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that a building, erected as the one in question, and the Bonding Company appeals. Reverswas, could become a fixture, and a part of the ed and remanded for another trial. freehold, so as to pass by the deed of the owner of the land to a bona fide purchaser without no- Hertzberg, Barrett & Kercheville, of San tice.”
Antonio, and Bebout & Penland, of Waco, for In this state, as in other jurisdictions, the appellant. John Sehorn, of San Antonio, for policy of our law is that the title to real appellees. estate shall appear upon the records designated for that purpose, so that all may know CARL, J. Appellee, Dr. A. A. Brown, sued in whom the legal title is vested, and ap- J. J. Lawler, Abraham Schroeder, and the pellee, having purchased in good faith and Texas Fidelity & Bonding Company, allegwithout actual notice of the trading com- ing: That Brown, on August 24, 1912, enpany's mortgage or claim, was not bound to tered into a written contract with Lawler by search the chattel mortgage records. He, the terms of which Lawler undertook to furtherefore, took the engine in controversy free nish all labor and material and to erect and from the claim now asserted against him. complete for Brown a two-story house in San
. See, in addition to the cases cited, Jones on Antonio; the consideration to be paid LawChattel Mortgages (5th Ed.) § 127; Ginners ler therefor being $4,250. That to secure the Mut., etc., v. Wiley, 147 S. W. 632; Taylor v. faithful performance on the part of said Lee, 139 S. W. 910; Hopwell Mills v. Sav- Lawler to erect and complete said building ings Bank, 150 Mass. 519, 23 N. E. 327, 6 in accordance wtih the plans and specificaL. R. A. 249, 15 Am. St. Rep. 235; Binkley tions, Lawler, as principal, and the Texas Fiv. Forkner, 117 Ind. 176, 19 N. E. 753, 3 L. delity & Bonding Company and Abraham R. A. 33.
Schroeder as sureties, on August 28, 1912, exWe conclude that all assignments of er- ecuted to Brown a certain bond in the penal ror must be overruled, and the judgment af- sum of $1,400, conditioned, in substance, that firmed.
should he, the said Lawler, erect and com
plete said building in accordance with the TEXAS FIDELITY & BONDING CO. v. was to be void,
plans and specifications, then the obligation
was to be void, etc. That thereafter Lawler BROWN et al. (No. 5532.)
began the work of erecting the aforesaid (Court of Civil Appeals of Texas. San Antonio. Nov. 10. 1915.)
building and partially completed the same,
but on October 12, 1912, abandoned the work 1. APPEAL AND ERROR Omw 578 RECORD STATEMENT OF FACTS SUPPLEMENTAL
of erecting said building and refused to conSTATEMENT.
tinue the job. That at the time said Lawler A A statement of facts was approved in abandoned the job, Brown had paid him on time. A supplemental statement of facts dis said contract the sum of $1,348. That on closing that the court in rendering judgment considered testimony admitted over objection, and October 14, 1912, Brown notified the Texas without any ruling thereon, was made without Fidelity & Bonding Company and Abraham any motion in the trial court to correct the Schroeder, sureties, of the default on the statement of facts, but a motion was filed in the court on appeal for an order permitting the part of Lawler, and called upon them to supplemental statement to be filed and consider- erect and complete the building, which they ed as a part of the statement of facts. Held, refused to do. Whereupon said Brown unthat the supplemental statement could not be dertook to finish the work of completing the considered, for a party is entitled to know what is considered by the court, and to have an op- building. That in doing this finishing work portunity to preserve proper bills of exception Brown expended the sum of $4,342.70, the thereto.
said Brown claiming damages in the sum of [Ed. Note. For other cases, see Appeal and $1,486.20, being the difference between the Error, Cent. Dig. § 2572; Dec. Dig. Om 578.] contract price therefor and what it cost plain2. MECHANICS' LIENS 313 BUILDING CONTRACTS-BONDS-LIABILITY.
tiff to complete the building. The Texas FiA stipulation in a building contractor's delity & Bonding Company answered, allegbond that, if the obligee receives notice of the ing that they were not liable because the fact that any claims for labor or materials remain unpaid, he shall withhold payment from plaintiff had not been damaged in any the principal of any money due or to become amount, and denied that the expenditures due until payment of such claims, is for the pro- made by Brown were reasonable and necestection of the surety and does not empower the sary to complete the building, alleging that obligee to pay such claims as he sees proper to pay, whether there is liability therefor or not, plaintiff did not carry out the conditions of and charge the same to the surety.
