author: PLEASANTS, C. J.

text:
    BULLOCK v. GALVESTON, H. & H. R. CO.
    (No. 6890.)
    (Court of Civil Appeals of Texas. Galveston.
    May 27, 1915.)
    1. Appeal and Eeeoe <&wkey;1070 — Haemless Eeeoe — Special Findings.
    In a passenger’s action for injuries sustained while alighting from a train, she alleged that she was thrown therefrom by a sudden jerk or forward movement of the train, and that defendant’s servants, knowing that the station where she was injured was her destination, and that she was infirm and feeble, and unable to care for herself, negligently failed to offer her any assistance in alighting. The court submitted a special issue as to whether it was obvious that plaintiff required assistance, to which the jury answered that she was negligent for not asking assistance. To an issue as to whether the failure of the trainmen to render her assistance was negligence the jury answered that it was not the failure of the trainmen to render her assistance, because she did not ask therefor. The jury further found specially that there was no sudden jerk or jar of the train, that plaintiff attempted to alight therefrom while it was in motion, and that in doing so she was guilty of negligence approximately causing her injury. It appeared that neither the conductor nor the brakeman saw plaintiff when she attempted to get off, and therefore that they could not have rendered her any assistance. Held that, conceding that the. findings as to defendant’s failure to assist plaintiff were unresponsive, and disregarded or showed a misunderstanding of the charge, such answers were immaterial, as, even though the trainmen were negligent in starting the train without ascertaining, whether plaintiff had alighted, such negligence, under the findings of the jury., was not the proximate cause of her injury.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. M 4231-4233; Dec. Dig. <&wkey;> 1070.]
    2. Trial <§=^365 — Special Findings — Inconsistency.
    In a passenger’s action for injuries, she alleged that she was thrown from the train as she was alighting by a sudden jerk or forward movement of the car, while defendant alleged that she attempted to alight while the train was in motion. The jury found specially that she was injured by alighting while the train was moving, and answered in the affirmative a special issue as to whether she received the injuries complained of “at the time and place and in the manner named.” Held, that this last finding was not a finding that plaintiff’s fall was caused as alleged in the petition, but, construing the verdict as a whole, meant no more than that plaintiff received her injuries by falling from the train, and hence the findings were not contradictory.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 871-874; Dec. Dig. &wkey;365.]
    3. Appeal and Eeeoe &wkey;>1062 — Habmless Eeeoe — Submission oe Special Issues.
    In a passenger’s action for injuries, which she alleged were caused by a sudden jerk or forward movement of the train as she was alighting, and which defendant claimed were sustained by her while alighting from the moving train, the court submitted a special issue, to be answered in case the jury found that plaintiff fell from the train by reason of a sudden jerk or jar, as to whether such jerk or jar was caused by the starting of the train, or by stopping it; there being evidence that, when the brakeman saw plaintiff go upon the platform, he signaled the engineer to stop. The jury found specially that there was no sudden jerk or jar, and that plaintiff attempted to alight from the train while it was in motion, and was thereby guilty of negligence proximately causing her injury. Held that, conceding that the issue as to what caused the jerk or jar was immaterial, its submission was harmless, as it could not possibly have influenced the jury in determining the material issues submitted.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]
    4. Appeal and ERROR <&wkey;544 — Reservation oe Grounds oe Review — Exceptions.
    Portions of the charge, to which no exceptions are taken and preserved by bill, as required by the statute, cannot be reviewed.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey; 544.]
    Error from District Court, Galveston County; Robert G. Street, Judge.
    Action by Mary A. Bullock against the Galveston, Houston & Henderson Railroad Company. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    Marsene Johnson, Elmo Johnson, and Roy Johnson, all of Galveston, for plaintiff in error. John L. Darrouzete, of Galveston, and John T. Garrison, of Houston, for defendant in error.
   PLEASANTS, C. J.

This suit was brought by plaintiff in error against defendant in error to recover damages for personal injuries alleged to have been caused her by the negligence of the defendant. In her petition the plaintiff alleged that she boarded one of the defendant’s passenger trains in the city of Houston, on the 8th day of June, 1913, having purchased a ticket entitling her to be carried by defendant to the town of Dickinson, in Galveston county; that the passenger car of the defendant upon which she was assisted was crowded by other passengers; that plaintiff in error was an aged, feeble, and infirm woman, and could not push and crowd with the other large number of passengers, and could not alight at said station of Dickinson without assistance, but that she was forced to wait until all of the other passengers had alighted, when defendant’s train reached its destination; and that then, while she was attempting to alight from defendant’s said car, and while she was on the platform and step thereof, waiting for defendant’s employés to assist her to alight, defendant’s said ear suddenly started, and that the jerk and pull of the starting threw her from the step and platform of the car, and precipitated her to the ground with great violence, causing her serious and lasting permanent bodily injuries. Plaintiff further alleged that defendant railroad company knew, or by the use of the degree of care required by law should have known and eould have known, that she required assistance in entering and alighting from said passenger train, and that defendant failed to perform its said duties to her, and was thereby negligent, and that defendant was also negligent in starting said train forward before she had alighted safely on the ground, and that all of said acts of negligence and omissions on the part of the defendant proximately caused the injuries she suffered by her fall, as above stated; that several of her ribs were broken and fractured, which confined her to her bed for a long time; and that she was injured in the head and body, and that the injuries caused her much pain, and are permanent, and will shorten her life. Plaintiff further alleged that, at the time she became a passenger on said train, the defendant’s conductor knew that her destination was Dickinson; that she was aged, infirm, and feeble, and unable to take care of herself; that the agent of the defendant assisted her to enter said train in said city of Houston, but that, after the train reached its destination at Dickinson, the defendant and its conductor and other servants negligently failed to afford her any assistance whatsoever to alight from said train; that the contract of the defendant with plaintiff required the defendant railroad company to exercise the highest degree of care for her safety until she had safely alighted from the passenger car and was safely on the ground; and that the failure and omissions of the defendant, as pleaded, was negligence, which proximately caused the injuries sustained by plaintiff in error.

The defendant answered by general denial and by special pleas, in which it is alleged, in substance, that plaintiff was notified, when the train was near the station of Dickinson, that it was approaching said station, and she knew when it reached the station ; that the train was stopped at the station a sufficient length of time to allow all passengers to disembark therefrom, and defendant’s employes in charge of the train believed, and had reason to believe, that plaintiff had alighted therefrom; but that plaintiff remained in her seat, and did not attempt to get off the train until after it had started to leave the station, and after the train had started, without the knowledge or consent of any of defendant’s employés in charge of said train, she got up from her seat, went upon the platform of the coach, and in attempting to jump from the moving train fell and thereby received the injuries of which she complains, and that the negligence of plaintiff in so attempting to get off the moving train was the direct cause of her injury.

The trial in the court below with a jury resulted in a verdict and judgment in favor of defendant. The cause was submitted to the jury upon special issues, and the answers of the jury to the questions submitted were as follows:

First, (a) “Was it, or not, obvious and apparent, from the plaintiff’s age and sex and her physical condition, that she required the assistance of those in charge of the train to enable her to alight safely?” Answer. “She was negligent for not asking assistance.”
(b) “And was the failure of the trainmen to render her assistance negligence or not?” Answer. “It was not the failure of the trainmen to render her assistance, because she did not ask for same.”
(c) “Was such failure the cause of her injuries, or not?” Answer. “It was not the failure of the trainmen, the cause of her injuries.”
Second. “Was plaintiff thrown from the train while standing on the platform or steps by a sudden jerk or pull forward, or did she fall while attempting to step off the train when it was in motion?” Answer. “She stepped off the steps of the car while the train was in motion.”
Third. “Did the plaintiff receive the injuries, or any of them, complained of in her petition, at the time and place named?” Answer. “Yes.”
Fourth. “What sum of money will be a fair and reasonable compensation for her injuries, mental and physical, present and prospective?” Answer. “None.”
Fifth. “Ascertain and determine from the evidence whether the plaintiff left her seat and attempted to go to the front end of the train for the purpose of alighting before the train moved or attempted to move on its way from the station of Dickinson?” Answer. “She left her seat after the train started and was in motion.”
Eighth. “Ascertain and determine from the evidence: (a) What caused plaintiff to receive the injuries, that is, whether or not the plaintiff attempted to get off the train while it was in motion, and fell and received the injuries; (b) or whether or not the plaintiff was thrown from the train by a sudden jerk or jar.” Answer. “(a) She received her injuries while attempting to get off the\ train while it was in motion.”

To paragraph (b) of question 8 the jury answered:

“It was not the jerk or jar that threw her from the steps.”
Ninth. “If you answer the above question that the plaintiff was thrown from off the train by reason of a sudden jerk or jar, then state: (a) How far the train had gone before it gave the jerk or jar that threw the plaintiff off. (b) If you say in answer to the above interrogatory that the plaintiff fell from the train by reason of a sudden jerk or jar, then state whether the jerk or jar was caused by reason of the signals given to the engineer to stop the train— that is, was the jerk or jar occasioned by the engineer in stopping said train or when it was first starting'?”

To paragraph (a) of the above question the jury answers:

“We do not know how far the train had gone when she stepped off.”

To paragraph (b) the jury answers:

“We are of the opinion that there was no jerk or jar, but she stopped from the train while same was in motion.”
Eleventh. “Ascertain and determine from the evidence whether or not the plaintiff, Mrs. Bullock, while the train was in motion, walked down the steps of the car, and caught hold of the handrail, and stepped off the train and onto the ground.”

