or direction to extend the trust for a longer period over the portion belonging to the minors. There is only one word in the will, and it occurs in the last clause of the sixth article, upon which even the semblance of such a contention could be predicated. This clause provides that the bequest to the three minors should be ‘used’ by the trustees, in the event of the death of either, for the survivor or survivors. This is a contingency that might occur pending the life of the general trust, and it fully explains the creation of this special trust for the minors. Without this provision, one-half of the interest of the child so dying would have gone to the mother.
“It seems to us that the reasonable and common-sense construction, in fact the necessary construction, of this clause of article 6 must be that it was intended as a word of devise to cover the contingency of death during the pen-dency of the general trust. For if the word ‘used,’ and the power connected with and dependent thereon, be otherwise construed, inevitably, it seems to us, this trust must be held to endure until one of the children dies. Such a construction is not only unreasonable, but in the face of the whole will.
“Wé submit that the court has clearly erred in failing to give the proper and necessary effect to the trust created in article 8 covering the whole estate.
“We further submit that the cases of Lanius v. Fletcher [100 Tex. 550], 101 S. W. 1076, and the case of Beckham v. Beckham, 202 S. W. 517, do not support the judgment rendered in this case. In the case of Lanius v. Fletcher there was a clear and definite provision of the will, that: ‘Mr. Lanius [the trustee] shall hold her [Mrs. Anna E. Fletcher’s] portion as trustee and keep it invested, paying her' the interest during the lifetime of her husband, John S. Fletcher, and only the interest shall be paid her.’ And the court, commenting on this matter, says: ‘She very clearly and distinctly expressed the purpose that the portion should go into the hands of the trustee and be held for the benefit of the daughter during the lifetime of the husband.’
“In Beckham v. Beckham, the trustee was the grandfather of the beneficiaries, the estate in his hands was largely indebted, and he had only paid off $3,000 of the $12,000 of the debt. There were several other parental conditions also, which the court considered in passing on the will. From our reading of these cases, we feel that in principle and reasoning they are fairly adverse as authorities to the judgment of the court here.
“Delegated powers are and ought to be strictly construed. In a careful examination we have found no case in which this fundamental and universal rule has been changed.” Kennedy v. Pearson, 109 S. W. 283, 1st col.; Wisdom v. Wilson, 127 S. W. 1128; Hunt v. White, 24 Tex. 650, 651; Stephenson v. McFaddin, 42 Tex. 329; Moss v. Helsley, 60 Tex. 438; Parrish v. Mills, 101 Tex. 282, 106 S. W. 882; 2 Underhill on Wills, § 783; Webb v. Hayden, 166 Mo. 39, 65 S. W. 761; Day v. Brenton, 102 Iowa, 482, 71 N. W. 538, 63 Am. St. Rep. 468; Cyc. vol. 39, p. 194, and notes 1, 2, and 3.

Believing that the trial court correctly interpreted the will, this protest against a contrary holding is respectfully, but earnestly, entered.
      igx^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PLY, C. J.

license: Public Domain

text:
    TRAMMELL v. SAN ANTONIO LIFE INS. CO.
    (No. 6162.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1919.
    Rehearing Denied March 19, 1919.)
    1. Limitation of Actions <⅜=»127(4) — Amendment of Pleadings — Restating Original Cause.
    Where the substantial facts in the petition and in each amended petition were that defendant had obtained money from plaintiff under contract to make a loan on plaintiff’s land, and to issue a life insurance policy, which contract defendant had breached and refused to return the money, a recovery under either of the petitions would bar recovery under the others or either of them, and there was no change of cause of action to subject it to operation of statute of limitations.
    2. Limitation of Actions <&wkey;125 — Commencement of Action — Substitution of Parties.
    Where plaintiff, in petition and amended petitions, prayed judgment for himself for rescission of contract and for money paid, and in amended petition asked the same for the use and benefit of plaintiff bank, there was not such a change in the names of the parties as to set up a new cause of action and subject it to the operation of the statute of limitations.
    3. Pleading &wkey;>ll — Matters of Evidence-Breach of Contract.
    In action for money paid by plaintiff to defendant insurance company, upon verbal promise of company’s agent, ratified and approved, to make a loan and issue a policy, the basis of the recovery was the company’s breach of agreement, and plaintiff was not required to set out in his petition the application for insurance, which was a matter of evidence.
    4. Insurakce <&wkey;36 — Ultra Vires Act — Return of Money Secured.
    . An insurance company securing money under and by means of an ultra vires act or contract is not justified in appropriating it and refusing to pay it back.
    5. Principal and Agent <&wkey;156 — Unauthorized .Contract — Principal's Liability to Third Person.
    The principal will not be permitted to receive money belonging to another and keep it under the plea that the agent was not authorized to make the representations he did to secure the contract with plaintiff which the principal breached.
    6. Contracts <&wkey;13S(3) — Money Paid' Under Illegal Contraot.
    When money has been paid on an illegal contract, it can be recovered as long as the contract remains executory.
    7. Contracts &wkey;138(3) — Actions for Return of Premium — Defenses.
    In an action to recover money paid to an insurance company under its agent’s agreement to furnish a loan and policy, which contract was not fulfilled by the company on the ground that it was illegal and ultra vires, the contract being executory, plaintiff could recover, since the parties are not in pari delicto.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Suit by H. L. Trammell against San Antonio Life Insurance Company. Prom a judgment dismissing the complaint, plaintiff appeals.
    Reversed and remanded.
    Carlos Bee, of San Antonio, and R. C. Gaines, A. E. Masterson, and A. R. Rucks, all of Angleton, for appellant.
    Munson & Williams, ol-Angleton, and John P. Onion and Seay & Seay, all of Dallas, for appellee.
   PLY, C. J.

Appellant instituted this suit against appellee to recover the sum of $13,-512, which was paid as a premium on a life policy for $400,000 by appellant to appellee. The allegations of the petition, condensed, amount to a claim to the premium on the ground that an agent of appellee contracted with him for a loan on his farm for $400,000, which was to be secured by a lien on said farm and ⅜ policy on the life of appellant in the sum of $400,000; that with that understanding appellant had paid the premium, but appellee not only refused to give the policy, but also refused to grant the loan as it had promised. Not only was it alleged that the agent had made the contract, but that said contract was confirmed and ratified by appellee through its president, Henry A. Hodge, after it had been made, and that said president had authorized the agent to make such contract before he consummated it. Appellee attacked the petition by a general demurrer and 11 special exceptions. The general demurrer was overruled, but the 11 special exceptions were sustained, and, appellant declining to amend, the cause was dismissed.

This cause was heard upon a third amended original petition, and it is the contention of appellee that the cause of action contained, in that pleading is different from the one contained in the first amended petition, and is'barred by limitation. The original petition was filed on July 13, 1914, and was brought by appellant against appellee, alleging that on September 11,1913, he had drawn a draft on the Angleton State Bank for $13,-512, payable to the agent of appellee; that it was so drawn to pay for a life policy, and that the draft was accepted and collected by appellee, but that it had refused to issue and deliver the policy. There were no allegations as to any promise to lend money to appellant.

