author: MIDDLEBBOOK, J.

text:
    BEAUMONT, S. L. & W. RY. CO. et al. v. DANIEL.
    (No. 101.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 20, 1916.)
    1. Bailroads <&wkey;265 — Beceivershif — Effect of.
    Where a railroad is in receivership, it is not liable for the acts of employés engaged by the receiver.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 838-853; Dec. Dig. &wkey;265.]
    2. Bailroads <&wkey;268 —Pleading —Proof — Variance.
    Where the petition of a passenger slandered by a conductor averred that the railroad was being operated by receivers, evidence that the conductor was the servant of the railroad constitutes a variance and should be rejected.
    [Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 861-864; Dec. Dig. <&wkey;>268.]
    3. Judgment <&wkey;17(2) — Process—Service-Citation— Sufficiency.
    Where citation issued in a suit against a railroad company and the receiver did not recite that the individual defendant was receiver, such citation, though accompanied by an officer’s return showing service, will not support a default judgment against the receiver as such; Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1852-1864, prescribing generally the requirements of citation, declaring that in suits against receivers of railroad companies service may be had upon the receiver as such.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. § 31; Dec. Dig. @=»17(2).]
    4. Judgment &wkey;>17(2) — Process — Service — Citation — Sufficiency.
    Where citation against a receiver of a railroad company was accompanied by the petition which set forth the nature of the cause of action and that the receiver was acting as such, judgment against the receiver will be sustained, though the citation merely named him as an individual.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 31; Dec. Dig. <i&wkey;17(2).]
    5. Appearance &wkey;>24(5) — Process—Service-Waiver.
    Though citation in an action against a receiver of a railroad company was defective, the receiver, by subsequently denying the averments of the petition, waives inadequacies and renders himself subject to the jurisdiction of the court.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. § 126; Dec. Dig. <&wkey;>24(5).]
    6. Beceivers <&wkey;lS4^-A0TiÓNS — Evidence.
    Judgment cannot be had against a receiver for wrongs of .his alleged servant without proof of appointment and that the servant was employed by the receiver.
    [Ed. Note. — For other cases, see Beceivers, Cent. Dig. §§ 367-370; Dec. Dig. &wkey;>184.]
    7. Appeal and Error i&wkey;843(2) — Questions Presented for Beview.
    Where a judgment in an action for damages was reversed on other grounds, the question of the inadequacy of damages need not be determined.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3331, 3338; Dee. Dig. 843(2).]
    Appeal from District Court, Liberty County ; L. B. Hightower, Judge.
    Action by T. E. Daniel against the Beaumont, Sour Lake & Western Bailway Company and another. From a judgment for plaintiff, defendants appeal.
    Beversed and remanded.
    Andrews, Streetman, Burns & Logue, of Houston, for appellants. Marshall & Harrison, of Liberty, for appellee.
   MIDDLEBBOOK, J.

T. E. Daniel filed suit against the Beaumont, Sour Lake & Western Bailway Company, and against Frank Andrews, alleged in the petition to have been the duly appointed and acting receiver of the properties of said railway company, to recover damages, alleged to have been sustained by said Daniel, on account Of the matters and under the circumstances in the petition alleged. The basis for damages is that the plaintiff was a passenger on one of the passenger trains of defendant railway company on the 24th day of November, 1914, between Beaumont and Hardin; that the conductor on said train, shortly after taking up his transportation, just after plaintiff boarded the car, and while plaintiff was riding in the car crowded with people, said to plaintiff, “What did you do with that overcoat you got the other night?” and plaintiff told the conductor that he had not gotten any overcoat, and knew nothing about any overcoat; that the conductor then and there said, in a loud, insulting, browbeating, and bullying manner:

“You got that butcher boy’s ov.ercoat the other night. You stole it that night, and you had better dig it up, or we will give you some trouble. We know too much about that coat.”

Then follows allegations that plaintiff was c'onducting himself in a quiet and lawful manner; that he had not taken the butcher boy’s overcoat; that the accusation was false; that it caused Mm great shame, chagrin, and mental anguish, being said to Mm in a crowded car, where the people could and did hear, etc.; alleging Ms damages at $5,-000.

The case was tried before a jury on August 31, 1915, resulting in a verdict in favor of the plaintiff against the Beaumont, Sour Lake & Western Bailway Company and Frank Andrews, as receiver of said company. Motion for a new trial was duly overruled, and the case is properly before this court on appeal.

The evidence supports the contention of the plaintiff as to the language used by the conductor. In the first paragraph of plaintiff’s petition, he alleges that the defendant Beaumont, Sour Lake & Western Bailway Company is a corporation, under the laws of Texas, and that the defendant Frank Andrews is the duly appointed and acting receiver of said company, and was such receiver at the time of the trial, and that his residence was in Harris county, Tex. In paragraph 2, there is an allegation as to the ownership, and the points from and to which said railroad runs, which points. included Hardin, Liberty bounty, Tex.; and that “the defendant Frank Andrews is now operating said road, as receiver, and was so operating said road as receiver on, the 18th of November, 1914, and ever since.” Both the Beaumont, Sour Lake & Western Railway Company and Frank Andrews, receiver of said railway company, perfected appeal in this case, and each of appellants has died a separate brief in the cause.

The first assigned error by the appellant Beaumont, Sour Lake & Western Railway Company is:

“Because, under the allegations of plaintiff's petition, it conclusively appears, in so far as any right of recovery of plaintiff is concerned, that, at the time of the transaction 'referred to in said pleadings, this defendant was not in control of the railroad mentioned in said pleadings, and had nothing to do with the operation thereof at the time mentioned in said pleadings, and was not a party, either directly or indirectly, to the transactions mentioned in said pleadings, as a basis for plaintiff’s claimed right of recovery.”

As hereinbefore stated, plaintiff’s petition in this case pleads Frank Andrews as receiver of Beaumont, Sour Lake & Western Railway Company. If he was such receiver, and the said railroad was being operated by such receiver, it is conclusive that the railroad company could not be held liable for the acts and conduct of the employés 'of the receiver on the train. The plaintiff says he was such receiver, and therefore, under his petition, it would be error to render judgment against the railroad company, because if Frank Andrews was the receiver of the defendant Beaumont, Sour Lake & Western Railway Company, as pleaded by the plaintiff, then the conductor of necessity must have been in the employ of such receiver, and, if there had -been any evidence introduced to show that he was in the employ of the Beaumont, Sour Lake & Wfestern Railway Company, it would have been at variance with the plaintiff’s petition, and error. 34 Cyc. 338; Railway Co. v. Adams, 78 Tex. 372, 14 S. W. 666, 22 Am. St. Rep. 56, and other cases cited in Kirby Lumber Co. v. Cunningham, opinion by late Justice Reese, 154 S. w. 291..

So, the first assignment of error of appellant Beaumont, Sour Lake & Western Railway Company must be sustained.

Appellant Frank Andrews’, receiver’s, first assignment of error is:

“Because the judgment entered against Frank Andrews, receiver, in this cause, is illegal and improper, for that Frank Andrews, receiver of Beaumont, Sour Lake & Western Railway Company, was never served with process requiring him to appear and answer in-this case, and, in fact, did not appear and answer, although it is so recited in the judgment.”