To this question the jury made the following answer:

“Mrs. Bullock walked down the steps of the car, and caught hold of the handrail, and stepped off of the train while in motion onto the ground.”
Fourteenth. “Ascertain and determine from the evidence whether or not the plaintiff was guilty of contributory negligence.”

To which question the jury answered:

“Yes.”

The testimony is conflicting, but there is ample evidence to sustain the finding that the train stopped at the station a sufficient time to allow the passengers to get off, that all of the passengers for Dickinson, except the plaintiff, left the train, but plaintiff, knowing that the train had arrived at Dickinson and the passengers were alighting, remained in her seat until after the train started, when she got up with her baggage in her hand and went out on the front platform of the coach in which she was riding, stood there a few seconds looking for relatives whom she expected to meet her at the station, and, not seeing them, attempted to get off the moving train, and in doing so was thrown violently to the ground and received the injuries of which she complains. A brakeman who was on the platform in the rear of the coach in which plaintiff was riding saw her as she went with her baggage to the front door of the coach, and, supposing that she desired to get off, rang the bell to stop the train. 1-Ie did not see plaintiff when she attempted to get off, and no employs of the defendant saw her or was near her at that time. There was no sudden jerk or jar of the train, and it was not suddenly stoiDped. It had gotten well under way when plaintiff attempted to get off, and was moving at a considerable rate of speed. The witnesses differed as to the distance the train had gone before plaintiff attempted to alight, but the evidence warrants the conclusion that it was 100 yards or more.

The first, second, and third assignments of error presented in appellant’s brief assail the answers of the jury to the several questions contained in the first issue submitted to them by the charge, on the ground that the answers are not responsive to the questions and show a disregard of the charge or a failure of the jury to understand it. It may be conceded that these complaints are well founded; but, in view of the findings of the jury upon the other questions submitted to them, the finding upon the issue of defendant’s negligence becomes immaterial.

The undisputed evidence shows that there was but one brakeman on the train, and that neither he nor the conductor saw plaintiff when she attempted to get off the train, and therefore could not have rendered her any 'assistance at that time. It may be that the evidence raises the issue of negligence on the part of the conductor, in view of plaintiff’s age and infirm condition, and the knowledge on his part that she intended to get off at Dickinson, in starting the train without ascertaining whether or not plaintiff had alighted therefrom; but such negligence was not, under the findings of the jury upon the other issues submitted to them, the prox imate cause of her injury. The jury having found that there was no sudden jerk or jar of the train, and that plaintiff attempted to alight therefrom while it was in motion, and that in so doing she was guilty of negligence which proximately caused her injury, the defendant would not be liable for such injury, notwithstanding it may have been negligent in the respects indicated in the questions propounded by the court, and therefore the answers of the jury to such questions were immaterial.

The fourth assignment complains of the verdict on the ground that it is inconsistent and contradictory, in that in answer to special issue No. 3 the jury found that plaintiff was injured at the time and place and “in the manner named,” and, plaintiff’s petition having alleged that she was thrown off the platform of the ear by a sudden jerk or forward movement of the car, such finding is contradictory of the findings that there was no jerk of the train and that plaintiff attempted to step off the car while it was in motion and fell in making such attempt.

The charge as copied in the record does not submit to the jury the question whether plaintiff was injured. “in the manner named” ; but, if the record showed that the question was submitted in the form stated in appellant’s brief, the answer, “Yes,” of the jury to the question of whether the plaintiff was injured “at the time, place, and in the manner named,” could not be construed as a finding that plaintiff’s fall from the train was caused as alleged in her petition. Construing the verdict as a whole, it is clear that, in answering the question “Yes,” the jury understood the term “manner named” to only mean that plaintiff received her injuries by falling from defendant’s train.

The fifth, sixth, seventh, and eighth assignments of error are without merit, and are overruled without discussion.

By the ninth and tenth assignments of error complaint is made of the charge of the court submitting the ninth special issue above set out. The exception to this paragraph of the charge presented by appellant’s bill of exception is as follows:

“Now comes Mary A. Bullock, plaintiff in above cause, and objects and excepts to that paragraph of the special charges requested by the defendant beginning with subdivision ‘b’ of paragraph at present numbered 9, wherein the court is requested to charge the jury in these words: ‘(b) If you say in answer to the above interrogatory that the plaintiff fell from the train by reason of a sudden jerk or jar, then state whether the jerk or jar was caused by reason of the signals given to the engineer to stop the train; that is, was the jerk or jar occasioned by the engineer in stopping said train.’ Plaintiff here and now in open court, before said requested special charge is given by the court, and before the same is read to the jury, objects and excepts to said portion of said special charge on the following grounds:
“(1) Plaintiff says that under the allegations of her petition, and under the allegations defensively pleaded by the defendant, it is immaterial what caused the train upon which plaintiff was a passenger to jerk or jar, and that the issue of the causing of the jerk or jar of the train is not raised by the pleadings of either party; that the defendant pleaded contributory negligence in its recitation that plaintiff was- guilty of contributory negligence only by jumping from the car while the same was in motion.
■_“(2) Plaintiff also objects and excepts to the giving of said portion of said requested charge for the reason that if the defendant, by its own want of care for the safety of the plaintiff, who was a passenger on its train, caused her to be waiting on the platform or stops for assistance, and thus placed in a position of peril, and then attempted to stop the train, to relieve the plaintiff from her said position of peril, too suddenly, thus causing the train to jar or jolt, and that the jar or jolt thus produced caused the plaintiff to fall from said train to the ground, then and in that event the defendant would be liable for the injuries by plaintiff sustained, under the averments of her petition.
“(3) Plaintiff also objects and excepts to said portion of said requested charge for the further reason that it tends to mislead the jury, and tends to confuse the jury, and is paradoxical to the court’s main charge in every particular, as to whether the jar or jolt or pull of the train proximately caused the injuries to the plaintiff.”

It may be that the question submitted in this paragraph of the charge was immaterial, and we are inclined to agree with appellant’s contention that it was immaterial. If the question submitted was immaterial, it necessarily follows, in view of the findings of the jury upon the material issues submitted and the character of the question excepted to, the submission of which could not possibly have influenced the jury in the determining of the material issues submitted, that its submission was harmless error, and the assignment complaining of its submission must be overruled.

The remaining assignments, which complain of other portions of the charge, cannot be sustained, because no exceptions to the portions of the charge complained of were taken and preserved by bill, as required by the statute.

The charge of the court upon the issue of contributory negligence was not excepted to, and is a fair presentation of that issue, and the jury having found, upon ample evidence, that plaintiff’s own negligence was the proximate cause of her injury, the judgment in favor of defendant must be affirmed; and it has been so ordered.

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

      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    HOUSTON OIL CO. OF TEXAS v. MILLER & VIDOR LUMBER CO. et al.

    (No. 6709.)
    (Court of Civil Appeals of Texas. Galveston.
    April 22, 1915.
    Rehearing Denied May 27, 1915.)
    1. Tebspass to Try Titus <&wkey;6 —Title op Plaintiff.
    In trespass to try title, plaintiff can. recover only on the strength of his own title, and defendant need not show title in himself.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. <&wkey;>6.]
    2. Trespass to Try Title <&wkey;41 — Title op Plaintifi--Eindings — Evidence.
    Where in trespass to try title plaintiff claimed under third persons as heirs of the original grantee of a certificate under which the land in controversy was located and patented, while defendants claimed under others as heirs, and the court under evidence justifying it found that the third persons under whom plaintiff claimed were not the heirs of the original grantee of the certificate, a verdict for defendants was justified, though the evidence did not sustain the claim of defendants.
    [Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. 41.]
    3. Public Lands <&wkey;178 — GeIrtificates — Transfers — Evidence.
    The original certificate to county lands issued to D. was in possession of O. prior to the location of the land under it. C. claimed the certificate as his own and located the land by virtuie of it, and obtained a patent from the state. The patent was in his possession at his death and continuously thereafter in the possession of his heirs, and G. and his heirs continuously claimed the land since its location in 1881, and they paid the taxes since the land was patented, and since 1891 they were in possession through tenants. Held, to show a transfer of the certificate from D. to O.
    [Ed. Note. — Eor other cases, see Public Lands, Oent. Dig. §§ 579-582; Dec. Dig. &wkey;178.]
    4. Public Lands &wkey;>178 — Unlocated Land Certificate — Transfer's.
    An unlocated land certificate is a chattel and may be transferred by parol.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. &wkey;178.]
    5. Adverse Possession &wkey;>114 — Evidence — Sufficiency.
    Evidence held to justify a finding that defendants acquired title under the five and ten years’ statutes of limitations.
    [Ifld. Note. — Eor other eases, see Adverse Possession, Gent. Dig. §§ 682, 683, 685, 686; Dec. Dig. <&wkey;114.]
    Appeal from District Court, Orange County; A. E. Davis, Judge.
    Action by the Houston Oil Company of Texas against the Miller & Vidor Lumber Company and others. From an adverse judgment, plaintiff appeals.
    Affirmed.
    Hightower, Orgain & Butler, of Beaumont, for appellant. Townes, Foster & Hardwicke, of Beaumont, for appellee Miller & Vidor Lumber Co. J. B. Bisland and O. R. Shol-ars, both of Orange, for appellees Stephen Cleveland, D. E. Simmons, and P. P. Williamson. J. F. Lanier, of Beaumont, for ap-pellee John H. Broocks.

       writ of error pending in Supreme Court.

   PLEASANTS, C. J.

