author: FLY, C. J.

text:
    PENA Y VIDAURRI’S ESTATE v. BRUNI et al.
    (Court of Civil Appeals of Texas. San Antonio.
    April 2, 1913.
    Rehearing Denied April 30, 1913.)
    1. Appeal and Error (§ 1039) — Harmless Error.
    The court’s action on exceptions to the pleadings of a party who was dismissed from the suit is immaterial.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent Dig. §§ 4075-4088; Dee. Dig. § 1039.]
    2. Wills (§ 229) — Contents—Persons Entitled — “Person Interested.”
    The expression “person interested” in Rev. Civ. St. 1911, art. 3236, providing that any person interested in an estate may at any time before any application, etc., is decided upon, file opposition thereto in writing, and be entitled to be heard upon such opposition as in other suits, includes only one entitled to share in the estate or its proceeds, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor, and would not include one who claimed to have purchased all of testatrix’s interest in the land sought to be bequeathed by her, so that such person could not contest testatrix’s will.
    [Ed. Note. — Eor other cases, see Wills, Cent. Dig. §§ 550-554; Dec. Dig. § 229.

    Eor other definitions, see Words and Phrases, vol. 4, pp. 3702-3706.]
    3. Wills (§ 246) — Probate—Foreign Will —Contest op Validity.
    Rev. Civ. St. 1911, art. 3276, provides that, when a will has been probated according to the laws of a foreign country, a copy of the will and probate attested by the clerk of the court in which the will was proved with the seal of the court annexed, and a certificate from the presiding magistrate that the attestation is in due form, shall be filed and recorded and shall’ have the same, effect as the original will. Held, that the validity of the foreign will, after it has been recorded as provided by statute, may be contested as the original will might have been, though the statute does not seem to contemplate a contest of the probate of a foreign will,
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 582, 583; Dec. Dig. § 246.]
    4. Wills (§ 259) — Probate—Time.
    Even after the lapse of four years, a domestic will may be probated to establish a link in a chain of title.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 598-599% ; Dec. Dig. § 259.]
    5. Wills (§ 245) — Probate—Foreign Will.
    A will duly attested according to the laws of the foreign country where it was probated should be admitted to probate under the Texas statute, though not attested by the clerk of the court, with the certificate of the judge that the attestation is in due form, as required by Rev. Civ. St. 1911, art. 3276.
    [Ed. IfTote. — For other cases, see Wills, Cent. Dig. §§ 577-581; Dee. Dig. § 245.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Application by Francisco Martinez to probate tbe will of Clara de Jesus Pena y Vidaurri, contested by A. M. Bruni and Juan Vidaurri. From a judgment dismissing contest by Juan Vidaurri, and denying probate, tbe proponent appeals.
    Affirmed as to contestant Vidaurri, • and contest by Bruni dismissed, and cause remanded, with directions.
    H. G. Dickinson, of Laredo, for appellant. Hicks & Hicks & Teagarden, of San Antonio, and Atlee & Smith, of Laredo, for ap-pellees.

      For otner cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FLY, C. J.

Francisco Martinez sought to probate the will of Clara de Jesus Pena y Vidaurri, which had already been probated in Mexico, by which will testatrix bequeathed to Maria del Refugio Pena y Zamorana and to Victor Pena, son of said Maria, all of her un•divided interest in two tracts of land in Webb county, Tex., known as the Dolores and Cor-alitos tracts; the same being parts of a lar-” ger tract granted by the government of Spain to Jose Vasquez Borrego and known as the JoseVasquez Borrego grant. Martinez claimed to have bought the interest of said dev-isees in said lands, and desired to have said will probated in order to establish a link in his chain of title. A. M. Bruni and Juan Vidaurri contested the probate of the will. Bruni alleged that he was the owner of a large part of the land described in the application to probate, and that, if the will was probated, it would cast a cloud upon his title. The county court rendered judgment for the contestants, and dismissed the application, and the proponent of the will appealed to the district court. Bruni alleged that he purchased all the interest of the testatrix from her and owned the same. Exceptions to the answer of Vidaurri and Bruni were overruled, but on a hearing it was held that Vidaurri was not a person interested in the estate, and he was dismissed from the suit, and judgment was rendered in favor of Bruni, denying probate to the will. •

The first assignment is overruled. As Vidaurri was dismissed from the suit, the action of the court on the exceptions to his pleadings is utterly immaterial. It is provided in article 3236, Rev. Stats, of 1911, that “any person interested in an estate may, at any time before any application, petition, exhibit, account, claim or other proceeding is decided upon by the court, file opposition thereto in writing, and shall be entitled to process for witnesses and evidence, and to be heard upon such opposition as in other suits.” It is apparent from the quotation that the person contesting the probate of a will must be interested in the estate.

The expression, “person interested,” as used in the statute, includes only him, who either absolutely or contingently is entitled to share in the estate or the proceeds thereof, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor. In re Killan’s Estate, 172 N. Y. 547, 65 N. E. 561, 63 L. R. A. 95; Railway v. Gould, 64 Iowa, 343, 20 N. W. 464; Chandler v. Railroad Com’rs, 141 Mass. 208, 5 N. E. 509. In this case appellee Bruni in his pleading claims to have purchased all of the interest of the testatrix in the land sought to be bequeathed by her. Under his pleadings, he is not interested in the estate of testatrix, and claims nothing therein, but under the guise of contesting a will he is actually prosecuting an action of trespass to try title to the land, and this fully appears from his allegation that “the probating of such will would cast a cloud upon the title of said lands.” If Bruni bought lands from testatrix “long before her death,” as he alleged, it was no portion of her estate after her death,- and he cannot by reason of the purchase be interested in her estate. Upon no other basis did he have a right to contest the probate of the will, and we hold that he had no right to contest the probate of the will, and should be dismissed from the cause, and not permitted to appear therein. If he bought the whole of the land, and any one should claim it, the proper tribunal will be open to him to establish his claims and remove clouds of any description from his title.

The inquiry as to the propriety of filing and recording the will should not extend back of the probate of the will in Mexico; but, if the instrument is properly attested under our statute as to the probate of foreign wills, it should be filed and recorded. In article 3276, R. S. 1911, former No. 1909, it is provided that when a will has been probated according to the laws of any of the United States or territories, or of any country out of the limits of the United States, a copy of such will and the probate thereof attested by the clerk of the court in which such will was admitted to probate, and the seal of the court annexed, if there be a seal, together with a certificate from the judge or presiding magistrate of such court, that the attestation is in due form, it may be filed and recorded in the court, and shall have the same force and effect as the original will, if probated in said court.

The attestation of the foreign will addresses itself to the court, but the validity of the will may be contested as the original' might have been. No other provision for a contest is made, and no attack upon the will could he entertained, except one that could be made upon the original. No contest of the probate of a foreign will seems to be contemplated by the statute. Poole v. Jackson, 66 Tex. 380, 1 S. W. 75. There is no provision in the statute as to when a foreign will may be filed and recorded. This will was filed in less than four years after it was probated in Mexico. Even when four years has elapsed, a domestic will may be-probated to establish a link in a chain of title. Ryan v. Railway, 64 Tex. 239; Dew v. Dew, 23 Tex. Civ. App. 676, 57 S. W. 926.

The probate of the will in Mexico was certified to by Santos Balderas, “First Constitutional Alcalde and Substitute Judge of the First Instance of this 5th Judicial Section,” and attested by Antonio Canales and Ascencio Rami’rez. To the certificate of the judge is appended the following: “Juan B. Gastello, Constitutional Governor of the Free and Sovereign State of Tamaulipas, certifies: That the signatures which authorize the foregoing document are that of the C. Santos Balderas, 1st Constitutional Alcalde of the City of Mier and Acting as Judge of 1st Instance of the 5th Judicial Section of this State and those of his assisting witnesses. Victoria City, March 6, 1909. J. B. Castello. Matias Guerra, Sec’y.” The seal of the state of Tamaulipas was attached. It was recorded in the records of Webb county, Tex., on May 7, 1909. It was in evidence that in Mexico certified copies-of instruments of writing are always given, by the judge of first instance who signs, and has two “testedos de assistencia” or “assisting witnesses.” The judge has control of the seal of the court, and no one else can attach to a copy of an instrument. The-judge is the only one who certifies to a .copy of any document. The signature of the-Governor of Tamaulipas was proven, and .that his name is attached to documents coming from the court of the first instance of Mier, Mexico. All of this evidence was un-contradieted.

It will be noted that no clerk is authorized by Mexican law to certify to documents, and that the will and the probate thereof were certified to, as required by Mexican, law, by the judge of first instance- and his certificate attested by the Governor of the state under the seal thereof. The statute of this state requires an attestation by the clerk of the court, under the seal, with a certificate of the judge of the court that the attestation is in due form.

We are of opinion, however, that a will duly attested according to the laws of the foreign country where probated should be admitted to probate under the statute of Texas. Welder v. McComb, 10 Tex. Civ. App. 85, 30 S. W. 822, writ of error refused; Wilcox v. Bergman, 96 Minn. 219, 104 N. W. 955, 5 L. R. A. (N. S.) 938. In the Lawyers’ Beport Annotated, cited, a number of eases are annotated in which it is uniformly held that, where the judge performs the duties of both judge and clerk, the certificate of the one will be sufficient.