This assignment is followed by correct propositions of law, if the record as presented to us upheld such propositions. The cita-tation was introduced in evidence, and, without copying the citation, a full understanding may be had by stating that it commanded Beaumont, Sour Lake & Western Railway Company and Frank Andrews to appear on the 8th day of February, 1915, and defend suit, “and you will deliver to the said Frank Andrews in person a true copy of this citation, together with a certified copy of plaintiff’s original petition” ; the citation being authenticated by E. W. Pickett, clerk of the district court of Liberty county. The officer’s return is as follows:

“Came to hand on the 18th day of December, 1914, 9 o’clock a. m. and executed in Harris county, Tex., by delivering to the within named defendant in person a true copy of this citation (together with the accompanying certified copy of plaintiff’s petition) on the dates and in the places hereinafter set forth, as follows: Frank Andrews, 12-21-1914, 11 a. m., Houston, Texas, receiver B., S. L. & W. Ry. Co.”

We think, unquestionably, the citation, within itself, is not sufficient to put Frank Andrews, receiver of the railway company, upon notice of being sued in the capacity of receiver of said railroad. Indeed, the citation asserts a suit against Frank Andrews as an individual. This citation would not support a judgment by default, regardless of the officer’s return. Railway Co. v. Rawlins, 80 Tex. 579, 16 S. W. 430; Railway Co. v. Wright, 29 S. W. 1134; Mutual Insurance Co. v. Uecker, 46 Tex. Civ. App. 84, 101 S. W. 872; Vernon’s Sayles’ Texas Civil Statutes, arts. 1852-1864.

In paragraph 2 of the original answer of Frank Andrews, he pleads as follows:

“Pleading to each and every material averment of fact in plaintiff’s petition, whereby liability is sought to be imposed upon this defendant, he denies each and every material allegation, and demands strict proof thereof, and of this puts himself upon the country.”

In paragraph 3, he pleads in these words:

“This defendant denies the allegations in paragraph 2 of said petition (meaning plaintiff’s petition).”

As before set out herein, paragraph 2 of plaintiff’s petition contains this averment:

“That the defendant Frank Andrews is, now operating said road as receiver, on the 18th day of November, 1914, and every day since.”

As early as the case of Little v. Marler, 8 Tex. 107, the doctrine was announced:

“That the intendment of the statute relating to citations was to give notice to each defendant that a suit had been instituted against him, and to call on him to answer that suit, and that the suit should be sufficiently described to enable him to know it without being left in any uncertainty. We think that is the intendment and purpose of a citation.”

Tested by this rule, did Frank Andrews, as receiver of said railroad, if he was such, understand what kind of a suit was filed against him, and in what capacity he was sued, when he received the citation, with the certified copy of plaintiff’s original petition attached thereto? We think he did, and we think his answer, as quoted above, and referring to the paragraphs of the original petition, quoted above, specifically as he does, demonstrates clearly that he did know what suit he was called upon to answer, and in what capacity he was-required to answer.

Again, with a copy of plaintiff’s original petition served upon liim, and the original petition filed in the suit, which he was answering, we think his general denial, in the terms he presents it, would bring him into court, as such receiver. As is said by Justice Gaines in K. & G. S. L. Ry. Co. v. Dorough, 72 Tex. 111, 10 S. W. 712:

“But the defendant had pleaded a general denial, and under its plea it was competent for it to show that the servants in charge of the train were not servants (East Line & Red Rivcr Ry. Co. v. Culberson [72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Bep. 805] decided at this term), but those of a receiver operating the road, under the decree of a court of competent jurisdiction.”

It appears to us, under the doctrine laid down by the Supreme Court in that case, that the general denial was sufficient to give the court jurisdiction of Frank Andrews, as receiver. As said before, we do not believe the citation would have supported a judgment by default; but we think appellant Frank Andrews’ answer brought him properly into court, and the court had jurisdiction to render such judgment as he saw proper in the premises.

Appellant Frank Andrews’, receiver’s, first assignment of error is therefore overruled.

Appellant receiver’s second assignment of error is:

“That the judgment against Frank Andrews, receiver, is not supported by the evidence in the case that Frank Andrews, receiver, had any connection, directly; or indirectly, with the transaction referred to in the charge of the court as a basis for the submitted right of recovery.”

The third assignment is a charge against the court for a refusal to grant a new trial on the identical ground set up in the second assignment of error.

These two assignments will be treated together in this opinion, as they are directed primarily to the same errors. Appellant Frank Andrews, receiver, in his brief asserts that there is not a scintilla of evidence in the record to show when Frank Andrews was appointed receiver of the railroad, if he was so appointed, nor that he was ever appointed as such receiver, nor that he was acting as such receiver, either at the time of the commencement of the suit or at the time of the trial, nor that he was still acting or had been discharged. Appellee’s counsel, in their brief, say that there is no error in this case by entering a judgment against Frank Andrews, receiver, because there is sufficient evidence, and the record in this ease authorizes such a judgment. So, the adverse contentions by the parties in their briefs require us to go to the statement of facts to determine whether or not there is such evidence. TVe have read carefully the entire statement of facts, and except the citation which was served on Frank Andrews, which was introduced in evidence, we fail to find a syllable of evidence in the record touching the question of receivership, and the only thing in the citation that mentions receivership is the officer’s return in the language hereinbefore quoted. This certainly is not sufficient to prove that Frank Andrews was receiver of the railway company at any time. If the citation had properly cited Frank Andrews as receiver of the railway, it would have been necessary for the plaintiff to show by proof that he was such legal receiver.

This very issue is discussed with such perspicuity in Kirby Lumber Co. et al. v. Cunningham, 154 S. W. 288, by the late Justice Keese, in his opinion, and in the authorities cited by him in that opinion, that we think it unnecessary to discuss this proposition further than to cite that opinion and the authorities therein cited.

We are of opinion that the second and third assignments of error by appellant Frank Andrews, receiver, are well taken, and they are therefore sustained.

In the fourth and last assignment of error, appellants complain at the amount of the judgment, as being excessive, the judgment being for the sum of $2,000. In view of the fact that this ease is reversed and remanded on other issues, we deem it not necessary or proper to pass upon this assignment of error.

For the errors pointed out, the cause is reversed and remanded.
      ©=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    W. T. RAWLEIGH MEDICAL CO. v. GUNN et al.
    (No. 573.)
    (Court of Civil Appeals of Texas. El Paso.
    May 11, 1916.)
    Monopolies <&wkey;17(2)—Right to Recover on Contract in Restraint op Trade.
    Under anti-trust laws (Acts 28th Leg. c. 94), recovery cannot be had upon a contract wherein defendant agrees to sell no other goods than those sold him by plaintiff, to sell such goods at prices to be indicated by plaintiff, and to have no other business or employment.
    [Ed. Note.-—For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. <&wkey;>17(2).]
    Error from Nolan County Court; Jno. H. Cochran, Jr., Judge.
    Action by the W. T. Bawleigh Medical Company against G. B. Gunn and others. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    Harry B. Bondies, of Sweetwater, for plaintiff in error. Woodruff, Christian & Wood-ruff, of Sweetwater, for defendants in error.
   HIGGINS, J.

Appellant sued Gunn as principal, and Holley, Kelly, and Bishop, as sureties, to recover a balance due upon open account for goods, wares, and merchandise sold and delivered by it to Gunn under a contract between appellant and Gunn dated April 15, 1911.

Those portions of the contract material to a consideration of the merits of this appeal read:

“Whereas, G. B. Gunn, of Ira, Texas, desires to purchase of the W. T. Rawleigh Medical Company of Freeport, Illinois, on credit and at wholesale prices to sell again to consumers, medicines, etc., * * * and other goods manufactured and put up by it, paying his account for,such goods in installments as hereafter provided :
“Therefore, he hereby agrees to sell no other goods than those sold Mm by said company, to sell all such goods at regular retail prices to be indicated by it, and to have no other business or employment.”