This is an action of trespass to try title brought by appellant against the Miller & Vidor Lumber Company, Stephen Cleveland, D. E. Simmons, and P. P. Williamson to recover the John Deven-port 640-acre survey of land in Orange county. Plaintiff also made John H. Broocks a defendant and sought to recover against him, as remote warrantor, the sum of $2 per acre for any portion of land in controversy adjudged to defendants in this suit. Each of the defendants except the defendant Broocks answered by general demurrer, plea of not guilty, and pleas of limitation of three, five, and ten years. The answer of defendant Broocks contains a general demurrer and several special exceptions, the nature of which it is unnecessary to state. He further answered by general denial and special pleas in which it is averred, in substance, that the title to the land was good at the time he warranted said title to plaintiff’s vendor; that, if he is mistaken in this averment, he avers that defendant Cleveland was in adverse possession of the land at the time this defendant sold it and warranted the title to plaintiff’s vendor and has held such adverse possession continuously, since said date, and, if said title was not good, he was liable upon his warranty immediately after the execution of his deed of conveyance, and suit upon said warranty is barred by the statute of limitation. He further pleaded that defendant Cleveland, and other defendants who claim under him, have acquired title to the land against plaintiff since the date of this defendant’s warranty under the statute of limitation of three, five, and ten years, and therefore he is not liable upon said warranty. The trial in the court below without a jury resulted in a judgment in favor .of all defendants that plaintiff take nothing by its suit and awarding defendant Cleveland 600 acres of the land and defendant Simmons 40 acres.

The survey of land in controversy was located under a certificate issued by the board of land commissioners for Orange county to John Devenport on October 19, 1846. The land was patented to John Devenport “and his heirs and assigns” September 21, 1881.

Plaintiff claims under the heirs of John Devenport, who was killed in Uvalde county in 1859. These heirs in May, 1899, executed a power of attorney to Webb & Een-ley, authorizing said firm to take possession of and sell any land owned by said grantors in Orange and Cherokee counties. In September, 1899, Webb & Eenley, acting under this power of attorney, conveyed the survey in controversy by deed with special warranty to R. E. Ashley for a consideration of $400. Ashley conveyed to the Beaumont Lumber Company by general warranty deed on October 21, 1899. On the day this last conveyance was made, defendant John II. Broocks executed an instrument reciting that Ashley held the title to the land in trust for him and the $1,260 consideration recited in the deed from Ashley to the Beaumont Lumber Company had been paid to him, and in consideration of these facts he bound himself to warrant the title of the land to the grantee in said deed. The Beaumont Lumber Company conveyed the land to aiDpellant on June 5, 1902. Mrs. Mary C. Fenley, one of the heirs of John Devenport, under whom appellant claims, testified:

“I was bom in 1849. I reside in Uvalde county, Tex., and have lived there since 1854, excepting one year. My father’s name was John Devenport. He is dead. He was killed by Indians in Uvalde county in 1859. My understanding of the family history is that my father was born in Missouri, February 8, 1827. Father lived in the state of Arkansas before he married my mother. After his marriage to my mother in Kaufman county, Tex., January 11, 1849, he resided in Texas until his death. He moved from Kaufman county, Tex., to Lock-hart, Tex., from Lockhart to Uvalde county, Tex., where he lived one year. 1-Ie moved to Medina county, Tex., where he lived about one year, and from there back to Uvalde county, Tex. He moved from Medina county to this (Uvalde) county about the year 1856. I am not able to state what year he went to Kaufman county, nor exactly the year he moved from there, nor the exact year he lived in Lockhart, Tex. My mother is dead. She died August 15, 1903. I do not know whether my father ever transferred to any one the certificate covering the 640 acres in Orange county. 1 was the oldest child of my father and mother, and was about 10 years old when my father died. I was about five years old when my father first moved to Uvalde county, Tex. He -lived there about one year, moved to Medina county, and moved back to Uvalde county in about a year, so that I was about seven years old when he permanently moved to Uvalde county.”

On cross-examination, Mrs. Fenley testified substantially as follows:

“I was born in Kaufman county, Tex., October 19, 1849. I do not know any of my father’s friends and neighbors in 1846. I do not know where my father resided in September, 1848. I do not know who John Long was, who was living in Texas in 1848. I never heard my father speak of John Long. I was too young for it to make any impression, if he did, as I was only ten years old when he was killed by the Indians. Of my own personal knowledge, I do not know that my father owned land in East Texas, or any land certificates at his death. The reason we did not warrant the title in the deed dated September 18, 1899, executed by us through our attorneys in fact, Webb & Fenley, was because we did not know the condition of the title at that time. I had never heard Father speak of it. I understood that we had land in East Texas somewhere, which we were entitled to as heirs of my father, John Devenport. It was not because we did not think we had no title to it. The reason the heirs sold 640 acres of land, worth approximately $6,000 or $7,000, for $400, was we understood the land was of very little value and accepted that amount because we thought it was the best we could do. It was not because we knew the land did not belong to my father, or his heirs, for we claimed it in good faith. I do not know that my father never lived in Houston county, Tex., at any time. If my father ever resided in Houston county, Tex., I never heard of it. He was not a very talkative man, and besides, I was too young to have recollected it if he had said anything about it. The facts herein referred to as to my father’s places of residence were learned by me from my mother and family history generally.”

'The certificate under which the land was located was No. 347, class 2. Immediately beneath this certificate, and upon the same page of paper, is the following certificate of acknowledgment:

“The State of Texas, County of Houston. John Devenport, personally appeared before me at my office in the town of Crockett and acknowledged that he signed and scaled and delivered the anext deed or transfer for the purpose of sale therein mentioned. Given under my hand and seal of office at the town of Crockett this 20th day of Sept., A. D. 1845. [Seal] John Long, O. J. & Exoficio N. P. H. O.”

The certificate was located by Frank Cleveland, the father of appellee, Stephen Cleveland, and the fees for the patent were paid by him and the original patent delivered to him by the land office, and it was in his possession up to the time of his death, and since that time has been in possession of defendant 'Stephen Cleveland. The land was assessed for taxes in the name of Frank Cleveland and his heirs from 1882 to 1909.

The parties under whom appellant claims never rendered the land for taxes or paid any taxes thereon prior to 1902.

Mrs. Merriman, the mother of Stephen Cleveland, testified:

“1 have been married twice. The first time I married, I married Frank Cleveland, and the last time Mr. Merriman. My first husband died in May, 1885. I know whether he claimed the John Devenport 640 acres in Orange county. Mr. Cleveland was a surveyor. He surveyed this land for himself. He claimed to own this land. He was claiming it all the time. I have seen the patent to the land. I have it. He had it in his possession when he died. He paid the taxes on it and always claimed to be the owner of it up to the time he died. I suppose that he had a land certificate in his possession when he surveyed it. He told me he was surveying it for himself, and he claimed to be the owner of it. My son, Steve Cleveland, has been acting as my agent and looking after it. We are claiming to be the owners of it at the present time. He was county surveyor 11 years. The books and everything was in our houlse when he died in 1885. I said awhile ago I supposed Mr. Cleveland had the John Devenport certificate at the time he surveyed this land. As to whether or not that is a fact, will say I know: he would not have surveyed it if he had not had it. * * * My husband told me he had this surveyed for himself, and he told me that he owned the certificate. He told me that he had the certificate, and that he owned it, and that he made the survey himself. He had the Mary Hawley survey, and we lost that because he lost his transfer; but the other one we have always held and claimed. We have always claimed this one and paid the taxes on it. He told me that he made that survey for himself because he owned the certificate. I do not know that I have ever particularly looked for it (for John Devenport’s certificate). I cannot say that I have made any search for the original certificate to the John Devenport 640 acres. I did not really know I had to hunt for it. I never was called on to hunt for the original certificate, and I did not know I had to, and I have not hunted for it. Steve Cleveland is my oldest child. At the time of his father’s death he was too young to know anything about it”

Steve Cleveland, oldest son of Frank Cleveland and Mrs. Merriman, formerly Mrs. Cleveland, testified for defendants as follows:

Witness was asked the following question: “J. will ask you if you at any time since the death of your father searched for a transfer from John Devenpo-rt to any one of the certificate of 610 acres of the John Devenport?”
Answer: “I made a search to see if I could find a transfer down there of the certificate and could not find it. I found no transfers at all. I never searched for any transfer in the land office at Austin. I had search made at Austin for it for me. Judge Sholars attended to it. I do not know whether he found it or not; he may have found it. The only search I made was among my father’s papers, and I never searched anywhere else.”

Defendants offered in evidence a tax deed from the sheriff of Orange county conveying the John Devenport 640-aere survey of land to Frank Cleveland. This deed recites that there was due the state of Texas and county of Orange for taxes on said land from the year 1881 the sum of $56.56, and that the land was sold for said taxes and bid in by Cleveland for $10.81.

Defendants also introduced a deed from Mary Pickering and others, heirs of John Devenport, who died in Houston county in 1877, dated September 27, 1911, and conveying the land in controversy to Stephen Cleveland, Anna D. Cleveland, and Carrie Merri-man for a consideration of $200. Mrs. Picketing testified for the defendants as follows:

“I am 72 years old and live in Trinity county, Tex. I was acquainted with John Deven-port; he was my father. I knew him from infancy. He lived in Houston county, Tex., and died there in 1877. He told me that he came to Houston county in 1832. He never did live in any other county after he settled there and lived there until his death in 1877. Ellen Devenport was my mother. B. D. and G. D. Devenport are my brothers, and Quinn Green is my sister. My mother died in May, 1912. My brothers and sisters are still living, so far as I know. My father, John Devenport, was married once before he married my mother. My father, by his first wife, had seven children; all of them dead. One of the sons of my father by his first wife left children surviving him. I can’t say whether they are living or dead. One of the girls of my father by his first wife left three children surviving her. They are now living in Houston county.”

