author: BROOK®, J.

text:
    BAY LUMBER CO. v. SNELLING.
    (No. 342.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 8, 1918.
    Rehearing Denied Oet. 9, 1918.)
    1. Accord and Satisfaction <&wkey;26(3) — 'Dispute as to Amount Due — Sufficiency of Evidence.
    In action against lumber company for balance due on piling contracts, where plaintiff had received from such company a voucher on its face that it was for balance in full and accord and satisfaction was claimed, evidence held insufficient to show a bona fide dispute as to amount due plaintiff.
    2. Sales <&wkey;288(2) — Performance — Waiver —Acceptance.
    Where lumber company, having entered into piling contracts, accepts piling as performance of the contract without objection or complaint and uses and converts the timber, it cannot thereafter be heard to say that the piling delivered was not the piling called for by the terms of the contract.
    3. Appeal and Error <&wkey; 173(1) — Issues Not Urged in Lower Court.
    Where lumber company enters into two piling contracts with same party and accepts 300 extra pieces under and as part performance of the contracts, in latter’s action to recover balance due on the contracts, the company cannot urge on appeal that it is liable as to excess only on implied contract, where it did not plead or urge such defense during trial.
    4. Appeal and Error t&wkey;218(l) — Assignment of Error — Failure to Except to General Charge — Failure to Bequest Special Charge.
    An assignment of error attacking the verdict and judgment cannot be sustained, where appellant did not except to the general charge and did not request special charge covering the particular phase of the case covered by the assignment.
    5. Trial <&wkey;219 — Instructions—Refusal to Define Bona Fide Controversy.
    In action for balance due on contracts, where court submitted special issue of whether there was bona fide dispute as to amount due plaintiff when he accepted defendant’s voucher stating that it was for balance in full, court’s refusal to give special charges defining “bona fide controversy” held not error.
    6. Pleading &wkey;>237(6) — Trial Amendment— Admissibility of Evidence.
    Where evidence as to modifications of a contract was objected to upon the ground that the pleadings did not support such evidence, the defect in the pleading could be cured by a trial amendment.
    7. Appeal and Error <&wkey;197(l) — Objection to Evidence — Reservation in Lower Court.
    Objection to admissibility of evidence under the pleadings cannot be raised for first time in Court of Civil Appeals.
    8. Evidence <&wkey;177 — Secondary Evidence— Carbon Copy of Letter.
    Where original of letter showing terms of contract could not be produced, carbon copy held admissible.
    9. Trial <&wkey;350(4) — Special Issues.
    In action against lumber company for balance due on piling contracts involving question of whether there was a dispute as to. amount due plaintiff when he accepted defendant’s voucher stating that it was for balance in full, refusal to submit requested special issue as to whether defendant’s agent acted for protection of company when he refused to settle with plaintiff until claim of third party, which he claimed could be set off against plaintiff, was settled, held no error.
    10. Trial <&wkey;350(4) — Requested Special Issues.
    In action against lumber company for balance due on piling contracts, refusal to submit requested special issue as to whether the piling plaintiff agreed to furnish by a certain contract was the piling described in a certain letter held no error.
    11. Appeal and Error <&wkey;994(2) — Review— Credibility of Witnesses.
    The credibility of witnesses was for the jury, not the appellate court.
    12. Appeal and Error <&wkey;995 — Review— Weight of Evidence.
    The weight of the evidence is for the jury, not the appellate court.
    Appeal from Harris County Court; W. E. Monteith, Judge.
    Action by J. E. Snelling against the Bay Lumber Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Carothers & Brown, of Houston, for appellant. Fisher, Campbell & Amerman and G. P. Dougherty, all of Houston, for appellee.
   BROOK®, J.

This suit originated in the county court at law of Harris county, Tex., and was brought by the appellee, J. E. Snel-ling, against the appellant, Bay Lumber Company, to recover a balance of $333.68 alleged to be due on two piling contracts. The appellant answered by general denial and a special plea that there had been an accord and satisfaction; that there was a controversy as to an offset to appellee’s claim, and appellant issued to appellee a voucher which stated on its face that it was for the balance in full, which voucher was received and accepted by the appellee as a payment in full and was cashed by him. The appellant, by supplemental petition, alleged that the agreed settlement was not binding, because there was no bona fide controversy between him and the Bay Lumber Company, and he also denied that the check was accepted by him as a payment in full. The trial court refused to peremptorily instruct a verdict for appellant, and submitted the case on special issues, as follows:

“Gentlemen of the Jury: The court submits this case to you upon special issues which you will answer as you find the fact to be in regard to each of said special issues hereinafter submitted on a separate sheet or sheets of paper, numbering your answer to correspond with the number of the issues submitted, being guided by the charge herein as to the law which the court gives you as applicable to the issues herein.
“Special issue No. 1: Do you, or do you not, find from the evidence that prior to or on the 15th day of June, 1915, the date on which voucher for the sum of $472.22 was given plaintiff by defendant, there was a bona fide dispute as to the amount due plaintiff by defendant? You will answer, ‘There was,’ or ‘There was not,’ as you find the fact to be.” (To this question the jury answered, “There was not.”)
“You are charged that the burden of proof is on the defendant to prove that there was a bona fide dispute prior to or on the date of the issuing of said voucher.
“You are the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to he given the testimony; but the law you are bound by your oaths to take from the charge of the court, which is herein given you and be governed thereby. Let your verdict be signed by your foreman.”
“Special issue No. B, requested by the defendant : Did the defendant’s agent, J. E. Sieber, at the time of the delivex’y of said voucher believe that the Bay Lumber Company was entitled to offset against Snelling any damages which Moore could offset against the Bay Lumber Company? The defendant requests the court to give the foregoing special charge No. B.” (To this question the jury answered, “No.”)
“Special charge No. O, requested by the • defendant: Did the defendant’s agent, J. E. Sie-ber, at the time of the delivery of such voucher believe that, unless1 Snelling agreed to an offset which would satisfy Moore, Moore could, with reasonable prospects of success, maintain a claim against the Bay Lumber Company for damages growing out of the Snelling piling contract or contracts? The defendant requests the court to give the foregoing special charge No. C.” (To this question the jury answered, “No.”)

Thereupon judgment was rendered in favor of the appellee for $333.68. Appellant’s amended motion for new trial having been overruled, it perfected its appeal, and the case is now before this court by transfer.

Appellant’s assignments of error Nos. 1 to 8, inclusive, will be considered together, as follows:

“(a) The court erred in refusing to give special charge No. X requested by the defendant, said special charge being substantially as follows: ‘You are hereby charged to render a verdict in favor of the defendant.’
“(b) The finding of the jury in response to special issue No. 1 is contrary to and not supported by the evidence, in this: That the evidence conclusively shows that there was a bona fide dispute as to the amount due plaintiff by the defendant.
“(c) The finding of the jury in response to special issue No. 1 is contrary to the overwhelming preponderance of the evidence, in that the overwhelming preponderance of the evidence shows that there was a bona fide dispute as to the amount due plaintiff by. defendant.
“(d) The court erred in submitting to the jury special issue No. 1, which special issue is substantially as follows: ‘Do you or do you not find from the evidence that prior to or on the 15th day of June, 1015, the date on which the voucher for the sum of $472.22 was given plaintiff by defendant, there was a bona fide dispute as to the amount due plaintiff by defendant? You will answer, “There was,” or, “There was not,” as you find the fact to be.’
“(e) The finding of the jury in response to special issue B is contrary to and not supported by the evidence, in that the evidence conclusively shows that the time the defendant’s agent, J. B. Sieber, delivered the voucher to J. E. Snelling, the defendant’s agent, J. E. Sieber, believed that the Bay Lumber Company was entitled to offset against Snelling any damages which Moore could offset against the Bay Lumber Company.
/‘(f) The finding of the jury in response to special issue No. B is contrary to the overwhelming preponderance of the testimony, in that the overwhelming preponderance of the testimony shows that the defendant’s agent, J. E. Sieber, at the time of the delivery of said voucher believed that the Bay Lumber Company was entitled to offset against Snelling any damages which Moore might offset against the Bay Lumber Company.
“(g) The finding of the jury in response to special issue No. C is contrary to and not supported by the evidence, in this: That the evidence conclusively shows that defendant’s agent, J. E. Sieber, at the time of the delivery of said voucher believed that, unless Snelling agreed to an offset which would satisfy Moore, Moore with reasonable prospects of success could maintain a claim against the Bay Lumber Company for damages growing out of the Snelling piling contract or contracts.
“(h) The finding of the jury in response to special issue No. C is contrary to the overwhelming preponderance of the evidence, in this: That the overwhelming preponderance of the evidence shows that the defendant’s agent, J. E. Sieber, at the time of the delivery of said voucher believed that, unless Snelling agreed to an offset which would satisfy Moore, Moore could, with reasonable prospects of success maintain a claim against the Bay Lumber Company for damages growing out of the Snelling piling contract or contracts.”