In the first amended petition the Angleton State Bank and E. J. Hodges are joined as plaintiffs, and they ask for the same amount as in the original petition, and made the additional allegations as to a promise on-the part of agents of appellee to procure a loan from appellee for appellant, the policy to be used as additional ■ security for the-loan. It was also alleged that the money sued for was due “Angleton State Bank, or-to H. L. Trammell, or E. J. Hodges,” cashier of said bank. It was further alleged that the bank “for the account of” appellant paid the sum of $13,512 to appellee. Appellant prayed for rescission of the contract and for-judgment for the money paid for the use and benefit of the bank. That petition was filed on May 29, 1917.

On November 12, 1917, the second amended, petition was filed in which the allegations, were similar to those in the first amendment, Harry L. Seay, liquidating officer of the insurance company, being added as a defendant, and the prayer was a judgment for the-bank or for its use and benefit.

On January 17, 1918, the third amended petition, against which the exceptions were-sustained, was filed, and again appellant appears alone as plaintiff, and after setting up-the same cause of action as in the previous petitions prays for judgment in his favor for-$13,512.

Evidently the suit was for the same-amount of money against the same defendant, based on the same grounds in the four-petitions, and the cause of action is the same in all of the petitions, namely, an action for-$13,512 paid to appellee by appellant, unless tbe first and second amendments created a new and different cause of action by asking ¾ that the judgment be for the use and benefit of the Angleton State Bank. In all of the petitions it was alleged that the policy, although paid for, was not issued. Appellant did not change the character in which he sued, but at all times sought to maintain the suit in his individual capacity. He showed by his allegations that he' had drawn on the bank for the money, and it had paid it, and he sought through the medium of the suit to repay it. It was his money all the time, although in the first and second amended pleadings he desired to let the bank have the benefit of the judgment. If a judgment had been rendered in favor of appellant under the original petition, appellee would have been fully protected against any claim the bank might have set up to the money, and if the bank had obtained the money that would have been a perfect defense to any claim by appellant. In all of the petitions appellant was seeking to recover the same money, and the suit was not changed by setting up more details as to how the debt became due, nor by asking that the bank might have the benefit of the amount recovered. The different amendments merely amiflified and rendered more precise the allegations in support of the cause of action alleged in the original or first amended pleadings, both of which were filed before limitation had barred the cause of action. The substantial facts were that appellee had obtained money from appellant under certain conditions, and had breached them, and refused to return the money, and a recovery under either of the petitions would bar a recovery on the others or either of them.

In the case of Ferguson v. Morrison, 81 S. W. 1240, it was alleged in the original petition that Ferguson had a warranty deed to the land, and in an amendment it was alleged that the land was conveyed to Ferguson in trust for the grantors in the deed, and the court held that the amendment did not set up a new cause of action.

In each of the petitions appellant was a party and praying for a judgment in his favor, for himself or for the use of others, and, if it could be held that limitation would run, it would not be against him, but against the Angleton State Bank. A judgment under either.of the petitions would protect appel-lee against any further claim by any one for the $13,512. Becker v. Street Railway, 80 Tex. 475, 15 S. W. 1094; Foster v. Railway, 91 Tex. 631, 45 S. W. 376; Railway v. Reed, 203 S. W. 410.'

In the case of Roberson v. McIlhenny, 59 Tex. 615, the court said, in discussing whether the addition of other plaintiffs would constitute a new cause of action:

“It would not be in keeping with the spirit of our very liberal law of amendment to hold that such changes in the pames of the parties set up a new cause of action, and subject it to the operation of the statute of limitations.”

This court cited the Roberson-Mcllhenny Case, and following it said:

“The law of amendment in this state is liberal, and it would be contrary to its spirit to hold that the addition of a new party, or even a change of the capacity in which one of a number of plaintiffs sue, would be setting up a new cause of action. If there had been an entire change of parties, or the capacity in which they sued, there might be some force in the contention, but even in that event the matter would resolve itself into one of costs.” Laughlin v. Tips, 8 Tex. Civ. App. 649, 28 S. W. 551.

The basis for the recovery of the sum of money claimed by appellant was not the application for insurance, but the verbal promise made by appellee’s agent, and ratified and approved by it, and it was not necessary to set out the application for insurance in the petition. That was a matter of proof, and appellant was not required to set out his evidence in his petition, not even if it formed the basis of the suit. The exception was entirely too techftical, and should have been overruled. Ins. Co. v. Freeman, 19 Tex. Civ. App. 632, 47 S. W. 1025.

It may be that the promises made by. the agent and ratified by the insurance company were ultra vires and void, but that would not authorize the company to appropriate the money of appellee and give nothing in return for it. As to discrimination, there was nothing in the pleadings tending to show that there was any discrimination in favor of appellant.

Strong reliance is placfed by appellee on the case of Gause v. Ins. Co., 207 S. W. 346, decided by the Court of Civil Appeals for the Second District, in 'which it was held that a promise to make a loan which was breached was not a good defense to a promissory note given for the premiums on life policies issued to the maker of the note. The judgment of the lower court could have been affirmed on other grounds, and the decision on the nullity of the contract for the loan was unnecessary; for the maker of the note had admitted in writing, long after the note was executed, that he owed it, and he also showed that there had been no contract to make a loan. It is clear from the opinion that the defendant had received the policies and was receiving the benefit of the insurance. In the present case appellant had received nothing for his money — no policy and no loan. Getting money under and by -means of an ultra vires act does not justify a corporation in refusing to pay it back and appropriating it. The allegation is that if the loan was not made the money should be returned, and that was not ultra vires, and appellee should be held bound by it. The distinct understanding was that if there was no loan no policy should be issued and the money returned. This court in the case of Mutual Reserve Life Ins. Co. v. Seidel, 52 Tex. Civ. App. 278, 113 S. W. 945, in which a promissory note was given to an insurance company upon the agreement with an agent that the maker of the note might reject the policy if he so desired, and as soon as it was executed it was sold by the agent to an innocent purchaser, held:

“In this connection it may be stated that the fraud of the authorized agent will invalidate a contract entered into by him on behalf of his principal, though in perpetrating the fraud he acted without the knowledge or consent of the principal.”

Again this court held:

“If the agent, Underwood, acted, as claimed by appellant, in excess of his authority, * » ⅜ without the knowledge or consent of his principal rendered the contract nugatory, and neither party could obtain any advantage, and appellant should be compelled to return the money to appellee which it has unauthorizedly obtained from him. It should not repudiate the acts of its agent and still profit by those acts.”

