preliminary contract with his purchaser, and a deposit of part of the purchase price, but the knowledge of the purpose of the purchaser came to him after the execution of such contract, but before he delivered the property and took the purchaser's notes for the payment of the balance, would such fact make him the less guilty and open the doors of the courts that would have been closed against him in the circumstances first stated? We think not. The participation or aid in the other's wrong ought, if the reason for the general rule is to be followed, to defeat the recovery if it occurred at a time when that purpose would have been thwarted by a refusal to proceed further with the contract. We think, therefore, that the finding that Stone did not know of the unlawful purpose of Robinson at the time of the original contract would not avail him, if prior to the execution of the notes he be

came informed of such purpose and then aid

ed in the execution thereof.

[2] Neither do we think the second finding referred to in the assignment above quoted, "that there was no agreement between plaintiff and Jim Robinson, Jr., that plaintiff should participate in the profits of the sale of said lots by lottery" is conclusive. It is no doubt true that if one shares in the benefit of the violation of the law he becomes a participant in the wrong, but his sharing in the profits does not seem to be the sole or true test of participation. "One may be deemed to be a participant in the unlawful purpose if with knowledge thereof he does anything which facilitates the carrying out of such purpose." R. C. L. vol. 6, p. 697; Houck v. Anheuser-Busch Brewing Ass'n, 88 Tex. 184, 30 S. W. 870, C. J., vol. 13, p. 519.

We therefore overrule both appellant's assignments of error, which action results in an affirmance of the judgment.

HUFF, C. J., not sitting, being absent in Austin, sitting with committee of judges.

RACHOFSKY v. RACHOFSKY et al.
(No. 7951.)

(Court of Civil Appeals of Texas. Dallas. May
4, 1918. Rehearing Denied June 8, 1918.)
1. APPEAL AND ERROR 1003-SCOPE OF RE-
VIEW-CONFLICTING EVIDENCE.

Though the facts contrary to the verdict on their face unquestionably are of greater probative force than those in favor of the verdict, it does not follow that the latter facts will not support the verdict.

substantially the same as that requested, he
Where the court has given an instruction
need not give the requested instruction.
7. TRIAL 234(7) - INSTRUCTIONS- BURDEN
OF PROOF.

defendant to make out his allegation of fraud
Instruction that burden of proof was on
by a preponderance of the evidence was suffi-
cient on the burden of proof.
8. FRAUDULENT CONVEYANCES
SOLVENCY-EFFECT.

57(1) — IN

In suit to recover safe which defendants al

leged was conveyed in fraud of creditors, the
vendor's insolvency vel non was not determina-
tive, since there could have been a sale to hin-
der, delay, and defraud creditors without refer-
ence to insolvency.
9. FRAUDULENT CONVEYANCES 156(2) —
RIGHT OF PURCHASER "KNOWLEDGE."

Knowledge of the fraud in a conveyance is such facts or circumstances as would excite the implied from notice actual or constructive of suspicion of a man of ordinary prudence and put him upon inquiry of the fraudulent intent of the vendor.

and Phrases, First and Second Series, Knowl[Ed. Note. For other definitions, see Words edge.]

Error from Dallas County Court; T. A. Work, Judge.

Suit by L. W. Rachofsky against J. H. Rachofsky and others. From a judgment for defendants and an order dissolving interlocutory injunction, plaintiff brings error. Affirmed.

Ellis P. House and Bern Wilson, both of Dallas, for plaintiff in error. Geo. Clifton Edwards, of Dallas, for defendants in er

ror.

RASBURY, J. L. W. Rachofsky, plaintiff in error, sued J. H. Rachofsky, Tobe Jones, and Jack Goldman, defendants in error, in the court below to determine the ownership of an iron safe levied upon and advertised for sale by Goldman, constable, by virtue of execution issued upon a final judgment in justice court, precinct No. 1, of Dallas county, obtained by Tobe Jones against J. H. Rachofsky, and for injunction pendente lite restraining the sale thereof. Interlocutory injunction was granted as prayed. DefendA sale of merchandise in bulk without com- ants in error Tobe Jones and J. H. Goldman, pliance with Vernon's Sayles' Ann. Civ. St. the constable, answered in substance that the

2. FRAUDULENT CONVEYANCES295(1)—EvIDENCE-SUFFICIENCY.

Evidence held to support verdict that a transfer was fraudulent as to creditors. 3. FRAUDULENT CONVEYANCES 47-SALES IN BULK.