Under these assignments are submitted several propositions by appellant, among others that it is claimed that the evidence conclusively showed that there was¡ a bona fide dispute between appellant and appellee and an accord and satisfaction, and therefore that the court should have instructed a verdict in favor of the appellant; and also that as Snelling cashed the Bay Lumber Company check and retained the proceeds after he had ascertained that Moore would make ho further adjustment on the disputed items, and as he made no attempt to reopen this matter with the Bay Lumber Company and did not offer to refund the proceeds of the check to the Bay Lumber Company so as to place the Bay Lumber Company in statu quo, and as Snelling delayed an unreasonable length of time and permitted the Bay Lumber Company to settle with Moore ■so as to make the loss fall entirely on the Bay Lumber Company if it is forced to pay the $333.68 to Snelling, it would be grossly inequitable to cancel the agreed settlement.

On the contrary, it is contended that a set* tlement of the debt for less than the face value of the debt must be based upon a valuable consideration of some kind, and, where there is’ no bona fide controversy as to the amount of the debt due, an agreement to accept less than the face value of the debt is entirely without consideration; and that when a party to a contract testified that after the performance of the contract by him, and after numerous delays by the other party to the contract to pay for the work done, and when finally demand was made for payment for the work done, offsets and counterclaims are for the first time set up, and that these counterclaims were never asserted or mentioned to him at any time while the work was being done, and he accepted the money offered in settlement, which was the amount of the debt less the offsets, with the statement that such offsets were fraudulent and that he intended to fight for the balance due, it cannot be said that there was a bona fide controversy, and a verdict so finding would be without evidence to support it

With reference to these matters, without setting out the testimony in full, it will be sufficient to say that the plaintiff testified on the trial, among other things, that he completed the last contract for the delivery of piling on April 9, 1915, and that he went to the office of the Bay Lumber Company several times to make a settlement and collect the balance due to him on the two contracts, several times after that date, and that he was told each time that the Bay Lumber Company was waiting to receive a statement from Wm. Moore and would not settle with him (Snelling) until this statement was received, and that he went to the office of the Bay Lumber Company on or about June 15, 1915, and Mr. Elmer Sieber, secretary of the Bay Lumber Company told him that the Bay Lumber Company had received a statement from Mr. Moore, in which Moore claimed an offset, or counterclaim, of $150, for boat hired, and $187 as difference in price in piling that he had been compelled to buy in order to complete the contract, from a man by the name of Parker, and that he had paid Parker three-fourths of a cent per lineal foot more for piling than Snelling’s contract called for, and that he had charged up these two items against the Bay .Lumber Company, and Mr. Sieber told him that he would not pay him the balance due upon his contract unless, and until, he would agree to deduct these two items, as he stated that Moore would hold the Bay Lumber Company for these two items, and that he would not pay any part of the amount due Snelling unless Snelling agreed lo deduct these two items, and that he (Snelling) had never heard of these two items before. No complaint had ever been made against him by the Bay Lumber Company that he had been holding the barges an unnecessary and unreasonable length of time in order to load the piling, and he knew nothing about the purchase of the piling from Parker, and that he had fully performed his contract for the delivery of the piling, and he had never heard any complaint made that there was any shortage in the delivery of the piling while the piling was being delivered, and Snelling told Sieber that he would accept the check with the printed indorsement upon it if he (Sieber) would give him a debit memorandum showing the amount of the two items claimed as offset, and that he would take the matter up with Mr. Moore, and unless Mr. Moore would clear the matter up that he (Snelling) would fight them for the balance of the account.

It is true that, according to the testimony of Elmer Sieber, the Bay Lumber Company had received from Wm. Moore a claim of offset or counterclaim as against the account for piling delivered to him by Snelling for account of the Bay Lumber Company at the time he delivered to Snelling the check on or about June 15, 1915, and that he believed Moore would hold the Bay Lumber Company liable for these offsets or counterclaims when a settlement was made with Moore, but the jury evidently did not believe this testimony, and it was within their province, especially so in view of the fact that the contract between the Ba,y Lumber Company and Moore as to the piling delivered by Snelling was not offered in evidence on the trial of the case, and it therefore could not be determined what the rights of Moore were as to these piling as against the Bay Lumber Company. J. H. Sieber, president of the Bay Lumber Company, testified that, buying the piling from the appellee herein, the Bay Lumber Company was merely acting as the agent of Moore, and that his company made no profit out of the transaction. Sieber testified further that the Bay Lumber Company did not investigate the merits of the offsets asserted by Moore; that he merely accepted Moore’s statements as true; that he had no intention of investigating the merits of the counterclaims, and, as he was making no profit out of the transaction, he was compelled to charge these offsets against Snelling, whether they were right or wrong.

We have gone over the statement of facts carefully, and have examined the statements of the several parties, in view of the assignments here urged, and have reached the conclusion that there is no merit in the assignments, and that they should be overruled. Bergman Produce Co. v. Brown, 156 S. W. 1102; Camden Eire Ins. Ass’n v. Baird, 187 S. W. 699.

The ninth assignment is as follows:

“The court erred in rendering judgment for plaintiff and against defendant for the sum of $333.56 because there is a fatal variance between plaintiff’s allegations and proof, in this, that plaintiff alleges on or about December 8, 1914, he and the defendant entered into an express contract, whereby the plaintiff agreed and bound himself to sell and deliver certain timber, to wit, about 7,000 pieces of pine piling to the price of 4% cents per lineal foot and by virtue of this contract he delivered to the defendant 6,100 pieces of pine piling. In support of these allegations, the plaintiff testified that the piling which by his first contract of December, 1914, he agreed to deliver to the defendant was: 557 pieces 30 feet long, 6,487 pieces 35 feet long, 85 pieces 37 feet long, 107 pieces 40 feet long, and 28 pieces 47 feet long, making a total of 7,264 pieces of piling. While the piling which plaintiff actually delivered under this contract was: 409 pieces 30 feet long, 4,740 pieces 35 feet long, 651 pieces 40 feet long, and no piling 37 feet long, and no piling 47 feet long; aggregate amount of piling being 5,800 pieces. The plaintiff pleaded that he fully performed this contract, but the uncontradicted testimony, as above set forth, shows that he did not deliver the piling which he contracted to deliver. In his proof the plaintiff' undertook to explain his failure to deliver the proper piling which he had contracted to deliver, by showing that his failure to deliver such piling was due to instructions given him by Moore’s employes, from time to time, as the work progressed; but no such instructions were remotely suggested in the pleadings. There were no allegations of proof on which plaintiff could have recovered the market value of the piling furnished under a simple contract to pay the reasonable market value.”

On the contrary, it is urged, that in a suit upon a contract it is sufficient if the substance oí the issue is established by the evidence.