On cross-examination she testified:

“My father had no middle name. His name was John Devenport. He spelled his last name Devenport. He was never known by the name of Davenport. Name of my relatives that I ever heard of spelled their name Davenport. I had no old letters or papers in my possession that was signed by my father. My father was born and raised in the northern part of the state of Alabama. He moved from Alabama to Missouri and from that state to Houston county, Tex. 1-Ie was between 30 and 40 years old! when he moved to Houston county; I think 32 or 34 years old. He was 22 years old when he was married the first time in Alabama. My father never lived in any other place that X ever heard of except Houston county after he moved there from Missouri. I knew a man named James V/illiams very well. I knew a man by the name of Ab Gibson. I suppose he is the person you refer to as Absalom Gibson. I knew of Joseph Bowman, and have heard my father speak of him also. I have heard my'father speak of certain persons by the name of Thomas. Can’t say that I ever knew Z. F. Thomas. I have heard my father speak of J. R. Blanton. X knew him myself. I have never heard my father speak of W. B. Brittain. It seems that I have heard of that name, but can’t say that my father ever knew the party inquired about. Yes, I knew James Gibson well.
“As I understand the matter, my father at one time owned a certificate entitling him to 640 acres of land, which certificate he sold, as we understand. We did not claim under this certificate, because our father sold it at an early date, probably before its location. We did not pay taxes on it because we never knew that we owed any taxes on it. I, together with B. D. Devenport, G. D. Devenport, Quinn Green, and Ellen Devenport, made a deed to Stephen Cleveland and others to a survey of land in Orange county of 640 acres. I knew nothing about the value of the land at the time I sold my interest, but am still satisfied with my trade. Judge O. R. Sholars talked with me about this land now in litigation in Orange county, and ho is the only person who ever talked with me about this land. He came to me and asked me if I was a child of John Devenport, and I told him that I was. He then asked me about my father in general conversation. I gave him the history of my father about as I have given it in these depositions. Gave him the name of his children.”

In rebuttal, appellant offered in evidence a copy of the deed from John Devenport of Houston county, dated November 9,1846, conveying to James Gibson of Cherokee county the grantor’s unconditional certificate for 640 acres of land. The certificate conveyed by this deed was No. 347, third class, and was issued by the board -of land commissioners of Houston county on October 19, 1846. This deed was filed for record in the office of the county clerk of Cherokee county on September 6, 1848, and duly recorded. It was witnessed by Z. F. Thomas and J. R. Blanton and acknowledged before W. B. Brittain, county clerk of Cherokee county. On May 27, 1847, 320 acres was located under this certificate and a patent therefor issued by the state to James Gibson on January 27, 1851. This location was made in Cherokee county. The remainder of this certificate was located on 320 acres in Cherokee county on December 28, 1847. It is not shown that this 320 acres, was patented. Absalom Gibson was the surveyor who made these locations, and James Williams was one of the chain carriers.

The evidence is sufficient to sustain the finding of the trial court that defendant Stephen Cleveland by tenants had held adverse possession of the land, cultivating, using, and enjoying same under his claim of title thereto, for more than ten years prior to the institution of this suit. The evidence also sustains the finding that, during five consecutive years of this adverse possession, said defendant paid the taxes on this land. The tax deed to Frank Cleveland before mentioned, which was duly recorded in Orange county on September 6, 1882, fully described the survey in controversy.

Appellant’s first assignment of error is as follows:

“The evidence adduced upon the trial of this cause is insufficient to sustain the first finding of fact made by the trial court, which was as follows: ‘In this case plaintiff claims through mesne conveyances under Mrs. Fenley et al., as the heirs of the original grantee of the certificate by virtue of which the land herein sued for was located and patented; defendants, other than John H. Brooeks, claim uinder Mrs. M. Pickering et al., as such heirs. On this question I find that those under whom plaintiff claims are not the heirs of the grantee of said certificate, and, on the other hand, those under whom said defendants claim are the heirs of said grantee, and defendants have acquired title to said land.’ ”

While the evidence before set out may have been sufficient to sustain a finding that the John Devenport under whom appellant claims was the original grantee of the certificate under which the land in controversy was located, it certainly does not compel such finding, and it cannot he held that the conclusion of the trial court that said Devenport was not the person to whom the certificate was issued is without any evidence to support it. We are inclined to agree with appellant in its contention that the evidence is insufficient to sustain the finding that the John Devenport whose heirs executed the deed to the Clevelands conveying to them this land was the John Devenport to whom the certificate was issued; but, in view of our conclusion that the finding of the trial court that the John Devenport under whom appellant claims was not the person to whom the certificate was issued is supported by the evidence, it is immaterial whether or, not the John Devenport whose heirs executed the deed under which defendants claim was the grantee in said certificate. Appellant in this case could only recover upon the strength of its title, and defendants were not required to show title in themselves.

We are, however, further of the opinion that the evidence justifies the conclusion of the trial judge that the grantee in said certificate, whoever he may have been, sold it to Frank Cleveland, the ancestor of defendant Stephen Cleveland, and that said certificate was owned and held by Frank Cleveland at the time it was located, and therefore the title to the land when located became vested in said Frank Cleveland. The evidence before set out shows that Frank Cleveland had the original certificate in his possession prior to its location; that he claimed the certificate as his own; that he located the land in controversy by virtue of the certificate; that he attended to obtaining the patent to the land; that the original patent issued by the state was delivered to him, he paying the patent fees therefor; that suc-h original patent was in his possession at the time of his death, and continuously since has been in the possession of his heirs; that Cleveland and his heirs have continuously claimed the land since its location in September, 1881, down to the present date; that they have paid the taxes thereon continuously every year since the land was patented and became subject to taxation; that as far back as 1891 they took actual possession of the land through a tenant; that they have had different tenants on different portions of the land continuously since the date mentioned.

We think this evidence was amply sufficient to show a transfer of the certificate to Frank Cleveland. Davidson v. Wallingford, 88 Tex. 619, 32 S. W. 1030; Lockridge v. Corbett, 31 Tex. Civ. App. 676, 73 S. W. 96; Surghenor v. Ducey, 139 S. W. 22; Surghenor v. Ayers, 139 S. W. 28.

It is well settled that an unloeated land certificate is a chattel and may be transferred by parol, and therefore the question of whether there was sufficient proof of the loss of a written transfer to admit proof of the contents thereof becomes unimportant. Jones v. Reuss, 5 Tex. Civ. App. 628, 24 S. W. 674. We are of opinion, however, that the proof of loss in this case was sufficient.

Our fact conclusion that the evidence was sufficient to sustain the findings of the trial judge in favor of defendants upon their pleas of limitation of five and ten years disposes of appellant’s assignments complaining of such findings on the ground that they are not supported by the evidence.

The evidence shows that defendants, other than defendant Broocks, were in possession of the land at the time Broocks executed his warranty of title to appellant’s vendor, and that they have remained in possession since said time. The trial court correctly held that appellant’s claim upon said warranty is barred by the statute of limitation.

This disposes of all the material questions raised by appellant’s brief. We have considered each of the assignments presented, and none of them should, in our opinion, be sustained. It follows that the judgment of the court below should be affirmed, and it has been so ordered.

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


author: HENDRICKS, J.

text:
    FT. WORTH & D. C. RY. CO. v. ADCORN.
    (No. 804.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 5, 1915.)
    1. Appeal and Error &wkey;>999—Review—Suf-ficiency or Evidence.
    In reviewing a verdict for plaintiff for negligence, ■ all evidence tending to show he was guilty of contributory negligence must be given the construction most favorable to him.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dee. Dig. <¿=>999.]
    2. Railroads <S&wkey;350—Crossing Accident-Contributory Negligence—Question eor Jury.
    Evidence, in an action for collision at a crossing, with an automobile, of a freight train, quietly backed from the direction in which the sun was shining, held to make the question of contributory negligence one for the jury.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. &wkey;350.]