The judgment is affirmed as to Juan Vidaurri, but is reversed in other respects, and it is the judgment of this court that the contest of A. M. Bruni be dismissed, and that he pay all costs accruing by reason of said contest, and the cause is remanded, with instructions to the district court to inquire into the question as to whether the laws of Mexico have been complied with in probating the will, and as to whether the Mexican judge who certified to the probate of the will acted both as judge and. clerk in the certification of instruments from his court, and, should it clearly appear that there is no clerk or that the judge who certified the probate of the will was empowered under Mexican law to act in the capacity of clerk and judge in such matters, then to probate the will of Clara de Jesus Pena y Yidaurri, as provided in article 3276, Revised Statutes of 1911.


source: Caselaw Access Project

author: JENKINS, J. JENKINS, J.

license: Public Domain

text:
    BEN C. JONES & CO. v. GAMMEL-STATESMAN PUB. CO. et al.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 8, 1913.
    On Motion for Rehearing, Feb. 19, 1913.
    Further Rehearing Denied April 9, 1913.)
    1. Appeal and (Error (§ 1185) — Writ op Eb-ror Corah Nobis.
    Under Acts 22d Leg. (1st Called Sess.) c. 15, giving the Courts of Civil Appeals power by affidavit to determine matters of fact necessary to the proper exercise of their jurisdiction, a motion to vacate a judgment serves the function of the common-law writ of coram nobis, and may be filed when a judgment rendered in the appellate court is void by reason of some fact not disclosed by the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4636-4641; Dec. Dig. § 1185.]
    2. Judgment (§ 378) — Notice.
    A party to a judgment is charged by law with notice thereof, and hence the existence of a former judgment between the parties cannot be said to be a newly discovered fact warranting the.vaeation of the judgment.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 715, 716; Dec. Dig. § 378.]
    3. Appeal and Error (§ 1185) — Motions to Vacate — Scope.
    Upon a motion to vacate a judgment of the appellate court, errors of law cannot be considered, but the motion must be bottomed on some fact rendering it void which does not appear on the face of the record, consequently a motion based on the disregarding of a former adjudication between the parties will be denied for the matters complained of would at most merely render the judgment erroneous in point of law.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4636-4641; Dec. Dig. § 1185.]
    On Opinion Granting Motion for Rehearing.
    4. Appeal and Error (§ 833) — Rehearing— Determination.
    Where it appears on motion for rehearing that a judgment is against the merits, all doubts will be resolved in favor of a rehearing.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3214, 3229-3240, 3244-3246; Dec. Dig. § 833.]
    5. Appeal and Error (§ 1171) — Reversajp-Failube to Recover Nominal Damages.
    Where the record shows a breach of a valid contract entitling plaintiffs to a judgment for at least nominal damages and for such actual damages as they may have sustained, a judgment for defendant will be reversed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4546-4554; Dec. Dig. § 1171; Damages, Cent. Dig. § 16.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    On motion for rehearing and for additional findings.
    Former opinion reversed and cause remanded.
    For former opinion, see 141 S. W. 1048.
    N. A. Rector and T. H. McGregor, both of Austin, for appellant. Gregory & Batts, J. M. Patterson, and Jas. H. Robertson, all of Austin, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   On Motion for Rehearing of Motion to Vacate Judgment and File Findings of Fact and Conclusions of Law.

JENKINS, J.

On May 24, 1911, this court affirmed the judgment of the trial court herein. On June 6, 1911, appellants filed their motion for a rehearing, which motion was overruled .by this court on December 6. 1911. • On January 4, 1912, appellants filed in the Supreme Court their petition for writ of error, which was refused by said court on May 28, 1912. On the same day, May 28, 1912, appellants filed in this court a motion to vacate its judgment, which was rendered, as above stated, on May 24, 1911, which motion to vacate judgment was overruled on October 9, 1912. On October 23, 1912, appellants filed a motion for a rehearing on their motion to “vacate judgment,” and requested this court to file its findings of fact and conclusions of law on said motion to vacate judgment. It perhaps would have been the proper practice 'for us to have dismissed the motion to vacate the judgment, instead of overruling the same, for the reason that that motion was, in effect, a second motion for a rehearing filed without leave of this court, and at a term subsequent to the term at which said judgment was rendered; but, as tbe first motion for rebearing was not passed upon until tbe next term of this court, we did not dismiss said motion to vacate, but considered tbe same and overruled it.

Our reason for saying that tbe motion to vacate is in substance a motion for a rebearing is that it does not contain tbe requisite grounds of a motion to vacate a judgment. A motion to vacate a judgment takes tbe place of tbe common-law writ of coram nobis, and may be filed when a judgment bas been rendered in an appellate court, wbicb is void by reason of some fact not disclosed by tbe record, as where a judgment is against a married woman, who appears upon tbe record as a feme sole, in a matter in wbicb sbe was not legally liable by reason of ber coverture, or that tbe party against whom tbe judgment was rendered was dead at tbe time of sucb rendition. Cruger v. McCracken, 87 Tex. 587, 30 S. W. 537; Hart v. Mills, 31 Tex. 313. For this purpose Courts of Appeal bave power, by affidavit or otherwise, to determine sucb matters. Laws 1892, p. 7. But neither tbe so-called motion to vacate tbe judgment nor tbe motion for rehearing on said motion suggests any issue of fact dehors tbe record, and no affidavit as to any sucb alleged fact is filed with said motion. It is true tbe motion for rehearing is verified by the affidavit of one of tbe appellants, as follows: “Before me, tbe undersigned authority, appeared R. H. Cousins, who being by me duly sworn on oath says that be bas personal knowledge of all of the facts set out in tbe foregoing motion, and that all of said facts are true.”

Tbe only alleged facts set out in said motion are “a newly discovered outstanding judgment on one installment of tbe contract sued upon, wbicb renders tbe judgment of tbe trial court void, and further said judgment was obtained through fraud, accident, and mistake.” Tbe appellants herein were parties to tbe judgment referred 'to; and, though they may not in fact bave known of said judgment at the time of the trial hereof in tbe district court, they are charged by law with notice of said judgment; and hence it cannot as a matter of law be said to be newly discovered. No facts are set out in said motion wbicb tend to show any fraud on tbe part of appellees in obtaining judgment in tbe trial court. The allegation that tbe trial court was misled by appellees’ attorneys as to what tbe Supreme Court bad decided on tbe former appeal of this case is not, in a legal sense, an allegation of fraud, accidertt, or mistake. Tbe substance of said alleged motion to vacate tbe judg^ ment is that tbe trial court rendered judgment against appellants on findings -of fact and conclusions of law wbicb were res ad-judicata in appellants’ favor by reason of former proceedings in said court, and tbe decision of tbe Supreme Court on a former appeal of this case, and we are asked to so find tbe facts. As tbe trial court was not requested to file its findings of fact or conclusions of law, and did not do so, we cannot say, as a fact, upon what it based its judgment. But, even if tbe trial court did base its judgment on findings of fact or conclusions of law wbicb by reason of former proceeding^ in said court or in tbe Supreme Court were erroneous, this would only show that tbe trial court rendered an erroneous judgment, and not that its judgment was void. These were proper matters for consideration on tbe submission of this case in this court, if properly presented, but they are not matters wbicb can be considered on a motion to vacate tbe judgment of this court. Tbe judgment of this court may have been erroneous, but that was a matter for tbe Supreme Court to pass upon; the appellants submitted that issue to tbe Supreme Court, and it sustained this court. Tbe Supreme Court may bave erred in refusing a writ of error, but, if so, tbe errors of this court and of tbe Supreme Court were errors of law, and cannot be set aside by motion to vacate the judgment.

For the reasons stated, tbe motion for a rehearing on said alleged motion to vacate tbe judgment herein and tbe said motion to file finding^ of fact and conclusions of law are overruled.

On Motion for Rehearing — Findings of Fact.

JENKINS, J.

1. In 1900 appellants bad a contract with tbe state of Texas for tbe publication of tbe current reports of tbe Supreme Court, tbe Court of Criminal Appeals, and tbe Courts of Civil Appeals.

2. In 1901 H. P. N. Gammel for tbe benefit of tbe Gammel Book Company, obtained a contract with tbe state to publish said current reports for a period of 20 years, and also to republish certain old reports.

3. Prior to October 1, 1901, appellants entered into a verbal contract with tbe Gam-mel Book Company, whereby they were to surrender their said contract with tbe state, and were to furnish said current reports as required by said Gammel’s contract with the state, and also to publish a portion of said old reports.

4. On October 31, 1901, appellants and the Gammel Book Company entered into a written contract, whereby appellants agreed to print for the Gammel Book Company for a period of two years said current reports at a price set forth in said contract, and also four copies per annum of said old reports; and tbe Gammel Book Company agreed to deliver tbe copy for said current reports as tbe same was received by it from the state. Said written contract is set forth in full in our original opinion herein, and also in tbe opinion of tbe Supreme Court (100 Tex. 328, 99 S. W. 701, 8 L. R. A. [N. S.] 1197).

5. On September 24, 1902, appellants’ brought suit in the district court of Travis county (No. 18,900) for work and labor done under said written contract, and recovered judgment for the sum of $5,240.70. Said judgment was affirmed by the Court of Civil Appeals.

6. On July 11, 1904, appellants brought this suit in the district court of Travis county to recover for alleged breaches of said contract subsequent to the filing of said suit No. 18,900.

7. This suit was brought against said Gammel Book Company on said contract and against the other defendants named therein upon the ground of conspiracy to induce said Book Company to breach said contract and the absorption of the funds of said Book Company.