To the same effect is the decision in the case of Ins. Co. v. Hargus, 99 S. W. 580. Ap-pellee will not be permitted to receive money belonging to another and keep it under a plea that the agent was not authorized to make the representations he did to appellant

It was alleged that no insurance policy was ever delivered by appellee to appellant, and consequently could not be accepted, and it was alleged that it was agreed that it should not be delivered or accepted unless accompanied by a loan. The contract was an executory one, and the rule is thoroughly established that when money has been paid on an illegal contract it can be recovered as long as the contract remains executory. Lewy v. Crawford, 5 Tex. Civ. App. 293, 23 S. W. 1041; McCall v. Whaley, 52 Tex. Civ. App. 646, 115 S. W. 658. Appellant is not seeking to enforce an illegal contract, but he wants the money back obtained from him through a fraudulent and void contract. He seeks to disaf-firm and destroy the illegal contract, and have both parties placed in the same position they occupied before the void contract was made. Federal Life Ins. Co. v. Hoskins, 185 S. W. 607. If the contract for the policy was illegal, appellee will not be permitted to profit by it, but will be forced to return the money and leave the parties as they were when the contract was made. The ease of Beer v. Landman, 88 Tex. 450, .31 S. W. 805, cited by appellee, is not in point. The parties are not in pari delicto, &nd the contract in that case was executed, and the distinction is made in the case cited between the rules in executed and executory contracts.

None of the special exceptions should have been sustained, and the judgment is reversed and the cause remanded.
      «SrsEor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

      (S=»For otter eases see same topic and KEY-NUMBER in all Key-Numbered Digests and .Indexes . .


author: RASBURY, J.

text:
    PERKINS et al. v. ALEXANDER.
    (No. 8140.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 15, 1919.)
    1. Chattel Mortgages <§=>33 — On Crops to be Grown — Eneokcement.
    A chattel mortgage on future crops is enforceable in equity, when the crops come into the possession of the mortgagor, if their acquisition was contemplated when the mortgage was made.
    2. Chattel Mortgages <§=>48 — Future Crops — Description—Sufficiency.
    It is not necessary to name the year in which the crops are to be grown, in order to make the mortgage on a future crop a valid one, since what the parties contemplated at the time controls.
    3. Chattel Mortgages <§=>48 —On Future Crop — Evidence.
    In suit to foreclose a mortgage covering all crops grown for the year 1915 and all succeeding years, evidence that the mortgagor was plaintiff’s tenant in 1915, and continued as such during 1916 and 1917, sufficiently showed that the parties contemplated .when the mortgage was made that a crop would be grown on the leased land in 1917.
    4. Pleading <§=>228 — Exception to Petition —Questions Presented.
    In suit to foreclose mortgage covering crop for the year 1915 and all succeeding years, whether the parties contemplated that a crop would be grown on the premises in 1917 was in. a measure a question of fact, which could not be determined by exception to plaintiff’s petition.
    5. Evidence <§=460(12) — Situs of Property —Parol Evidence.
    In suit to foreclose a mortgage upon all crops “grown on the farm I am now living on,” the situs of the land could be made certain by parol evidence.
    6. Bankruptcy <§=>438 — Defense to Suit-Payee’s Bankruptcy.
    Where plaintiff failed to schedule note in bankruptcy proceeding and inferentially concealed it from trustee, he could not, after having been adjudged a bankrupt, maintain suit on note and foreclose mortgage secui'ing it, without showing that trustee had not elected to claim note, or refused to do so.
    7. Trial <§=>260(9) — Instruction Substantially Given — Refusal.
    Instruction that, if plaintiff mortgagee authorized or knowingly permitted mortgagor to sell mortgaged property in open market, there would be a waiver of mortgage, though mortgagor failed to properly apply proceeds, held substantially covered by the more favorable charge given.
    8. Trial <§=3229 — Instructions—-Repetition of Issues.
    Where issue whether plaintiff was precluded from foreclosing mortgage, because of having authorized or ratified sale of mortgaged property in open market, was presented by given instructions as one of waiver, defendant was not entitled to have the issue presented as one of estoppel.
    9. Judgment <§=256(1) — Verdict and Findings — Necessity.
    • Although execution of chattel mortgage was undisputed, where court directed jury to find for its foreclosure if they found for plaintiff on the other issues, foreclosure could not be had without an express finding for foreclosure.
    Appeal from Freestone County Court; G. W. Fryer, Judge.
    Suit by Ernest Alexander against Cornelius Perkins and another. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    A. B. Rennolds, of Mexia, and Bex Smith, of Fairfield, for appellants.
    McVey & McVey, of Teague, for appellee.
   RASBURY, J.

February 5, 1915, Cornelius Perkins executed and delivered to Ernest Alexander his negotiable promissory note for $360.10, .providing for conventional interest and conditional attorney’s fees, due September 15, 1915, and secured in payment by chattel mortgage executed and delivered concurrently with the note. January 3, 1918, appellee, Ernest Alexander, sued appellant Cornelius Perkins to recover the amount due on the note and to foreclose the mortgage lien securing payment thereof, joining the appellant Paul Norman in the suit, and alleging in substance that he had purchased five bales of cotton covered by the mortgage lien with constructive notice thereof. Prayer was for judgment for the sum due on the note, foreclosure of the lien against both appellants, and alternately for judgment against appellant Norman in event he had disposed of the cotton purchased by him for the value thereof. There was trial to jury, which returned verdict for appellee, Alexander, against appellant Perkins for the sum then due on the note, and against appellant Norman for $250. Judgment followed the verdict, and in addition foreclosed the chattel mortgage lien on the crops grown by appellant Perkins for the year 1917. From the judgment recited, Perkins and Norman have appealed and assigned errors.

The first three assignments of error challenge the action of the trial judge in overruling exceptions presented by appellants to appellee’s petition, to which was appended a copy of the chattel mortgage. The effect of the exceptions is to assert that, the chattel mortgage was insufficient to create a lien on crops grown subsequent to its execution, because it did not specify the future crop, by year, and failed to describe the land upon which such crops were to be grown and its situs. The provision in the chattel mortgage which undertakes to describe the property conveyed recites that appellant Perkins bargains, sells, and conveys to appellee, Ernest Alexander, etc.,

“all crops of cotton and corn or any other crops grown on the farm I am now living on, said farm being the one sold to Ernest Alexander, or any other crops that I may raise on any other land for the year 1915 and all succeeding years until the amount of this note is paid.”

It is settled law in this state that chattel mortgages on future crops are enforceable in'equity. Richardson v. Washington, 88 Tex. 345, 31 S. W. 614. Thé distinction between proceedings in law and equity in such cases is elaborately and thoroughly expounded in the case cited, and we apprehend it is unnecessary to restate in this opinion those reasons, but will confine ourselves to an application of the facts in the present case to the rule there stated. That rule in final analysis, as reflected in the syllabus, is that a chattel mortgage lien given on crops not then in existence and to be grown on land to which the mortgagor has no lease at the time or does not own may be enforced in equity on the crops when they do come into possession of the mortgagor, if their acquisition was contemplated at the time the mortgage was made. Omitting the reference to crops grown on other lands, and other matter which does not affect the meaning, the chattel mortgage under discussion was to be upon—

“all * * * cotton ⅜ * ⅜ grown on the farm I am now living on * ⅜ * for the year 1915 and all succeeding years until the amount of this note is paid.”