The pleadings show, by plaintiff’s first amended original petition, upon which the case was tried, that it was alleged that:

Plaintiff contracted with the defendant to sell and deliver “about 7,000 pieces of pine piling at the price of 4% cents per lineal feet; that plaintiff delivered to the defendant under said contract 6,100 pieces of pine pilings which were accepted by the defendant; that afterwards, to wit, on or about March 1, 1915, the plaintiff and defendant made and entered into a supplemental contract, wherein and whereby the plaintiff agreed to sell and deliver to the defendant an additional number of 1,900 pine piling of the same kind and at the same price as was provided in the original contract between plaintiff and defendant on or about December 8, 1914, and under this said supplemental contract the plaintiff sold and delivered to the defendant 2,200 piling, and under both contracts plaintiff sold and delivered to the defendant 8,019 pieces of piling, aggregating 284,277 feet of pine timber in the form of piling, for which defendant agreed and promised to pay to the plaintiff as consideration for said timber and piling the sum of $13,501.80.
“Plaintiff further represents to the court that he performed the said contracts with the defendant by delivering to the defendant 8,019 pieces of timber, same being pine piling, aggregating 284,277 feet called for by the said two contracts, for which the defendant agreed and bound himself to pay to the plaintiff the $13,501.80.
“Plaintiff further represents to the court that he has performed his said two contracts fully and in good faith, and was entitled to receive from the defendant the entire sum of $13,501.80 the contract price of said timber as hereinbefore alleged; that the defendant has paid to the plaintiff the sum of $13,168.12 upon said contract as a part of the purchase price of said timber. sold and delivered by plaintiff to the defendant, but has failed and refused to pay plaintiff the entire amount of the contract price of said timber, as provided by the contract, and the defendant is still due and owing to the plaintiff upon said contract the sum of $333.68, and the defendant, although often reguested so to do, has failed and refused, and still fails and refuses, to pay said sum of money to the plaintiff, or any part thereof.
“Wherefore, plaintiff prays that defendant be cited to appear in answer to this petition: That on final trial hereof, that he have judgment against the defendant for the sum of $333.68 and all costs of suit, and for any other and further relief to which he may be entitled in law or equity, and as in duty bound will ever pray.”

It seems from the foregoing allegations that the pleading does not describe the size or dimensions of the piling to be supplied by the contract, nor is the exact number fixed by the pleading. Both of the contracts are treated as one in the account attached to plaintiff’s petition. The contract actually made on- December 8, 1914, is set forth in a lettter found in the statement of facts, by which Snelling agreed to deliver 7,264 pieces of piling of different sizes and lengths. The plaintiff alleges that he delivered 6,100 pieces under the first or original, and 2,200 under the supplemental contract of March 1, 1915. He testified on the trial of the case that, in making delivery of the piling, some of them were changed as to the length under the defendant’s instruction. The undisputed proof in the case is that all of the piling described in the plaintiff’s petition were delivered to and accepted by the defendant under and by virtue of the contract; none of the piling offered for delivery under the contract were rejected. The defendant having received and accepted the piling as performance of the contract, without objection or complaint, and having used and converted the timber, it cannot be heard now to say that the contract was not performed in that the piling delivered were not the piling called for by the terms of the contract. In addition, the defendant did not except to the submission of the case to the jury on the ground of variance, and did not request a special charge on this question. We are unable to discover any merit in this assignment, and it is therefore overruled.

The tenth assignment is as follows:

“The court erred in rendering judgment in favor of the plaintiff and against the defendant for $333.58, because such judgment finds no support in the pleadings and the facts in this: The plaintiff pleads that on March 1, 1915, plaintiff and defendant made an express contract, whereby the plaintiff contracted to sell to the defendant 1,900 sticks of pine piling at 4% cents per lineal foot; that under this supplemental contract the plaintiff delivered to the defendant 2,200 pieces of pine piling, that is, 300 pieces more than were covered, by the express contract between plaintiff and defendant. There is no allegation or proof that plaintiff expressly agreed to pay the defendant cents per lineal foot for this 300 pieces of piling not covered by the express contract, nor is there allegation or proof as to what was the reasonable market value of the 300 pieces of piling not covered by the express contract. The allegations and the proof also fail to show the dimensions of the 1,900 sticks covered by the express contract and the 300 additional pieces not covered by the express contract and upon which there was no agreed price.”

There being two express contracts he-' tween plaintiff and defendant for the delivery of piling, one for 7,264 pieces and another for 1,900 pieces, and it appearing that 6,100 pieces were delivered under the first contract and 2,200 were delivered under the second contract, it is urged that it should be presumed, in the absence of allegation and proof of other contracts, that all of the piling delivered was delivered under the two contracts. The first contract between the plaintiff on December 18th called for 7,264 pieces of piling, and the second, of March 1, 1915, called for 1,900 pieces. It is urged in the petition that he delivered 6,100 under the first and 2,200 under the second contract. There were no allegations or proof of any other contracts between the parties. It is admitted by all parties that all of the piling delivered was delivered by the plaintiff and accepted by the defendant under these two contracts. The defendant did not request any special charge on the question, .and did not except to the submission of the issue involving the question! of liability for the 300 pieces of piling, it seems therefore that the defendant asked this court to reverse the judgment of the trial court, for the reason, among others, that it is alleged in plaintiff’s petition that the second contract was to deliver. 1,900 pieces of piling, and that in fact, 2,200 were delivered, and that, as to the 300 extra pieces delivered the defendant was liable only upon an implied contract for the reasonable market value of the timber. We think that, under the peculiar facts of this case, it must be held that the 300 pieces of piling were delivered under one or both of the express contracts. The first contract provided as above said, and it is alleged that the terms of the second contract are the same as the first as to price and size of the piling to be delivered. If the defendant accepted the 300 extra pieces under and as a part of the performance of said two contracts, in our opinion it cannot be heard to say at this time that it is only liable upon an implied contract as to excess. No defense of this kind was pleaded or urged in the trial court, and, as above said, no special charge was requested instructing the jury as to the liability of the defendant for 300 pieces of piling, and the defendant having failed to except to the submission of the issue involving the 300 extra pieces of piling, in our opinion, it could not raise the question in this court for the first time. The assignment, therefore, is overruled.

The eleventh assignment of error complains that the court erred in rendering judgment in favor of the plaintiff because the undisputed evidence shows that plaintiff did not comply with his contract of December 8, 1914, and there was no pleading whereby plaintiff offered any excuse for his failure to comply with such contract, and the plaintiff is not therefore entitled to recover the contract price which he alleges the defendant agreed to pay him for the piling alleged to have been delivered under the contract of December, 1914.

The proposition is that, where the plaintiff sues on an express contract which he alleges was fully performed and. pleads no excuse for his failure to perform the express contract, he cannot recover on proof that the express contract was not performed, but was subsequently changed by the parties, and that the plaintiff performed the contract as changed.

The reply to this is that the general charge of the court was not excepted to and no special charges were, requested presenting this particular phase of the case, and that the assignments of error attacking the verdict and judgment cannot be sustained. We find no merit in this assignment, and it is overruled.

The twelfth, thirteenth, and fourteenth assignments of error will be considered together, as follows:

(a)“The court erred in refusing to give special charge No. 2, requested by the defendant; said special charge being substantially as follows: ‘On the issue of good faith, you are charged that if you find from the evidence that Moore was claiming to the Bay Lumber Company that the piling had not been delivered in accordance with the contract, and that the barges and tug had been delayed at Green’s bayou, and that the delay, if any, was in violation of the contract, and if you further find that Moore was claiming damages from the Bay Lumber Company on this account, and could probably recover damages from the Bay Lumber Company, and that he was entitled to charge against Snelling any damages which Moore might collect from the Bay Lumber 'Company, then the act of the Bay Lumber Company in declining to make a settlement with Snelling until this damage claim was adjusted was an act of good faith even though Moore was not in fact entitled to an offset against the Bay Lumber Company, and the Bay Lumber Company was not in fact entitled to an offset against Snelling.’ ”
(b) “The court erred in refusing to give special charge No. 3, requested by the defendant; said special charge being substantially as follows: ‘On the issue of bona fides, you are charged as follows: If the Bay Lumber Company believed in good faith that there was a controversy in regard to the account which ought to be settled before final settlement was made, then the dispute was bona fide, and it was immaterial whether the Bay Lumber Company was in fact right or wrong in the contention being urged by them if such contentions were urged in good faith.’ ”
(c) “The court erred in refusing to give to the jury a proper charge, defining what, under the law as applied to the facts in this case, would constitute a bona fide dispute between plaintiff and defendant, after the court’s attention had been drawn to this omission by the exception to the court’s main charge by special issues Nos. 2 and 3 requested by the defendant.”