      S.RailRoads <&wkey;35'0 — Crossing Accident— Contributory Negligence — Stopping Vehicle.
    Tile driver of a vehicle is not as matter of law guilty of contributory negligence for not stopping, as well as looking and listening, before going on an ordinary railroad crossing, but it is a question of fact for the jury under the circumstances of each case.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. &wkey;350.]
    4. Trial &wkey;>194 — Instructions—Weight oe Testimony.
    A requested instruction to find for defendant if the juey believe and find from the evidence that plaintiff, when he ran his automobile on the railroad crossing, knew he could not see the cars because the sun was shining in his eyes, and further find and believe that an ordinarily prudent person would have stopped the machine to ascertain whether any cars were being backed into the crossing, is not on the weight of the testimony.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. &wkey;>194.]
    5. Trial <&wkey;244 — Instructions — Isolation oe Facts.
    Nor is such requested instruction an isolation of facts disconnected with other facts sufficient to condemn it.
    | Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. &wkey;244.]
    6. Trial &wkey;>260 — Right to Special Instructions — Supplying Law to Facts.
    Such requested instruction is a presentation of a substantive defense within the rule that a requested instruction applying the law to specific facts relied on should be given, though the principle of law, generally stated, had been embraced in the general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-059; Dec. Dig. &wkey;260.]
    7. Railroads <&wkey;351 — Crossing Accident>CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.
    The requested instruction, to find for defendant, if the jury believe and find from the evidence that plaintiff, when he ran his automobile on the railroad crossing, knew he could not see the cars because the sun "was shining in his eyes, and further find and believe that an ordinarily prudent person would have stopped the machine to ascertain whether any cars were backing into the crossing, is sufficient without the addition of the words, “and would have ascertained that defendant was backing cars to said crossing in time to have avoided the injury” ; it following, from the fact of collision as soon as he got on the crossing, that if he had stopped any appreciable time the danger would have been apprehended and avoided.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. &wkey;351.]
    8. Trial &wkey;»274^-lNSTRUCTiONS — Waiveri oe Objections — General Charge and Requests.
    Under Rev. St. 1911, arts. 1971, 1973, 2061, as amended by Acts 33d Leg. c. 59, the first requiring objections to the general charge to be made before it is read, otherwise to be considered waived, the second authorizing either party to present, within a reasonable time after the general charge is given to the parties for examination, instructions desired, and the third, providing that the refusal of the instructions shall be regarded as approved unless excepted to, refusal of a special instruction, supplying something wanting in the general charge, and specifically and properly presenting the question, and properly excepted to, is not waived by failure in any other way to object to .the general charge.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 687; Dec. Dig. <&wkey;274.]
    9. Railroads &wkey;>312 — Crossings—Bell and Whistle.
    Where a train approaching a crossing started within 80 rods of it, the statute does not require the blowing- of the whistle, though it may require the ringing of the bell.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 988-1001, 1003-1005; Dec. Dig. &wkey;312.]
    10. Evidence <&wkey;123 —Res Gestas — Statements Aeter Accident.
    Statement of a railroad employé to the occupants of an automobile immediately after its wreck by a train, “What in the hell are you doing here, anyhow,” is not part of the res gestas.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. <&wkey;>123.]
    11. Appeal and Error <&wkey; 1050 — Prejudicial Error — Admission oe Statement.
    Admission in evidence of such statement, in an action for the wreck, is prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <&wkey;1050.]
    Appeal from Clay County Court; W. T. Allen, Judge.
    Action by J. F. Alcorn against the Ft. Worth. '& Denver City Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded for new trial.
    Thompson & Barwise, of Ft. Worth, and Arnold &. Taylor, of Henrietta, for appellant. Wantland & Parrish and P. M. Stine, all of Henrietta, for appellee.
   HENDRICKS, J.

The appellee, Alcorn, sued the appellant, the Ft. Worth & Denver City Railway Company, for the value of an automobile alleged to have been destroyed by the railway company, at a public crossing in the town of Wichita Falls. The jury found in favor of the plaintiff, and the appellant challenges the verdict of the jury and the judgment of the court, on the ground that the evidence is insufficient in that the undisputed testimony discloses that J. F. Alcorn, Jr., the person driving the automobile at the time of the collision, was guilty of contributory negligence.

“In order to test that question, we must give to all evidence, which would tend to show that he was guilty of negligence, the construction most favorable to him, and determine the question by the construction of the testimony most favorable to him in support of the finding of the jury.” Mitchum v. Chicago, Rock Island & Gulf Ry. Co. (Sup.) 173 S. W. 879.
“Or, as it is otherwise stated in some of the cases, the facts must be of such nature that a jury could not find a verdict in favor of him.” Id.

The testimony of Alcorn, Jr., discloses that, in approaching the crossing within a distance of 300 or 400 feet from the same, he was running the auto about eight or ten miles per hour. As the auto approached nearer to the crossing, he diminished the speed of the same, and was driving the car as slowly as he could run the same in “high”; that the engine at that speed made very little noise, and before he drove up to the crossing he listened, and looked both ways from the crossing along the track; that he did not hear the noise of the train nor the sound of a whistle or bell. The train, consisting of from seven to eight box cars, with an engine, was being backed in the direction from the sun, which was shining in Alcorn’s face. He testified that he was driving the car with his foot on the brake, customary with him at all times, and when he first saw the train the nearest car was very close, and he immediately used the emergency and foot broke and reversed the engine of the auto, stopping the same. A woman, who saw the collision while sitting in the front door of her home at a distance of about 100 feet, testified that the train of seven or eight cars was pushed by an engine, backing up, and was running very quietly; and that no bell was rung nor whistle sounded, but some one “yelled” as the train struck the auto; that the automobile as it passed her house and on to the track was moving slowly. She' said: “They were facing the sun; the sun was shining brightly.” This same witness did say there was nothing to prevent the parties in the automobile, as they went upon the crossing, from seeing the train of cars which struck the auto; however, both parties in the auto testified that as they immediately approached the crossing, in looking for a train in the direction the sun was shining towards them, they did not see any cars and could not see any on account of the bright light of the sun — the collision occurring between 4 and 5 o’clock of an October afternoon. Jackson, Alcorn’s companion, sitting in the same seat, said:

“As we came in sight of the railroad track, I was looking up and down the track, just the very best I could. It was late in the evening, the sun was low. There was an icehouse just across the railroad track. It was a red building, and in running up to the tx-aek, with the sun right in our eyes, and hearing no bell or whistle on that train, we did not see it. * * * I did not hear a sound of a train until just as we saw the train, which was but a few feet from us, and then nothing more than the nimble of the train.”

Alcorn testified that the sun was all that prevented him from seeing the train, and, had he seen the cars backing up the first time he looked up and down the track, he could have stopped the automobile and avoided the accident; and that when he saw that the sun was obscuring his view, though he did not stop, he “slowed down.” He also said that he was familiar with the tracks at the crossing at the time of the injury.

We are unable to say, upon the authorities,, and in view of their logical tendency, in this state, that the above testimony presents an undisputed question of contributory negligence. These two witnesses are positive that the brightness and glare of the afternoon sun effectively prevented a view of the track, and that they neither heard nor saw the train; that no warning of approach was given. Of course, the degree of caution to be exercised by the plaintiff should be proportioned to the degree of danger he should have anticipated. We are unable, though, to affirm from the record the distance from this crossing at which a traveler by looking could have seen the particular train of cars outside the zone of the sun’s glare. We know of no authority that would impute negligence as a matter of law as to the selection of a place to look for trains at crossings; though we presume, of course, that it should be at the point where an ordinarily prudent person should observe. In Lynch v. Northern Pacific R. Co., 69 Fed. 86, 16 C. C. A. 151, affirmed without opinion, by the Supreme Court of the United States, 173 U. S. 701, 19 Sup. Ct. 878, 43 L. Ed. 1185, where plaintiff looked when 36 feet from the track, it was held to be for the jury to say if he was negligent in not looking sooner; there being a good view at any point within 200 feet of the track.

The rule that a driver of a vehicle, or one approaching a crossing, must stop, and then listen and look before crossing, when approaching a railroad at an ordinary crossing, has not been adopted in this state. Michalke v. Railway Co. (Civ. App.) 27 S. W. 165; Houston & Texas Central Ry. Co. v. Wilson, 60 Tex. 144; I. & G. N. Ry. Co. v. Neff, 87 Tex. 308, 28 S. W. 283.

" * * * Our statute does not require of those approaching a public road crossing to stop and look, and listen for passing trains, before attempting to make the crossing. Then whether a failure to do so would or not constitute negligence is a question of fact, and to be determined by the jury from the facts and circumstances of each particular case.” Railway Co. v. Wilson, supra.

Justice Stayton, in the case of I. & G. N. v. Graves, 59 Tex. 332, after announcing the general rule of contributory negligence, by a person approaching a crossing precluding recovery, further said:

“A person, however, in approaching a railway crossing, has the right to expect that a railway company will give such signals of an approaching train as prodence and the law require, and if, relying upon this, he attempts to cross the track without knowledge or means of knowledge of the approach of the train, * * * then he is entitled to recover.”

Of course, the greater the danger, the greater the diligence; and, if the danger is known (distinguished from a general situation of possible danger), the diligence is still more rigid. The expectation of the railway manifesting signals as a warning to prevent accidents, operating upon the mind of one approaching railway crossings, if the person looks and listens, though obstructions may intervene, is given more weight in this state than in others, upon the theory, we presume, that the individual, as well as the railroad, measured by tbe duties and necessities of each, has a right to the crossing. Appellant says: “He (meaning the auto driver) could have prevented the accident by stopping.” That of course, may be true, however, to prescribe in the light of subsequent conditions what a man could have done, does not necessarily impute negligence. If you proved contributory negligence by “hindsight,” it would generally afford a wholesale immunity to tort-feasors.

“Tbe fact that, if the automobile had been stopped, the occupants might have heard the approaching train, and thus have avoided the accident, is not decisive of their negligence. Fair-minded men might honestly differ, under all the facts as disclosed by the evidence, whether the exercise of such precaution was exacted of them.” Pendroy v. Railway Co., 17 N. D. 433, 117 N. W. 534.

Appellant urges that the case of Heaney v. Railway Company, 112 N. Y. 122, 19 N. E. 422, holding that it is negligence per se to attempt to cross tracks hidden by the smoke from a passing train, without waiting for a clear view, is analogous and in point. In the case of McNamara v. Ry. Co., 64 Hun. 637, 19 N. Y. Supp. 497, one of the Supreme Courts of New York attempted to follow the Heaney Case upon a similar state of facts and barred the plaintiff; but the court of Appeals (136 N. Y. 650, 32 N. E. 765) practically emasculated the Heaney Case as an authority upon appellant’s theory, by distinguishing, and reversed the intermediate appellate court, affirming the trial court’s judgment. The case of Brommer v. Penna. R. R. Co., 179 Fed. 577, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924, by a federal Circuit Court, as to the care required of an automobile driver stopping at a railroad crossing, is rather in point upon appellant’s theory, but which we refuse to follow, believing that the doctrine is opposed to our local law.