We do not understand that it is absolutely necessary to name the year in which the crops are to be grown, in order to make the mortgage a valid one. What the parties contemplated at the time controls. In the case cited the mortgage which was declared a valid one was for the year 1892 and “succeeding years” until the debt was paid. The only other facts tending to show what the parties contemplated at the time was that Richardson was a tenant at the time the mortgage was given, and had been for five or six years prior thereto, and in the latter part of 1892 became a tenant for the year 1893. In holding that the facts related sufficiently established that the parties, at the time the mortgage was executed, contemplated and intended to cover the crops which might be grown on the land in the year 1893, the court declared that—

“If A. agree that B. shall have a lien upon the wool to be grown on certain sheep or the crop to be raised on certain land, neither the sheep nor the land being owned by A., it is no answer to the suit brought by B. for the enforcement of such lien for A. to show such nonown-ership, if he be now the owner of the wool or crops.” '

In the case at bar the evidence shows that Perkins was a tenant on the Alexander farm in 1915, and inferentially prior thereto, and continued as such tenant during 1916 and 1917. Such facts are as strong, in our opinion, as those in the Washington Case for the purpose of showing that the parties contemplated when the mortgage was given that a crop would be grown on the leased land in the year 1917. There was, therefore, in oui opinion, no error in overruling the exceptions.

Further, it is obvious, from what we have said, and from the Washington Case, that what the parties contemplated is in a measure a question of fact, and a matter that could not be determined by exception.

As much can be said concerning the identification of the leased land. While there is nothing in the chattel mortgage which alone describes and fixes the situs of the land, at the same time such situs may be made certain by parol testimony, which is always admissible in such cases.

It is next urged that the court erred in refusing to peremptorily direct verdict for the appellants on the ground that appellee had no title to or interest in the note sued on. The facts on the issue so presented are ■few and are not in controversy, and fail to disclose many essential facts necessary to dispose of the point. Appellee, before the institution of the present suit, was adjudged, a bankrupt. At the time of the adjudication appellee was the owner of, but failed to schedule, the note sued on. The reason why he did not schedule it was that it was in the hands of creditors as collateral security. After appellee was discharged in bankruptcy, he paid the debt for which the note sued on was security, and in that manner received the note. In Lasater v. National Bank, 96 Tex. 345, 72 S. W. 1057, our- Supreme Court declared generally that, after the bankrupt’s estate had been administered and the trustee discharged, the bankrupt could recover unadministered assets. In that case the bankrupt sued to recover under federal statute double the amount of usurious interest paid a national bank, and which right of action accrued to him before he was adjudged a bankrupt. Subsequently the case reached the Supreme Court of the United States. First National Bank v. Lasater, 196 U. S. 115, 25 Sup. Ct. 206, 49 L. Ed: 408. There the judgment of our Supreme Court was reversed, and the proceeding remanded to the district court. The holding of that court in substance was that the right to assert the cause of action for the usury penalty was transferred to the trustee when Lasater was declared a bankrupt, and that while the trustee was not bound to accept property of the bankrupt of an onerous or unprofitable char-aetér, yet the trustee had a reasonable time in which to elect to take such assets, but that such doctrine did not obtain when the trustee was ignorant of the existence of the property and had had no opportunity to make an election, adding that the claim for the usury penalty was something to which the creditors were entitled, and could not be appropriated by the bankrupt by withholding knowledge of its existence.

In the light of the rule substantially quoted, the note sued on in the present case and incidentally the security of the chattel mortgage was transferred to appellee’s trustee in bankruptcy, and when that fact was shown, together with the further fact that appellee had omitted to schedule same, the burden of proof was upon appellee to show that the trustee had elected not to claim same, or had failed or refused to do. so, before he could maintain suit thereon. Just what the facts are concerning the proceedings in bankruptcy, as they affect appellee’s right to assert ownership in the note, do not appear from the record. It is not shown when he was adjudged a bankrupt, when he was discharged, whether, the trustee knew or ought to have known of the claim omitted from the schedule, its value, and the amount of the debt it secured, and various other facts which might have determined the issue. The record discloses the bare fact that appellee omitted the note from his schedules and inferentially concealed it from the trustee. In such connection in Dushane v. Beall, 161 U. S. 513, 16 Sup. Ct. 637, 40 L. Ed. 791, it is said, if the trustee allows — ■

“the bankrupt, after his discharge, by the expenditure of labo'r and money, to save the assets and render them valuable, they could not be permitted to assert' title against him.”

The record here contains no fact or circumstance which can be held as support for the application of the rules briefly referred to. As a consequence the court, in our opinion, erred in refusing the requested charge.

Complaint is made of the refusal of the court to allow special charge requested by appellant, which told the jury, in substance, that if they believed from the evidence that appellee authorized or knowingly permitted Cornelius Perkins to sell the mortgaged cotton in the open market, and relied on Perkins to account for the proceeds, such would be a waiver of the mortgage, even though Perkins failed to properly apply the proceeds. Tile court eliarged the jury, in substance, that if they found that appellee, Alexander, authorized or permitted Cornelius Perkins to sell the cotton in open market, or that he ratified the sale thereof, to find for appellant Norman. We think the court did not err in the respect claimed, since the charge given and the one refused are substantially the same, save that perhaps the charge refused is less favorable to appellant.

Another charge presenting the same issue as one of estoppel was requested by appellant' and refused by the court, of which complaint is also made. The charge was properly refused, since appellant was entitled to have the issue presented but once however clothed.

In view of another trial, we call attention to the fact that while the record shows that the execution of the chattel mortgage was undisputed, and while the court charged the jury to find for its foreclosure if they found for appellee on other issues, it appears from the record that the jury failed to so find. The rule is that foreclosure in such cases may not be had without an express finding by the jury in that respect. Ablowich v. Greenville National Bank, 95 Tex. 429, 67 S. W. 79, 881.

Eor the reason that, in our opinion, the court erred in refusing the charge challenging the sufficiency of the evidence to show ap-pellee’s ownership of the note, the cause is reversed and remanded for another trial.
      <§33>F,or .other 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


author: PLEASANTS, C. J.

text:
    WARD et al. v. HARRIS COUNTY.