The trial court, at the request of the defendant, gave the two following special instructions in the form of special issues, to-wit:

“Special charge No. B, requested by the defendant: Did the defendant’s agent, J. E. Sielier, at the time of the delivery of said vouchor believe that the Bay Lumber Company was entitled to offset against Snelling any damages which Moore could offset against the Bay Lumber Company?
“Special charge No. C, requested by the defendant: Did the defendant’s agent, ,T. E. Sie-ber, at the time of the delivery of such voucher believe that, unless Snelling agreed to an offset which would satisfy Moore, Moore could, with reasonable prospects of success, maintain a claim against the Bay Lumber Company for damages growing out of the Snelling piling contract or contracts?”

After giving the foregoing special instructions, the trial court seemed to be of the opinion that there was no necessity for a definition of a bona fide controversy. By the first special issue submitted, the plain question is asked the jury: “Was there a bona fide dispute as to the amount due plaintiff by defendant?” To this question the jury answered, “No.” The special charges refused by the court and complained of undertake to define to the jury a “bona fide controversy.” It seems that the court was of the opinion that this was so simple that the jury understood the meaning of the words “bona fide.” We are of opinion that there was no error in this action of the court. The assignments, therefore, are overruled.

The fifteenth assignment is as follows:

“The court erred in admitting in evidence over the defendant’s objection that part of the testimony of plaintiff Snelling wherein he testified that, after .T. E. Sieber handed Snelling the check for $472.22, Snelling told Sieber that he (Snelling) was going to Texas City and would see Mr. Moore, and, ‘if that was due Mr. Moore he would pay it, and if Mr. Moore didn’t pay me (Snelling).they were going to fight them for it.’ That Snelling left the office of the Bay Lumber Company with that understanding.”

It is urged that where an original letter is not sued upon as a written contract, but is merely used to describe the subject-matter of the contract, a copy of such letter is admissible for such purpose where the party offering the copy is not in possession of the original and cannot produce it and the original letter is in possession of the opposite party or under its control.

We do not believe that there is any merit in this assignment, and therefore it is overruled. Snelling testified that this letter was written in the office of the Bay Lumber Company, and both J. E. Sieber, the secretary, and J. H. Sieber, the president of Bay Lumber Company, assisted in the preparation of this letter, and the letter was signed by Snelling and delivered to Sieber to be transmitted to Moore, and in said letter was embodied the terms of a contract made by Snel-ling with Moore the day before by parol. The carbon copy of the letter offered in evidence was found among the files of the Bay Lumber Company on the first trial of the case. Snelling testified that he did not have the original letter in his possession and that he could not produce it, and that he had delivered the original to the Bay Lumber Company, to he sent to Moore. Moore denied receiving the letter.

The sixteenth assignment of error complains that the court erred in refusing to permit the defendant to prove by the witness William Moore that his foreman, Phil-bert, had reported to Moore from time to time that, 'whenever Fhilbert ordered the barges for the timber which Snelling was getting out, he did so under the instructions of Snelling, and that the barges were never ordered out until Mr. Snelling claimed that he was ready to load them and requested that they be sent up.

It is urged that, where an original contract has been modified by supplemental agreement, it is error to submit to the jury the question as to whether or not the original contract has been performed without taking into consideration the modifications of the contract. The plaintiff’s testimony was that the contract between plaintiff and defendant, as shown by the copy of the letter in evidence dated November 25, 1914, was modified several times by defendant requesting that the dimensions of the piling be changed in several instances and which was done, and that the contract was not performed as provided in the letter for this reason.

On the trial of the case no objection was raised to the introduction of evidence to show that the contract of November 25, 1918, as provided in the copy of the letter in evidence, had been modified in several particulars by agreement upon the ground that the pleadings did not support such evidence, and objection is first found in the amended motion for a new trial. If such objection had been made and sustained, the plaintiff could have filed a trial amendment curing such defect, if any, in the pleading. At least, in our judgment, it should not be heard to make the objection for the first time in this court. The assignment is overruled.

The seventeenth, eighteenth, and nineteenth assignments are as follows:

(a) “The court erred in admitting in evidence over the defendant’s objection the purported carbon copy of the letter dated November 25, 1914.”
(b) “The court erred in refusing to submit to the jury special issue No. D, requested by the defendant; said special issue being substantially as follows: ‘Was J. E. Sieber acting for the protection of the Bay Lumber ‘Company when he declined to -make a final settlement with Snelling until the Moore claim was settled?”
(c) “The court erred in refusing to submit to the jury special issue No. E, requested by the defendant ; said special charge being essentially as follows: ‘When Snelling made his contract in December, 1914, was the piling that he had agreed to furnish the piling described in carbon copy of a letter dated November 25, 1914?”

We have carefully examined the assignments, and are of opinion that there is no merit in the same, and they are therefore overruled.

The trouble about which much complaint seems to have been made is that the jury did not pay very much regard to the testimony of the witnesses for appellanf. In fact, it is- very apparent from this record that they believed the appellee’s witnesses, and either partially or totally disregarded the evidence of many of the witnesses for the appellant. No member of this court was present at the trial of the case; therefore, we are guided entirely by the record as presented here. The trial court saw the witnesses, heard them testify, presented the issues to the jury, and the jury were the judges of the credibility of the witnesses and the weight and value to be given to their testimony. They decided against the appellant, and we are not able to say, in the light of this record, that they were not justified in so finding.

We have examined the record in this carefully, and find no error on the part of the trial court which would justify us in reversing and remanding this cause. The judgment of the lower court is therefore in all things affirmed.
      (&wkey;For other eases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: GREENWOOD, J.

license: Public Domain

text:
    HORN v. WESTERN UNION TELEGRAPH CO.
    (No. 2475.)
    (Supreme Court of Texas.
    Oct. 17, 1918.)
    Appeal and Ebboe <§k^>1177(8) — Disposition —Inconclusive Evidence.
    Where court erroneously directed verdict ■without two essential findings, which the evidence would have sustained, but as to which it was not conclusive, the court on appeal could only remand the cause.
    Error from Court of Civil Appeals of Sixth Supreme Judicial District.
    On motion for written opinion on rehearing.
    Motion granted.
    For former opinion, see 194 S. W. 386.
    R. D. Allen, of Sulphur Springs, for plaintiff in error. N. L. Lindsley, of Dallas (Geo. H. Fearons, of New Tort City, of counsel), for defendant in error.
   GREENWOOD, J.

Plaintiff in error presents a motion for a written opinion, stating the grounds on which his motion for rehearing was heretofore overruled. We have concluded to grant the motion, in order to avoid the possibility of misconstruction of the original opinion (194 S. W. 386) on the new trial we have ordered.

As clearly stated in Justice Yantis’ opinion, it was error, in the state of the evidence, for the trial court to direct a verdict for plaintiff on the findings, first, that Knowles was authorized to receive a message for transmission by another on the following day; second, that Knowles agreed to transmit the message to the addressee by 6:30 or 7 o’clock of the following day; and, third, that the failure to transmit and deliver the message was the cause of the absence of the sister of plaintiff’s wife from the burial, and that such absence caused plaintiff’s wife to suffer mental pain and anguish. Before plaintiff was entitled to recover it was also necessary for the jury to find, first, that the agreement to transmit the message by 6:30 or 7 o’clock next day was within the scope of the apparent authority of Knowles from the telegraph company; and, second, that the message was sent in reliance on such authority and agreement. While the evidence would have authorized the two last-mentioned findings, it was not conclusive, and no other order was proper, save to remand the case, to determine the questions of fact.

The statement in the opinion that, if Knowles made the agreement to send the message by 6:30 or 7 o’clock the next day, “it would not be binding upon the telegraph company,” must be construed as meaning that such agreement alone could not bind the company. But that statement is not to be construed as a departure from the elementary principle in the law of agency that the principal is bound by the act of another person, when he holds such’ person out as possessing authority to perform the act in his behalf, provided that he who dealt with the agent relied on his apparent authority. This principle has been applied in this state to facts similar to those recited in the original opinion (W. U. Tel. Co. v. Erwin [Tex. Civ. App.] 147 S. W. 608 [1]), and is too well settled to warrant further discussion.