his building contract with Lawler, overpaid [Ed. Note. For other cases, see Mechanics' him, made changes in the plans, alleging that Liens, Cent. Dig. 8 656; Dec. Dig. On 313.]
the sums spent by Brown in completing the Appeal from District Court, Bexar Coun- building was greatly in excess of the reaty; W. F. Ezell, Judge.
sonable value of said services and material, Action by A. A. Brown against J. J. Law- and alleging further that the suit was filed ler and others. There was a judgment for more than six months after the date fixed plaintiff against defendants, and in favor of for the completion of the work; that said defendants Texas Fidelity & Bonding Com- Brown paid out amounts to Lawler, or to othpany and another, against defendant named, I ers for Lawler, for which no lien could have
been fixed against the property and for which y ed by plaintiff Brown for labor in the completion the said Brown was not personally responsi- of the building." ble.
 The above matters do not appear from Said Schroeder answered, denying all of the statement of facts which was approved the allegations contained in plaintiff's peti- by the trial court on April 29, 1915, and tion. Said Lawler answered, alleging chang- filed in this court on April 30, 1915, but apes in the plans and specifications after his pear from matters sent up to this court in abandonment, which increased the cost of which the trial court certifies that same took the building and further alleging:
place as a part of the trial and same were “That he fully performed his contract, and considered in arriving at the judgment enterthat plaintiff refused to permit him to finish ed. This supplemental statement of facts the building under the plans and specifications." has not been filed in this court, but a mo
. The cause was tried before the court with- tion has been filed asking that we enter an out a jury, January 6, 1915, and judgment order permitting same to be filed and to be rendered in Dr. Brown's favor against Law- considered as a part of the statement of ler, Schroeder, and the surety company, joint- facts. It does not appear that any motion ly and severally, for $1,400, the amount of was filed in the trial court to correct the the bond, and for $20.24 against Lawler. The statement of facts, or that any order to that bonding company and Schroeder were given effect was ever made, but it is sought to injudgment over against Lawler for any sums graft the same upon the statement of facts they might have to pay. The bonding com- upon the certificate of the trial judge. That pany has perfected this appeal.
certificate says: It was shown that it cost to complete the “Counsel for defendant knew the papers were house, according to the statement of facts, omitted, but was of the opinion they were not the sum of $4,728.55, or $478.55 more than counsel for plaintiff overlooked the fact that
introduced, and still contends they were not, but the contract price. Appellant therefore con- they were not copied in the statement of facts tends that the judgment is unsupported by when he agreed to and signed the same, and the the evidence at least to the extent of the parties, when presented to me and was there
statement of facts had been so agreed to by the difference between $478.55 and $1,400, the fore approved by me without examining the amount for which judgment was given. But same.' while E. P. Behles, the architect, was on the If a statement of facts can be corrected by stand, objection was made to his testifying timely proceedings in the trial court, that has to certain accounts and vouchers as to time not been done in this instance; and the injuof labor and amounts due therefor because it rious consequences of such proceeding as this was shown that there was a foreman, and it need no more concrete example than this furwas urged that he was the proper man to nishes, for the parties were cut off from the make such proof. The court thereupon said opportunity to further urge their objections or he would permit the witness to testify that to preserve a bill of exception. Certainly litihe (architect) approved those accounts and gants have a right in every instance to know issued vouchers on them. Bebles then said what is considered by the court and to have he signed the pay sheets; that every laborer an opportunity to preserve proper bills of exand carpenter signed his name to the amount ception thereto. As the record stands, the shown on the pay sheets. Objection was judgment is unsupported by the evidence. made to the witness testifying that these ac- This makes it necessary for us to reverse the counts and pay sheets were correct, because judgment and remand the cause for trial. the witness testified that he did not keep
 Another matter is urged upon which we the time, but same was taken from the fore- will express our opinion, in view of another man's book. These accounts total about $1,- trial. It is contended that, after Lawler quit 010.25. After some further colloquy, the this job, Brown voluntarily paid a number
, court said:
of his debts for material, etc., which were “We will just withhold the admission of not capable of being fixed as liens against those at this time. * * * Mr. Sehorn: But, the property, and that no attempt had been your honor, we have not got the foreman here. made to fix them as liens upon the property; Mr. Hertzberg: We have him here. Mr. Şe- also, that the property was the homestead of horn: The contract specifies that Mr. Behles shall do those things. The Court: I am in- Dr. Brown and no such liens could have been clined to think it is sufficient, but will withhold fixed upon it for that reason. it until the foreman testifies. And thereafter Appellee contends that, even if the claims M.T. Eckles, the witness referred to in the fore could not have been fixed as liens, they were going testimony as the foreman in charge of the work, was placed upon the stand by the at least capable of being made liens upon the defense, but no questions were asked him by balance of the funds remaining in the owneither party, concerning the pay rolls and the er's hands under the building contract. But amount paid laborers. In rendering the judg- appellant asserts that if the owner pays ment herein, the court considered the foregoing testimony of the witness Behles as sufficient debts voluntarily, after abandonment by the evidence of the amount expended by the plain contractor, and which debts of the contractor tiff, Brown, for labor in the completion of the so paid could not have been fixed as liens building mentioned in the pleadings, and the judgment of the court was based upon the fact against the property, the owner makes such that the foregoing sums of money mentioned in payments at his own peril and cannot charge This is what the courts have held. First, implication, as to the plaintiff's claim to the Baptist Church v. Carlton, 173 S. W. 1179; goods, the fact that the verdict of the jury Slade v. Amarillo Lumber Co., 93 S. W. 475; render the judgment an appealable final deterLonergan v. S. A. Loan & Trust Co. et al., mination, since the verdict was not sufficient 101 Tex. 63, 104 S. W. 1061, 106 S. W. 876, for that purpose and must have been followed 130 Am. St. Rep. 803; 27 Cyc. pp. 304, 307; by the judgment pronouncing its legal conse
quences. Am. & Eng. Ency. Law, vol. 20, pp. 491, 492. The bond contains, as a proviso before lia- Error, Cent. Dig. $8 459-462; Dec. Dig. Om
[Ed. Note. For other cases, see Appeal and bility shall attach, this clause:
79.] “If, at any time during the prosecution of the work specified in said contract to be performed, Appeal from District Court, El Paso Counthere comes to the notice or knowledge of the ty; Dan M. Jackson, Judge. obligee, the fact that any claim for labor per
Suit by the Finnigan-Brown Company formed or for materials or supplies furnished to
said principal in or upon said work, remain against Leon Escobar and another to recover unpaid,
the obligee shall withhold pay-title and possession of goods. From a judgment from the principal of any money due or ment that plaintiff take nothing against Esto become due to the principal under said contract until the payment of such claims.' cobar, and adjudicating the rights of inter
It is clear that this clause was placed there veners, plaintiff appeals. Appeal dismissed. for the protection of the bonding company
Finnigan-Brown Company, a corporation, and certainly did not clothe the owner of the filed suit against Leon Escobar and T. J. building with the power to pay such claims Woodside to recover title and possession of as he saw proper to pay, whether there was certain hides and skins. A writ of sequesliability therefor or not. The bond was given tration was sued out by plaintiff, and the to protect the owner against the legal claims property seized thereunder. In due time the for which he or his property might become same was replevied by plaintiff. Woodside liable, and was never intended to clothe the and Escobar answered, denying the material obligee therein with power to go out and allegations of the petition, and by cross-acpay debts for which neither he nor the bond- tion averred that the hides and skins were ing company was liable and then charge that the property of Winceslao Garcia, for whom up to the bonding company.
The judgment of the trial court is reversed. I they were holding it as bailees, and asked and the cause is remanded for another trial.
judgment over against the Finnigan-Brown Company and the sureties upon its replevin bond for the value of the property. Woodside
thereafter filed a disclaimer of any interest FINNIGAN-BROWN CO. v. ESCOBAR et al. in the property, except a lien thereon for (No. 438.)
freight and customs duties paid out by him (Court of Civil Appeals of Texas, El Paso.
upon the importation of the same from MexNov. 11, 1915. On Rehearing,
ico, and asked that upon trial he be decreed Nov. 24, 1915.)
a lien to secure the moneys so expended. 1. APPEAL AND ERROR Om79-DECISIONS RE- Victor Martinez intervened, claiming a por
VIEWABLE-NECESSITY OF FINAL DETERMI-tion of the hides and skins sued for by plainNATION-'FINAL JUDGMENT.'