The contract otherwise is the same as was considered in Armstrong v. W. T. Rawleigh Medical Co., 178 S. W. 582. It was alleged that the goods were delivered to Gunn on board cars at Memphis, Tenn., and that the transaction was interstate commerce. A general demurrer to the petition was sustained upon the theory that the contract in question violated the provisions of the anti-trust laws (Acts 28th Leg. c. 94) of this state and was therefore void and unenforceable. The contract provided that Gunn was to sell no other goods than those sold him by appellant, and he was to have no other business or employment, and such goods were to be sold at regular retail prices to be indicated by appellant. Under the authorities, the contract was subject to the objections urged against its validity, and no recovery could be had thereon. Segal v. McCall Co. (Sup.) 184 S. W. 188; Armstrong v. W. T. Rawleigh Medical Co., supra; W. T. Rawleigh Medical Co. v. Fitzpatrick, 184 S. W. 549.

Affirmed.
      <§=^For other cases see same topic and KEY-NUMBER in all Kej-Numbered Digests and Indexes


author: FLY, C. J.

text:
    RIEDEL v. WENZEL.
    (No. 5677.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 17, 1916.)
    1. Appeal and Error <&wkey;213 — Reservations oe Objections — Failure to Object to Submission oe Issue.
    Where appellant failed to object to the submission of an issue, the sufficiency of evidence to raise the issue could not be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1165, 1304-1308; Dec. Dig. <&wkey;213.]
    2. Brokers <&wkey;86(l) — Actions eor Compensation — Sufeiciency of Evidence — Waiver of Time Limit.
    In an action for broker’s commission on a sale procured by plaintiff, evidence held to justify a jury finding that the vendor waived the original time limit in his contract of employment of the broker.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 117, 118; Dec. Dig. &wkey;86(l).J
    3. Appeal and Error <&wkey; 1070(2) — Harmless Error — Findings—Immaterial Issues.
    It is immaterial whether the evidence in a case supported a finding of a jury upon an immaterial issue.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4232, 4233,; Dec. Dig. <&=> 1070(2).]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Conrad Wenzel against Alex Riedel. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. P. Pfeiffer, of San Antonio, for appellant. W. H. Kennon, of San Antonio, for ap-pellee.
   FLY, C. J.

This is a suit for commissions instituted by appellee, who alleged a contract between him and appellant whereby the latter agreed to pay appellee all that he obtained for a certain 130 acres of land over and above $95 an acre. The trial resulted in a verdict and judgment in favor of appellee for $650.

The. cause was submitted on four special issues, the jury answering that there was a contract between the parties as to the sale of the land, that there was a time limit as to when the contract would expire, but that appellant waived the time and sold his land to a party who was brought to him by ap-pellee. The jury als'o found that appellant had not made any improvements on the land after the time limit expired. No issues were requested by appellant, and no objections urged to those submitted by the court.

The jury found that there was a waiver of the time limit of the contract, and there was no objection to the question or answer. By failing to object to the submission of the issue as to waiver, appellant agreed that the facts raised the issue. He cannot be heard now to say that there was no evidence of waiver.

The case of Neal v. Lehman, 11 Tex. Civ. App. 461, 34 S. W. 153, is cited by appellant as authority to show that the contract expired on February 15, 1914, but that decision goes further and to all intents and purposes holds that the time limit could be extended or waived after the date of the limit, and the judgment was reversed so as to permit a finding on that point

It has been held in several English cases that where there was a time limit as to when a cargo should be provided for a vessel that if the day fixed as the limit has passed, and the cargo is presented for shipment and is placed on board, there would be a waiver of the time limit. Addison on Contracts, § 947. As said by the author cited:

“But even where time is of the essence of the contract, it may be waived by the conduct, and actions of the parties, and by the contract being treated and acted upon as a continuing contract after the appointed period.”

In Mechem on Agency, § 966, it is stated that a broker should find and present a purchaser within the time limited, and he cannot recover his commission if that is not done, unless the principal has caused the delay, or unless he waives it. In a note the author says:

“If the principal without obieetion then deals with the purchaser so found he waives the delay.”

The facts in this case show that appellee brought a purchaser to appellant who was willing and able to purchase, and who did purchase the land of appellant. Appellee swore, and he was sustained by the purchaser, that appellant said nothing about any time limit, but recognized the agency of appellee, and instead of repudiating the contract promised ap-pellee to pay him his commissions out of the proceeds of the first note giren for the land. The jury was justified in finding that appellant waived any time limit in the contract. He might have agreed to an extension of time before the time expired, but the waiver of the time could 'only occur after the time limit had expired, because the right did not exist until the time limit had expired. Appellant availed himself of the services of appellee, and the circumstances show that he acted under the contract made prior to February 15, 1914, and that he fully intended to pay appellee under the terms of that contract. The idea of denying compensation to the man wh'o procured a purchaser for his land did not seem to occur to appellant until some nine or ten months after the land was sold.

Appellant, after February 15,1914, had the right to repudiate his contract with appellee. The time limit was a valuable right, but he had the right, power, and authority, in consideration of a desirable purchaser for his land having been produced by appellee, to set aside and waive his right to the time limit. He did waive it, and should pay for the services of the broker. That right to the time limit did not exist until the time expired, and not until then could it be waived. The acts of appellee in procuring the purchaser were not those of a volunteer, but were performed under the terms 'of the contract and were so accepted by appellant.

No special issues were requested, and there is evidence to support every point necessary to uphold the verdict of the jury. The statute provides that:

“Upon appeal or writ of error an issue not submitted and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment: Provided, there be evidence to sustain such a finding.” Vernon’s Sayles’ Stats, art. 1985.

It is immaterial whether the facts supported the finding of the jury that no improvements were made on his land by appellant between February 15,1914, and the time he sold the land, because appellant did n'ot seek to offset the value of the improvements against the claim of appellee, and that would be the only use to which said improvements could have been put in this case. For what purpose did appellant allege and prove improvements? Certainly they could n'ot defeat the claim for commissions. And appellant did not indicate in his pleadings, nor does he indicate what he expected to gain by proof of improvements. So the question of whether there was 'or was not testimony as to the improvements is a mere abstraction, having no bearing on the vital issues made by the pleadings.

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


author: McMEANS, J.

text:
    BEAUMONT, S. L. & W. RY. CO. v. MANNING.
    (No. 5869.)