    (No. 7639.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1919.
    Rehearing Denied Jan. 23, 1919.)
    1. Judges <§=>22(12) — County Judges — Pees.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3881, declaring that the maximum amount of fees of all kinds that may be retained by a county judge shall not exceed $2,000 per an-num, etc., includes all commissions allowed by law for the performance of official duty, and so includes the commissions paid the judge for making a sale of drainage bonds.
    2. Judges <§==>22(12) — County Judges — Fees.
    Where a county judge has retained fees up to the maximum allowed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3881, he cannot retain commissions for making a sale of drainage bonds on the ground that the commissions were paid out of the funds of the drainage district, and not the county; it being permissible for the legislature to require payment by the drainage district of sucli commissions to aid the county.
    3. Judges <§=>22(12) — County Judges — Fees.
    Where a county judge has retained fees up to the maximum allowed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3881, he cannot retain commissions for making a sale of drainage bonds on the ground that be would, if not allowed to retain such commissions, be required to perform extra duties imposed by the drainage act without compensation.
    4. Statutes <§=>102(4) — Special Legislation —Validity.
    The act creating the county court at law of Harris county (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1811-50), and providing that the county judge shall receive for the ex officio ’duties of his office not less than $1,500 a year, and the Harris county road act likewise providing extra compensation for the county judge, held, local special laws, regulating the affairs of the county and invalid under Const, art. 3, § 56, as to a matter which could be regulated by a general law.
    5. Judges <®=>22(2)->Compensation — Statute —Repeal.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3S93, enacted after the act to create the county court at law of Harris county, and declaring that the commissioners’ court is debarred from allowing compensation to county officials when the compensation and excess fees which they are allowed to retain shall reach the maximum provided for, repealed the provision of the act creating the county court, which allowed the commissioners to fix ex officio compensation for the county judge.
    6. Statutes <§=>141(1) — Amendment—Reee®ence.
    Acts 33d Leg. c. 121 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3893), amending Rev. St. 1911, art. 3893, held valid, reference being sufficient, though Const, art. 3, § 36, requires the law as amended to be set out at length, the ■amendhient, though changing the law, not amounting to a substitute.
    7. Judges <§=>22(12) — County Judge — Compensation.
    The per diem allowed county judges by Rev. St. 1911, art. 3870, is properly regarded as compensation or salary for ex officio services, and the county judge, having received the maximum compensation allowed him under the maximum fee bill, is not, under article 3893, as amended by Acts 33d Leg. c. 121 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3893), entitled to retain such per diem as additional compensation.
    Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.
    Action by the County of Harris against W. H. Ward and others. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Cooper & Merrill, of Houston, for appellants.
    Campbell, Amerman & Nicholson, of Houston, for appellee.

      Writ ol error denied March 19, 1919.

   PLEASANTS, C. J.

This suit was brought by appellee Harris county against appellant Ward, and the sureties upon his official bond as county judge oí said county, to recover the sum oí $2,138,42, the alleged amount of fees of office collected by the appellant Ward during the fiscal year ending November 30, 1915, in excess of the maximum fees allowed by law, and the sum of $1,809.30 collected during the year ending November 30, 1916, in excess of such maximum allowance, with interest on said sums at the rate of 6 per cent, per annum from December 1, 1915, and December 1, 1916, respectively.

The questions hereinafter discussed and determined are raised by the record and properly presented by the brief of appellants.

The sums collected by appellant Ward and for which he contends he is not required to account to Harris county under the provisions of the statute limiting the amount of fees which he is entitled to receive and retain as county judge of said county are:

(1) Commissions for making sale of drainage bonds issued by drainage district No. 7 of Harris county.

(2) Compensation allowed him by the commissioners’ court for ex officio services under the provision of the Harris county road law and the law creating the county court at law of Harris county.

(3) Moneys collected for hearing and disposing of applications for liquor licenses.

In event the Harris county road law and the law creating the county court at law for said county, in so far as said acts fix the compensation for ex officio services which may be allowed the county judge of said county by the commissioners’ court, should be held invalid, Judge Ward claims that he is entitled to receive and retain the amount allowed under article 3870, Yernon’s Sayles’ Civil Statutes.

There is no fact issue in the case. The several sums claimed by the county in this suit were all shown in the annual reports of Judge Ward for the years in which they were received by him. In addition to these amounts ho received for each of said years the maximum amount allowed him as county judge under the provisions of the general statute fixing the maximum fees allowed county officers.

The trial in the court below without a jury resulted in a judgment in favor of ap-pellee for the full amount claimed in its petition.

We cannot agree with appellants in their contention that the commissions received by the county judge for the sale of Harris county drainage district bonds are not included in the term “fees of all kinds,” as that term is used in article 3881, Vernon’s Sayles’ Civil Statutes, fixing the maximum compensation allowed county officers. On the contrary, we think the decisions of our Supreme Court and Courts of Civil Appeals settle this question adversely to appellants’ contention. The general purpose of the maximum fee bill was to limit the compensation received by the officers named therein for the performance of their official duties, and the term “fees of all kinds,” as used in that act, has been expressly held to include commissions allowed by law for the performance of official duty, the commissions so allowed not being excepted from the maximum fee bill by any provision of the statute. City of Austin v. Johns, 62 Tex. 180; Ellis County v. Thompson, 95 Tex. 29, 64 S. W. 927, 66 S. W. 48; Lattimore v. Tarrant County, 57 Tex. Civ. App. 610, 124 S. W. 205; Navarro County v. Howard, 61 Tex. Civ. App. 335, 129 S. W. 857; Brown v. City of Amarillo, 180 S. W. 658; Curtin v. Harris County, 203 S. W. 453.

The fact that the commissions are paid out of the funds of the drainage district caimot affect the question. Under the drainage district act of this state the county, through its commissioners’ court and other officers, is required to perform various services for the benefit of drainage districts, and it was entirely competent and proper for the Legislature to provide that the compensation allowed the officers of the county for such services should be paid out of the funds of the drainage district, and to give the county any compensation the county officers might receive for such services in excess of the compensation allowed them under the maximum fee bill. There is no provision of the drainage act exempting the commissions allowed the county judge for selling the bonds of the drainage district from the operation of the maximum fee bill, nor can such exemption be implied from the fact that the act imposes duties and responsibilities upon the county judge in addition to those imposed by the general law, and such officers in counties in which the compensation allowed by law for the performance of the other general duties of their office reaches the maximum compensation allowed under the maximum fee bill are required to perform the extra duties imposed by the drainage act without compensation. Curtin v. Harris County, 203 S. W. 453.

We do not think these views are in conflict with the holding of this court in the case of Harris County v. Hammond, 203 S. W. 445, that the incidental contingent profits which might be made by a sheriff out of the allowance fixed by the commissioners’ court for feeding prisoners in the county jail should not be included in the terms “fees of all kinds” used in tlia maximum fee bill. As pointed out in the ca$e cited, the allowance for feeding prisoners is not made nor intended primarily as a compensation for the performance of official duty. In making such allowance the court considers the original cost and. the necessary cost of the preparation of the food for the prisoners, and fixes the amount allowed for each prisoner per day at such sum as will provide him with necessary wholesome food. The allowances are fixed once a year, and while there is usually profit to the sheriff from feeding the prisoners for the fixed allowance, this is not necessarily the case, and it may well be that owing to fluctuation in the market price of foodstuffs and the cost of its preparation the sheriff may sustain a loss. If any profit accrues to a sheriff from such allowance such profit might be properly termed a perquisite Of the office, but we cannot think it was the intention of the Legislature to include it in the term “fees of office.”

The commission allowed the appellant in this case is a certain fixed compensation given him for the performance of an official duty, and, as has been expressly held in the cases cited, must be regarded as a fee of office in the purview of the maximum fee bill.

It is next urged by appellants that the trial court erred in holding that the amount allowed the county judge for ex officio services under the provisions of the Harris county road law (Acts 33d Legislature, Regular Session, page 64) should be accounted for under the provisions of the maximum fee bill; and further erred in not holding that the county judge was entitled to the amount allowed him for ex officio services under the provision of the act creating the county court at law of Harris county (Vernon’s Snyles’ Civil Statutes, art. 1811-50).