8. To this suit the defendants therein, in addition to a general denial, pleaded the judgment in said cause No. 18,900 in bar of this suit, and that the contract sued on had been rescinded by the parties thereto.

9. The court on the first trial of this case instructed the jury, in substance, that the appellants were not entitled to recover as to any breach of the contract accruing subsequent to the filing of cause No. 18,900, and prior to the trial thereof, and the jury, in accordance with said instructions, returned a verdict in favor of defendants as to such alleged breaches.

10. The court on said trial charged the jury, in substance, that if they found that appellants, in consideration of the agreement of H. P. N. Gammel to secure their release from a bond given by said Gammel to the state of Texas to secure the performance of his contract with the state hereinbefore mentioned, agreed tp release the Gammel Book Company from the contract herein sued on, and that if said Gammel did secure such release, and if they further found that said contract had been abandoned by the acts of the parties thereto, to return a verdict for the defendants, but that, if they did not so find, to return a verdict for the plaintiffs, appellants herein, against said Book Company for such profits, if any, as they would have made by reason of the breach of contract as to volume 80 Civil Appeals Reports. The jury returned a verdict for appellants as to said volume for $1,174.24, and judgment was entered for that amount.

11. Each of the parties filed a motion for a new trial; and, the same being overruled, each gave notice of appeal. The appellants perfected their appeal by giving a proper bond; appellees gave no appeal bond.

12. Appellants assigned error, among other things, that the court erred in instructing the jury against them as to breaches of said contract occurring after the filing of said suit No. 18,900 and prior to the trial of the same. The Court of Civil Appeals overruled this assignment, but the same was sustained by the Supreme Court on writ of error (100 Tex. 331, 99 S. W. 701, 8 L. R. A. [N. S.] 1197).

13. Appellees filed' a cross-assignment of error as to the refusal of the court to peremptorily instruct a verdict for the defendants, for the reason that the judgment in cause No. 18,900 was a bar to any recovery in this suit. As we construe the decision of the Supreme Court, that assignment was, in effect, overruled. The Supreme Court in said decision recites the contracts hereinbe-fore referred to, and says that “the evidence establishes that profits' would have accrued to Ben C. Jones & Co. upon each volume, if they had been permitted to publish them under the terms of the contract.” For error of the trial court in charging the jury as above indicated, the Supreme Court reversed and remanded this case.

14. Upon this case being remanded, appellants amended their petition by making additional parties, alleging conspiracy to induce a breach of said contract and the absorption of funds.

15. To this amended petition appellees pleaded in addition to the general denial that the contract sued on (1) was void, as against the anti-trust statutes of this state; (2) that the 20-year oral agreement was void under the statute of frauds; (3) the two and four year statutes of limitation (except R. L. Batts); (4) the judgment in 18,900 in bar of this suit; (5) an oral agreement to rescind the contract sued on herein, made about September 1, 1902, in consideration of said Gam-mel’s securing the release of appellant from his bond to the state; (6) that the contract had been rescinded by .the acts of the parties, in. that appellants had refused to do the work, and had sold their printing presses, rendering them unable to carry out the contract; (7) non est factum, in that the contract was signed on behalf of the Gammel Book Company by its president, without having authority so to do.

16. The second trial of this case was before the court, and no findings of fact or conclusions of law were filed; the court rendered a general judgment for the defendants.

17. In our original opinion filed herein May 24, 1911, we declined to consider most of appellants’ assignments for the reason that they did not comply with the rules as to briefing cases in this court. We did, however, consider assignment No. 16. Said assignment, which was submitted as a proposition, was in substance that the undisputed evidence showed that appellees had breached the contract sued on, and that plaintiff had been damaged thereby in the sum sued for, and that the court erred in failing and refusing to render judgment for plaintiffs against each and all the defendants for such damages. The statement under said assignment showed a verbal contract for 20 years, the written contract of October 31, 1901, of two years, the work that was done and the price to be paid therefor, and the amount of profits that appellants would have made by doing sucb work, and the breach of the contract by appellees. In said opinion we held, in effect, that while this assignment and the statements thereunder were sufficient to show that appellants were entitled to a judgment for the breach of said contract, if such judgment was not defeated by others matters pleaded by appellees, still that it might be, looking to the Whole record, that the court entered the proper judgment upon the evidence as to defenses pleaded by appellees. We declined to examine the record as to these matters; the same containing 567 pages.

18. Upon motion to vacate said judgment we have carefully examined the brief of ap-pellees, which we did not examine upon the original hearing of this case, for the reason that we deemed the same unnecessary, and for the further reason that the brief of ap-pellees contained 151 printed pages, setting out 65 counter propositions, none of which referred to any particular assignment of error or proposition made by appellant. An examination of the brief of appellees and also of the appellants and the record herein, in so far as the same relates to the subject-matters pleaded by appellees in defense of this action, discloses the fact that the trial court would not have been justified in rendering a judgment for appellees by reason of the matters pleaded in defense, as set out in above finding No. 15. Referring specially to ap-pellees’ plea as to the rescission of the contract sued on on or about September 1, 1902, it appears that in said cause No. 18,900 the appellees, by cross-action, sued appellants on said contract for the alleged breach thereof subsequent to said alleged agreement of rescission; and also as we construed the opinion of the Supreme Court herein (100 Tex. 320, 99 S. W. 701, 8 L. R. A. [N. S.] 1197) it was held that the judgment in said cause No. 18,900 was not a bar to this suit, and also that appellees entered upon the performance of the contract and received the benefits thereof subsequent to the time same was signed by the president of said Book Company. It also appears from the record that the appellants herein consolidated with another printing company, and incorporated the same on November 17, 1902, transferring to said corporation its printing plant, and that the Gammel Book Company assigned its contract with the state to the Gammel-Statesman Publishing Company on November 15, 1902.

19. Appellants filed a motion for rehearing in this court on the 6th day of June, 1911, which was by this court overruled on the 6th day of December, 1911. On the 4th day of January, 1912, appellants filed their application for a writ of error in this court, which was filed in the Supreme Court January 6, 1912. Said application, among other things, set out, first, trial of this case and the result thereof; the action of the Supreme Court upon a writ of error upon said judgment, and that the effect of the same was to render all matters in this case, ex-, cept as to the amount of damages res adjudicata; that the judgment of the Court of Civil Appeals was rendered without regard to the undisputed evidence in the record and against such evidence, and that the effect of the judgment of the trial court and the affirmance of the same by the Court of Civil Appeals was to overrule the judgment of the Supreme Court in this cause, and that the district court had no jurisdiction to render such judgment, and in so doing usurped authority. S'aid application for writ of error was denied by the court on the 7th day of February, 1912. Appellants on February 20,1912, filed in said court a motion for rehearing on their writ of error, which was by said court overruled on the 28th day of February, 1912. On May 28, 1912, appellants filed in this court a motion to vacate the judgment herein, and a request that this court file findings >of fact and conclusions of law on said motion, which motion was by this court overruled October 12, 1912. On October 23, 1912, appellants filed a motion for rehearing of their motion to vacate judgment and file findings of fact and conclusions of law, which motion was by this court overruled January 8, 1913. This case is now pending on a supplemental motion of appellants to vacate said judgment and file findings of fact and conclusions of law, filed in this court on the 15th day of January, 1913.

20.As one of the grounds for vacating said judgment, appellants have filed herein an affidavit, to the effect that the judge of the district court trying this case stated to them orally that he based his judgment-on a finding of fact that the contract herein had been rescinded on or about September 1, 1902, by mutual agreement, and that he would make an affidavit to that fact, if he considered it proper for him to do so. This affidavit is not controverted. If this had appeared in the record as a finding of fact, or a conclusion of law by the court, the evidence would not have sustained such finding or conclusion.

Opinion.

As stated in our opinion herein overruling appellants’, motion “to vacate judgment,” said motion was in substance a motion for a rehearing, and the same is true of the motion for rehearing and supplemental motion for a rehearing on said motion to vacate judgment. We are somewhat in doubt as to our power to grant a rehearing herein at this time under the facts above set out; but, having reached -the conclusion that we were in error in affirming the judgment of the trial court herein, we have concluded to give the benefit of the doubt to what we conceive to be the merits of the case and to grant a rehearing herein.

The record herein shows a valid contract and a breach of the same which entitled appellants to a judgment for at least nominal damages, and for such actual damages as they may have sustained, unless such breach was successfully defended by reason of some of the matters pleaded by appellees as set out in the fifteenth finding of fact herein. An examination of the record shows that none of said pleas were sustained by the evidence. Por which reason a rehearing is granted herein, and the judgment of this court overruling motion for rehearing herein, the judgment affirming the judgment of the trial court, and the judgment of said trial court are here set aside and vacated, and this' cause is reversed and remanded for a new trial.