    (Court of Civil Appeals of Texas. Galveston.
    March 27, 1916.
    Rehearing Denied April 27, 1916.)
    1. Master and Servant &wkey;>277 — Action for Injury — Issues—Safe Place to Work-Relation of Parties.
    An action for personal injury, plaintiff’s case, 7ield predicated upon the theory that he, as an employé of a construction company, was lawfully at work upon a flat car, and that, while in the performance of his duties, he was injured through the negligence of the employes of the defendant railroad in backing other cars against it, and not. on the theory of defendant’s duty to provide a safe place to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 953; Dec. Dig. &wkey;>277.]
    2. Witnesses <&wkey;319 — Impeachment—Immaterial Matters.
    In an action for personal injury caused by the .servants of defendant railroad negligently backing other cars against a flat car on which he was working, where plaintiff admitted the receipt of certain pay checks issued by a construction company, but claimed that he did not sign the receipts himself, but authorized a hospital attendant to sign them, the contract between plaintiff and his attorneys actually signed by plaintiff was not admissible to impeach plaintiff; the question as to whether or not he had signed the receipts being immaterial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1087-1093; Dee. Dig. &wkey;310.]
    3. Trial <&wkey;194(l) — Instruction — Weight of Evidence.
    A requested charge appearing to be upon the weight of the evidence was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439, 440, 450; Dec. Dig. &wkey; 194(1).]
    4. Trial <&wkey;260 (1) — Requested Instruction —Given Instruction.
    Charges in no way necessary to the elucidation of the issues raised by the pleadings and proof after they had been covered by the court’s general charge were properly refused.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;260(l).]
    5. Master and Servant <&wkey;318(l) — Master’s Liability — Negligence of Servant.
    It was not necessary that the defendant railroad should have had supervision of all the numerous details of construction work to render it liable for the negligence of its servants in backing cars against a flat ear on which plaintiff, the foreman of a construction company, was working, and thereby causing personal injury.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 1257; Dee. Dig. <&wkey;> 318(1).]
    Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.
    Action by Pat Manning against the Beaumont, Sour Lake & Western Railway Company and others. Judgment for plaintiff, and defendant named appeals.
    Affirmed.
    See, also, 146 S. W. 227; 181 S. W. 6S7.
    Andrews, Ball •& Streetman, of Houston, O. T.. Duff, of Beaumont, and A. L. Jackson, of Houston, for appellant. O. T. Holt, John Lovejoy, and John W. Parker, all of Houston, for appellee.

       Application for writ of error pending in Supreme Court.

   McMEANS, J.

Pat Manning brought this suit against the Beaumont, Sour Lake & Western Railway Company, the Colorado, Southern, New Orleans & Pacific Railway Company, and Kenefiek-Hammond-Quigley Construction Company to recover damages for personal injuries sustained by him through the negligence of defendants while engaged in the performance of services as an employ® of defendants in the construction of a switch track on an extension of the Beaumont, Sour Lake & Western Railway Company. Before the trial plaintiff dismissed as to all the defendants except the Beaumont, Sour Lake & Western Railway Company. A trial before a jury resulted in a verdict and judgment for the plaintiff, and the defendant has appealed.

Plaintiff alleged that on or about the 26th day of July, 1907, he was in the employ of defendants, and each of them, as a foreman of a gang of men engaged in general construction work on said line of railway of defendants; that at the time of the injuries complained of plaintiff and his said gang of men were in the actual performance of their duties of employment, and were preparing to construct a switch track at a point on the line of railway of defendant about three miles north of the town of Dayton, Liberty county, Tex.; that for said purpose the defendants had brought to said point a carload of tools and a carload of angle bars or other material along with eight or ten other cars in said train; that they had cut loose from said train the flat ear containing the tools and the box car next to it containing the angle bars or other material and the engine of said train with the rest of said cars had gone some distance on said track in an easterly direction; that the flat car on which the tools were placed was west of said car which was between the flat car and the engine and the other cars; that when said cars were cut loose and made stationary the general foreman of defendants, and each of them, under whose control and direction plaintiff and his gang of men were, ordered and directed plaintiff to go upon the said flat car and get off the tools for the purpose aforesaid; that they had got all of the tools off said car except some wrenches; and that plaintiff, in obedience to orders, got back upon said car to get same, and while in the performance of his duty the said engine and other cars came back at a rapid and reckless rate of speed, and violently struck the box car next and attached to said flat car, and violently struck said flat car, knocking and throwing plaintiff a great distance, to wit; about ten feet, and striking his head, neck, and back against said box car, running over him, and inflicting the injuries hereinafter complained of,- without fault or negligence on his part.

Recovery was predicated upon the negligence of defendants in the following particulars:

“That said injuries were directly and proximately caused and occasioned by the negligence and carelessness of the defendants, and each of them, their agents,' servants, and employés, in this, to wit:
“(a) That they negligently and carelessly backed said engine and cars at an unusual, rapid, dangerous, and reckless rate of speed and against said box car and flat car upon which plaintiff was standing, and hit same with great and unusual violence, causing the injuries aforesaid, and that, if they had used ordinary care in the premises, said injuries would not have occurred. * * *
“(d) That they were further negligent in not taking precautions to see that plaintiff and his men were all off said flat car before they backed said engine and cars upon them, and that they backed said engine and cars aforesaid without any signal so to do; that they knew or by the use of ordinary care they could and would have known of the presence of plaintiff upon said flat car, and could and would have prevented said injuries; that said box car obstructed the view of plaintiff, and he could not see and did not see the engine and other cars coming back upon him, and did not know of their presence, and that he was injured without any notice or knowledge of the approach of said cars, and without any fault or negligence on his part.”

Other acts of negligence alleged were not proved, and therefore are not set out.

The evidence in the record warranted the jury in finding that the plaintiff was injured in the manner and from the causes charged in his petition. The evidence also warranted the finding that the engineer and conductor of the train which backed against the car upon which plaintiff was at work were the employés and servants of the Beaumont, Sour Lake & Western Railway Company (Manning v. Railway, 181 S. W. 687), for whose negligence, resulting in personal injuries, the railway company was responsible, under the principle of respondeat superior. The jury were further warranted in finding from the evidence that the acts of the engineer and conductor in backing the train against the car upon which plaintiff was standing was negligence, and that such negligence was the proximate cause of his injury, and that he was not guilty of contributory negligence.

Upon a former hearing of this case we sustained the appellant’s first assignment of error, which complained of the refusal of the court to peremptorily instruct a verdict for defendant, on the theory and belief that the undisputed evidence showed that the conductor and engineer, through whose negligence the plaintiff was hurt, were the servants of the Kenefick-Hammond-Quigley Construction Company, an independent contractor, engaged in. the construction of the defendant’s railroad, and not the employ és of the defendant. See Railway v. Manning, 146 S. W. 227. The Supreme Court granted a writ of error, and reversed this court on said ruling, holding that there was sufficient evidence to sustain the finding of the jury on that issue. See Manning v. Railway, 181 S. W. 687. With all due deference we acknowledge our error and readily acquiesce in the Supreme Court’s ruling. Our former judgment has therefore been set aside.

There are 11 assignments of error presented by the appellant which were not considered by this court on the former hearing, for the reason that, in view of our decision then rendered, it was unnecessary to decide them; we having reached the conclusion that the judgment should be reversed and rendered on the issue presented in the first assignment. The Supreme Court, in reversing our decision, remanded the case to this court for a decision of the questions presented in said assignments.

The second and fourth assignments present in different forms substantially the same question as the first, and, in view of the disposition by the Supreme Court of the first assignment, we overrule them. Even if we are mistaken in holding that the assignments present practically the same question as presented by the first, we hold, after a careful consideration of them, that neither of them points out reversible error, and both are overruled.

The third assignment, submitted as a proposition, is as follows:

“That the court erred in overruling the defendant’s amended motion for new trial, for the reasons set forth in ground XVIII of said motion, complaining that the verdict of the jury was contrary to the law and the evidence, in that, according to the undisputed evidence, the plaintiff, Manning, did not sustain to the defendant railway company that relation of servant to master which would invoke the doctrine of respondeat superior, so as to impose on the defendant railway company the duty of using-ordinary care to furnish Manning a reasonably safe place to work, or reasonably prudent fellow workmen, in connection with the service which they were then and there engaged in.”