The Harris county road law contains many provisions with respect to the power, duties, and compensation of the commissioners’ court and the members thereof, but that portion of it having direct reference to the matter under consideration is found in section 32, page 70, and is as follows:

“ * ⅜ * That the county judge shall receive as ex officio compensation not more than three thousand ($3,000'.00) dollars per annum, to be fixed by the court, and shall receive no per diem.”

Acting under this law the commissioners’ court of Harris county, on November 1, 1914, fixed the ex officio salary of the county judge at $2,500 per year.

Section 33 provides that the provisions of the act shall be cumulative when not in conflict with the general law, and in case of conflict that the special act shall control.

Section 34 provides for the repeal of all laws and parts of laws in conflict.

The act creating the county court at law has this provision:

“The county judge of Harris county shall hereafter receive from the county treasury, in addition to the fees allowed him hy law, such a salary for the ex officio duties of his office as may be allowed him by the commissioners’ court not less than fifteen hundred dollars per year.” Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1811-50.

Both of these laws are special acts of the Legislature, and in so far as they attempt to increase the salary of the county judge of Harris county over that fixed by the general law for county judges in the other counties of the state in the same class as Harris county, as classified by the general law, is, we think, clearly obnoxious to article 3, section 50, of the Constitution of this state, and to that extent must he held invalid. The article of the Constitution above cited prohibits the Legislature from passing any local or special law “regulating the affairs of counties, cities, towns, wards or school districts,” and from passing any local or special law where a general law can he made applicable. It seems clear to us that the fixing of the compensation to be paid a county judge by a particular county is a regulation of the affairs of the county within the purview of this article of the Constitution. This identical question has been passed upon by our Supreme Court. After the enactment of the special road law for Harris county the enactment of a similar road law was procured for Bexar county, which attempted to fix the,ex officio compensation of the county judge at not less than $2,500, and of the county commissioners at $2,400 per annum. The question of the constitutionality of said act in this respect was raised, and the court, speaking through Chief Justice Phillips, in reference thereto, said:

“Just what relation a local lawmaking provision for a county road system can properly have to the subject of the general compensation of county commissioners it is difficult to perceive. No doubt the Legislature, in tlio passage of local road laws, may, within proper bounds, provide compensation for extra services to be performed by those officials where uncontrolled by general laws and required by such local laws and directly connected with the maintenance of the public roads. We are not called upon to determine that question here. But under the guise of such a law it has no authority to legislate upon the subject of their general compensation or to alter the general laws governing. ⅜ * *
“As indicating the broad scope of this act and throwing light upon the purpose of section 5, though essentially a local law, and denominated as an act making provision for a road system for Bexar county, it attempts in another section to fix the ex officio salary of the county judge at not less than $2,500.” Altgelt v. Gutzeit (Sup.) 201 S. W. 400.

This decision of the Supreme Court only reiterates and recognizes the law upon this question which had been declared in the case of Hall v. Bell County, 138 S. W. 181. That case involved the construction of an amendment to the general auditor’s law, which amendment had undertaken to except Bell county from the provision thereof by express mention. The county auditor of Bell county brought suit against the county, and the county judge and the commissioners’ court seeking to compel them to pay his salary and to permit him to discharge the duties of his office, claiming that the amendment to the auditor’s law, above mentioned, in so far as it sought to except Bell county from its operation, was in violation of the section of the Constitution above referred to. The court, in determining that question, said:

“As shown above, the law providing Bell county with an auditor is a general law regulating county affairs; and, having held that the subsequent statute attempting to remove Bell county from the operation of that law is a local and special law, the question remains: Does the mere exception of a county from the operation of that law have the effect of regulating county affairs? And we think that question must he answered in the affirmative.
“The word ‘regulating-,’ as used in the Constitution, should not be given a narrow or technical signification. If the result of legislation is to repeal or materially change any law controlling or affecting the collection, safe-keeping or disbursement of county ftinds, such legislation, within the purview of the Constitution, is a law regulating county affairs. If the act exempting Bell county from the statute requiring a county auditor is valid and enforced, then material changes in the county’s affairs will necessarily result. * * *
“We have already given reasons for holding that it is a local or special law, and we now add that, as its sole object was to regulate the affairs of Bell county, that fact is conclusive proof that it is a special law.”

What was said by the Supreme Court and by the Court of Civil Appeals, in the two cases above quoted from, may be said with equal force and propriety in reference to the two acts making a special road law for Harris county and creating the Harris county court at law.

If the provision in the act creating the county court at law of Harris county, fixing the salary of the county judge, could be held constitutional it could not avail appellants because it was repealed by the subsequent act of the Legislature amending the maximum fee bill act, which amendment provides:

“The commissioners’ court is hereby debarred from allowing compensation ⅜ * * to county officials when the compensation and excess fees which they are allowed to retain shall reach the maximum provided for in this chapter.” Article 3893. Vernon’s Sayles’ Civil Statutes.

Counsel for appellants contend that this amendme-nt of article 3893, enacted by the Legislature of 1913 (Acts 33d Leg. c. 121 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3893]), is unconstitutional, in that the subject thereof is not expressed in the title of the act, as required by section 35 of article 3 of the' Constitution. The title of the amendatory act is as follows:

“An act to amend articles 3881, 3882, 3883, 3887, 3889, 3893, 3897, 3898 and 3903 of the Revised Civil Statutes of the State of Texas of 1911.”

The provision of article 3893 of the Revised Civil Statutes of 1911 is as follows:

“Compensation for Ex Officio Services, etc., may be Alloxcei by Commissioners’ Court — Proviso. — It is not intended by this chapter that the commissioners’ court shall be debarred from allowing compensation for ex officio services to county officials not to be included in estimating the maximum provided for in this chapter, when, in their judgment, such compensation is necessary ; provided, such compensation for ex officio services shall not exceed the amounts now allowed under the law for ex officio services; provided, further, the fees allowed by law to district and county clerks, county attorneys and tax collectors in suits to collect taxes, shall be in addition to the maximum salaries fixed by this chapter.”

Our Supreme Court has repeatedly held that in amending an existing article of the Revised Statutes a reference in the title or caption of the act to the article of the statute sought to he amended is sufficient, and it is not necessary in order to avoid the prohibition of section 36, art. 3, of the Constitution to set out at length the entire law as amended. Clark v. Finley, 93 Tex. 171, 54 S. W. 344; Mortgage Co. v. Hardy, 93 Tex. 298, 55 S. W. 169; Ward Co. v. Carpenter (Sup.) 200 S. W. 521.

Counsel concede tjiat this is the settled rule, but insist that the act in question is invalid because its title indicates that it is an amendment to the former statute when it is in fact a substitute therefor.