Reversed and remanded.


author: HIGGINS, J.

text:
    DAVIS & GOGGIN v. STATE NAT. BANK OF EL PASO et al.
    (Court of Civil Appeals of Texas. El Paso.
    March 20, 1913.
    Rehearing Denied April 25, 1913.)
    1. Assignments (§ 52) — Equitable Assignments— Order on Particular Pund.
    A mere agreement, whether by parol or in writing, to pay a debt out of a designated fund, is not in itself sufficient to constitute an equitable assignment; but there must be an appropriation pro tanto either by an order on the specific fund or by transferring the amount otherwise in such a manner that the holder is authorized to pay the amount directly to the creditor.
    [Ed. Note. — Por other cases, see Assignments, Cent.-Dig. §§ 107-111; Dee. Dig. § 52.]
    2. Assignments (§ 137) — Actions — Evidence— Sufficiency.
    In an action involving the validity of an equitable assignment, evidence held sufficient to establish that an oral agreement, whereby the assignor agreed to pay his attorneys, the assignees, out of the fund in litigation, amounted to an appropriation pro tanto of the fund which gave the attorneys priority over a subsequent as-signee.
    [Ed. Note. — Por other cases, see Assignments, Cent. Dig. § 234; Dec. Dig. § 137.)
    3. Assignments (§ 52) — Maxims.
    The particular form of an agreement, whereby defendant was to pay interveners out of a /fund in litigation, is not material as to the validity of the equitable assignments, for equity looks rather at the intent and purpose than the form.
    [Ed. Note. — Por other cases, see Assignments, Cent. Dig. §§ 107-111; Dec. Dig. § 52.}
    4. Assignments (§ 52) — Equitable Assignments — Validity.
    An agreement to pay the assignee out of 'a particular fund is sufficient as an equitable assignment, though verbal.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 107-111; Dec. Dig. § 52.}
    5. Assignments (§ 85) — Equitable Assignments — Priority.
    In case of successive equitable assignments, the priority of the parties depends upon their priority in time.
    [Ed. Note. — Por other cases, see Assignments, Cent. Dig. §§ 149-151; Dec. Dig. § 85.]
    0. Assignments (§ 85) — Equitable Assignments — Priority—Consideration.
    Where a debtor made several assignments of one fund, the second assignment being given merely to secure loans already made, and no further loans being made in reliance thereon, the second assignment is not one for a valuable consideration, and the second assignee cannot claim priority though taking without notice of the first assignment.
    [Ed. Note. — Por other cases, see Assignments, Cent. Dig. §§ 149-151; Dec. Dig. § 85.]
    Error to District Court, El Paso County; James R. Harper, Judge.
    Action by C. B. Bell against J. P. Casey and the State National Bank of El Paso, in which Davis & Goggin, intervened. There was a judgment for the bank against the in-terveners, and they bring error.
    Reformed and affirmed.
    Davis & Goggin, of El Paso, for plaintiffs in error. Beall & Kemp, of El Paso, for defendants in error.

      For other cases see same topic and section NUMBER in Déc. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

On February 17, 1909, C. B. Bell filed suit against J. P. Casey for the recovery of one-half of the proceeds of the sale of certain mining properties, the total proceeds of which sale amounted to $38,500, of which amount $2,500 had been previously paid to Casey, $15,500 thereof had been deposited to his account-in the State National Bank, and $20,500 was to be placed to his account in said bank on or before April 25, 1909. The appointment of a receiver was asked, and an injunction was issued restraining the bank from paying to Casey any part of said $15,500, and on February 25, 1909, in accordance with the prayer of the petition, George D. Plory, who was likewise cashier of said bank, was appointed receiver of the funds in controversy, and the bank was directed to deliver, and did deliver, to the receiver all of said moneys then on hand belonging to Casey, or which after-wards came into its possession. On December 7, 1909, Bell amended his petition and sought to recover the entire proceeds of such sale. On May 23, 19Í0, Bell recovered judgment against Casey for the sum of $23,250, and the same was decreed to be a charge against the funds in the receiver’s hands. The judgment ordered the money in the hands of the receiver to be paid to Casey after the judgment in favor of Bell and court costs had been first satisfied. On June 3, 1909, Casey executed an instrument in writing, reciting that he desired to assign the said funds in- the receiver’s hands for the. purpose of raising money thereon, wherefore he assigned to L. J. Gilchrist the said sum of $38,200.00, and guaranteed the payment of one-half of said sum to the said Gilchrist, and he covenanted that he was in fact the owner of the entire fund and entitled to assign and transfer the same, and authorized Gilchrist for his own use and benefit to collect and receive from the said receiver, Flory, the above-mentioned sum and funds and every part thereof. This assignment was filed in the cause on June 3, 1909, and it would seem the State National Bank is claiming some rights thereunder ; but there is nothing whatever in this record to indicate that the bank in any manner acquired any rights under this assignment, and the same is entirely irrelevant to this proceeding, as none of the parties in any wise connected themselves with this transfer. On May 24, 1910, Oasey, in writing, transferred and assigned to the State National Bank all of his right and interest of every nature under the judgment, and the same was filed among the papers of the cause on that date. Bell’s rights under the judgment by assignments passed to C. O. Ellis and W. M. Peticolas. On December 18, 1911, plaintiff filed a motion alleging the execution of the assignments to Ellis, Peti-colas, and the bank, and prayed distribution of the funds in the receiver’s hands and payment thereof to said assignees. The State National Bank and the receiver on the same date joined in said motion and asked for distribution of said funds to such assignees.

On December 30, 1911, Waters Davis and J. M. Goggin, composing the law firm of Davis & Goggin, filed their plea in intervention in the cause, alleging that by virtue of an assignment made to them by Casey on or about February 20, 1909, they had an interest in the funds in the hands of the receiver or a lien upon the same to secure an attorney’s fee for services rendered in the cause; that on the date last mentioned Casey promised and agreed to pay them the sum of $1,500 for legal services rendered and to be rendered in the cause, and he then and there verbally assigned to interveners so much of the funds mentioned in the receiver’s hands as would be necessary to satisfy said fee; that on March 18, 1909, he paid interveners the sum of $250, leaving a balance of $1,250 due and unpaid; that on the -day of-, 19-, they notified the State National Bank of their assignment in part, and thereafter, on May 27, 1909, again notified the bank and the receiver fully as to the facts concerning] said assignment, and the receiver and the attorney for the bank'promised and agreed that there was no purpose on the part of the bank to disregard interveners’ rights, and that in-terveners’ rights to an attorney’s fee out of the funds would be protected; that the assignment in favor of interveners was prior to and had precedence over the assignment to the- bank above referred to.

Upon hearing of the motion for distribution of the funds in the receiver’s hands, an order was entered directing payment of court costs to be first made, that the assignees Peticolas and Ellis be paid the amount awarded Bell in the cause, and that the remaining moneys and property in the receiver’s hands awarded to Casey be paid and delivered to the State National Bank by virtue of their rights under aforesaid assignment.

From the order of the court disallowing their claim and ordering distribution of the funds as above stated, the interveners, Davis & Goggin, prosecute this writ of error, and it is here contended in effect that the agreement between Davis & Goggin and Casey constituted an equitable assignment pro tan-to of the funds in controversy, and that by virtue thereof they had an equitable interest in or lien upon the funds in the hands of the receiver superior to the rights of the bank under its subsequent assignment.

The trial court filed no findings of fact or conclusions of law, and the question presents itself for review upon the record made upon the hearing.

The intervener Waters Davis conducted the negotiations with Casey, and testified: “I would state that, when this suit was filed, Mr. Casey employed us to defend the suit, and the conversation was with me. I had the transactions with Mr. Casey as to attorney’s fees, etc. It was agreed at that time that the attorney’s fee should be $1,500, payable then; but afterwards Mr. Casey thought that the plaintiff was not- going to claim but half the- funds in the hands of the bank, so I told him that, if the plaintiff didn’t claim but half of what we thought he was going to claim, we would just make the fee half,' $750.00. But as a matter of fact, I think by first amended original petition, the plaintiff claimed all the funds, so that the $1,500 fee that we originally agreed upon was in effect. At the time we agreed upon the fee of $1,500, Mr. Casey said that he had no money, no ready money available, and gave us an interest in the fund, that we might take our fee out of the fund that was in the hands of the bank, or the receiver at the time. I am not positive that the receiver had been appointed then. I may be mistaken as to that, but it was just after the suit was filed, and I notified the bank; I think that when I notified them I first notified them before there had been any assignment to them at all. That is my recollection of it. At that time it was before the amended petition had been filed, claiming the whole fund, and I think I notified them that our fee would be $750.00, and that a portion of the fund had been assigned to us, but afterwards there was an assignment made to them, and I sent them another notice. I have given them notice to produce that letter. This is a letter that I sent the bank and also Mr. Flory, on May 27, 1910, which says: ‘State National Bank, City — Gentlemen: Upon learning of the fact that Mr. Jno. P. Casey, Jr., has assigned to you his interest in judgment in the ease of Bell v. Casey, recently tried in our-district court, we took up with Mr. George Flory, your cashier, and Mr. Maury Kemp, your attorney, the matter of assignment to us of so much of the fund as is necessary to pay our attorney’s fees, and have been advised by them that there was no purpose on the part of the bank to disregard our rights and that our right to attorney’s fee out of the fund would be protected. We think, however, that a formal notice would be well so that you might keep the matter in mind and have our notice on record. Would say that the attorney’s fee in this case at the time the suit was instituted was fixed at the sum of $1,500, but it was afterwards thought by Mr. Casey that plaintiff would claim only half of the money on deposit with you instead of all of it, in which event we agreed that the attorney’s fee would be reduced to $750. Plaintiff, however, has continued to claim the whole amount so that the sum of $1,500.00 is applicable as attorney’s fee instead of $750.00 as was contemplated might be the case. Mr. Casey, in order to secure our fee at the time it was agreed to, verbally assigned to us so much of the amount recovered in the judgment as would be sufficient to satisfy the same. Notice of the assignment, when it was thought the claim might be reduced by plaintiff to recovery of half the proceeds of the amount on deposit, we think was given to you in writing, but we do not know that we mentioned the fact that the agreed fee was $1,500.00 in the absence of plaintiff’s modified claim. You may refer to Mr. Gasey as to the correct statement of the facts herein and in view of which we wish that you would kindly protect our fee in the fund as was agreed upon by Mr. Gasey before your assignments were made. Yours respectfully, [Signed] Davis & Goggin.’ I will state that I saw Mr. Plory at the bank, and Mr. Plory told me there was no purpose on the part of the bank to affect our attorney’s fees by their assignment, and that they would protect us in the fund. I also saw Mr. Kemp — I think Mr. Plory referred me to Mr. Kemp, I am not sure — but I saw Mr. Kemp right down here in the courthouse yard, and I spoke to him about it, and he told me about the same thing- in substance that Mr. Plory had. After the fee was agreed upon, the assignment of the fee was verbal; there was no written assignment to me by Mr. Gasey. He paid us $250.00, so there would be only $1,250.00 due on the attorney’s fee. We have charged nothing for outside work that has been done.”