However, we think that appellant’s third assignment of error, addressed to the court’s action in refusing special charge No. 5, practically embodying appellant’s theory as a jury question, is well taken, unless the condition of the record, under the acts of the Thirty-Third Legislature, in regard to instructions to a jury, preclude our consideration of the error. The court charged generally:

“If you find that J. F. Alcorn, Jr., was guilty of negligence in going upon defendant’s tracks at said crossing, without discovering that said train was approaching said crossing, and that such negligence, if any, contributed to the injury,” to return a verdict for the defendant, though the jury may find the defendant guilty of negligence.

There was no written objection specifically addressed to the court’s charge on this question as to any omission of appellant’s theory of contributory negligence, based upon any particular phase of the testimony; but the following special 'charge was requested, refused, and properly excepted to under the statute: ..

“Gentlemen of the jury, you are charged that if you find and believe from the evidence in this case that J. F. Alcorn, Jr., at the time he ran the automobile in question on the track of the defendant company, knew that he could not see the cars being propelled on the track of defendant because the sun was shining in his eyes, and you further find and believe that an ordinarily prudent person would have stopped said auto to ascertain whether there were any cars being backed into said crossing, then you will find for the defendant.”

We do not think this charge is upon the weight of the testimony, nor an isolation of facts disconnected from other facts sufficient to condemn it, but that it is a presentation of a substantive defense coming sufficiently within the purview of the following cases: Yellow Pine Oil Co. v. Noble, 101 Tex. 125, 105 S. W. 318. This court has, upon repeated occasions (which cases we will not cite here), called attention to the extension of the doctrine by the Supreme Court of the state where a requested instruction applying the law to specific facts (in that case) on the issue as to whether an employé, killed by the escape of poisonous gases while on top of an oil tank, was engaged at the time in discharging the duties for which he was employed, was held improperly refused though the principle of law, generally stated, had been embraced in the general charge. On the question of substantive defenses, we cite the cases: M., K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; Railway Co. v. Hall, 98 Tex. 480, 85 S. W. 786; M., K. & T. Ry. Co. v. Wall, 102 Tex. 362, 116 S. W. 1140; Ft. Worth & Denver City v. Taylor (Civ. App.) 153 S. W. 358; and the same case (Civ. App.) 162 S. W. 971, 972, and cases cited.

It may be that the following language, “and would have ascertained that the defendant was backing cars to said crossing, in time to have avoided the injury,” would have been technically, in its appropriate position, a proper addition to the special charge; but the act of Alcorn, driving upon the track, coupled with the collision, are such in this record that it follows, if he had stopped his auto any appreciable length of time whatever, the danger would have been apprehended and avoided. We do not believe that the charge should be rejected on that ground.

The most serious position against the charge is the opinion of the Court of Civil Appeals of the San Antonio court, in the case of Steele & Co. v. Dover, 170 S. W. 812, 813. We are inclined to agree with appellee that by the logic of that opinion, construing the acts of the Thirty-Third Legislature, p. 113, ■ if no> objection is made to the general charge of the court, though a special requested instruction is refused and excepted to, embodying an element omitted by the general charge, the trial court does not have to give the requested charge. We disagree, however, with that holding, and think that a more reasonable construction of the statute, viewed as a whole, is that if a litigant makes a presentation in a special charge of an ele-inent of recovery or of defense, appropriately-based upon the facts and not embodied in the main Charge, and sufficiently succinctly calls the court’s attention to the omission, he is entitled to the submission of the charge, though he failed to object to the general charge on account of such omission. Of ■course, under article 1971, the general charge shall be objected to before the court reads the same to the jury, and all objections not so made are considered waived; but article 1973 also prescribes that either party may present to the judge such instructions as he desires, provided that the same “shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.”

Article 2061 prescribes that if the instructions are refused they shall be regarded as approved unless excepted to. If excepted to, by the legal effect of article 2061, the litigant does not waive, but challenges the action of the court in refusing the charge, unless it may be that the failure to object to the general charge accomplishes that end. The purpose and spirit of this statute is to opportunely permit the trial judge to correct his errors, and if that purpose is accomplished we do not think an unnecessary burden Should be placed upon litigants. If an objection by one article of the statute, on account of not having been made, is waived, but if, in reality, in another form, as applied to a substantive defense, it is presented in a special charge, and by another article of the statute the special charge and the refusal of the court when excepted to, are not waived, why should the former article nullify the latter? The trial judge knows what he has written in the main charge, and the special charge is presented to him before he has delivered his main charge to the jury, and embodies the same defect and attempts the same correction of the main charge the objection would have pointed out; there is no real necessity of a “double-barrel” presentation of the same question to the trial court, if the special charge specifically and properly presents it. When this condition prevails, we think the spirit and meaning of the statute are subserved, though the general charge was not excepted to; and think the trial court in this instance erred in refusing to give the charge.

The Supreme Court, in the case of Railway Co. v. O’Neal, 91 Tex. 671, 47 S. W. 95, held that, where 'the starting point to the approach to the crossing was less than 80 rods, the statute did not require the whistle to be blown. The charge on this question under the prescriptions of the statute — at least in the present condition of this record — with reference to the blowing of the whistle, is incorrect. What evidence there is upon the point starts this train within less than 80 rods. The objections of appellant are not really sufficient to challenge the charge in this respect, but we call attention to it in view of another trial. Chief Justice Fisher, in the ease of Gulf, Colorado & Santa Fe Ry. Co. v. Hall, 34 Tex. Civ. App. 535, 80 S. W. 135, held that a different rule obtains with reference to the ringing of the bell. This particular question we have not exhausted, but for the benefit of the trial court advert to the same for the same purpose.

The court permitted A. Z. Jackson, Alcorn’s companion in the auto, to testify that one of the employes of the defendant company said to them immediately after the wreck, “What in the hell are you doing here, anyhow?” We do not think that the expression was res gestee of any explanatory condition, or elucidates any issue in the case. It is prejudicial and should have been rejected. S. A. & A. P. Ry. Co. v. Belt, 46 S. W. 374.

The judgment is reversed, and the cause remanded for another trial.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©^jEor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    KELSAY LUMBER CO. et al. v. ROTSKY et al.
    (No. 803.)

    (Court of Civil Appeals of Texas. Amarillo.
    June 7, 1915.
    On Motion for Rehearing, July 3, 1915.)
    1. PRINCIPAL AND SURETY <&wkey;101 — RELEASE— Advance Payments to Contractor.
    It is a material alteration of a building contract, releasing- the contractor’s surety, that, contrary thereto, the owner pays the contractor, as the work progresses, more than 75 per cent of the price; the surety not consenting.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 169-180; Dec. Dig. <&wkey;
    2. Principal and Surety <&wkey;117 — Release-Building Contracts.
    As between the owner and the building contractor, the contractor’s surety is released, the owner not having, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5038, with reference to which the parties are presumed to have contracted, retained 10 per cent, of the contract price of the building for payment of artisans and mechanics, for which failure they are given right to file liens.
    [Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 283-285; Dec. Dig. &wkey;5 117.]
    3. Indemnity <&wkey;9 — Extent — Attorney’s Fee.
    A building contractor's surety, having been released from all liability, loses all right to money deposited to indemnify it against loss as surety ; such an indemnity contract, in the absence of express agreement, not covering the surety’s attorney fees in defending an action.
    [Ed. Note — For other cases, see Indemnity, Cent. Dig. §§ 16, 17; Dec. Dig. <&wkey;>9.]
    4. Judgment <&wkey;253 — Coneormity to Undisputed Evidence.
    The only evidence of the amount of indebtedness of a building- contractor to a material-man, which the building owner agreed to pay with money to be retained from the contractor, being the testimony of the materialman, the court could not arbitrarily render judgment for half only of it.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 443, 444; Dec. Dig. &wkey;253J 5. Indemnity &wkey;H2 — Release — ALTERATION oe Contract.
    Where J. deposited money to indemnify P. as surety on the bond of II. as contractor for one building, there was such an alteration of contract as to release -J., when without J.’s knowledge or consent the building contract and bond was extended to include another building.
    [Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 26, 27; Dec. Dig. &wkey;12J
    Error from District Court, Tarrant County ; R. H. Buck, Judge.
    Action by the Kelsay Lumber Company against S. Rotsky and others, others intervening. There was a judgment, and plaintiff and others bring error.
    Affirmed in part, and in part reversed and rendered.
    Harris & Young, of Ft. Worth, for plaintiff in error Fidelity & 'Deposit Co., of Maryland. Thompson & Barwise, of Ft. Worth, for plaintiff in error Kelsay Lumber Co. McLean, Scott, McLean & Bradley, Baskin, Dodge & Eastus, R. C. Fuller, J. W. Stitt, Joe Burney, T. A. Altman, Roy, Rowland & Young, and Bryan, Bartholmew & Stone, all of Ft. Worth, for defendants in error.

       writ of error pending in Supreme Court.

   HALL, J.

This suit grows out of two building contracts, made between Rotsky, as the owner of the property, one Helms, as the contractor, and Fidelity & Deposit Company of Maryland, as surety, upon the contract of Helms. For the sake of brevity, plaintiff in error Kelsay Lumber Company will hereinafter be referred to as the Lumber Company, plaintiff in error Fidelity & Deposit Company as the Surety Company, the defendant in error Rotsky as the owner, Helms as the contractor, and the other defendants in error, who sought to foreclose liens for labor and material, as interveners.