We do not think this insistence is sound. The recognized 'distinction between an amendment and a substitute may be of some importance in determining the sufficiency of the title of a legislative act, but we do not think that distinction can be made in this instance. The original and amended articles relate to the same subject, and both authorize the commissioners’ court to allow ex officio salaries to county officers. In the original article ex officio salaries in excess of the compensation allowed by the maximum fee bill was limited to amounts allowed under the law existing at the time the maximum fee bill was enacted. The new act changes this provision by prohibiting any ex officio salaries in excess of the compensation allowed by the maximum fee bill. Any amendment of an existing law changes to some extent the meaning and effect of the law, otherwise it would be futile, and the fact that this amendment, in the language of counsel, “establishes a complete change in the legislative policy of the state with respect to ex officio allowance to county officers” does not render it invalid. Be-tag a later law upon the same subject and in direct conflict with the statute • allowing an ex officio salary for the county judge of Harris county in excess of the compensation allowed by the maximum fee bill, it must be given the effect of repealing that statute, notwithstanding it has no express repealing provision.

The only grounds upon which appellants claim the right to retain the fees allowed the county judge for disposing of applications for liquor licenses is, that such fees not being provided for in the Revised Statutes under the title under which' maximum fee bill is found, by the express terms of article 3924 of the fee bill statute, said fees are not affected by the provisions of said statute. This question was decided by us in the case of Harris County v. Hammond, 203 S. W. 445, and we there held that article 3924, not having been a part of the maximum fee bill statute, and having no connection therewith, and not referring thereto when it was passed, the fact that it was placed by the codifiers of the Revised Statutes under the same title as the maximum fee bill would not give it an effect not contemplated by the Legislature in its passage. We do not care to add anything to what was said in the case referred to upon this subject.

Our conclusion that the amendment to article 3893 of the Statutes is not invalid determines the question of appellant’s right to retain the compensation allowed him under article 3870. Such compensation is properly regarded as compensation or salary for ex officio services, and appellant Ward having received the maximum compensation allowed him under the maximum fee bill is not, under article 3893, entitled to receive any additional compensation as ex officio salary.

This disposes of all the questions presented by appellants’ brief, and it follows from the conclusion above stated that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      <g=>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    FENNELL et al. v. TRINITY PORTLAND CEMENT CO.
    (No. 2078.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 5, 1919.
    Rehearing Denied March 20, 1919.)
    1. Corporations <§=>672(4) — Foreign Corporations — Action—Compliance with Statute-Pleading.
    In action by foreign corporation, where complaint does not show transaction constituting basis of action to be an intrastate transaction, it is unnecessary to plead and prove compliance with Rev. St. 1911, art. 1318, re-
    quiring foreign corporation to secure permit to do business in state.
    2. Municipal Corporations ⅞⅜=348 — Paving ■ Contbact — Bond — Action by Material-man — Pleading.
    Materialman, suing principal paving contractor and surety on his bond for materials furnished subcontractor, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6394f, 6394g, requiring contractor obtaining public contract to give bond, and providing that materialman may intervene in cities’ action on bond, or, if no such action is brought within six months, may bring separate action thereon, was not required to plead and prove that no suit had been instituted by the city within the preceding six months.
    3. Municipal Cobpoeations <§=>348 — IMPROVEMENTS — CONTRACTOR'S BOND — ACTION by City.
    State or city for whom, work is being constructed by contractor, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6394f, 6394g, requiring a contractor to give bond, is not required to bring suit on such bond, except when there has been a breach of some of the conditions in which the state or municipality is interested.
    4. Municipal Cobpoeations <§=>348 — Paving Contbact — Action by Matbeialman — Plea in Abatement.

      ,, In materialman’s action on .paving contractor’s bond required under Vernon’s Sayles’Ann. Civ. St. 1914, art. 6394f, giving materialmen right to intervene in city’s action on bond or bring action in its own name if no action is instituted by city within six months, the defense that materialman’s action was prematurely brought should be raised by plea in abatement.
    5. Municipal Cokpoeations <§=>348 — Paving Contbact — Action by Materialman — Con-teactoe’s Bond.
    Where paving contractor gives bond as required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6394f, 6394g, to secure payment of all indebtedness incurred incident to the performance of the contract, materialman’s right of action against the contractor was given him by the bond, and was not dependent upon the statute.
    6. Municipal Cobpoeations <§=>347(2) — Paving Contbact — Contbactoe’s Bond — Con-steuction.
    Paving contractor’s bond, given to secure performance of contract and “payment of all indebtedness incurred incident thereto for labor and material,” and giving materialmen furnishing “materials'used in the construction of such work - ⅜ * * right of action thereunder,” held to give materialman furnishing materials' to subcontractor a right of action thereon.
    7. Statutes <§=>226 — Consteuction — Legislative Intent.
    Where Legislature enacts a law similar in all material respects to a federal law, it will be presumed that the construction given the federal statute by the federal courts was adopted by the Legislature.

      8. Municipal Corporations @=3347(1) — Pav- 1 ins Contract — Contractor’s Bond — Rights op Materialman.
    Where paving contractor executed bond to secure payment for all labor and material used, materialman was entitled to sue thereon for materials furnished subcontractor, though principal contractor had no notice of the purchase of such materials.
    Appeal from District Court, Grayson County ; C. T. Freeman, Judge.
    Action by the Trinity Portland Cement Company against J. H. Fennell and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Head, Dillard, Smith, Maxey & Head, of Sherman, for appellants.
    Thompson, Knight, Baker & Harris and Alex F. Weisberg, all of Dallas, for appellee.
   HODGES, J.

In August, 1913, the city of Denison entered into a contract with the Murphy-Moulton Company to pave a portion of Gandy street in that city. Among other provisions, the contract contained the following:

“Said contractor shall furnish a bond, to he approved by the city, in the sum of twenty thousand dollars, guaranteeing that said contractor will faithfully perform the undertakings of this contract, and which bond shall also provide that said contractor shall pay for all labor and materials used in the construction of said work; and that any person so furnishing such labor or materials may have their right of action thereunder as if the same were made payable to such laborers or materialmen direct.”

In compliance with the above requirement the Murphy-Moulton Company executed and delivered to the city a bond in the sum of $20,000, conditioned for the faithful performance of the service undertaken, with the appellant Southwestern Surety Insurance Company as its surety. That bond contained, among others, the following stipulation:

“This bond is given to secure the performance of said contract in every particular, including payment of all indebtedness incurred incident thereto for labor and material; and persons employed upon or about said work, or supplying or furnishing material therefor, may have their cause of action therefor as though said bond were payable directly to them.”