There is no merit in this assignment. The issue of safe place to work was not presented by either the pleadings or the evidence. Plaintiff's case is predicated upon the theory that he, as an employs of the Construction Company, was rightfully upon the car where he was at work, and that while in the performance of his duties there he was injured through the carelessness and negligence of the defendant’s employés.

The fifth assignment complains of the action of the court in refusing to permit the defendant to prove by the testimony of plaintiff, Pat Manning, that a certain written contract on file in this cause purporting to have been executed between him and his attorneys looking to the employment of the latter was actually signed by him, and that the signature was in his handwriting, and in refusing to permit the defendant’s counsel to introduce said written contract and signature in evidence, in order that the signature might be examined by the jury and compared with the name “Pat Manning,” as signed on certain vouchers, checks, letters, and pay rolls and other documents which had theretofore been exhibited to the plaintiff when he was a witness, and the signing of his name on which he had denied, and in refusing to permit counsel for defendant, in that connection, to make proof by expert witnesses that the signature of Manning on said contract of employment was similar to and identical with the name “Pat Manning” as signed on said vouchers, checks, letters, and pay rolls, thus contradicting and impeaching said Manning, and tending to discredit his testimony.

Under this assignment appellant presents the two following propositions:

(1) “The pleadings having raised the issue whether the plaintiff, at the time of his injury, was in the employment and under the immediate control and direction, and performing the service of defendant or of the construction company, any circumstance tending to show that the plaintiff knowingly received all of his compensation for such service from the construction company, and not from the railroad company, was admissible as evidence material to such issue.”
(2) “The plaintiff having testified as a witness in his own behalf, for the purpose of establishing the material allegations of his pleading, it was competent for defendant’s counsel, upon and in connection with his cross-examination, to prove any contradictory or inconsistent act or statement on the part of plaintiff, connected with the controversy involved, that would tend to affect his credibility and the weight of his testimony, by testing his sincerity or the accuracy of his memory.”

The overwhelming weight of, if not the undisputed, testimony, shows that Manning was the servant of the construction company, and not of the appellant, and it is not contended otherwise. On this point the appellant, on page 72 of its brief, says:

“The evidence shows without dispute that the plaintiff, Pat Manning, was employed by the Kenefick-Hammond-Quigley Construction Company,'and paid by it, and during the time of his employment, up to the time of his injury, performed for it only construction work which was covered by the contract with defendant, and never rendered at any time any service for defendant railway company, or received payment from it, or was under its direction or control, or subject to its power to discharge him at the time.”

The proposition advances the contention, in effect, that because the pleadings raised the issue as to whether the plaintiff was in the employment and under the immediate control and direction and performing the services of the defendant or the construction company, the proffered testimony was admissible on this issue.

The plaintiff admitted the receipt of certain pay checks issued by the construction company, but claimed that he did not sign the receipts therefor himself, but authorized an attendant at the hospital, where he then was, to sign his name thereto. He denied, however, that he had received a check for $50 which the construction company claimed to have paid him, or that he had signed or áuthorized his name to be signed to the receipt therefor. These payments were for sums due plaintiff by the construction company as wages. They were not sued for by plaintiff, and were in no way put in issue. The papers and documents which bore the admitted signature of plaintiff offered by appellant as a means of comparison with the signature on the receipts were in no way admissible upon the issue made by the pleadings, but it seems to us to have been a plain attempt to impeach the plaintiff on an immaterial and collateral matter. This cannot be allowed. Texas & Pacific Railway Company v. Phillips, 91 Tex. 278, 42 S. W. 852. The assignment is overruled.

The sixth assignment is sufficiently disposed of by what we have hereinbefore said, and by the ruling of the Supreme Court heretofore referred to in this opinion, and is overruled without further comment.

The seventh assignment complains of the refusal of the court to give to the jury the third special charge requested by defendant. The charge appears to be upon the weight of the evidence, and for that reason it was not error to refuse to give it. Besides this, it does not appear that the charge was in any way necessary to the elucidation of the issues raised by the pleadings and proof, other than had been covered by the court’s general charge. Certainly its refusal does not afford a ground for reversal. The assignment is overruled.

The eighth assignment complains of the refusal of the court to give the following special charge requested by defendant:

“You are instructed that, in order to constitute that power of control by the defendant railway company over the members of the train crew which you have been instructed elsewhere in the charge is necessary to render the defendant liable for their alleged negligence, you must find from the evidence that _ defendant had not only the power of supervision as to the ultimate results of the work being performed, but all the details, together with the immediate power and authority to discharge from the particular service those whose acts are complained of as causing the plaintiff’s injury.”

Manifestly the charge should not have been given. It was not necessary under the facts of this case that the railway company must have had supervision of all of the many, and almost infinite, details of the work of construction in order to render it liaable for the negligent acts of -its agents in causing plaintiff’s injury. The assignment is overruled.

The ninth, tenth, and eleventh assignments are predicated upon the refusal of the court to give the fifth, sixth, and seventh special charges requested by defendant.

We have carefully examined the requested special charges in connection with the evidence and the main charge, and are of the opinion that, in so far as the charges were proper to be given, they were sufficiently comprehended in the court’s charge, and that the failure to give them should not cause a reversal. The assignments are overruled.

The twelfth assignment is without merit, and is overruled without discussion.

We find no reversible errors in the record, and the judgment of the court below is affirmed.

Affirmed.
      <gcs>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, O. J.

text:
    JOINER v. CITIZENS’ NAT. BANK et al.
    (No. 572.)
    (Court of Civil Appeals of Texas. El Paso.
    May 11, 1916.)
    Eandlobd and Tenant <&wkey; 180(3) — Wrongful Ejection — Petition—Sufficiency.
    A petition praying damages for plaintiff’s wrongful eviction from demised premises, states a cause of action as against general demurrer, though it did not allege whether the rent was to be paid in cash or crops, it being averred that the lease was for a valuable consideration, for on general demurrer pleadings are liberally construed.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 721, 722; Dec. Dig. 180(3).]
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    Suit by Joe Joiner against the Citizens’ National Bank and others. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Ben L. Cox, of Abilene, for appellant. J. M. Wagstaff, of Abilene, for appellees.
   HARPER, O. J.

This suit was instituted by appellant by a petition filed in the district court of Taylor county, containing the following allegations of fact:

“That plaintiff was the owner of a lease to a certain tract of land for the year 1914, which tract of land is described as a tract of land situated in Taylor county, Texas, and consisting of about 112 acres of the Willis Avery survey and situated about eleven miles west (a little southwest) of the city of Abilene on the South Canon and Abilene public road, lying immediately south of and across the road from the Van Pannell place and being the same tract of land leased to this plaintiff by T. A. Bledsoe for the years 1912, 1913, and 1914, which tract of land was formerly owned by T. A. Bledsoe.
“That while the said T. A. Bledsoe was the owner of the title to said premises, this plaintiff leased said premises from the said T. A. Bled-soe for a term of three (3) years beginning the 1st day of January, 1912, and ending the 31st day of December, 1914, and. that in pursuance of said lease contract, plaintiff entered into possession of said premises on the 1st day of January, 1912, and carried out and complied with the terms of said lease contract for the years 1912 and 1913, and was still in possession and control of said premises under said lease contract on the 1st day of January, 1914, under and by virtue of said lease contract.
“That prior to said 1st day of January, 1914, the said T. A. Bledsoe ceased to be the owner of said premises and the title to same was acquired by defendants, and on said 1st day of January, 1914, the defendants were the owners of said premises and the title thereto.
“That alter the defendants had acquired the title to said premises, this plaintiff, desiring to render the balance of his said leasehold of said premises agreeable to defendants, consulted with defendants and made a contract with defendants, as the then owners of said premises for the lease of same for the year 1914, and defendants did lease said premises to this plaintiff for the year 1914 and did contract with this plaintiff for this plaintiff to remain in the exclusive custody and control and possession of said premises for said year, and for a valuable consideration, this plaintiff did retain said lease for said year and was carrying out his part of said contract.
“That after the 1st day of January, 1914, while this pláintiff was still in possession and control of said premises and carrying out his said lease contract of said premises as aforesaid and without his knowledge and consent, defendants breached their said lease contract with this plaintiff and leased said premises to another party or parties, and by force ejected plaintiff from the possession and control of said premises to another party or parties, and by force ejected plaintiff from the possession and control of said premises and took possession of said premises themselves by placing in control of same another tenant, to wit, one Will Par-melly, which action on the part of the defendants resulted in damages to this plaintiff as will he shown hereinafter.
“That when plaintiff was ejected from said premises, said land had a crop of oats growing thereon which belonged to this plaintiff, and that defendants and their said tenant Parmelly took possession of said oat crop and said premises and after said crop had matured, the defendants and their said tenants harvested said oats and converted the same to their own use and benefit, and that, in addition to said oat crop which plaintiff lost, plaintiff also lost the use of said premises as a pasture from the time he was ejected therefrom up until about the 15th day of March or for a period of about two and one-half months; that he lost also the use of said premises as a pasture from the time said oats were harvested and removed from said premises until the end of said year.
“That said oat crop yielded and produced about one thousand eight hundred (1,800) bushels of oats which were reasonably worth in the market at said time the sum of 40 cents per bushel, aggregating the sum of seven hundred and twenty ($720.00) dollars.
“That the value of the use of said premises as a pasture from about the 15th day of July, 1914, when said crop was removed therefrom, until the end of said year was the sum of seventy-five ($75.00) dollars.
“That in addition to said items of damage, this plaintiff has been further damaged in the sum of two hundred ($200.00) dollars by virtue of the fact that said oat crop was not grazed by stock as it' should have been after the 3d day of January, 1914, when plaintiff was ejected therefrom by the defendants, but on said 3d day of January, plaintiff was ejected from said premises and all stock removed therefrom and said oats were not grazed thereafter, all of which resulted to the damage of said oats by virtue of same resulting in the maturing of said oats at too early a date and resulted in some of said oats being killed by cold weather which would not have occurred had said oats been grazed down by stock as they should have been and as they would have been had this plaintiff not been ejected therefrom; that the defendants were duly notified by this plaintiff as to the condition of said oats and they were duly notified by this plaintiff that stock should be left on said oats in order that they might be grazed as aforesaid, but defendants ignored said notices so given to them by this plaintiff and refused to permit plaintiff’s stock to remain thereon, and, failed to put their stock thereon in order to keep said oats properly grazed down during said winter months; that by virtue of said actions of defendants said oat crop was damaged in that it would have produced at least five hundred (500) bushels more than it did produce, had said oats been properly grazed, which said 500 bushels of oats would have been worth the sum of two hundred ($200.00) dollars.
“Wherefore, premises considered, plaintiff prays for citation in terms of the law and upon final hearing hereof, for judgment for his damage against the defendants -in the sum of one thousand and forty-five ($1,045.00) dollars, and for general and special relief, both in law and in equity as he may be entitled to in the premises and in duty bound will ever pray.”

Appellee filed general demurrer, which was sustained by the court and the cause dismissed, from which this appeal is prosecuted.

On general demurrer, pleadings are liberally construed, and all reasonable inferences from the facts alleged in the pleading, as a whole, should be made in aid thereof. Towne’s Texas Pleading, p. 530.

The appellee urges that because appellant did not allege whether the rental to the landlord was to be cash or a portion of the crops,, no measure of damages could be arrived at. The allegations in the petition are that the lease for one year ,was for a valuable consideration, which is sufficient to set up a definite contract for one year, and in absence of a special exception pointing out the defect, are sufficient to admit proof, and upon the proof the court could determine the true measure of damages, for under this allegation plaintiff could prove payment in advance.

Reversed and remanded.
      <@=:>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    SALT CITY CO. v. PADGETT et al.
    (No. 1648.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 17, 1916.
    Rehearing Denied May 25, 1916.)
    Taxation <&wkey;510 — Tax . Lien — Priorities.
    Vernon's Sayles’ Ann, Civ. St. 1914, art. 7627, providing that there shall be a lien for taxes on property of a delinquent taxpayer superior to certain rights acquired thereto by his creditors while he owns the property, does not give a junior tax lien priority over a senior chattel mortgage, taken for the purchase price of the personalty.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 946; Dec. Dig. &wkey;3510.]
    Appeal from Van Zandt County Court; R. M. Lively, Judge.
    Action by the Salt City Company against Joe Padgett and another. FTom the judgment rendered, plaintiff appeals.
    Reformed and affirmed.
    West & West, of Grand Saline, for appellant. T. R. Yantis, of Canton, for appellees.
   WILLSON, C. J.

In May, 1914, appellant sold a horse to appellee Padgett on creditj and took from Padgett a mortgage on the horse to secure the payment of the price thereof. Before the sale was made appellant paid all taxes due on the animal for the year 1914 and previous years. In July, 1914, Padgett having failed to pay taxes assessed against him for the years 1911 and 1912, the tax collector levied on the horse, and was proceeding to sell .same for taxes due hy Padgett, as stated, when appellant commenced the suit resulting in the judgment from which appeal is prosecuted. Appellant sought judgment against Padgett for the purchase price of the horse, and a foreclosure of the mortgage as against hoth him and the tax collector. The trial court was of opinion appellant was entitled to the relief it sought against Padgett, hut that the lien created on the horse hy the levy thereon made by the tax collector was superior to appellant’s hy virtue of the mortgage, and rendered judgment accordingly.

In support of the judgment it is insisted that the lien created by the levy for taxes due hy Padgett, though junior in fact, was in law superior to that of appellant’s mortgage by force of article 7627, Vernon’s Statutes, which is as follows:

“In all cases where a taxpayer makes an assignment of his property for the payment of his debts, or where his property is levied upon by creditors, by writs of attachment or otherwise, or where the estate of a decedent is or becomes insolvent, and the taxes assessed against such person or party, or against any of his estate remains unpaid in part or in whole, the amount of such unpaid taxes shall be a first lien upon all such property; provided, that, when taxes are due by an estate of a deceased person, the lien herein provided for shall be subject to the allowances to widows and minors, funeral expenses, and expenses of last sickness; and such unpaid taxes shall be paid by the assignee, when said property has been assigned by the sheriff out of the proceeds of sale in case such property has been seized under attachment or other writ, and by the administrator or other legal representative of decedents; and, if said taxes shall not be paid, all said property may be levied on by the tax collector and sold for such taxes in whomsoever’s hands it may be found.”

The statute had no application to the facts of this case. Its purpose was, the circumstances mentioned in it existing, to create a lien on the property of a delinquent taxpayer for taxes due by him, superior to rights acquired thereto by his creditors, in ways specified, while he owned the property. It was not intended and did not operate to give precedence to a junior tax lien on personal property over a contract lien thereon like the one asserted by appellant.