On cross-examination the witness said: “The date of that letter is May 27, 1910. Yes, that letter was written after the assignment by Mr. Gasey to the bank, but I had written to them before as I recollect, as I mentioned in that letter. I, of course, can’t remember exactly the words that passed between Mr. Casey and me. We talked about it a number of times. The agreement was an agreement that our attorney’s fees should be paid out of this fund in the hands •'of the bank. I think it was in the hands of the bank at the time the agreement was made, but I don’t think the receiver had been appointed. I don’t think that either Mr. Kemp or Mr. Plory put the matter in a Way as if our- rights were not effective, or if our rights were not existent, that they put that in, but they put it in a way as that our fee would be protected — not whatever rights we had, but admitting or in the nature of an admission that we did have rights. It wasn’t the question of whether we had the right or not. I don’t think my impression from the statement made by Mr. Kemp and Mr. Plory was that our claim would be protected in advance of theirs, or that their claim would not prevent the collection of ours, but that they would protect our attorney’s fee in the matter. I understood that the promises made to me by Mr. Kemp and Mr. Plory were that the attorney’s fee would take precedence over the bank’s claims. If I hadn’t understood it, I would have taken some steps in the matter, because we have done a great deal of work in the case, and the fee has been due ever since that time, and I would have taken steps to protect ourselves further, but I was satisfied by what Mr. Kemp and Mr. Plory said, and that it was understood that the bank would protect us in the payment of our fees, or otherwise I would have taken action before this. I had just dismissed it from my mind.”

Gasey testified: “As I recollect it, it was in Pebruary when this suit was begun, and that is when I employed Davis & Goggin. In fact, I had spoken to Mr. Davis before that, some time, when I heard of its coming up. Mr. Davis attended to it before it actually came up and helped in getting up the record, and when the suit was brought he asked me, if I remember, $2,500, and we finally agreed on $1,500, and afterwards that he would get half of that, and then the amended petition was filed, and the fee of $1,500 was to be the fee. It is my recollection that, if the case went to the. jury and the plaintiff was claiming the entire fund, the fee was to be $1,500. It was to be paid out of the funds in the bank. I paid Mr. Davis $250, and Í think I paid Mr. Stanton something too. I consulted with Gol. More-head, and I employed Mr. Stanton. I paid the $250, I think, right about the time we agreed on the fee. I don’t know and I can’t tell exactly. I know I paid $250, leaving a balance of $1,250. That was before Mr. Plory was appointed receiver. I know the receivership hearing was held in April, and we had gone into the matter before that time. I can’t say whether or not I paid the $250 when the fee was first agreed upon and the fund assigned; my cheek will show that. The money was in the State National Bank at that time. There was part of it put in my account at first. I think some of it was put in on the 20th of January, 1909, and then I think on Pebruary 15th, just before the suit was brought, or the very day it was filed, there was $5,500 put in, and on April 25th, they deposited the balance of the money, in 1909.”

Cross-examination: “Erom my standpoint I can’t say that my understanding with reference to the payment of the money to Davis & Goggin for their services was anything more than an agreement to pay them out of this fund. I agreed to pay them out of the fund. I know I told them — they asked me about my other property and how I was fixed. Yes, they were determining my ability to pay the fee; they asked me all about it. I agreed to pay them out of the fund. I had not assigned the fund to the State National Bank at that time, but afterwards. It was the fund that I afterwards assigned. I agreed to pay them out of the fund. I believe Judge Davis spoke about a written assignment. I was to have executed a written assignment, and I might have done it, I signed so many things that I don’t exactly remember. I made the assignment to the bank. I didn’t execute any assignment to Mr. Davis that I recollect. I am telling you just what occurred, telling you what I did. I don’t know what you would call an agreement to pay him out of the fund — I agreed to pay him out of the fund, and that it was to go as security for his part of his fee. That was before the case ever went into court. That was before the receivership, and we talked about it afterwards, and I agreed the same way afterwards.”

Redirect examination: “I didn’t have charge of the money, and I couldn’t have paid it, because I couldn’t get at it. It never came to me. I understood the agreement to be that Davis & Goggin’s attorney’s fee was to come out of that fund. At that time I had made no assignment to anybody else. I don’t remember whether or not I saw any letter in which Mr. Davis told the bank that they could refer to me as to the assignment, and whether they ever asked me if I had assigned the interest in that fund to Davis & Goggin, Mr. Morehead, or Mr. Elory. I don’t remember; I know it was talked over, but I can’t remember what was said. I fixed Stanton up and his contract when I hired Stanton, and we agreed — ”

Recross-examination: “I stated a few days ago to Mr. Morehead and Mr. Flory that I had no written assignment. I told them that I made no assignment since the receivership. I agreed that Davis & Goggin should get their fee out of the fund. That is what I stated to them, exactly as I am stating it now.”

Redirect examination: “How could I agree to go any pay it out of the fund? The fee was to come out of the fund, be paid by the bank. I couldn’t pay it out of the fund at all. * * * I agreed with Davis & Goggin that their attorney’s fees should be paid out of the fund; that is what I understood it. As I said before, I couldn’t pay it, even if I wanted to. The bank had the money. I understood it would be paid out of the fund by the bank, or their successors in trust, in charge of the fund.”

Cross-examination: “It is a fact that my agreement was simply that Davis & Goggin were to be paid out of that fund in the bank. We didn’t know what was going to be done with it, at the time, or whether the bank would retain it. I understood it was in the hands of the bank. I don’t understand what you are getting at. I will tell you again what we agreed. As I understood it — I can’t call the language now — I know that they were to be paid out of the fund in the bank. At that time the funds were under the order of the court, and they had been attached by the garnishment. I couldn’t get at the money, but I supposed the funds in the bank were good for that amount, and that was my understanding. I understood that the fee went against the funds. I couldn’t go and pay the money myself. I understood that they were to be paid out of the fund by the bank. The agreement was that Davis & Goggin’s fee was to be paid out of that fund. It was to be paid by the bank. I couldn’t give it; I couldn’t get at it. The agreement was that they were to have the fee paid out of it. I understand that their fee was a lien against the fund in the bank, and that the bank had to pay it; in other words, that they were to get it out of that fund. I can’t call' the exact language that I used to Mr. Davis, but I am telling you the substance of it I don’t remember the exact words, but I know what the contract was.”

Redirect examination: “That is what I understood about it, because before I made the Gilchrist assignment, I came up and talked to ’ Mr. Davis about the matter, and if I remember, he was drawing up some assignment or other. I first assigned to Gilchrist, and then is when we talked about it, or rather had some conversation in regard to it;. I didn’t expect to get hold of this money before Davis & Goggin got their money from the receiver or from the bank, or whoever had the funds under control. My understanding was that that attorney’s fee was to come out of that fund, whoever had the fund. I couldn’t have paid it myself out of the fund, because I didn’t have the funds and couldn’t get at them. Certainly I would have paid it. I agreed that it would be paid out of the fund. The fund had to pay it. I understood that the fund was then in the bank. The fund was held there as security. I can’t remember whether there was any agreement as to who should pay it. I don’t remember now that anybody was named, except that the fund was in the bank, and that was all. The bank was to pay it. That was the way I understood it all the time; it was to come out of the fund. * * * At the time I executed the assignment to the bank, I don’t recollect whether I said anything to the bank with reference to any assignment to Messrs. Davis & Goggin. Stanton drew the last assignment. At the time of this assignment I think I came up and talked with Mr. Davis before I made that assignment. I talked it over with Stanton. I don’t think I said anything to the 'bank about any assignment to Messrs. Davis & Goggin; I might have and might not. That assignment was drawn up and I signed it. It assigns everything over and above the judgment. It was drawn up in that manner and I signed it. Certainly, that was what I intended to do. The funds were in the bank, but at the same time I had made the agreement that Davis & Goggin’s fee be paid out of that fund. I don’t know if you call that an assignment or not. I can’t see where you get the difference between an assignment and an agreement. The bank was to get the money by that assignment. Yes, I knew the bank was expecting to get back all the money it loaned me, and I will see that they do get it. I didn’t know that if the plaintiff prevailed in the suit of Bell against Casey that there would not be enough money over and above that to pay the bank’s entire indebtedness. I never conceded it, and don’t concede it now. Yes, it is a fact. At the time of that assignment, there was enough money in there to pay the bank, just about enough. We figured that out. The plaintiff sued for the whole thing. I didn’t know the bank couldn’t be made whole, but I never had any idea that he would get it all. When I executed this assignment to the bank, it was my intention that the bank would have all over and above the amount of the judgment that was recovered in the litigation. They asked me for the assignment and I gave it to them. I talked it over with George Flory and Mr. Morehead. I wanted the bank to be made whole, as near whole as they could, out of this money. I think that was my purpose when I executed that assignment, but subject to the other things, the fee of Judge Davis; subject to the contract or whatever you call it, or assignment to Mr. Davis. If the attorneys didn’t know what to do, how would I know what to do? I didn’t know, when I talked with Mr. Davis about the matter, that I had already made the assignment to the bank. I had made no assignment then. I had talked to them about making the assignment to the bank; that is, I talked to Judge Davis, as to the assignment I was going to make, the first assignment, the Gilchrist assignment. We talked about the other assignment too. I talked with Mr. Davis about representing me in the case before the suit was brought, before the money was paid. I didn’t give him a check for the money before the attachment suit or injunction was served because I didn’t have it. I didn’t have a bit of it. I first talked with Mr. Davis about the case about the first of December. I think he had to fix up the Mexican papers in December, 1908. He was president of the Mexican corporation then. That was not when the fee was fixed. We didn’t contemplate any suit then. The fee was fixed just about the time of the filing of this suit, at the time of the injunction. Along about the first or second week of February, I think it was the 17th of February, or about a week before that. Then after that' we talked about it, and as to the accounting, and we agreed as to the $1,500.”