Where a corporation sued two persons to tiff, and asked that he have judgment thererecover title and possession of goods, which for or their value. Garcia likewise intervenpersons answered denying the allegations of the ed, claiming all of the hides and skins, and petition, and averring by cross-action that the prayed judgment therefor or their value. goods were the property of another, for whom they were holding as bailees, such other and The jury, by its verdict, found that the Finanother person intervening, claiming the goods, nigan-Brown Company was entitled to cerjudgment, making no disposition, either directly tain of the hides and skins of the value of or by implication, of plaintiff's claim to the goods, being merely that it take nothing against $6,991.81; that Martinez was entitled to an original defendant, and proceeding to ad- some of the hides and skins, valued at $3,judicate the rights of the interveners and de- 895.57, and that Garcia was entitled to some fendants, could not be appealed from, since such of the skins, valued at $6,804.23. It appears judgment was not a "final judgment," which is the awarding of the judicial consequences at- from a recital in the judgment that the hides tached by the law to the facts, a final determi- and skins were sold after replevy, and the nation of the rights of the parties resulting proceeds thereof were in the hands of the from the ruling made, from which alone an appeal will lie, except in instances especially pro
Finnigan-Brown Company. viiled by law granting the right to appeal from Judgment was entered as follows: (1) certain interlocutory orders and judgments. That the Finnigan-Brown Company take
[Ed. Note. For other cases, see Appeal and nothing against Escobar. (2) That Martinez Error, Ceut. Dig. $8 459–462; Dec. Dig. Om and Garcia respectively recover of the Fin. 79.] 2. APPEAL AND ERROR Cww79—DECISIONS RE- nigan-Brown Company and the sureties upon
VIEWABLE-NECESSITY OF FINAL DETERMI- its replevin bond, the value, with interest, of NATION-FINALITY THROUGH VERDICT. the hides found by the jury to belong to them
Where, in suit to recover title and posses- respectively. (3) That Woodside recover cersion of personalty, in which defendants and interveners claimed interests in the property, the tain amounts against the Finnigan-Brown judgment failed to adjudicate, directly or by Company, Martinez, and Garcia ; the amounts adjudged against the respective parties be- , adjudicated. Trammell v. Rosen, supra, and ing in proportion to their ownership of all of cases there cited ; also Davies v. Thomson, 92 the property in controversy; the judgment Tex. 391, 49 S. W. 215. We can see no simireciting that it was agreed by the parties larity between this line of authority and this that judgment should be so rendered in case. There is nothing in this judgment Woodside's favor for the moneys paid out by from which it could be in any wise inferred him. (4) That Martinez, Garcia, and Wood- that the court had judicially found for or side take nothing against Escobar. From against the Finnigan-Brown Company the the judgment so rendered this appeal is right to any part of the hides or their proprosecuted.
ceeds. The verdict of the jury alone was
not sufficient. It must have been followed Coldwell & Sweeney, of El Paso, for ap- by the judgment of the court pronouncing pellant. c. L. Vowell, Walthall & Gamble, the legal consequence of the verdict. Tramand T. C. Lea, Jr., all of El Paso, for appel- mel v. Rosen and Land & Loan Co. v. Winlees.
Appellees also request, if it be determined HIGGINS, J. (after stating the facts as the judgment is not final, that this court reabove).  1. The appeal must be dismiss-form the same and make it so. This cannot ed for want of finality in the judgment. The be done. The defect affects the jurisdiction rule is that appeals lie only from final judg- of this court, and we must dismiss the apments. The only exception is in some in
peal. stances specially provided by law, granting
2. In view of what has been said, it is the right to appeal from certain interlocutory unnecessary to determine whether or not it orders and judgments. See cases cited, 1 is essential to the finality of the judgment Michie, Ency. Dig. 394, 395. A judgment is that judgment should likewise have been ennot final so as to authorize appeal therefrom tered upon Woodside's disclaimer that the unless disposition has been made of all of
Finnigan-Brown Company take nothing the parties; all issues raised determined, against him. It may be said, however, in and the case disposed of as completely as view of further proceedings in the case, that the court had power to do. See cases cited, it is best and proper to do so. Gullett v. 8 Michie, Ency. Dig., pp. 156 and 161.