In May, 1914, the Murphy-Moulton Company entered into a contract with J. H. Fennell, by the terms of which a portion of the concrete work undertaken by it was sublet to Fennell at an agreed price. Between June 10 and November 12 of 1914 Fennell purchased from the appellee 3,000 barrels of cement at an aggregate cost of $5,370, for use in the work on Gandy street, under his contract with Murphy-Moulton Company. All of this cement was used in the street improvement except about 40 barrels, and all of the purchase price was paid except $1,833.08. On January 8, 1915, the balance due from. Fennell being unpaid, the appellee gave written notice of its claim to the mayor and commissioners of the city of Denison, and later gave similar notice to the Murphy-Moulton, Company and to the appellant surety company. On December 7, 1914, Fennell gave to the appellee an order upon the Murphy-Moulton Company for the sum of $85.92, which was paid and his account credited with that amount. On the same date the appellee took from Fennell two notes covering the balance of his indebtedness, which were secured' by a chattel mortgage on some personal property. This was done, according to the findings of the court, without any Intention on-the part of the appellee to waive its rights under the bond of the Murphy-Moulton Company. The failure of Fennell to pay those notes at maturity was followed by this suit instituted by the appellee against Fennell, in which are joined the Murphy-Moulton Company and the Southwestern Surety Insurance Company, upon the bond above referred to. In a trial before the court a judgment was rendered in favor of the appellee against Fennell for the full amount of the debt, and against the other defendants for the same amount, less the value of the 40 barrels of cement not used in the street improvement work. The Murphy-Moulton Company and the Southwestern Surety Insurance Company have appealed.

The record'shows that in the trial below the following agreement was made by the attorneys:

“The Trinity Portland Cement Company is the same identical corporation as the Southwestern States Portland Cement Company, the name of the company having been changed from Southwestern States Portland Cement Company to Trinity Portland Cement Company by amendment of its charter. That the corporation is one organized under the laws of the state of West Virginia and has a permit to-do business in the state of Texas, its principal office and place of business being at Dallas, Dallas county, Texas.”

Counsel for appellants insist that this agreement, being all the evidence upon that subject, was insufficient to support a finding that the appellee had complied with the requirements of article 1318 of the Revised Civil Statutes, which prescribes the conditions upon which a foreign corporation may maintain a suit in the court of this state. They say the effect of this agreement is merely to prove that at the date of the trial in the court below the appellee had a permit to do business in this state; that this is no proof that the appellee had such permit at the date of the transaction upon which its cause of action depends. Assuming that the court was not authorized to infer from this •agreement that the appellee had the required permit at the time it sold the cement to Fennell in 1914, there is nothing in the aver-ments of the appellee’s amended original petition which shows an intrastate transaction. While it is alleged that at the time of the filing of this suit the appellee had its principal office in Dallas county, Tex., there is nothing stated as to its domicile or place of business in 1914, or as to where or under what circumstances the cement was sold to Fennell. The averments of the petition are entirely consistent with an interstate transaction ; and in such cases the rule which requires the foreign corporation to plead and prove a permit to do business in Texas has no application. Panhandle Tel. & Tel. Co. v. Kellogg S. & S. Co., 62 Tex. Civ. App. 402, 132 S. W. 963; Blackwell-Weilandy Book & Sta. Co. v. Perry, 174 S. W. 935; Crews & Williams v. Gullett Gin Co., 189 S. W. 793.

If it should he held that because the ap-pellee alleged that its principal office was at Dallas, Tex., on the date the suit was filed it should be inferred that it was •doing business in this state at the time the transaction with Fennell occurred, _ it is •equally as reasonable to infer from the facts ■agreed to that it was also at that time equipped with a permit to do business in this state. If we must presume that location at that time was but a continuation of what it had previously been, we should, with equal propriety, presume that its equipment was the same.

At its regular session in 1913 the legislature (Acts 33d Leg. p. 185) enacted a statute which required parties entering into formal contracts with the state and its various municipalities for the prosecution of any public work to execute the usual penal bond, •with good and sufficient surety—

“with the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor and materials in the prosecution of the work provided for in such contract; and any person, company, or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by the state or any municipality on the bond of the contractor, and to have their rights and claims adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claims and judgment of the state or municipality.”

The above is a part of section 1 of the act, which will be found as chapter 3- of title 113 of Yernon’s Sayles’ Statutes (section 6394f). Section 2 of that act provided that if no suit shall be 'brought by the state within six months from the completion and final settlement of said contract, then the person or persons supplying the contractor with labor and materials shall, upon application therefor and furnishing affidavit that they have supplied labor and materials for the prosecution of the work for which payment has not been ma'de, such persons shall be furnished with a certified copy of the contract and bond upon which they shall have a right to institute and prosecute a suit for their own benefit.

The appellants contend that it devolved upon the appellee, under the terms of this statute, to plead and prove that no suit had been instituted on this bond by the city of Denison within six months after the completion of the work on Gandy street. Conceding that the right of the appellee to maintain a suit on this bond depends solely upon statutory authority, appellants’ conclusion is untenable. The state or municipality is not required or expected to bring suit on a bond of this character, except when there has been a breach of some of the conditions in which the state or municipality is interested. But when either does file a suit to enforce its rights other parties are permitted to intervene and set up their rights, however disconnected the latter may be with those in which the state or municipality is concerned. If the state or municipality has no grievance, or elects not to file a suit to enforce its demands within six months after the completion of the work, then any party who has furnished labor or materials has the right to sue in his or their own names, without reference to any action upon the part of the state or municipality. The record shows that this suit was filed more than six months after the work was completed. The affidavit provided for is merely a means of securing an authenticated copy of the contract and bond, to be used as a basis of the suit by private parties. If a suit of this character is prematurely brought, that is a matter of defense which should be raised by plea in abatement. There is no such plea in this record. But the right of the appellee to maintain a suit on this bond is given by the terms of the bond itself, and is not dependent upon the statute. Texas Glass & Paint Co. v. Crowdus et al., 108 Tex. 346, 193 S. W. 1072.

Appellants also insist that they were released from liability on the bond by the taking of notes from Fennell and extending the time for the payment of his debt. In support of 'this proposition they invoke the well-established rule applied to contracts evidenced by promissory notes and similar instruments. It is not contended that any injury resulted to the appellant by reason of the taking of those notes or the extension of time given. In the United States Fidelity & Guaranty Co. v. United States, 191 U. S. 416, 24 Sup. Gt. 142, 48 L. Ed. 242, a similar objection was considered at length and overruled by the federal Supreme Court. The subject is so fully discussed in that opinion that it is unnecessary to add more.

Another defense urged is that the appellants were not liable for the material furnished by the appellee for Fennell, a subcontractor ; that the extent of their liability under the terms of their bond was limited to labor and materials furnished to the original contractor. The terms of the bond are not to be limited by a construction so narrow. The language used is broad, and is sufficiently comprehensive to include all parties who furnish material that was used in the work which the Murphy-Moulton Company as the original contractor bound itself to perform. The federal statute, which is in all material respects the same as ours, has been construed by the Supreme Court of the United States to include within the protection of the bond those who furnish material to subcontractors. Mankin v. U. S., 215 U. S. 533, 30 Sup. Ct. 174, 54 L. Ed. 315. In adopting the provisions of the federal statute we must assume that our Legislature also adopted the construction which the federal courts had placed upon that statute. It was not essential, in order to fix the liability of the Murphy-Moulton Company and the surety on its bond, that it should have notice that Fennell was purchasing material from the appellee. If by the terms of their bond they agreed to protect such dealers, it was their duty to see that contracts for the payment of material were performed.

The judgment of the district court will be affirmed.

      =oFor other eases 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