Let the case, as heretofore remanded, be disposed of in the trial court in accordance with the original opinion, and as that opinion is herein construed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    THOMSON v. FINDLATER HARDWARE CO.
    (No. 2534.)
    (Supreme Court of Texas.
    Oct. 17, 1918.)
    1. Pledges <§^>22 — Equitable Pledge — Note as Collatebal — Indebtedness Secueed.
    The assignment, by client to attorney, of note as collateral for a specified indebtedness, did not constitute an equitable assignment of client’s interest in the note to the extent of an indebtedness to attorney for professional services not included in specified debt, where parties did not agree that pledged note was to cover such debt.
    2. Attoeney and Client <S=al82(3) — Attoe-ney’s Lien — Pledged Note.
    Where client assigned note to attorney as collateral for specified indebtedness, and not for collection, or to secure payment of fees for services rendered, there was no attorney’s lien on note for such services.
    Certified Question from Court of Civil Appeals of Third Supreme Judicial District.
    Garnishment proceeding by the Findlater Hardware Company, a judgment creditor of Hugh Jackson, against George Allen, in which J. T. Thomson intervenes. Judgment for plaintiff in garnishment was affirmed by the Court of Civil Appeals (see 156 S. W. 301), and on motion for rehearing the court certifies a question to the Supreme Court.
    Question answered.
    J. T. Thomson and I. J. Curtsinger, both of San Angelo, for appellant. Thomas & McCarty, of San Angelo, for appellee.
   GREENWOOD, J.

Question certified from the Court of Civil Appeals of the Third Supreme Judicial District of Texas, in an appeal from the county court of Tom Green county. The certificate of the honorable Court of Civil Appeals is as follows:

“To the Supreme Court of Texas:
“The above-entitled cause is now pending before us on motion for rehearing, and we have thought it advisable to certify to you for your decision the question hereinafter set out, which, among others, has arisen for our determination in said case. A copy of our opinion is hereto attached and made a part hereof.
“The facts pertinent to said question are these: Geo. Alien executed to one Simpson his negotiable promissory note for ?300, due March 23, 1912. Simpson indorsed this note to S. K. P. Jackson, but in fact Hugh Jackson owned a one-half undivided interest in said note, as was shown by oral testimony. He afterwards inherited a one-fourth interest in said note from said S. K. P. Jackson. On January 6, 1912, Hugh Jackson indorsed said note and delivered it to J. T. Thomson, an attorney at law, as collateral security for a $50 note that he owed Thomson and $33 that he owed one Scott. Findlater & Oo. obtained judgment against Hugh Jackson and garnisheed Allen. Thomson and Jackson . intervened.
“At the time this note was delivered to Thomson, Hugh Jackson was indebted to him for various legal services in the suni of $75. Thomson never rendered an account to Jackson. Jackson knew that he was indebted to Thomson for legal services, but did not know the amount. Nothing was said by either Jackson or Thomson, at the time said note was so indorsed and delivered, nor at any time prior to the service of the writ of garnishment on Allen, or prior to Allen’s answer in said suit, about Thomson’s appropriating any of the money, when collected, on the debt that Jackson owed Thomson for legal services, though Jackson expected, at the time he delivered said note to Thomson, that Thomson would retain whatever was necessary out of said collection to pay such debt, and Thomson; at the time said note was indorsed and delivered to him, expected to appropriate the money, when collected, on said Allen note, or so much thereof as was necessary, after paying said $50 note and the $33 due Scott, to the payment of the debt due him for such legal services. Thomson still retains possession of said note.
“With the foregoing statement and explanation, the Court of Civil Appeals certifies to the Supreme Court for its decision the following question: Did the facts above stated constitute an equitable assignment to Thomson by Jackson of said Jackson’s interest in the debt due on said Allen note, to the extent of said $75 indebtedness, in addition to said indebtedness of $50 and $33?”

We answer “No” to this question. On the facts certified, the note of Allen never carne into the hands of Thomson by virtue of any relation of attorney and client between Thomson and Jackson. Thomson held the note as collateral security, as would any other creditor, and, as announced by this court in San Antonio National Bank v. Blocker, 77 Tex. 78, 13 S. W. 962:

“The rule is well established that a pledge, or collateral, cannot be held or used as a security for any debt, or for any purpose, save such as is covered by the agreement of the parties.”

Mechem accurately states the rule, which precludes the holding that an attorney’s lien attached in favor of Thomson, in the following language:

“An attorney has a general lien upon all the papers, deeds, vouchers, and other documents of his client, which come into the possession of the attorney while he is acting for his client in a professional capacity. But, in oi-der to the creation of the lien, the papers must not only have come into the actual possession of the attorney, but they must have so come into his possession in his character as an attorney at law. Thus he has no lien on papers which he receives * * * as a mortgagee.” Mechera on Agency, § 862.

The note was not placed in Thomson’s hands for collection by him as an attorney. Since Thomson did not hold the note as attorney for Jackson, and since he would not have held any part of the proceeds of the note’s collection as Jackson’s attorney, there was no attorney’s lien in favor of Jackson, and there was no assignment, save to secure the $50 and $33 notes. Polly v. Wathen, 7 Hare (English Chancery Reports) 364; Weed v. Boutelle, 56 Vt. 570, 48 Am. Rep. 822 ; 2 R. C. L. p. 1065, § 153; note to Andrews v. Morse, 31 Am. Dec. 759.


author: LANE, J.

text:
    TUFFLY v. HOUSTON MOTOR CAR CO.
    (No. 7602.)
    (Court of Civil Appeals of Texas. Galveston.
    June 26, 1918.
    Rehearing Denied Oct. 10, 1918.)
    1. Sales <§=>85(1) — Conditions — Pekforiiance.
    Where plaintiff agreed to allow defendant credit on the note sued on of $500 for used car taken in trade, and $500 more when it should be sold, but plaintiff made such car into a service car and kept it, refusing an offer of $1,000 for it, plaintiff could not be heard to say that the last credit could not be made because the car had not been sold.
    2. Appeal and Error <g==>260(2) — Reservation oe Exceptions — Exclusion of Evidence.
    Evidence objected to by defendant was admitted temporarily subject to further ruling and after its admission defendant demanded a ruling, and argument was heard whereupon court without announcing any ruling peremptorily instructed a verdict for plaintiff. Held that if directed verdict was intended to exclude the evidence, no exception was necessary to review the exclusion.
    Appeal from District Court, Harris County ; J. D. Harvey, Judge.
    Action by the Houston Motor Car Company against L. F. Tuffly. Judgment for plaintiff, and defendant appeals. ■
    Reversed and remanded.
    Otto Taub, of Houston, for appellant. Ed. S. & L. C. Phelps and Moody & Boyles, all of Houston, for appellee.
   LANE, J.