On the 6th day of March, 1912, the owner made a contract in writing with the contractor, whereby the said contractor should furnish the material and do all the labor necessary to the construction of a certain two-story brick building, to be erected upon a certain lot in Ft. Worth, Tex. The work and material were to be according to drawings and specifications made by the owner’s architect Weinman. A printed form of contract was filled out by the architect and signed by the contractor as principal and by the Surety Company as surety. After the construction of this building had commenced the owner decided to erect a similar building on a lot adjoining the first, so that upon the performance of the contract he would have a building 50x97 feet, instead of one 25x97 feet, as provided for in the first contract. Accordingly, on the 15th day of April, 1912, the second contract between the same parties was entered into. The contract price of the two buildings was $10,000. The bonds executed by the Surety Company were in the total sum of $5,000. Thereafter the construction of the two buildings was carried out as under one contract. The contracts being identical, save as to the description of the property, and the contract price, among others, contained the following provisions:

“1. The contractor shall well and sufficiently perform and finish, under the direction and to the satisfaction of L. B. Weinman, architect, acting as agent of said owner, all the work included in the plans and specifications of a two-story brick business building (including all plumbing, also to bar fixtures, all wiring and screening of first and second floors, Agee Bros, make). * * * All work and material to be agreeably to the drawings and specifications made by said architect and signed by the parties hereto (copies of which have been delivered to the contractor), and to the dimensions and to the explanations thereon, therein and herein contained, according to the true intent and meaning of said drawings and specifications, and of these presents, including all labor and materials thereto and shall provide all scaffolding, implements and cartage necessary for the due performance of said work.”
“13. And it is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and materials shall be sixty-two hundred and no/100 ($6,200.00) dollars, subject to the additions or deductions on account of alterations hereinbe-fore provided, and that such sum shall be paid in current funds by the owner to the contractor in installments as follows: Seventy-five per cent, for material and labor installed in the building, on weekly estimates issued by the architect; it being understood that the final payment shall be made within three days after this contract is completely finished; provided that in each of the said cases the architect shall certify in writing that all the work upon the performance of which the payment is to become due, has been done to Ms satisfaction; and provided further, that before each payment, if required, the contractor shall give the architect good and sufiL cicnt evidence that the premises are free from all liens and claims chargeable to the said contractor; and further that if at any time there shall be any lien or claim for which, if established, the owner of the said premises might be made liable and which would be chargeable to the contractor, the owner shall have the right to retain out of any payment then due or thereafter to become due, an amount sufficient to completely indemnify him against such lien or claim until the claim shall be effectually satisfied, discharged or canceled; and should there prove to be any such claim, after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the former’s default.”
“15. And the said owner hereby promises and agrees with the said contractor to employ and does hereby employ Mm to provide the materials to do the said work according to the terms and conditions herein contained and referred to for the price aforesaid and hereby contracts to pay the same at the time and in the manner upon the conditions above set forth.”

It was further provided in the contract that in the event the contractor should refuse to supply a sufficient number of skilled workmen, materials of the quantity and quality provided for therein, such neglect or failure being certified by the architect to the owner, then the owner should, at his option, after three days’ written notice to the contractor, provide such labor and materials and deduct the costs thereof from any money due or to become due the contractor; or in the event the architect deemed the cause sufficient, the owner, upon the certificate of the architect, was at liberty to terminate the employment of the contractor and to take possession of the premises and complete the building and withhold any further payments to the contractor until the building was completed ; thereupon the owner should pay to the contractor any difference between the amount required to complete the building and the contract price. In the event the owner should be unable to complete the building for the amount of the unpaid contract price, then the contractor should repay to the owner such excess.

The conditions of the bonds accompanying the contracts executed by the Surety Company are identical, and are as follows:

“Now, if the said contractor shall well and truly perform and fulfill all and every the covenants, conditions, stipulations and agreements in said contract mentioned, as to be performed and fulfilled by him, and if the said contractor shall repay to the said owner all sums of money which he may pay to other persons on account of work and labor done or materials furnished, which said contractor may fail to do or furnish, and shall pay to the said owner all damages he may sustain and all forfeitures to which he may he entitled by reason of the nonperformance on the part of said contractor of any of the covenants, conditions, stipulations and agreements of said contract, then this obligation shall be void,” etc.

The building was completed by the contractor on or about the 1st day of August, 1912. About the middle of June, 1912, some of the interveners filed with the owner notice of their claims, and thereafter liens were filed from time to time until September 1st following. It was discovered by the architect, about the middle of June, that the contractor would not be able to complete the contract by the use of the 75 per cent, payments made upon the weekly estimates. The estimates furnished by the architect are the same except as to the date, the amount due, the balance in the hands of the owner under the contract, and the amount previously paid.

The Lumber Company instituted suit to recover the sum of $3,167.65, and to foreclose the materialman’s lien, making the owner, the contractor, and the Surety Company defendants. The owner interpleaded some of the subcontractors and laborers, and the remaining defendants in error intervened. Defendants in error Presley and Johnson, in addition to claiming a debt and lien against the premises for labor, sought to recover of the Surety Company the sum of $1,000, which they alleged they deposited with said company to induce it to become the surety upon the bond of the contractor and to indemnify :it against loss as such surety. The Lumber Company alleged that the original bill of lumber upon which it figured was $950, the balance of its claim being made up of extras as itemized. It further alleged that the owner agreed and obligated himself to pay the full amount of the bill, and that he would withhold from the contractor and retain in his hands for that purpose a sufficient amount of the contract price due the contractor to fully pay and satisfy it, or at least $3,000 thereof; that this agreement was made long prior to the accrual of any of the other claims presented by the other parties to the suit; that said «agreement was made with the knowledge and consent of the contractor. It was further alleged that the owner had notice of each and every item of the material furnished within less than 30 days after the indebtedness had accrued, and that the affidavit had been filed, fixing a material-man’s lien as prescribed by law.

The owner pleaded generally the contracts and bonds, attaching each of them to his answer as exhibits, and by way of cross-action against the contractor and the Surety Company alleged that the building had not been completed within the time specified in the contracts, and prayed that he be given judgment against the contractor and the Surety Company for the penalties provided therein, amounting to $545. He further alleged that there were various claimants who had intervened, and others claiming amounts due for labor and material, and that he was entitled to recover, under the terms of the contract, against the contractor and the Surety Company, all such sums as might be recovered against him by said claimants. By supplemental petition he pleaded the statute of frauds against the Lumber Company’s claim, denied the allegations of all parties that he had violated the terms of his contract by paying more than-, the 75 per cent, allowed under the provisions thereof, or in any other manner; that before the completion of the building, it became apparent that the contractor would default, and that notice of such impending default was promptly given to the Surety Company and its agents, demand being made that the building be completed by the Surety Company according to the plans and specifications; that the Surety Company directed the owner to pay out the entire 25 per cent, in completing the building, provided to be withheld by the terms of the contract, and that the same was so applied for that purpose, except the sum of $925.45, which the owner tendered into court.

The Surety Company denied its liability upon the bond for any amount, and alleged that the bonds it had executed for the contractor ran in favor of the owner alone, denying that interveners Presley and Johnson had any right to the $1,000, deposited by them, to induce it to execute the bonds for the contractor. The Surety Company specially pleaded the thirteenth paragraph of the contract above set out, and alleged that by an agreement between tbe owner and tbe contractor, more than tbe amount permitted by said clause of tbe contract bad been paid out upon weekly estimates without tbe knowledge or consent of tbe Surety Company ; that said paragraph of tbe contract was a material one for tbe protection of all parties connected witb tbe matter, and was a material inducement to tbe Surety Company to execute said bonds; that tbe breach of said contract in said particular released it from all liability on said bonds. Tbe Surety Company further declared upon the twelfth paragraph of tbe contract, wherein it is provided that in case of tbe refusal or neglect on tbe part of tbe contractor to furnish properly skilled workmen and materials, tbe owner bad tire right after three days’ written notice, to tbe contractor, to take possession of tbe premises and complete the building, and call on tbe contractor for tbe difference between tbe contract price and tbe cost of tbe building as completed. Tbe Surety Company charged that tbe contract between tbe Lumber Company, tbe owner, and tbe contractor, whereby it was agreed that tbe owner would guarantee tbe payment of tbe lumber bill, was made without tbe knowledge or consent of tbe Surety Company, and in violation of the twelfth paragraph of tbe contract, and constituted a change and alteration of said contract, which increased, and tended to increase, tbe liability of tbe Surety Company on its obligations. As to tbe $1,000, placed in its bands by Presley and Johnson to indemnify it against loss and to induce it to make the bond for the contractor, tbe Surety Company alleged that said sum was so placed by tbe contractor himself, and that a collateral contract in writing was executed at tbe time said deposit was made, which governed tbe rights of the Surety Company and tbe interveners.

The interveners, Presley and Johnson, alleged that tbe terms of tbe contract having been breached by tbe owner in tbe payment of more than 75 per cent, of tbe amount of tbe estimate made by the architect, the Surety Company was thereby released from all liability, and they were therefore entitled to recover the full amount of the $1,000, which they alleged belonged to them and not to tbe contractor.