alleged ownership of plaintiff in error was, was 25 years of age, was, and since boyhood derived by sale in bulk of a stock of mer- had been, employed as salesman for Sanger chandise and fixtures by J. H. Rachofsky Bros., in the city of Dallas, where he was to his brother, L. W. Rachofsky, and was ineffectual to convey title thereto (1) because not in compliance with the bulk sales law in that the statutory notice was not given, and (2) because the sale was made for the purpose of hindering, delaying, and defrauding the creditors of said J. H. Rachofsky. On plea that he was not a proper party to the suit J. H. Rachofsky was dismissed therefrom. There was trial by jury to whom the court submitted certain special issues, upon the jury's answers, to which judgment was entered against plaintiff in error and the interlocutory injunction dissolved. From such orders this appeal was taken.

required to be from 8 a. m. to 6 p. m. He and his brother, J. H. Rachofsky, who was 35 years old, were intimate and confidential in a personal and business way, borrowing money from each other without security. After the sale to L. W. Rachofsky, J. H. Rachofsky remained in charge and possession of the business, carrying the keys, making sales, and keeping books. It was a profitable business when sold. L. W. Rachofsky was at the store during the day only when he could get away from Sanger Bros., and of evenings when he had no engagements as a professional musician. He had no key to the store. He paid his brother no salary, commission, There are 38 assignments of error present- or interest in the profits of the business, but ing similar issues with little variation. For gave him free use of space and lights in the that reason we will not undertake to discuss store to conduct a loan and watch-repairing them seriatim, but in lieu thereof discuss business. At the time of the sale the sign the issues as such. This brings us in natural on the window was "J. H. Rachofsky." No order to the contention that the findings of change in that respect was made after the the jury are without support in the evidence. purchase. L. W. Rachofsky did not know The substance of the findings of the jury the rate of storage or interest charged in upon the special issues was that J. H. Rach- the business conducted for him by his brothofsky sold the safe in question and a stock er. He knew casually of Jones' claim against of merchandise to his brother, L. W. Rachof- his brother when the transfer was made, as sky, for the purpose of hindering, delaying, well as others. The foregoing is a brief and defrauding his creditors by placing same general statement of the testimony upon beyond their reach, and that the latter not which the jury findings were based. only had knowledge of such facts and cir- [1, 2] The record contains facts which cumstances as would put an ordinarily pru- would have sustained a finding in favor of dent man upon inquiry, which, if diligently plaintiff in error. These facts, as they appursued, would have disclosed such inten- pear in the record, are, as argued by countion, but that he had actual knowledge of sel, on their face unquestionably of greater such intention, and that the effect of the probative force than those detailed. It does sale was to place the property levied upon not follow, however, that the other state beyond the reach of creditors. The facts of facts will not support the findings of the and circumstances deducible from the evi- jury. And while it will be of no practical dence tending to support such findings are use or benefit to repeat here the reason of these: Tobe Jones secured judgment against the rule so often written down concerning J. H. Rachofsky canceling Jones' note for the better judgment of juries concerning the $30 and for certain usurious interest paid credibility of witnesses and the weight to thereon with the statutory penalty aggregat- be given their testimony, it is worth while ing $110. J. H. Rachofsky had for many to consider, to some extent, the holdings of years been conducting in the city of Dallas the courts in similar cases on the issue of a pawnshop and lending money in small the sufficiency of the evidence. Possession of amounts at usurious rates of interest. Jones the seller after the sale is not fraud per se, sued J. H. Rachofsky to cancel the note and but is prima facie evidence of fraud. Edto recover usurious interest paid thereon wards v. Dickson, 66 Tex. 613, 2 S. W. 718. and the statutory penalty thereon July 19, The evidence in such cases "must come large1913. Rachofsky was served with citation ly from the persons who are concerned in the June 21, 1913, and filed answer July 14, 1913. transaction; and circumstances have to be On July 17, 1913, J. H. Rachofsky by formal looked to, and in many cases be given a bill of sale transferred his entire stock of weight to which they would not be entitled merchandise and fixtures, including the safe in a different class of cases." Greenleve, levied upon, to L. W. Rachofsky for a recited Block & Co. v. Blum, 59 Tex. 124; Steinam consideration of $1,750, of which $1,250 was v. Gahwiler, 30 S. W. 472. Again, "fraud paid by check and $489.99 by canceling the is always difficult of proof by direct testinote of J. H. Rachofsky for that amount mony, and necessarily circumstantial eviheld by his brother, L. W. Rachofsky. The dence must be resorted to," and when it is bill of sale was not recorded. The proper-sufficient to raise the issue it is the province ty conveyed was all the property owned by of the jury to consider such evidence "of J. H. Rachofsky subject to execution. At greater probative force than the positive testhe time of the sale L. W. Rachofsky, who timony," controverting the circumstantial ev

idence. Adams v. Hamilton, 53 Tex. Civ. ofsky and also whether L. W. Rachofsky had App. 405, 116 S. W. 1169. We accordingly actual knowledge of the fraudulent purpose conclude that in the light of the facts de- of J. H. Rachofsky. Such issues were subtailed and the cases cited we are not war- stantially those covered by the requested ranted in holding that the findings of the charge and were not required to be submitjury are without support in the evidence. ted more than once.