This suit was instituted by the Houston Motor Car Company against appellant, L. F. Tuffly, to recover a balance of $500 alleged to be due and unpaid upon a certain note for the sum of $1,872.60, executed and delivered by Tuffly to the Motor Car Company. Appellant admits the execution and delivery of the note, but as a defense to the plaintiff’s suit he alleges that said note was given in a transaction involving the purchase of a new automobile from appellee by appellant’s mother at a price of $2,372.60, and the” delivery to, and acceptance by, appellee of a used car belonging to appellant’s mother as part payment on the new car, under the ¿agreement that appellee would allow for the used car on the purchase of the new car at least the sum of $1,000, of which amount $500 was to be allowed at once; that appellant should execute his note for the balance of $,1,872.60, and that $500 or more would be credited upon said note when the used car should be sold; it being further agreed that appellee would renovate and repair the used ear at once, at its own expense, and sell the same, and allow as a credit upon the note one-half of any further sum in excess of $1,000 that might he realized from the sale of the used car after deducting the expense of repairing and renovating same; the agreement, however, being that the note should be credited, in any event, with at least $500. Appellant further alleged that appellee fraudulently induced appellant to execute said note for $1,872.60, instead of $1,372.60 (the actual balance due upon the purchase price of the new car, after allowing the credit of $1,000 for the used car), by representing that under the above arrangement appellee might not have to pay even the sum of $1,372.60, as the used car might sell for more than $1,000 and the cost of repairing and renovating same, and in such event appellant would be entitled to a further credit, and that appellee wished said note executed for the sum of $1,872.60 instead of $1,372.60 merely as a matter of form, and in order that it should not appear upon its books that it was carrying too much of its profits or assets in old cars, and that said note would not be negotiated by it, and would not in any event be enforced against appellant for a sum in excess of $1,372.60. Appellant, by way of a set-off, alleged, in substance, that he executed what purported to be an order for said new automobile, reciting, among other things, in substance, that a one-half interest in said used car was accepted by appellee as a deposit of $500 on said new automobile; that said deposit of $500 was paid; and that there was due appellee a balance of $1,872.60 on delivery of said new automobile. Appellant alleged further that, in so far as said written order and said promissory note do not express the real agreements between the parties relating to the purchase of said new car, and the delivery of said used car, the failure to express such agreement in said instruments, if it should have been necessary, was caused by mutual mistake or accident. Appellant alleged further, in substance, that appellee failed to use due diligence in repairing and renovating the used automobile, and to sell the same, although, in order to induce the purchase of the new automobile, it had agreed that it would do so at once, expressly guaranteeing to sell the used car for at least $1,000; that at the time of the delivery of the used car to appellee the same was reasonably worth $1,150; that, if it had been repaired and renovated as agreed, it would have been reasonably worth about $1,400; that appellee, in disregard of its agreement to repair and renovate the used car, and to sell the same, converted and appropriated it to its own use and benefit, by placing it in its garage and using it as a service car; that, if said used car had been renovated and sold by appellee as agreed, appellee could and would have obtained therefor about $1,400; that thereupon the note in suit would have been credited with one-half of the sale price of said automobile, in accordance with the agreement, which, if done, would have been more than sufficient to have discharged the balance alleged to be due upon the same. Appellant in his first amended original answer prayed, in substance, that the note in suit be canceled; that, if necessary, the written order and note be reformed so that they may speak the intention of the parties; and also prayed for general and special relief. Appellant in his trial amendment pleaded, in substance, that for a valuable consideration appellant acquired any cause of action, right, or claim that his mother could have asserted against appellee growing out of the purchase of said new automobile, and the delivery to appellee of said used automobile, and prayed that he be permitted to offset against any recovery had by appellee whatever sum his mother might have been entitled to recover against appellee on account of its breach of the agreement to sell the used automobile and the conversion thereof.

The case proceeded to trial before a jury, whereupon appellant offered the téstimony of witnesses to prove the truth of the matters alleged in his answer. When the testimony was tendered appellee objected that it was irrelevant and immaterial, and in so far as it might tend to vary, contradict, or add to the terms of the note sued on, or the contract for the purchase of the new car, it was inadmissible. The court admitted the testimony temporarily, subject to further rulings later during the trial. After said testimony had been introduced, counsel for appellee made a statement to the court as follows:

“Before proceeding we would like to have a ruling of the court on the objections that have been made, because, if they are sustained, I think there will be no occasion for going any further.”

After hearing argument of counsel for both parties upon said objection, the court, without announcing any ruling upon the objections urged by appellee', peremptorily instructed the jury to return a verdict in favor of appellee, Houston Motor Car Company, for the sum sued for by it. Under such instructions the jury returned a verdict in favor of appellee against appellant for the sum of $500, together with interest and attorney’s fees. Judgment was accordingly rendered, and from such judgment L. P. Tuflly has appealed.

In view of the disposition we shall make of the case, the only assignment necessary to be considered is, in effect, that the court erred in taking the case from the jury by instructing them to return a verdict for appel-lee ; because the pleadings and evidence were sufficient to require the court to submit to the jury the truth of the matters of defense pleaded by appellant; wbicb, if true, would have defeated appellee’s suit.

Appellee contends that the assignment should he overruled because the action of the court in instructing the jury to return a verdict for appellee, under the circumstances above mentioned, was clearly a ruling sustaining the objection of appellee’s counsel to the defendant’s evidence and an exclusion of the same. We are unable to agree to the contention of appellee. We think appellant’s answer sets up a meritorious defense, which the evidence introduced tended strongly to sustain, if no,t conclusively so.

Appellant alleged that when the new car was purchased appellee agreed to accept, as a part of the consideration therefor, the old or used car for $1,000, of which $500 was to be, and was, deducted from the purchase price of the new car before the execution of the note sued on, and that $500 was to be credited as a payment upon the balance of said purchase price, evidenced by said note, when said used car was sold. The evidence introduced showed that appellee was thereafter offered $1,000 cash for said used car and that it refused to sell the same. Appellee should not now be heard to say that it has not sold said used car, and for that reason appellant is not entitled to the last credit of $500, now claimed by appellant as a payment upon the note. The court admitted the testimony when offered, and at no time did he announce' that he would exclude the same, but, as before stated, proceeded to instruct the jury to return a verdict for appellee with this testimony before them.

We think the assignment of appellant should be sustained. If the court had sustained the objections to the evidence when first made, such action, in our opinion, would have been such error as would have required at our hands a reversal of the judgment in favor of appellee had appellant reserved his exception to such action of the court. Therefore, since the court admitted the testimony and thereafter made no order excluding the same, appellant was not called upon to except to its exclusion, if the court so intended by his peremptory instruction. If such instruction was intended as a rejection or exclusion of the evidence already introduced, appellant had no sufficient notice of such intent on the part of the court, and therefore was prevented from reserving a bill of exceptions to such action of the court.

As to whether or not the reasonable value of the used car, after deducting all necessary expense for repairs, exceeds $1,000, and as to whether appellant is entitled to a recovery against appellee for the one-half of the difference between the $1,000 which he contends should be credited on said note and the reasonable value of the used car, less the necessary expense of repairs, etc., if any, is a question to be determined by the court or jury trying the cause upon another trial.

Appellant’s assignment is sustained, and the judgment of the trial court is reversed, and the cause is remanded for trial.

Reversed and remanded.
      tftsaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: ■HIGHTOWER, C. J.

text:
    KIRBY LUMBER CO. v. McGILBERRY et al.
    (No. 347.)
    (Court of Civil Appeals of Texas. Beaumont.
    July 11, 1918.
    Rehearing Denied Oct. 16, 1918.)
    1. Master and Servant <§=>367 — Workmen’s Compensation Acts — Relation oe Parties —“Employé. ”
    Where contract provided that buyer of timber should reimburse seller for wages paid scalers, not to exceed $50 per month each, a scaler employed by, and who worked under direction of, seller, at a salary of $70 a month, was not an employé of buyer, within Workmen’s Compensation Act, arts. 5246h, 5246yyy.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Employe,]
    2. Negligence <§=>88 — Contributory Negligence-Sleeping.
    A person who was injured through lumber company employes’ negligence in felling a tree, and who was not an employe of the company, cannot recover damages from company where his own negligence in lying down and going to sleep near the tree contributed to injury.
    Appeal from District Court, Harris Coun-tyJ. D. Harvey, Judge.
    Action by Valeria McGilberry and others against Kirby Lumber Company. Judgment for plaintiffs, and defendant appeals.
    Reversed and rendered.
    Andrews, Streetman, Burns & Logue and W. L. Cook, all of Houston, for appellant. Hutcheson & Bryan, of Houston, for appel-lees.
   ■HIGHTOWER, C. J.

This was a suit by the surviving wife and children of one Sanford McGilberry, deceased, as plaintiffs, to recover damages against the Kirby Lumber Company, said plaintiffs contending that the death of Sanford McGilberry was caused by negligence on the part of the servants and agents of said Kirby Lumber Company. The cause was tried with' a jury in the court below, and was submitted upon special issues, all of which were answered by the jury, and upon the verdict so returned the trial court entered judgment in favor of plaintiffs in the sum of $7,495, with interest thereon at the legal rate from the date of the judgment.

When the verdict was returned the defendant, Kirby Lumber 'Company, filed a motion praying the court to enter judgment in its favor upon the verdict of the jury, which motion was overruled, and to this action of the court said defendant duly excepted.

After the motion for judgment was overruled, and after judgment was entered in favor of plaintiffs, as before stated, defendant filed a motion for a new trial, which was also overruled and exception duly taken, and the cause h'as been properly brought here, by .appeal on the part of the Kirby Lumber Company, for review.