Tbe case was submitted to tbe jury on special issues as follows:

“1. (a) Was there not an agreement between the Kelsay Lumber Company (acting through any of its agents) and L. B. Weinman to hold funds going to Plelm under his contract with Rotsky, for the purpose of paying the lumber bill or any part of this bill?”
The jury answered: “Yes.”
“(b) If you answer the above question, Yes, then state whether or not there was any agreement between the said Kelsay Lumber Company, acting through its agents, and said Weinman, that said payments should be made out of any particular funds, and, if so, out of what fund was the same to be paid?”
The jury answered: “Out of the contract price.”
“2. Was, or not, Weinman informed, on or about May 28th, as to the amount of lumber bill then owing to Kelsay Lumber Company?”
The jury answered: “Yes.”
“3. Was, or not, the letter of the Kelsay Lumber Company, dated June 7, 1912, delivered on that date to Rotsky?”
The jury answered: “Yes.”
“4. At what date did Rotsky, by tenant or in person, take possession and begin to use each of the two buildings in question?”
The jury answered: “July, 1912.”
“5. (a) Was more than 75 per cent, of the contract price of the buildings paid without the consent of the Fidelity & Deposit Company?”
The jury answered: “Yes.”
(b) On what date was the 25 per cent, reserve, provided for in the contract between Rot-sky and Helm, first encroached upon or used?”
The jury answered: “Latter part of June, 1912.”
“6. When was the work covered by the building contract dated March 6, 1912, completed?”
The jury answered: “First part of August, 1912.”
“7. What was the agreement between Presley and Johnson and Mr. Hollingsworth, agent of the Fidelity & Deposit Company, at the time -the thousand dollars was furnished and placed with Mr. Hollingsworth?”
The jury answered: “When Helm completed the contract, the money was to be returned to Presley and Johnson.”

Tbe court filed tbe following finding of fact:

“In response to the application of the plaintiff, the court finds as a fact that L. B. Weinman had the power and authority from S. Rotsky to enter into the agreement found by the jury to have been made between said Weinman and plaintiff, and that the said Weinman -was such an agent of the defendant Rotsky as had the authority and the power to make such agreement and to bind the defendant Rotsky thereby.”

Judgment was rendered in favor of tbe Lumber Company for the sum of only $1,632.-00, and in favor of tbe various interveners for tbe several amounts claimed by them for labor done and material furnished in tbe construction of tbe building. Tbe judgment was also in favor of Presley and Johnson, against tbe Surety Company, for tbe $1,000 alleged to have been put up by them witb tbe company and for a foreclosure of tbe mechanic’s and materialman’s liens and ordering a sale of tbe property. Tbe court credited the sum of $924.45 on tbe judgment in favor of tbe respective parties, pro rata, and rendered judgment against the Surety Company for tbe total amount of tbe claims established as liens in favor of tbe Lumber Company, and tbe various interveners, after crediting tbe said sum of $924.45.

Tbe Surety Company contends, under its first assignment of error, that tbe agreement found by tbe jury to have been made by tbe owner witb tbe Lumber Company that tbe owner should bold funds due tbe contractor to pay the lumber bill, and which was never carried out by tbe owner, bad tbe effect of changing and enlarging tbe contract and obligation of tbe owner, and increased bis statutory liability, thereby releasing tbe Surety Company. Tbe evidence showed that the Kelsay Lumber Company had properly fixed its materialman’s lien under the statute, and at the time of the alleged agreement there was due from Rotsky to the Lumber Company $3,167.65. It further appears that on May 28th, at the time when the agreement found by the jury to have been made was entered into, Rotsky had disbursed only $3,644 of the total contract price. The general rule is that any material change in the method and time of payment under a building contract will release the surety, but we are not sure that the agreement in this instance was a material change. Its effect was to assign to the Lumber Company enough of the funds in the owner’s hands to satisfy the debt, and to that extent created a preference in favor of the Lumber Company. Texas Glass & Paint Co. v. Southwestern Iron Company, 147 S. W. 620; Beilharz v. Illingsworth, 132 S. W. 106. By article 5637, Sayles’ Civil Statutes, all liens are placed upon an equal footing. Plaintiffs in error’s contention is therefore not without some merit. It is not necessary, however, to decide this question, since we think the Surety Company is clearly released from all liability under paragraph 13 of the contract. The jury found that more than 75 per cent, of the contract price of the building was paid in the latter part of June, without the consent of the Surety Company. A similar term of such contracts has been construed by our Supreme Court, and a violation of it held fatal to the right of the owner to hold the surety. Lonergan v. San Antonio Trust Co., 101 Tex. 63, 104 S. W. 1061, 106 S. W. 876, 130 Am. St. Rep. 803; Ryan v. Morton, 65 Tex. 258; Clark v. Cummings, 84 Tex. 614, 19 S. W. 798; Durrell v. Farwell, 88 Tex. 107, 30 S. W. 539, 31 S. W. 185; Grant v. Alfalfa Lbr. Co., 177 S. W. 536 (decided by this court, but not yet officially reported). This was a material alteration of the contract, and the rule is that such alteration discharges the surety from all liability, even though it result in substantial benefit to him.

As between the Surety Company and the owner and contractor, there is another ground why the Surety Company should be released. The parties are presumed to have contracted with reference to the provisions of the statute relating to such agreements. Article 5638, Vernon’s Sayles’ Civil Statutes, requires the owner to retain 10 per cent, of the contract price of the building for the payment of artisans and mechanics who may perform any labor or render any services in the erection thereof, and specially provides that in the event of a failure or refusal so to do, such mechanics and artisans may file liens upon the building and the land necessarily connected therewith to secure their claims. The record in this case discloses that Rotsky did not have as much as 10 per cent, of the contract price in his hands at the time of the. completion of the building, and that the other interveners coming within the class designated in the statute have been forced to resort to their statutory remedies.

The release of the Surety Company from all liability deprives it, of course, of the right to retain the $1,000 deposited with it by Johnson and Presley. The effect of the jury’s finding is that the completion of the building by the contractor entitled Johnson and Presley to the return of the money. They made no agreement to pay attorney’s fees. Their undertaking was simply one of indemnity to protect the Surety Company against liability on the bond, and, in the absence of' an express agreement to pay attorney’s fees, .they cannot be bound. First National Bank of Paradise v. Wallace, 161 S. W. 957; Moore v. Moore, 52 S. W. 565; Martin-Brown Co. v. Auld, 34 S. W. 1050.

The next question to be considered is the right of the Lumber Company with reference to the amount of its recovery. The jury having found specifically that there was an assignment of so much of the fund due Helm as would be necessary to pay the Lumber Company’s debt, and the court, acting under article 1985, Vernon’s Sayles’ Civil Statutes, having found that Weinman was an agent of Rotsky, duly authorized to consent to the assignment and bind Rotsky, we see no reason why the judgment of the court should not have been rendered against Rotsky and in favor of the Lumber Company for the full amount of the claim. No explanation is made, nor are we able to find any in the record, why the Lumber Company’s claim was reduced one-half. Kelsay is the only witness who testified with reference to the amount of the claim. His undisputed testimony is that his company furnished lumber and other material for the construction of the building in the sum of $3,167.65. This claim, as an entirety, was approved by Helm. All necessary steps were taken by the Lumber Company to fix its materialman’s lien, and in our opinion it was entitled to a judgment for the full amount of its claim, with interest thereon. No issue was submitted to the jury as to the amount due, but there was no - controversy as to this feature of the case. The finding of the trial judge in favor of the Lumber Company for $1,632, and the'necessary foreclosure of its materialman’s lien, necessarily implies that the verbal agreement between Kelsay and Helm amounted to an equitable assignment from Helm to the Lumber Company of a sufficient amount of the contract price which might be due Helm to satisfy the bill, and this is in accordance with the finding of the jury. A written order, dated July 10, 1912, addressed to the owner and his architect, Weinman, by Helm to pay to the Lumber Company $3,-167.65, appears in the record. Since it must be presumed, however, in support of the judgment that the court found a valid parol equitable assignment, and since the only evidence showing the amount of the indebtedness to be paid thereby comes from Kelsay, the court could not arbitrarily render judgment for about one-balf of what was shown to be due by Kelsay. If the court had rejected the testimony in its entirety, then there would have been no evidence upon which to base a judgment for any sum. Starkey et al. v. H. O. Wooten Grocery Co., 143 S. W. 693. Having accepted it as true, the judgment should have been for the full amount claimed, and is accordingly here so rendered.

The judgment of the lower court, therefore, is affirmed in so far as it is rendered in favor of Johnson and Presley and the remaining interveners, who have not appealed. As to the Surety Company and the Lumber Company, the judgment is reversed and rendered as herein indicated. Affirmed in part, and reversed and rendered in part.

On Motion for Rehearing.

The Surety Company insists that we erred in holding that Johnson and Presley were entitled to recover the thousand dollars deposited with it. The last agreement, or, as it is termed by the Surety Company, “the receipt for the money,” was never pleaded by the Surety Company as against Presley and Johnson, but against Helm alone. Its suit against Helm was dismissed. The record does not show that this collateral agreement was ever ratified or acquiesced in by Presley or Johnson, but, on the contrary, it is shown that Presley knew nothing of it until about the time the suit was instituted, and that Johnson could not read it. The thousand dollars was deposited with the Surety Company to indemnify it as surety upon the bond of Plelm under the first contract. Without the consent of Presley and Johnson, the Surety Company entered into the second contract, and both buildings were constructed as under one contract. This is such an alteration of the indemnity contract as would release Presley and Johnson.

We believe the questions presented have been correctly disposed of, and the motions for rehearing are overruled.
      <S=»For other oases see same topic and KEY-NUMBSR. in all Key-Numbered Digests and Indexes

      (§^>Kor other cases see same topic and. KEY-NUMBER, in all Key-Numbered Digests and Indexes