The judgment will be so reformed as to require the proceeds arising from the sale to be made of the horse as it provides, to be applied to the payment in full of the sum found to be due appellant before any of same are applied to the payment of taxes adjudged to be due by Padgett, and, as so reformed, will be affirmed.
      <£s»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HENDRICKS, J.

text:
    KING et al. v. LANE.
    (No. 903.)

    (Court of Civil Appeals of Texas. Amarillo.
    May 3, 1916.
    Rehearing Denied May 24, 1916.)
    1. Deeds <&wkey;112(2) — Description—Reference to Map.
    Though the map of an “addition” was not in the deed records of a county at the time of conveyance of a block therein, nevertheless title to the particular block vested in the grantee where the grantor, in describing the property in the deed, referred to the map, which designated the land after having been actually located and surveyed on the ground.
    [Ed. Note. — For other cases, see Deeds, Cent. § 324; Dec. Dig. &wkey;s 112(2).]
    2. Vendor and Purchaser <&wkey;232(l) — Purchase in Good Faith — Inquiry—Possession.
    If another’s possession of land is consistent with the record title, the purchaser is not bound to inquire concerning the title indicated by the possession, and a purchaser from a vendee whose vendor remains in possession is not bound to inquire further when he finds on record a deed from such vendor conveying the title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540, 550, 551; Dec. Dig. <&wkey;232(l).]
    3. Vendor and Purchaser &wkey;>230(2) — Record — Notice.
    A reconveyance, by deed describing the land according to an unrecorded map or plat of an “addition,” made by the grantee to the grantor, did not impute notice to adverse parties of the grantor’s new title.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 505, 506; Dec. Dig. &wkey;230(2).]
    4. Vendor and Purchaser <&wkey;232(3) — Notice op Adverse Title — Possession.
    Possession of land by the original grantor thereof after reconveyance to him by the grantee was not notice to adverse parties of his title, unless they knew of his deed.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 544; Dec. Dig. &wkey;> 232(3).]
    5. Trespass to Try Title &wkey;>39(i) — Evidence.
    In suit by purchasers at sale to satisfy lien claimants to recover land reconveyed by the original purchasers’ trustee to the original grantor thereof, who had reserved the right to have 3 acres upon repayment of a part of the purchase money, testimony as to the agreement, though not admissible as proof of title, was admissible as a relevant circumstance to show the authority of the trustee to reconvey, and that the reconveyance was in recognition of the previous oral arrangement made when the original grantor conveyed.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig.'§ 54; Dec. Dig. <i&wkey;39(l).]
    6. Frauds, Statute op &wkey;>63(5) — Authority to Reconvey.
    Parol authority from the buyers of land to their trustee to reconvey part to the grantor upon repayment of a proportionate part of the purchase price is not within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 101; Dec. Dig. &wkey;=63(5).]
    7. Railroads &wkey;3lll — Liens — Workmen — Construction — Discharge.
    Where town lands, equitable title to which was held by- the bonus committee of a railroad, was sold by their trustee under their' authority, such land was discharged from the trust, so that grade workers for the railroad could not claim a lien thereon by virtue of the contract between the bonus committee and the railroad, but had to look to the money representing the lands.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §1 342-350; Dee. Dig. &wkey;>lll.]
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Suit by S. M. King and another against J. M. Lane. From a judgment for defendant, plaintiffs appeal.
    Judgment affirmed.
    Moss & Leak, of Memphis, for appellants. J. M. Elliott, of Memphis, for appellee.

       Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

On the 19th day of May, 1909, the appellee, J. M. Lane, was the owner of the S. E. % of the S. W. % of section 20, block 20, Houston & Great Northern Railway Company survey, near the town of Memphis, situated in Hall county, Tex.; said land consisting of 40 acres, more or less. On that day he conveyed the land by general warranty deed, for the sum of $8,000, to “R. A. Dunbar, trustee for J. J. Mickle, J. A. Bradford, Charles Drake, and D. Browder, executive committee of the Memphis railroad bonus committee.” At the time this deed was executed by Lane to Dunbar, as trustee, it was specifically agreed between Lane, the trustee, and the executive committee (representing said bonus committee) that Lane had the right of reservation of any 3 acres of land, to be thereafter selected by him, upon payment of a pro rata consideration, in accordance with the amount paid to him, and would receive a reconveyance of said 3 acres when so selected.

We infer from this record that at this time there was a projected promotion of a railroad designated as the Altus, Lubbock & El Paso Railroad, the contemplated route of which was through Memphis, Tex. On the 6th day of May, 1909, prior to the execution of the deed by Lane to Dunbar, the railroad bonus committee of Memphis, Tex., entered into an agreement with Edward Kennedy, who was the promoter of said Altus, Lubbock & El Paso Railroad, and the president of same, by the terms of which agreement the bonus committee obligated themselves to purchase certain lands in or adjoining the town of Memphis, the title of which ■was to be vested in a mutually selected trustee, the land to be sold ‘‘and the procéeds placed in the bank at Memphis, Tex., to be ■paid out on estimates for grading work on the roadbed of the Altus, Lubbock, Roswell & El Paso Railroad Company, in Hall county, Tex., as the work should progress continuously out of Memphis.”

Kennedy, the president of said railroad, caused the civil engineer in charge of the company’s affairs to map and plat the particular 40 acres of land, conveyed by Lane to Dunbar, trustee (in connection with other land) into lots, blocks, streets, and alleys, evidently for the purpose of sale. Kennedy, as president of the railroad company, was fully cognizant of the arrangements between the executive and the bonus committees, and Lane, for a reservation and reconveyance to the latter of the 3 acres of land to be selected — Kennedy thereafter ratifying said agreement.

On the 15th day of June, 1909, R. A. Dunbar, as trustee for the executive committee (naming the members thereof in the deed) and for Ed Kennedy, the president of the road, in consideration of the sum of $407, paid by Lane, deeded to Lane “all that certain lot, tract or parcel of land described as * * * block No. 34, in Fairview addition to the town of Memphis, Texas.” This consideration is shown to have been paid by Lane.

On June 4, 1910, in a suit in the district court of Hall county, Tex., in which the members of the bonus committee and the railroad and Kennedy were defendants, a lien was established upon the 40 acres conveyed by Lane to Dunbar, and upon other land, consisting of 80 acres, embodied in the same trust agreement, for the benefit of certain parties holding claims on account of having performed certain grade work' upon the roadbed of the railroad company, and the land was ordered sold for the foreclosure of the particular lien mentioned, for the purpose of satisfying said claims.

J. B. Patterson, a master in chancery in said suit, reported a public sale of said property to the district court, which was confirmed by the district judge October 9, 1911, and the master, on the 10th day of October, 1911, deeded the land to Wilkerson, who thereafter on the 9th day of November, 1911, deeded the said 40 acres to S. M. King and R. S. Rose, the appellants herein, for a recited consideration in said deed of $7,000.

The map and plat of the Fairview addition, to Memphis, Tex. (in accordance with which block 34 of said addition was conveyed by Dunbar, trustee, to Lane), was not of record in the deed records of Hall county, Tex., at the time of said conveyance, though the land had been surveyed and staked into lots, blocks, streets, and alleys, and the plat made at the time of the deed.

On the 22d day of September, 1911, J. M. Lane, the appellee herein, recorded a plat of block 34, of said Fairview addition above mentioned, in the deed records of Hall county, designating the lots in said block and .one street and an alley, as shown by this record; the instrument containing a dedication clause of said streets and alleys, to the use of the public.