Redirect examination: “I was served right here at the bank. I went to Mr. Davis immediately. On the 17th of February, 1909, $1,500 was put in the bank, and then I was served with the injunction papers. The receiver was appointed in April. The fund was in the bank, and the injunction prohibited the paying over of any of the funds to me. The receiver was appointed in April, after the application. It was about the time of the filing of the suit that I had my first understanding with Mr. Davis. He was getting some papers up then, and the papers in this suit were filed. How could I make any agreement that I would pay the money myself out of that fund? I think the fee was agreed on at the same day the suit was filed, or the day after, right around that time. My statement to Mr. Morehead and Flory a few days ago in Mr. Morehead’s office was simply to the effect that I had merely agreed to pay this money, exactly as I say now. I said that I had made no written assignment. I meant a written assignment. I said exactly what I am saying now. I never go around the corner. They were all discussing with me the question of this assignment. Yes, I told them that I didn’t execute any assignment. We started to do it, but it was put off for some reason or other. It is a fact that it was after the money was paid into the bank, and after the injunction was issued, that I made the agreement with Judge Davis. It was just about that time. It was after the money was on deposit in the bank and after the injunction had been granted. I didn’t make a written assignment. .1 agreed with Mr. Davis that I should have out of this fund a sum sufficient to pay his fee, and I paid him $250 of it. I agreed that this money should be paid out of the funds then in the bank. I understood that he could collect it or that Davis & Goggin could collect it from the bank. I don’t remember about the wording of it. My understanding was that their fee was to be paid out of the fund in the bank. It was my understanding that that fund was security for his fee. I am telling you as near as I can what passed, and that he was to get his fee out of the fund in the bank. I couldn’t cheek on it. The bank had the money, and my understanding was that he was to get it out of that fund. There was no question about that up until a few weeks ago.”

Intervener Davis, recalled, testified further: “I will state under oath that I did not understand that Mr. Casey agreed that he would pay this out of the fund. I did not understand he agreed to do that himself. I am satisfied he didn’t, but that it should be paid out of the funds by - the bank, or whoever had it, and assign to us a part of the fund itself, sufficient to pay the fee. * * * It wasn’t the agreement that Mr. Casey should pay the fee out of the fund, because at that time the fund had been put in the custody of the court. There had been a garnishment issued, and they were enjoined from paying that fund to Mr. Casey, as I recollect it, and the agreement was that the bank should pay the fee out of the fund. I will state further that after having the conversation with Mr. Kemp and Mr. Plory —I don’t know what they understood' — but I understood that our fee would be protected to the extent that it would be paid, and I think I so expressed it in this letter. I wrote the letter both to the bank and Mr. Elory and got no answer from them and had depended on that, and I relied that our fee would be paid before the others, and have relied on that ever since, until recently. Had I not relied on that, I would have insisted that Mr. Casey do something, or that somebody do something, for us to get our fee. I thought that we would get our fee ultimately and that the bank would pay it. If we hadn’t relied on that, we probably would not have done a great deal more work that we have done for Mr. Casey since the judgment was entered and on appeal and after the appeal and judgment was affirmed. I depended upon the bank to protect our fee just as they said. At that time, I believed there was enough funds to pay both the bank and us, and probably that was the reason the bank was satisfied to let the matter go as I have stated. Since then the fund has been depleted, so that it can’t pay both of us.”

Discussing the doctrine of equitable assignments, in 3 Pomeroy’s Equitable Jurisprudence, § 1280, it is said: “In order that the doctrine may apply, and that there may be an equitable assignment creating an equitable property, there must be a specific fund, sum of money, or debt, actually existing or to become so in future, upon which the assignment may operate, and the agreement, direction for payment, or order, must be in effect an assignment of that fund or of some definite portion of it. The sure criterion is whether the order or direction to the drawee, if assented to by him, would create an absolute personal indebtedness payable by him at all events, or whether it creates an obligation only to make payment out of the particular designated.fund. The agreement, direction, or order being treated in equity as an assignment, it is not necessary that the entire fund or debt should be assigned; the same doctrine applies to an equitable assignment of any definite part of a particular fund.”

And in discussing the subject of equitable liens, the same author says:

“It follows, therefore, that in a large class of executory contracts, express and implied, which the law regards as creating no property right, nor interest analogous to property, but only a mere personal right and obligation, equity recognizes, in additition to the personal obligation, a peculiar right over the thing concerning which the contract deals, which it calls a ‘lien,’ and which, though not property, is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing, and to enforce the defendant’s obligation by a remedy which operates directly upon that thing. The theory of equitable liens has its ultimate foundation, therefore, in contracts, express or implied, which either deal with, or in some manner relate to, specific property, such as a tract of land, particular chattels, or securities, a certain fund, and the like. It is necessary to divest one’s self of the purely legal notion concerning the effect of such contracts, and to recognize the fact that equity regards them as creating a charge upon or hypothecation of the specific thing, by means of which the personal obligation arising from the agreement may be more effectively enforced than by a mere pecuniary recovery at law.

“The doctrine may be stated in its most general form that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands, not only of the original contractor but of his heirs, administrators, executors, voluntary assignees, and purchasers or incumbrancers with notice. Under like circumstances, a merely verbal agreement may create a similar lien upon personal property. 'The ultimate grounds and motives of this doctrine are explained in the preceding section; but the doctrine itself is clearly an application of the maxim, ‘Equity regards as done that which ought to be done.’ In order, however, that a lien may arise in pursuance of this doctrine, the agreement must deal with some particular property, either by identifying it, or by so describing it that it can be identified, and must indicate with sufficient clearness an intent that the property so described, or rendered capable of identification, is to be held, given, or transferred as security for the obligation. * * *

“The form or particular nature of the agreement which shall create a lien is not very material, for equity looks rather at the final intent and purpose rather than at the form; and if tie intent appear to give, or to charge, or to pledge property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows. Among the kinds of agreement from which liens have been held to arise, the following are some important examples: Executory agreements which do not convey or transfer any legal estate in the property, but which stipulate that the property shall be security, or which pledge it, for the performance ■ of an obligation. As an agreement to give a mortgage creats a lien, so a mortgage which, through some informality or defect in its terms or mode of execution, is not complete and valid as a true and proper mortgage, will nevertheless generally create an equitable lien upon the property described. The intent to give a security being clear, equity will treat the instrument as an executory agreement for such security. An assignment of the rents and profits of land as security for a debt is another mode of creating an equitable lien on the land in favor of the assignee, and the assignment of a lease by way of security produces the same effect. The assignment for a similar purpose of a contract for .the purchase and sale of land may in like manner operate to create an equitable lien in favor of the assignee. The equitable liens which arise from such assignment must largely depend upon a performance of the conditions and stipulations contained in the original contracts, whatever be their form, which are assigned. An equitable lien may sometimes be created upon bills of exchange or upon a consignment upon which bills of exchange are drawn, by means of a specific appropriation, at all events where the drawers or acceptors have become insolvent. The foregoing instances are sufficient to illustrate the doctrine of equitable lien arising from express contract. They show that the form is immaterial, if the intent appears to make any identified property a security for the fulfillment of an obligation.” See 3 Pomeroy’s Equitable Jurisprudence, §§ 1234, 1235, 1237. ,

In discussing the subject of liens arising by equitable assignments in Jones on Liens, it is said: “An equitable lien arises from an order given by a debtor to his creditor, to receive payment out of a particular fund. * * * This rule applies to agreements made by attorneys with their clients, whereby they are to receive a share of the fund to be recovered as a contingent compensation for professional services, for such agreements, when made for the prosecution of certain classes of claims, of which may be instanced claims against a government, or in one of the executive departments of a government, are not in violation of public policy. Such agreements, if they virtually assign a part of the claim, or an interest in it, create a lien upon the fund recovered. * * * To constitute an equitable lien on a fund there must be some distinct appropriation of the fund by the debtor, such as an assignment or order that the creditor should be paid out of it.” See 1 Jones on Liens, §§ 43, 44, 50.