O'Connor, 54 Tex. 408; Mignon v. Brinson, A final judgment is the awarding of the 74 Tex. 18, 11 S. W. 903. judicial consequences which the law attach
In Gullett v. O'Connor, supra, it was held es to the facts. It is final only when the under the facts there presented, that it decision or sentence of the law is pronounced would be presumed the cause had been disby the court upon the matter contained in missed as to a defendant who had disclaimthe record. Eastham v. Sallis, 60 Tex. 576. ed and as to whom no disposition was made No complete disposition is made, directly or in the judgment. But upon the facts reby implication, of the issue raised by the flected by the record here it may well be Finnigan-Brown Company's suit for the hides doubted whether any such presumption could and skins. The judgment in favor of Mar- be indulged. Mignon v. Brinson, supra. tinez and Garcia only disposes of the pro
Dismissed. ceeds of those the jury found belonged to them. It does not adjudge to the Finnigan
On Rehearing. Brown Company the hides the jury found In the original opinion it was said: belonged to it, nor the proceeds thereof; nei- "In view of what has been said, it is unnecesther does it adjudge the company not enti- sary to determine whether or not it is essentled thereto. Unless this be done, directly tial to the finality of the judgment that judgor by necessary implication, the judgment ment should likewise have been entered upon
the Finnigancannot be final. The hides having been sold Brown Company take nothing against him.' and the proceeds thereof being in the hands In this sentence the word "recover" should of the Finnigan-Brown Company, it follow have been used for “take nothing.” It is aced upon the jury's verdict that it was enti-cordingly now so corrected, and with this tled to judgment for its share of such pro- correction the motion for rehearing is overceeds. But:
ruled. "It is not enough to make a final judgment that we can see that the court ought to have rendered one. What the court did must have ST. LOUIS SOUTHWESTERN RY. CO.
. . OF amounted to a final determination of the rights
TEXAS V. ASTON. (No. 7394.) of the parties resulting from the ruling made." Land & Loan Company v. Winter, 93 Tex. 560, (Court of Civil Appeals of Texas. Dallas. Oct. 57 S. W. 39; Trammell v. Rosen (Sup.) 157
16, 1915. Rehearing Denied Nov. 20, 1915.) S. W. 1161.
1. RAILROADS 390-INJURY TO PERSON ON  It is argued by appellees that this case TRACK-DISCOVERED PERIL. is analogous to those authorities which hold Where a pedestrian stepped in front of a a judgment final which disposes of an issue train approaching a depot without realizing its
nearness to him, and in attempting to escape by necessary implication only; for example, fell, and his left leg was cut off by the wheels of a cross-action not expressly mentioned and the engine, and where the engineer, though he saw the pedestrian fall and applied the emer-7. APPEAL AND ERROR Om 1060—HARMLESS gency brakes, acted on the assumption that he ERROR-ARGUMENT OF COUNSEL. had not been struck and released the brakes, In an action for injuries from being run in consequence of which the train continued to over by a train, argument of plaintiff's coun. move forward, and mangled the right leg so as sel to the effect that the reason why the engito necessitate its amputation, the railroad com- neer and fireman were not present as witnesses pany was liable, under the doctrine of discover-was because they could not explain why they ed peril, for loss of the right leg.
did not stop the train when they knew that [Ed. Note.-For other cases, see Railroads, plaintiff had fallen in front of same, and that Cent. Dig. $$ 1324, 1325; Dec. Dig. Om390.]
"the engineer saw plaintiff when he was down
on the rail * * * in front of the engine,' 2. RAILROADS Om 390—INJURY TO PERSON ON if improper, did not require a reversal, where TRACK_DISCOVERED PERIL-KNOWLEDGE- it did not appear that defendant was injured EVIDENCE.
thereby The evidence in an action for such injuries
[Ed. Note.--For other cases, see Appeal and was sufficient to charge the engineer with neg: Error, Cent. Dig. $ 4135; Dec. Dig. Om 1060.] ligence, where it showed that he saw plaintiff fall to the ground or lying on the ground in Appeal from District Court, Hill County; close proximity to the track and train, and Horton B. Porter, Judge. knew before the right leg was run over that
Action by Tom Aston against the St. Louis he was in peril, and failed to use the means at his command to stop the train and avoid the Southwestern Railway Company of Texas. injury, though it did not show that he knew From a judgment for plaintiff, defendant apthat plaintiff would certainly be injured unless peals. Affirmed. the train was stopped.