In the amended original petition of the appellees, and upon which the case proceeded to trial, it was alleged, substantially, that Sanford McGilberry met his death as the result of a tree being felled upon him by em-ployés of appellant, Kirby Lumber Company. It was alleged th'at McGilberry, at the time of his death, was an employs connected with logging operations being carried on by appellant in the vicinity where the accident occurred; that by virtue of certain contractual relations! between the Kirby Lumber Company, appellant, and the Houston Oil Company of Texas, McGilberry was constituted an employs of the Kirby Lumber Company in the work he was doing, which was scaling logs or timber; but, in the alternative, that, if Mc-Gilberry was not in fact an employe of the Kirby Lumber Company, nevertheless he was entitled to that degree of care which would be owing to an employs of said Kirby Lumber Company by reason of the character of the work toe was doing. It was alleged, substantially, that a short time prior to the noon hour on the day he was injured McGilberry .went to a point near a red heart log, which he expected later to be called upon to Sicale, and that shortly thereafter he lay down and went to sleep, and that while he was asleep certain employés of the Kirby Lumber Company, known as sawyers, negligently felled a tree upon him, which 'caused his death. The specific grounds of negligence alleged on the part of said Kirby Lumber Company sawyers were as follows: (a) In carelessly and negligently permitting the tree which they were sawing to fall upon McGilberry; (bi) in permitting McGilberry to remain in the position he was while the tree was being felled, and in felling the tree while he was in that position; (c) negligence in failing to give a warning shout or signal before the tree was felled in order to give McGilberry time to escape; (d) negligence in failing to inspect the radius of the tree about to be felled with special reference to the direction in which it was being bedded to fall, in order to determine whether or not any person might be in danger. The plaintiffs laid their damages in the sum of $jl5,000, and prayed for recovery in that amount.

Appellant, Kirby Lumber Company, answered by general demurrer, special exceptions, general denial, and also by a special plea of contributory negligence on the part of Sanford McGilberry in lying down and going to sleep where he was at the time he was struck and killed by the falling tree.

By a supplemental petition appellees alleged that the Kirby Lumber Cdmpany was not a subscriber under the Teias Workmen’s Compensation Act (Vernon’s Gayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzz¿), and that, because of the relation of McGilberry to the work being done, plaintiffs were entitled to the benefits of said statute, which, among other things, abolishes contributory negligence as a complete defense in bar in cases covered by its provisions.

The jury found, in answer to one of tbe special issues submitted, that the sawyers, who were servants of th'e Kirby Lumber Company, and who felled the tree which, killed McGilberry, were guilty of negligence, in that they failed to inspect the radius of the tree which was about to be felled by them, and before it was felled, with' special reference to the direction in which it was being bedded to fall, in order to determine whether or not any person might be in danger of being struck and injured by such tree, and also, further, that this negligence was a proximate cause of the death of said McGilberry. Th'e jury also found, however, that said servants of the Kirby Lumber Company did give the usual and customary warning or signal before said tree was felled, and that such warning or signal was given in time, had it been heeded, to permit McGilberry to escape. The jury also found, affirmatively, in answer to a properly submitted special issue, that McGilberry. was guilty of contributory negligence in lying down and being asleep where he was at the time he was killed.

Appellant, Kirby Lumber Company, in its brief presents a number of assignments of error, and these assignments together raise three! principal questions. The first assignment has reference to the refusal of the trial court to enter judgment in favor of appellant upon its motion therefor; and the second assignment challenges the action of the trial court in refusing to peremptorily instruct the juryto return a verdict in favor of appellant; and the third assignment complains of the refusal of the trial court to admit in evidence testimony of certain witnesses tendered by appellant for the purpose of showing that Mc-Gil'berry was an employé of the Houston Oil Company of Texas at the time of his death', and was not an employé of appellant, Kirby Lumber Company.

Now, if appellant’s first assignment of error, complaining of the action of the trial court in refusing to enter judgment in favor of appellant upon the jury’s verdict, should be sustained, then a consideration of any of the other assignments would be uncalled and unnecessary. It is without dispute in the record that Sanford McGilberry was what is known in sawmill parlance as a log scaler or timber scaler, and at the time of his death was engaged in that occupation, and was scaling logs which were being cut under a contract between the Houston Oil Company of Texas and the Kirby Lumber Company. The Houston Oil Company of Texas was the seller of the timber being so scaled, and the Kirby Lumber Company was the purchaser thereof. The written contract between the Houston Oil Company of Texas and appellant, Kirby Lumber Company, was introduced in evidence on the trial below, and is fully shown in the record before us; • but, after a careful inspection and consideration of this contract, we conclude that paragraphs 3 and 5 thereof are the only provisions in the contract th'at could possibly have any reference to the material question under this assignment, which question is this: Was Sanford McGilberry, at the time he was injured and killed, an employé of the Kirby Lumber Company? (Paragraph 3 of said contract reads as follows:

“Said timber shall be scaled when loaded on the cars of the party of the second part (Kirby Lumber Company) or at the skidways in the woods, or at the mills, or elsewhere, as directed by the party of the first part (Houston Oil Company of Texas), and said party of the first part (Houston Oil Company of Texas) may appoint such scalers as it may deem requisite, whose duty it shall be to scale and measure such timber. The party of the second part (Kirby Lumber 'Company) shall reimburse the party of the first part (Houston Oil Company of Texas) for the wages of such scalers, not to exceed fifty dollars ($50.00) per month each. Monthly reports shall be made in duplicate by such sealers to the parties hereto and settlements hereunder shall be made and based thereon.”

The fifth paragraph reads as follows:

“Said timber shall be cut in a careful and prudent way, and the trees felled shall be so felled as to preserve the young timber and avoid abuse and injury to such young timber and saplings, and no trees under twelve (12) inches, in diameter shall be cut from, said lands for timber skids or other purposes.”

There is no brief on file in this court for the appellees, but the case was orally argued by counsel for appellees, and at the argument we gathered that it was the contention of counsel for appellees that the provisions of the written contract just above quoted, and especially paragraph 3 thereof, had the effect to constitute and make Sanford McGilberry an employé of the Kirby Lumber Company, mainly for the reason that it was provided in paragraph 3, as above quoted, that the Houston Oil Company of Texas was to be reimbursed by the Kirby Lumber Company, not to exceed $50 each per month, for wages paid by the Houston Oil Company of Texas to its log scalers. In other words, it seemed to be the contention of counsel for appellees that, because of the' provisions in said paragraph 3 of the contract, the Kirby Lumber Company bound itself to reimburse the Houston Oil Company of Texas in a sum not to exceed $50 per month for each log scaler employed by the Houston Oil Company, that such provision of itself had the effect to make Sanford McGilberry an employé of the Kirby Lumber Company, and that the said McGilberry was an employé of the Kirby Lumber Company, as defined by the Texas Workmen’s Compensation Act, which was in force at the time McGilberry met his death.

According to the undisputed evidence introduced on thel trial below, Sanford McGil-berry had been selected and employed by the Houston Oil Company of Texas to scale timber sold by said company to the Kirby Lumber Company, and the 'Houston Oil Company, in consideration for his services in that capacity, regularly paid to McGilberry $70 per month, and his name was carried upon the pay roll of the Houston Oil Company of Texas as its employé in the capacity of log scaler. It was also shown, without dispute in the record, that the Kirby Lumber Company had nothing to do with the selection or employment of Sanford McGilberry, and that the Kirby Lumber Company had or exercised no control or direction whatever over said McGilberry in the discharge of his duties as log scaler for the Houston Oil Company, and had no right to direct or control him in the discharge of his duties as such'scaler, and had no right to discharge him; but, on the contrary, it was affirmatively shown that the Houston Oil Company-of Texas alone selected and employed the said McGilberry, and that he was under the direction and control of the Houston Oil Company of Texas in the discharge of his duties as log scaler, and that said company alone had the right to discharge him. In this connection we quote, because it is clear and readily understood, the testimony of Oswald S. Parker, a witness sworn in behalf of appellant, as follows:

“I live in Houston. My profession is that of a lawyer. My office is on the ninth floor of the iScanlan building. My partner is Judge T. M. Kennerly. My partner and I are joint attorneys for the Houston Oil Company of Texas. "VVe have been engaged in that capacity for three years. We were so engaged in July, 1914. I think I am familiar with all of the agreements between the Houston Oil Company and the Kirby Lumber Company, as affecting the matter of scaling.
“The instrument handed me by counsel (meaning the contract between the Kirby Lumber Company and the Houston Oil Company) purports to be a contract of 1901 between the Houston Oil 'Company of Texas and John H. Kirby; that contract is still in force as construed, and in some respects, I believe, modified, by the decree of the United States District Court for the Southern District of Texas, which has become a part of the contract between the parties, but I see nothing in this paragraph 3, as I recall, that has been changed in any manner. This is the decree of July 8, 1908, that I refer to. Except so far as it is modified by this decree, this contract is in force.
“I certainly am acquainted with the practical workings of the parties under the contract, so far as the Houston Oil Company is concerned in respect to the scalers. Under the decree it employs what are known as contract scalers, composed of a chief scaler, who is an employé of the Houston Oil Company of Texas, and certain scalers working under him-, who actually scale the timber. These scalers scale the timber before it is moved from where it is felled in the woods, make out triplicate reports, send one to the Houston Oil Company of Texas, at Houston, for its records, to furnish the basis of the charge against the Kirby Dumber Company for the timber cut, and send a duplicate to the Kirby Lumber Company by the same manner, so they can check against our charge statement and keep the third copy for reference. The Houston Oil Company of Texas has the exclusive right to discharge these men. We do not allow the Kirby Lumber Company to interfere with them in any way; these men are upon the pay roll of the Houston Oil Company of Texas, and they receive their pay from that company. As to other scalers working in the employment of the Kirby Lumber Company, at times only, the Kirby Lumber Company has employed its own sealers to work opposite these Houston Oil Company scalers, in order to check their work, and see if the Kirby Lumber Company had any objection to the method of scaling carried on by our scalers. Sometimes they have made objections, and they have been taken up and thrashed out, but the sealers employed by the Kirby Lumber Company are merely what is known as check sealers, who have nothing to do with the reports, and have nothing to do with the basis on which the charges are made. Our scalers are entirely independent of the Kirby Lumber Company, and we have nothing to do with them.”

On cross-examination hie further testified:

“There is a check scaler which the Houston Oil Company employs entirely independent of the scalers of the Kirby Lumber, Company, which X have referred to. The Houston Oil Company of Texas employs certain traveling scalers who go from place to place and check the work of other scalers. They are included in the contract, according to our construction. The Kirby Lumber Company does not pay these sealers that I have just referred to. They do, under the contract and decree, contribute to the Houston Oil Company of Texas a certain amount, which is supposed to reimburse for a part of the cost of having the timber scaled; but the authority to do it, and the duty to have it done and to employ scalers, is all on the Houston Oil Company of Texas. As to the reimbursement being for the scalers I have just referred to, I will say that I know what counsel is referring’ to; that is, in section 3, where it says that the party of the second part, Kirby Lumber Company, shall reimburse party of the first part, Houston Oil Company, for the wages of such scalers,, not to exceed $50 per month each. That is done even to this time, but it is paid direct under that to the Houston Oil Company of Texas.”'

There is no contention, in so far as is disclosed by the record before us, that appellant, Kirby Lumber Company, ever claimed the right to exercise, or ever, in fact, exercised, any direction or control whatever over log scalers employed by the Houston Oil Company, nor is there any contention on the part of appellees that the Kirby Lumber Company had the right to employ or discharge any of the scalers for the Houston Oil Company, but, as stated above, it seemed in the record to be the contention of counsel for appellees that the provision in the contract between the Houston Oil Company and the Kirby Lumber Company for reimbursement for part of the wages paid scalers by the Houston Oil Company had the effect to constitute McGilberry an employé of the Kirby Lumber Company.

In view of the finding by the jury that Sanford McGilberry was himself guilty of negligence which contributed to his death, the ap-pellees were not entitled to a judgment in their favor, notwithstanding the jury also found that the servants of the Kirby Lumber Company, who felled the tree which killed McGilberry, were guilty of negligence, unless McGilberry was' an employé of the Kirby Lumber Company at the time of his death, and sustained the injuries which resulted in his death in the course of his employment. It was admitted upon the trial below that the Kirby Lumber Company was not a subscriber under the provisions of the Workmen’s Compensation Act of this state, hut whether the Houston Oil Company of Texas was such subscriber does not appear from the record.

Section 1 of the Texas Workmen’s Compensation Act (Acts 33d Leg. c. 179) reads as follows:

“In an action to recover damages for personal injuries sustained by an employé in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense:
“1. That the employé was guilty of contributory negligence; but in such event the damages shall be diminished in the proportion to the amount of negligence attributable to such em-ployé.”

“Employé” is defined in the act as follows:

“ ‘Employé’ shall include every person in the service of another under any contract of hire, express or implied, oral or written, except one whose employment is but casual, or is not in the usual course of the trade, business, profession or occupation of the employer.”

Now, if Sanford McGilberry, at the time of his death, was not in the service of the Kirby Lumber Company under a contract of hire, express or implied, oral or written, then he was not an employé of'the Kirby Lumber Company at the time of his death, and the Workmen's Compensation Act of this state cannot be applied and cannot affect the liability of the Kirby' Lumber Company for the death of Sanford McGilberry, but the liability of the Kirby Lumber Company in such event must depend upon the law as it was prior to the passage of that act by the Legislature of this state; and under the law as it obtained prior to that act, and still obtains as to all persons not affected by that act, MeGilberry’s negligence, asi found b(y the jury, constituted an absolute defense in bar of any recovery by the appellees in this case.

And since it affirmatively appears, without dispute, from the record before us, that Sanford McGilberry was selected and employed by the Houston Oil Company of Texas; that he was carried on the pay roll of the Houston Oil Company of Texas as its em-ployé; that his wagesi were paid to him by th'e Houston Oil Company of Texas; that the Houston Oil Company alone had the right to direct and control the said McGilberry in the discharge of his duties as log scaler and the right to discharge him; and that the Kirby Lumber Company, appellant, had no such right to employ, direct, control, or discharge the said McGilberry — we are of the opinion that the said Sanford McGilberry was not, at the time of his death, an employé of the Kirby Lumber Company but was an employé of the Houston Oil Company of Texas, notwithstanding the provision as contained in paragraph 3 of the contract between said companies to the effect that the Kirby Lumber Company would reimburse the (Houston Oil Company for wages paid timber scalers by said last-named company, not to exceed $50 per month each. It is clear from the provisions of the contract between said companies that the presence of McGilberry at the place where he met his death was for the purpose of protecting the interests of the Houston Oil Company of Texas in the sale of its timber to the Kirby-Lumber Company; that is to say, it was the purpose of the Houston Oil Company in having him there to see that its interests were properly protected as against the Kirby Lumber, in felling and taking its timber, and this, doubtless, was the reason for the provision in the contract, as shown above, that the Houston Oil Company, the seller of the timber, should have the right to select and employ its own scalers, and not have to depend upon such reports as the Kirby Lumber Company might furnish to it in that connection. There was no contract of employment of McGilberry by the Kirby Lumber Company either written or oral, express or implied, as shown by the undisputed record in this case, and therefore he was not an employé of the Kirby Lumber Company, as defined by the Workmen’s Compensation Act of this state, as above quoted. Wallace v. Cotton Oil Co., 91 Tex. 21, 40 S. W. 399; Cunningham v. Moore et al., 55 Tex. 377, 40 Am. Rep. 812; Cunningham v. Ry. Co., 51 Tex. 510, 32 Am. Dec. 632; Honnold on Workmen’s Compensation, c. 4, §§ 49, 51, 58, and 6.6; Yemon’s Sayles’ ‘Civil Statutes 1914, arts. 5246h and 5246yyy.

Having reached the conclusion that Sanford McGilberry was not an employé of the Kirby Lumber Company at the time of his death, within the provisions of the Workmen’s Compensation Act of this state, it follows that we must hold that'the finding by the jury that said McGilberry was guilty of negligence which proximately contributed to his death, which finding is not questioned by the appellees in this case, and which is abundantly supported by the evidence, entitled appellant, Kirby Lumber Company, to a judgment in its favor, and the trial court should have granted appellant’s motion therefor; and, because of the trial court’s error in refusing to do so, its judgment is reversed, and judgment will be here rendered, upon the verdict of the jury, that appellees take nothing by their suit, and that appellant recover all costs by it expended.

Reversed and rendered.
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