On the other hand, a mere agreement, whether by parol or in writing, to pay a debt out of a designated fund of itself is not sufficient; there must be an appropriation of the fund pro tanto either by an order on the specific fund or by transferring the amount otherwise in such a manner that the holder of the fund is authorized to pay the amount directly to the creditor, without the further intervention of the debtor. In other words, an equitable assignment can be effected only by a surrender or, control over the funds or property assigned. For instance, the mere promise of a debtor that he will pay a debt out of particular funds is not sufficient; there is lacking the specific appropriation of the fund pro tanto and surrender of control thereof. In like manner a bill of exchange does not of itself constitute an equitable assignment of the sum for which it is drawn, unless it specifies the particular fund upon which the order or bill is drawn, and the drawer has divested himself of all right to control the fund. The same rule applies to ordinary checks. 1 Jones on Liens, §§ 51, 52, 55, 57; House v. Kountze, 17 Tex. Civ. App. 402, 43 S. W. 561; McBride v. American, etc., 127 S. W. 229.

The Court of Appeals of the District of Columbia, in De Winter v. Thomas, 34 App. D. C. 80, 27 L. R. A. (N. S.) 634, speaking through Chief Justice Shepard, said: “It is a settled principle of equity that every express executory, agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property or fund a security for a debt or other obligation, creates an equitable lien on the property so indicated. 3 Pom. Eq. Jur. p. 1235. And when such intention is not express, but appears by necessary implication from the terms of the agreement, construed with reference to the situation of the parties at the time of the contract, and by the attendant circumstances, a lien will attach. Walker v. Brown, 165 U. S. 654-664, 17 Sup. Ct. 453, 41 L. Ed. 865, 870; Ingersoll v. Coram, 211 U. S. 335-368, 29 Sup. Ct. 92, 53 L. Ed. 208, 229. In other words, it must appear either expressly or by necessary implication that the other contracting party looked to the fund itself for payment, and did not rely upon the personal responsibility of the owner of the claim of which the fund was the result.”

Tested by the authorities cited above, and which it is conceived state the law applicable to the facts disclosed by the testimony quoted above, we think it clear that only one conclusion can be drawn from the testimony of the witnesses Davis and Casey, which is that under the agreement there was an appropriation pro tanto of the fund in controversy to the amount of the fee contracted to be paid to Davis & Goggin, and to that extent Casey had surrendered control of the fund; that it was understood and agreed that they acquired an interest therein which should be paid by the bank or the receiver to Davis & Goggin, and it was not a mere personal promise on the part of Casey that he would pay the fee out of those moneys. It is true that Casey on cross-examination testified, “I agreed to pay them out of the fund”; but considering Casey’s testimony as a whole, it is susceptible only of the construction that he considered to the extent of their fee Davis & Goggin had a specific interest in the fund, or right over the same, and to that extent his interest in and control over the fund had ceased and become vested in Davis & Goggin. Therefore they stood upon a higher plane than a creditor who has but the mere personal promise of his debtor that he will pay the debt out of a particular fund.

It is immaterial whether the agree1 .ment between the parties be called an assignment, as it is by Davis, or an agreement to pay out of the fund, as it is termed by Casey, for, as stated by Mr. Pomeroy in the quotation above made: “The form or particular nature of the agreement which shall .create a lien is not very material, for equity looks rather at the final intent and purpose rather than at the form; and if the intent appear to give, or to charge, or to pledge property, real or personal, as a security for an obligation, and the property is so described that the principal things intended to be given or charged can be sufficiently identified, the lien follows.”

We therefore hold that Davis & Goggin acquired an equitable assignment and lien upon the funds in the hands of the receiver to the extent of $1,25Q. In addition to the authorities above cited in support of this conclusion, see, also, Johnson v. Amarillo Imp. Co., 88 Tex. 505, 31 S. W. 503.

The fact that the agreement was verbal does not impair its validity. Rollison v. Hope, 18 Tex. 446; Harris v. Campbell, 68 Tex. 22, 3 S. W. 243, 2 Am. St. Rep. 467; Clark v. Gillespie, 70 Tex. 513, 8 S. W. 121; Lumber Co. v. Smith, 151 S. W. 605.

The question of right of priority of the parties now becomes important, and the doctrine that the first in time is first in right applies. Harris County v. Campbell, supra; Harris County v. Donaldson, 20 Tex. Civ. App. 9, 48 S. W. 791; Henke v. Keller, 50 Tex. Civ. App. 533, 110 S. W. 783; Olive v. San Antonio, etc., 27 S. W. 789; Brander v. Young, 12 Tex. 332; Lumber Co. v. Smith, supra. Applying this rule, interveners’ rights are superior to those of the bank.

It is unnecessary for us to determine whether or not, in a case of this kind, the equitable doctrine would apply which postpones the rights of a party first in time in favor of one who has subsequently acquired rights for value and without notice. This doctrine is invoked by the bank, it being asserted that it had made advances to Casey against the fund without notice of the rights or claims of interveners. We‘find no evidence in the record that the assignment to the bank was made to secure advances then made or to be thereafter made. On the contrary, it is clearly apparent the assignment' was taken to secure loans theretofore made to Casey. If it be that the bank has any rights under the Gilchrist assignment, which, as stated above, is not apparent from the record, this would not affect the conclusion herein reached, since it does not appear that any advances, upon the faith thereof, were made by the bank to Casey. The record is -not clear whether the bank did or did not have notice of the claims of inter-veners; but, since they were not assignees for value, this question is of no moment

The pleadings would not authorize a recovery upon any of the theories advanced under the remaining assignments. They are therefore overruled.

The decree of the lower Court ordering distribution of the funds in the hands of the receiver, George D. Plory, entered on March 2, 1912, is in all respects affirmed, except as to that portion thereof which directs payment to be made to the State National Bank of El Paso, Tex., of that portion of the fund decreed to J. P. Casey by the judgment entered herein on May 4, 1910, and it is here now ordered that out of said funds and properties decreed to J. P. Casey by the judgment entered on May 4, 1910, the said receiver is directed to pay all unpaid court costs herein chargeable, and then pay to the interveners, Davis & Goggin, the sum of $1,250; and the balance, if any, pay over to said State National Bank.

Chief Justice HARPER did not sit in this case.

Reformed and affirmed.


text:
    HUGHES-BUIE CO. v. MENDOZA.
    (Court of Civil Appeals of Texas. El Paso.
    March 13, 1913.
    Rehearing Denied April 24, 1913.)
    1. Parties (§ 20)—Plaintiffs—Joinder-Action for Tort.
    In a suit for the recovery of the entire amount due upon a cause of action arising in tort, all the joint owners of the cause of action should be made parties plaintiff.
    [Ed. Note.—For other eases, see Parties, Dec. Dig. § 20.]
    2. Parties ■(§ 80)—Nonjoinder—Defects.
    In actions ex delicto the objection to the nonjoinder of a part of the parties' plaintiff is available only by plea of abatement, or by way of apportionment of damages on the trial.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 123-131, 170; Dee. Dig. § 80.]
    3. Assignments (§ 90) — Effect.
    Where an injured servant executed an instrument, whereby he transferred, sold, and assigned to his attorneys an undivided one-third interest in his cause of action, they were joint owners with him of the cause of action, rather than the owners of a contingent interest in a possible recovery.
    [Ed. Note. — For other cases, see Assignments, Cent. Dig. § 156; Dec. Dig. § 90.]
    4. Judgment _(§ 683) — Persons Concluded.
    Where plaintiff in a personal injury action assigned a one-third interest in his cause of action to his attorneys, and the attorneys refused to join as parties plaintiff, insisting that they were unnecessary, the judgment in the suit by plaintiff alone is binding upon them.
    [Ed. Note. — For other eases, see Judgment, Cent. Dig. § 1206; Dec. Dig. § 683.]
    5. Appeal and Error <§ 1036) — Review-Harmless Error.
    Where parties who should have been made plaintiffs were not joined, but were bound by the judgment, the failure of the court to sustain a plea in abatement for the nonjoinder was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4069-4074; Dec. Dig. § 1036.]
    6. Master and Servant (§ 289) — Injuries to Servant — Contributory Negligence.
    Where a servant engaged in operating a paper-cutting machine was assured by the master, to whom he had complained that it was dangerous, that it had been fixed and was in good condition, he cannot, as a matter of law, be held guilty of contributory negligence in using the same.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.]
    7. Master and Servant (§ 288) — Injuries to Servant — Assumption op Risk.
    Neither can he be held., as a matter of law, to have assumed risk of injury in using it.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.]
    8. Trial (§§ 194, 240) — Instructions.
    A requested charge, which is on the weight of the evidence and argumentative, is properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466, 561; Dee. Dig. §§ 194, 240.]
    9. Appeal and Error ■(§ 703) — Records— Question Presented for Review.
    Where the record does not indicate whether or not a charge was given, no indorsement signed by the trial judge appearing, an assignment complaining of its refusal cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2931; Dec. Dig. § 703.]
    10. Trial (§ 253) — Instructions—Excluding Issues.
    In a personal injury action by a servant whose hand was cut off by the falling of a knife in a paper-cutting machine, where the master had assured the servant that the machine was repaired and in good order, and the method employed by the servant was not dangerous if the machine was in good repair, an instruction that if the servant had the option of choosing between an unsafe and a safe way to arrange the paper, and he selected the unsafe way and was injured, he could not recover, was properly refused, because taking from the jury the question of contributory negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    11. .Trial (§ 260) — Instructions.
    The refusal of special charges covered by the general charge is not error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]
    12. Master and Servant (§ 220) — Injuries to Servant — Duty oe Inspection.
    Where a servant calls to the attention of the master a defect in a machine which he is operating, and the master undertakes to repair it and informs the servant he has done so, directing him to use it, the servant is under no duty to inspect.
    [Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 625-637, 641, 644-647; Dec. Dig. § 220.]
    Appeal from District Court, El Paso County ; James R. Harper, Judge.
    Action by George Mendoza against J. H. Hughes, J. W. Buie, and L. Muehlisen, co-partners doing business under the firm name of the Hughes-Buie Company. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    S. P. Weisiger, of El Paso, for appellants. Patterson & Wallace, of El Paso, for ap-pellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HIGGINS, J.