Though the map of the Fairview addition was not in the deed records of Hall county at the time of the reconveyance by Dunbar to Lane of block 34, we think the title to the particular property vested in Lane for the reason that Dunbar, in describing the property in his deed, referred to an instrument (the map) which, designated the land after having been actually located and surveyed upon the ground. King and Rose sued Lane for the land, and the trial court peremptorily instructed the jury to render a verdict in favor of Lane. The deed from Dunbar, as trustee, reconveying the 3 acres to Lane, was placed of record, prior to the time of the establishment of the lien above mentioned.

The trial court peremptorily instructed the jury in favor of Lane, the defendant, and ap-pellee herein, for the 3 acres of land in controversy. When the land was sold at public vendue, by the master in chancery, Wilkerson had actual notice of the claim of Lane to that part of the land reconveyed to him, but said he would take his chances. Within a very few days he conveyed to King and Rose, both deeds having been placed of record the same day, and there is no testimony that the latter paid any consideration for the land to Wilkerson, on account of the conveyance to them.

Appellee seems to hang his case upon the doctrine of notice as afforded by the possession of Lane of the particular property, the fencing of . the same by him, and the fact of the platting of the land shown by obvious stakes on the ground, aided by the dedication of Lane of block 34, with streets and alleys, to the public, of record a short time before the conveyance by the master in chancery.

It is the settled rule in this state that if the possession by one of a piece of land is consistent with the record title, the purchaser is not bound to make inquiry concerning the title indicated by the possession, because no inquiry is suggested by it; and a purchaser from a vendee, whose vendor remains in possession, is not bound to inquire further when he finds on record a deed from such vendor conveying the title. Eylar v. Eylar, 60 Tex. 315; Alstin v. Cundiff, 52 Tex. 453;. Smith v. Miller, 63 Tex. 72; Ramirez v. Smith, 94 Tex. 184, 59 S. W. 258. The record shows that Lane had previously conveyed the 40 acres. The reconveyance by Dunbar as trustee, describing land according to a map or plat of an addition not of record, did not impute notice; and we are inclined to think that the possession by Lane of the property, unless an adverse party knew of his deed, would he considered as consistent with his former conveyance.

The proposition is asserted by appellants King and Rose that there is no authority shown to Dunbar to reconvey the land to Lane. The proof is conclusive that Lane sold the 40 acres to the committee, with the agreement that he was to have 3 acres, thereafter to be selected by him, upon the repayment of a proportionate part of the purchase money. Though such testimony may not be admissible as proof of title, strictly speaking, however, we think it is admissible as a relevant circumstance, for the purpose of showing the authority of Dunbar to reconvey, taken in connection with other testimony by other witnesses, that said recon-veyance was in reality in recognition of the previous oral arrangement, when Lane conveyed the land to Dunbar. The proof is conclusive that Lane sold the 40 acres to the committee, conveying it to Dunbar, as trustee, with the agreement that he was to have the 3 acres thereafter to be selected by him upon the repayment of a proportionate part of the purchase money.

Charles Drake, one of the bonus committee, testified:

“We bought 40 acres of land from him [Lane] but he was to have a block out of it anywhere he wanted it — three acres or a block. The deed that was made to the committee was for 40 acres, and is the deed which has been read in evidence here. Our committee then instructed Mr. R. A. Dunbar, as our trustee, to convey to Mr. Lane the block of land which he had reserved in his negotiations with us; we instructed him to execute a deed to Mr. Lane, but I do not know of my own knowledge whether or not the same was done. I do know that we instructed it done.”

Kennedy, the president of the road, testified that he knew of the arrangement as to the reconveyance of the land to Lane as a part of the consideration of the sale of the land to the committee, and said that they ne^er made any claim to block 34 of said addition as platted.

While the agreement for the reconveyance may be within the; statute of frauds, we assume, however, that it will not be further questioned that a parol authority to Dunbar to reconvey the land is not within the statute of frauds. It is conclusive that block 34 of said addition is situated in the southeast corner of the 40-acre tract, transferred by Lane to Dunbar, and is embraced in the deed of said tract, made by the master in pursuance of the judicial sale.

There is no complaint against the peremptory instruction embodied in appellants’ brief. There is an argument in appellants’ brief, based upon an assignment hereinafter mentioned, that because there is no notice shown to the lien creditors of the railroad company, ,who were beneficially entitled to said lien, on account of the contract mentioned, that, though Wilkerson may have had notice and King and Rose did not show they paid a valuable consideration for the land, however, the burden being upon the defendant Lane to show notice to said lien creditors, there should have been a recovery by the appellants instead of appellee.

We have had considerable trouble with the numerous assignments of appellant, complaining of certain testimony as to the notice given to the purchasers at the judicial sale on the ground that the same is immaterial for the reason that notice is not imputed to the lienholder — whether there is any real complaint or proper assignment, challenging the peremptory instruction, of the judgment of the court, necessary to discuss in the case.

The thirty-second assignment is that the court erred in not granting plaintiffs’ motion to strike from the record and withdraw from the consideration of the jury the testimony of the witnesses Grundy, Deayer, Cagle, and Lane, that notice was given to the purchaser after judicial sale, for the reason that the judgment lien creditors are not shown to have had any notice, and that such testimony is wholly immaterial and irrelevant and cannot affect the rights of the purchaser in the land. This motion is shown to have been made at the close of the case.

If the assignments, based upon such a motion, and the action of the court, in refusing to withdraw the testimony, are sufficient to permit us to review the cause, we still think the judgment of the trial court, as decided upon the original hearing, should be sustained.

The cases of Linn v. Le Compte, 47 Tex. 441, 442, and Grace v. Wade, 45 Tex. 522, probably sustain the contention of the appellants that the nature of the lien and the creditors of the railway company are of such a character as that the burden of proof would he upon Lane to show that he had notice of his claim before recovery could be had against Hose and King. Such lien creditors, however, did have notice from the record that Dunbar was a trustee for the railroad, and the bonus committee, for the purpose of selling the land to pay the claims of those performing grade work upon the roadbed of the railroad company.

It is conclusive that Lane paid the agreed consideration of $407 for the S acres. The very contract evinced by this record, which gave the claimants an equitable lien upon the land, on account of the grade work performed by them, shows that the land was to be sold and the money was to be placed in a Memphis bank to carry out said agreement. Of course this agreement was solely between the railroad and Kennedy, the president of the same, and the bonus committee, represented by an executive committee. When the land was sold by Dunbar, as trustee, by virtue of the authority of those who owned the equitable title to the land, we think; the particular land in the conveyance was discharged from the trust to the extent that the claimants, on account of having been grade workers could not claim a lien by virtue of the contract and must look to the money representing the land. Lane was not a party to the suit in the district court of Hall county, in which their equitable lien was established upon the land. When the grade workers recognized a deed to Dunbar *as trustee, and the contract between the railroad and the bonus committee, by the assertion as claimants of an equitable lien, on account of their labor upon the grade, Dunbar was as much their trustee as of the other parties to the contract. We do not think that Lane was required to see that the trust agreement was carried out according to the terms of the same between the bonus committee and the railroad; hence we think that on account of Wilkerson’s notice of Lane’s rights, at the judicial sale, and the failure to prove that King and Bose paid any value for the land, appellants are in no position to recover.

The original opinion in this case on original hearing is not satisfactory, and we think that a part of same, as to the reasons given, for the affirmance of the judgment, was error. The original opinion is withdrawn and the judgment affirmed, with the additional order that the appellants be given 15 days from and after the 3d day of May, 1916, within which to file an amended motion for rehearing.
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