[7] Complaint is also made of the refusal of the court to charge the jury that the burden of proof was upon Jones to prove his.allegations of fraud by "a preponderance of the evidence." The court charged the jury that "the burden of proof is on the defendant Tobe Jones to make out his allegation of fraud by a preponderance of the evidence." The charge of the court is sufficient and is nearly in the precise language of the refused charge.

[3, 4] It is also urged, in effect, that the court erred in admitting proof that in the sale the provision of the statute (article 3971, Vernon's Sayles' Stats.) relative to the sale of merchandise in bulk had not been complied with. The provisions of the statute were not complied with, and the sale of the merchandise was void as against creditors. The basis of the contention, however, is that the safe was a fixture, not merchandise, and hence not controlled by the statute in effect at the time of the trial, though [8] Complaint is made of the refusal of since amended so as to include fixtures. We the court to submit four special issues or inare not prepared to say that the sale of a terrogatories to the jury, the substance of stock of merchandise void under the bulk sales law would nevertheless convey title to merchandise fixtures attempted to be sold as a part of the transaction. It surely would not between the parties. However, the issue as to whether the sale was void, under the statute, was not presented to the jury. As a consequence proof complained of does not constitute reversible error.

[5] Plaintiff in error requested the court to charge the jury in effect that before Jones was entitled to recover they must believe by a preponderance of the testimony that J. H. Rachofsky did not in fact sell and convey the property in question to L. W. Rachofsky "in good faith and for value." The issue in the case was whether the sale was made to hinder, delay or defraud credi

That issue was submitted to the jury fairly and fully, and comprehended of course whether it was in good faith and for value, since if the purpose of the sale was not to hinder, delay, and defraud creditors it was in good faith and for value.

[6] Complaint is made of the refusal to allow several special charges, in substance the same but variant in expression, directing the jury that unless L. W. Rachofsky had knowledge of the fraudulent intent of J. H. Rachofsky in making the sale Jones would not be entitled to recover. In the special issues submitted to the jury they were asked whether L. W. Rachofsky had knowledge of facts or circumstances sufficient to put an ordinarily prudent person on inquiry, which if diligently pursued would have disclosed to him the fraudulent purpose of J. H. Rach

all of which is included in the special issues submitted by the court, save one, which is an inquiry whether J. H. Rachofsky was insolvent. Insolvency vel non was not a determinative issue in the case, since there could have been a sale to hinder, delay, and defraud creditors without reference to insolvency and should not have been submitted. Le Gierse v. Whitehurst, 66 Tex. 244, 18 S. W. 510.

[9] Complaint is made of the action of the court in defining knowledge on the part of L. W. Rachofsky of the fraud charged against J. H. Rachofsky as notice, actual or constructive, of such facts or circumstances as would excite the suspicion of a man of ordinary prudence and put him upon inquiry of the fraudulent intent of the vendor. The definition in our opinion was correct. Whatever puts a party on inquiry amounts to notice when the circumstances known to him are of a character which ought reasonably to excite his suspicions and lead him to further inquiry.

There are numerous assignments of error, some repeated, attacking the court's action in substituting lost deposition, the form of the verdict, remarks of the court, forms of questions charged to be leading, the admission of improper and prejudicial testimony, the examination of witnesses upon their depositions taken in the case, and the exclusion of testimony claimed to be material. We have carefully examined all these assignments and conclude that none of them present reversible error.

The judgment is affirmed.

(Court of Civil Appeals of Texas.

May 8, 1918.)

Amarillo.

1. CONSTITUTIONAL LAW 34- SELF-EXECUTING PROVISIONS OF CONSTITUTION-LIEN

FOR REPAIRS.

BOYCE, J. This suit was brought by

MCBRIDE v. BEAKLEY et al. (No. 1350.) plaintiff in error, T. C. McBride, against defendants in error J. L. Beakley and F. C. Beakley, to recover a sum of money alleged to be due for labor and material used in connection therewith in repairing an automobile, owned by J. L. Beakley, and to foreclose a lien on the automobile repaired. Judgment was rendered for the amount claimed by plaintiff, but foreclosure of the lien on the automobile was denied on the ground that the lien was waived by the voluntary delivery of the automobile after the completion of the work thereon under circumstances hereinafter stated, and this action of the court below is the basis of the complaint of its judgment.