Action for damages arising from personal injuries resulting in verdict and judgment in appellee’s favor for $2,500.

The Hughes-Buie Company, a copartnership composed of J. H. Hughes, J. W. Buie, and L. Muehlisen, owned and operated a printing plant in' the city of El Paso. Ap-pellee was employed by them as. a paper cutter. He was an experienced man, and for several years had operated the machine which inflicted his injuries. On Tuesday, July 12, 1910, while in the discharge of his duties, the blade of the machine unexpectedly descended upon his right arm, severing same. The machine was old and worn, and the descent of the blade was due to its defective condition. It had gotten out of order and in bad repair several days prior to that, md on the previous Friday appellee called the same to the attention of defendant Muehlisen, foreman of the plant, in charge of the work, who thereupon undertook to repair same. After having worked upon the machine, he informed plaintiff it was all right, and directed him to proceed to work therewith, which he did, and upon the following Tuesday sustained the injuries mentioned.

In deference to the verdict of the jury, we find appellant negligent in furnishing a defective and unsafe machine with which plaintiff was required to perform his work, which proximatély caused his injuries; that appellee was not guilty of contributory negligence, and did not assume the risk incident to the use of the machine.

Prior to the institution of the suit, and on August 27, 1910, appellee employed the law firm of Patterson & Wallace, and in consideration of their agreement to file and prosecute the suit for recovery of his damages he “transferred, sold and assigned to said Patterson & Wallace an undivided one-third (%) int. in said suit and cause of action.” This contract of employment and assignment was filed among the papers of the cause upon the same date the suit was instituted. Appellant filed plea in abatement setting up the execution and delivery of said contract, and that by virtue thereof Patterson, & Wallace had become the owners of an undivided one-third interest in the cause of action and prayed that the suit as to this interest he abated, and, if not abated, then it was prayed in the alternative that the members of said firm be made parties to the suit, to the end that the rights of all parties interested in the cause of action might be adjudicated.

The first assignment relates to the action of the court in overruling this plea. Plaintiff here sued for a recovery upon the entire cause of action. But in a suit for the recovery of the entire amount due upon a cause of action arising in tort all of the joint owners thereof should he made parties plaintiff. Railway Co. v. Spiker, 59 Tex. 435; Railway Co. v. Le Gierse, 51 Tex. 198; Railway Co. v. Stockton, 15 Tex. Civ. App. 145, 38 S. W. 647; Foster v. Railway Co., 91 Tex. 631, 45 S. W. 376; May v. Slade, 24 Tex. 205; Rowland v. Murphy, 66 Tex. 534, 1 S. W. 658; Railway Co. v. Hollingsworth, 2 Willson, Civ. Cas. Ct. App. § 173; Railway Co. v. Gill, 2 Willson, Civ. Cas. Ct. App. § 175; Railway Co. v. Williams, 1 White & W. Civ. Cas. Ct. App. § 249; Towns on Texas Pleading, pp. 196, 197, and 200.

In actions ex contractu a nonjoinder of parties interested in the cause of action is fatal, whether or not the defect of parties be pleaded in abatement; but in actions ex delicto it seems such nonjoinder is available only upon plea in abatement, or by way of ■apportionment of damages on the trial. Railway Co. v. Knapp, 51 Tex. 592; Cummings v. Masterson, 42 Tex. Civ. App. 549, 93 S. W. 500; Railway Co. v. Seale, 89 S. W. 997; Railway Co. v. Kutac, 72 Tex. 643, 11 S. W. 127; Nelson v. Railway Co., 78 Tex. 621, 14 S. W. 1021, 11 L. R. A. 391, 22 Am. St. Rep. 81; Railway Co. v. Wilson, 3 Tex. Civ. App. 583, 24 S. W. 686.

Undoubtedly the transfer in this ■case to Patterson & Wallace constituted them joint owners with plaintiff of the cause of action herein sued upon, rather than the owners of a contingent interest in a possible future recovery, and plaintiff had not the right to subsequently file and maintain suit for himself and in his own name for the recovery of the whole amount due thereon. Defendant having seasonably raised the question by plea in abatement, his assignees .should have been made parties, as therein requested. However, for the reasons stated in Bonner v. Green, 6 Tex. Civ. App. 96, 24 S. W. 835, Patterson & Wallace are bound by the judgment herein rendered, and the action of the court in overruling the plea in abatement is harmless.

The second and third assignments complain of the overruling of special exceptions to the petition. It is unnecessary to pass upon the merits of these exceptions. If meritorious, no harm could have resulted from the act of the court in overruling same.

The court fairly submitted the issue of due care on part of appellee in placing his hand under the blade of the paper cutter, and therefore we overrule the fourth assignment, which relates to the charge of the court upon this phase of the case. Railway Co. v. Waller, 27 Tex. Civ. App. 44, 65 S. W. 212; Miller v. Railway Co., 89 Iowa, 567, 57 N. W. 418.

There is no merit in the contention that, as a matter of law, plaintiff assumed the risk incident to the use of the machine which inflicted his injuries, or that he is charged with contributory negligence in using the same. It is true he was an ex1 perienced workman, and had operated the machine for several years; but on Friday before his injury on Tuesday he called defendant Muehlisen’s attention to the defective condition. Muehlisen was a member of the firm, and foreman in charge of the establishment. Muehlisen undertook to repair same, and after having worked on it informed plaintiff the machine was in good condition, and directed him to proceed with the use thereof. Under such circumstances it is clear he cannot be held, as a matter of law, to have assumed the risk incident to the use thereof, or be guilty of contributory negligence in so doing. Of the many authorities supporting this view the rule is most aptly stated in the recent case of Beck v. Texas Company (Sup.) 148 S. W. 295. The fifth and sixth assignments are therefore overruled.

Special charge No. 3 was upon the weight of the evidence, and argumentative as well. It was therefore properly refused.

The eighth assignment complains of the refusal of a special charge. There is nothing to indicate whether same was given or refused by the trial court; no indorsement signed by him appearing. In this state of the record we cannot entertain any error assigned in this connection. Michael v. Yoakum, 30 S. W. 1076; Railway Co. v. Yznaga, 122 S. W. 267; Hodde v. Susan, 63 Tex. 307; Thompson v. Ohumney, 8 Tex. 390; Longino v. Ward, 1 White & W. Civ. Cas. Ct. App. § 522.

Error is assigned to the refusal of the following charge: “You are instructed, at the request of the defendants, that where it is optional with the servant as to how he shall perform his work, there being a safe and an unsafe way, both known to him, and he selects the unsafe way, he assumes the risk incident thereto. Now, if you believe from the evidence in this case that plaintiff had the option of selecting between a safe and an unsafe way to place and arrange the paper on the paper cutter, under the knife, and that he selected the unsafe way and was injured thereby, he assumed the ■risk incident thereto, and he could not recover, and your verdict must be for the defendants.”

It was for the jury to determine whether plaintiff was negligent, under the circumstances, in placing his hand under the blade of the cutter, and the charge in question was properly refused. While there is evidence that the paper could be placed under the blade without the necessity of placing the hand thereunder, yet, if the machine had been safe and in proper repair, there was no danger incident to placing the hand thereunder. The question of negligence vel non in so doing was an issue to be determined by the jury under all the facts, and in the main charge was properly submitted. It was therefore proper to refuse the foregoing charge.

The assignments complaining of the refusal of special charges 10 and 11 are overruled. They were upon the weight of the evidence, and, in so far as proper, were covered by the general charge.

The twelfth assignment complains of a portion of the court’s charge. The first proposition subjoined to the assignment is faulty, in that it assumes the duty of inspection rested upon plaintiff to ascertain whether the machine had been repaired. The duty of inspection ordinarily does not rest upon the servant. He has the right to assume the master has furnished safe appliances to work. Certainly no such duty rests upon him when he has called to the attention of the master a defect in the machine which he is operating, and the master thereupon undertakes to repair same, informs the servant he has done so, and directs him to proceed with the use thereof. Railway Co. v. Nordell, 20 Tex. Civ. App. 362, 50 S. W. 601; Beck v. Texas Company, supra; Reid Coal Co. v. Nichols, 136 S. W. 847. The paragraph of the charge under consideration is not subject to the further objection made that it is upon the weight of the evidence.

Affirmed.

HARPER, C. J., did not sit in this case.