[Ed. Note.-For other cases, see Railroads, E. B. Perkins, of Dallas, Walter Collins, Cent. Dig. $8 1324, 1325; Dec. Dig. 390.] of Hillsboro, and Scott & Ross, of Waco, for 3. NEGLIGENCE 83DISCOVERED PERIL- | appellant. Shurtleff &
Shurtleff & Cummings, of HillsKNOWLEDGE.
boro, for appellee. The doctrine of discovered peril has no application, in the absence of actual knowledge by TALBOT, J. This suit was brought by the the person inflicting the injury of the peril of the person injured in time to avoid the injury appellee to recover damages for personal by use of the means at hand.
injuries inflicted upon him through the neg[Ed. Note.--For other cases, see Negligence, ligence of appellant's servants in charge Cent. Dig. $ 115; Dec. Dig. Om 83.]
of and operating one of its trains. By an 4. NEGLIGENCE O 134–PROOF-CONJECTURE. amended petition filed May 22, 1914, appel
Negligence cannot be established by mere lee alleged, in substance, that he was inconjecture without evidence of actual negligence jured while crossing the appellant's railway or of facts from which it can be inferred.
[Ed. Note.-For other cases, see Negligence, track in the town of Hubbard City, on or Cent. Dig. & 267-270, 272, 273; Dec. Dig. em about the 26th day of January, 1914, the 8
, , 134.]
injury consisting of the loss of both of his 5. TRIAL Om 260-INJURY TO PERSON ON legs. He alleged in said petition facts which TRACK-REFUSAL OF INSTRUCTION COVERED. would constitute him a licensee on appel
Where, in a pedestrian's action for loss of lant's track at the time and place of the acboth legs from being run over by a train at a depot, the court instructed that, if plaintiff at-cident, and that the defendant's employés tempted to cross the track directly in front of were guilty of negligence in approaching said the train, and the engineer did not see him un place at an unusual rate of speed, and in til the front of the engine had passed him, that failing to ring the bell on the engine as it if the engineer then applied the brakes, and that if, after plaintiff fell, it appeared to the approached said place where appellee was engineer that he was in the clear, and not in injured, the same being at its depot in said further danger, and the engineer used the care town of Hubbard City; that after he got of a person of ordinary prudence, he could not be held to have discovered that plaintiff was upon the track he observed that the train in imminent peril, it was not error to refuse an was not running at the usual and customary instruction that if plaintiff attempted to cross rate of speed, but was running at a high in front of the moving train, and the engineer and unusual rate of speed, and that on acdid not see him until the pilot beam of the engine was about even with him, that if it then count of that fact he was in imminent peril appeared that he was falling away from the of being struck by said train; that when engine, and not in danger, and that if the en
he realized his position he became greatly gineer' thereupon released his brake, allowing frightened and excited, and in attempting to the train to continue moving forward, and in so doing acted as a man of ordinary prudence,
get off the track fell and attempted to fall he could not be held to have discovered that off of said track; and that his body did fall plaintiff was in imminent peril; the instruction given being substantially the same as the one cut off at or near the knees.
over the rail, but his feet and legs were refused.
He further [Ed. Note.--For other cases, see Trial, Cent. alleged that at the time he fell the engine Dig. $$ 651-659; Dec. Dig. Om 260.]
ran over only one of his legs, and that said 6. TRIAL On 263-REQUESTS
injured leg remained upon the track, and TIONS–GIVING ONE OF SEVERAL.
that the engine and tender and the trucks Where a party requests two special instruc- of one of the coaches passed over said leg; tions on tlie same issue, and the court selects and gives one, the party cannot complain of the that in an effort to remove his body from and gives one, the party cannot complain of the the track, and in throwing his body and limb refusal of the other.
, [Ed. Note:-For other cases, see Trial, Cent. around, his other foot and leg, which up to
- . Dig. $$ 662, 663; Dec. Dig. Om 263.]
that time had remained uninjured, was