Const. art. 16, § 37, providing that mechanics shall have a lien on articles repaired by them for the value of the labor done or material furnished, and that the Legislature shall provide, by law, for the enforcement of such liens, is self-executing and creates the lien without the further aid of legislation, so that the lien does not depend on the statute, and the Legislature cannot affix to the lien conditions of forfeiture.

2. LIENS 16-WAIVER.

A lien may be waived by express agreement, or by implication from the facts inconsistent with its continued existence.

3. LIENS 16-WAIVER-INTENT.

One will not be held to have intentionally waived a lien unless the intent is expressed or is plain and clear; the presumption always being against it.

4. BAILMENT 18(4)-LIEN FOR REPAIRSWAIVER-DELIVERY ON TAKING NOTE.

Where there was no express agreement waiving a lien for repairs on an automobile, the taking of the note of the owner's son on its delivery to him did not have that effect.

5. LIENS 16-WAIVER-DELIVERY OF Pos

SESSION.

The rule that a lienor's delivery of possession is a waiver of his lien originated in case where the existence of the lien itself was dependent upon the possession, and does not apply where possession is not an essential to the existence of the lien.

6. BAILMENT 18(3)-LIEN FOR REPAIRS

WAIVER-POSSESSION-STATUTES.

-

Rev. St. 1911, art. 5665, authorizes mechanics to retain possession of an article repaired until the amount due for repairing is paid; article 5666 provides for the retention of possession where no amount is agreed to be paid for repairing until the reasonable compensation shall be paid; article 5667 authorizes the holder, after possession for 60 days, to sell the article and apply the proceeds to the payment of his charges. Held, that the object of the statute was to restate the common law and provide for enforcement of possessory liens, and article 5671 indicates that it was not the intent to impair other liens or apply to provision of Const. art. 16, § 37, creating a lien for repairs, which does not make possession an essential to the right of lien.

7. BAILMENT 18 (5)-LIENS FOR REPAIRSWAIVER-EVIDENCE.

In a suit to recover money due for labor and material in repairing an automobile and to foreclose a lien for repairs after it had been delivered to the owner's son, evidence held insufficient to show a waiver of the lien.

The said T. C. McBride, at the request of J. L. Beakley, did certain work on an automobile belonging to him; the value of the labor and material put in on the said job being the sum of $115.38. McBride's son, during the father's absence, allowed F. C. Beakley, son of J. L. Beakley, to take possession of said automobile, requiring the said F. C. Beakley upon such delivery to execute his note to T. C. McBride for the sum of $115. The judgment was against J. L. Beakley for the amount of the account, $115.38, with interest, and against F. C. Beakley on the note, with provision that payment on either judgment would discharge to that extent the judgment against the other. It was claimed on the trial that McBride's son had no authority from him to deliver the car without payment of the account; the father having left instructions with the son, who was in charge of his shop during his absence, to hold the car until the charges were paid. No issue of authority was submitted to the jury, and we will assume in support of the judgment that the court found against appellant on such issue. The jury found that McBride's son voluntarily delivered the car to F. C. Beakley. The evidence shows that this delivery was made on F. C. Beakley's request and statement that his father would pay the charges upon his return; he also being absent.

[1] Article 16, § 37, of the Constitution, provides that:

This provision is self-executing.

It cre

"Mechanics, artisans and materialmen every class, shall have a lien on the buildings and articles made or repaired by them for the value of their labor done thereon or material Error from Montague County Court; Ho- furnished therefor, and the Legislature shall mer B. Latham, Judge. provide by law for the speedy and efficient enSuit by T. C. McBride against J. L. Beak-forcement of said liens." ley and F. C. Beakley. Judgment for plaintiff for amount claimed denying foreclosure ates the lien in the cases provided without of his lien, and he brings error. Judgment the further aid of legislation; the province for amount claimed affirmed, and judgment of the Legislature being to provide for the denying a foreclosure reversed, and judg- speedy and efficient enforcement thereof. ment rendered granting plaintiff such relief. "The lien does not depend upon the statute, W. T. Russell, of Nocona, and Paul Don- and the Legislature has no power to affix to ald, of Bowie, for plaintiff in error. Cook & that lien conditions of forfeiture." Strang Hall, of Montague, for defendants in error. v. Pray, 89 Tex. 525, 35 S. W. 1056; F. &

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-72

M. Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, | property might or might not have possession 966; Howell v. McMurry Lumber Co., 62 thereof; yet the literal terms of this article Tex. Civ. App. 584, 132 S. W. 848; Beilv. Illingsworth, 62 Tex. Civ. App. 647, 132 S. W. 109. While this provision of the Constitution has been most frequently under consideration in the courts, in connection with liens claimed by mechanics and materialmen on buildings, we see no reason to question its applicability in the present instance. We will refer later to the statutory provisions in relation to this subject.