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appeal. But it will be observed that the citation was treated by the parties as the plaintiff's pleading in the cause. It set forth the bond and plaintiff's demand. The judgment shows that defendants' demurrers were directed to the cause of action as stated in the citation. Regarding it as a pleading, which we must do in view of what has been stated, appellants' position is not maintainable. The citation has become a part of the record, and may therefore be looked to, in connection with the admission which refers to it. It has been held that a bond attached as an exhibit to a petition will be considered, although not in the statement of facts, where the statement contains a recital that “the plaintiff read the appeal bond sued on." Thurman v. Blankenship & Blake Co., 79 Tex. 178, 15 S. W. 387. The motion is overruled.

court of Limestone county at the last term of said court, a judgment was rendered for costs of suit against the plaintiff, E. herring; and whereas, A. A. Jayne is responsible over to said Herring for said judgment, and said Jayne is desirous of having said Herring remove said cause to the supreme court for revision and correction: Now, therefore, in consideration of the fact that said Herring shall remove said cause to said supreme court by writ of error, and give a proper bond for costs for that purpose, we, the said A. A. Jayne as principal, and J. D. Rankin as surety, agree to hold harmless and indemnify the said Herring against all costs and expenses that have already accrued in the district court, and all costs that may accrue in the supreme court; that is to say, that we will pay any and all costs that said Herring may be adjudged to pay by the final determination of said cause." The cause originated in the justice's court. The amount sued for was $247.99, costs alleged to have been adjudged against Herring by the supreme court in the writ of error referred to in said bond, less $50.25, which had been realized by plaintiff from a deed of trust on two lots which Jayne had given him as security in connection with the bond.

Appellants here contend that the county court erred in directing a verdict against them, because of a want of proof that the supreme court had finally determined the cause. That such proof was essential to a recovery upon this bond is not to be denied.

ied. Maddox v. Craig, 80 Tex. 600, 16 S. W. 328. There was evidence that, after plaintiff had given his claim to an attorney to collect, defendant Jayne had promised to pay it, if time was given him, and if the sale under the deed of trust was not made at the following sale day. This evidence might have been the basis of recovery by reason of a new contract, but the contract sued on was the bond, and the above testimony was not sufficient to prove that the fact had happened which made defendants liable. The defendants admitted on the trial that plaintiff had "paid the several items of cost at the time and as set out in the citation." The citation set forth that plaintiff had paid these costs in accordance with the judgment of the supreme court in the cause. This admission would serve to show that plaintiff paid the costs after and upon the judgment of the supreme court. Affirmed.

On Rehearing.

(Feb. 12, 1896.) It is urged upon this motion that this court has erred in looking to the cication, because the same is not in the statement of facts. If we could not look to this citation in connection with defendants' admission that plaintiff had paid the several items of cost at the time and as set out in the citation, the admission would mean nothing in this

NORTH BRITISH & MERCANTILE INS.

CO. v. FREEMAN.1 (Court of Civil Appeals of Texas. Jan. 22,

1896.)
INSURANCE -CONDITIONS-MORTGAGE-

FORECLOSURE. 1. A policy on personalty conditioned that it should be void if the subject of insurance" be incumbered by a chattel mortgage was not avoided by a chattel mortgage on one of the articles covered by the policy.

2. Where a policy provides that it shall be void if, with the knowledge of insured, foreclosure proceedings be coʻnmenced by virtue of any mortgage on the chattels insured, it must appear, to defeat the policy, that the foreclosure proceedings were commeaced with the knowledge of the insured.

Appeal from district court, Ellis county; J. E. Dillard, Judge.

Action by P. Freeman against the North British & Mercantile Insurance Company on a policy of insurance. Plaintiff had judgment, and defendant appeals. Affirmed.

Morgan & Thompson, for appellant. M. B. Templeton, for appellee.

JAMES, C. J. The facts relative to the matters assigned as error may be stated as follows: Appellant issued to Freeman a policy on personal property, describing the subject insured and amount of insurance as follows: "$1,650 on household and kitchen furniture, useful and ornamental, beds, bedding, **

musical instruments;" etc. "$100 on watches and jewelry,-all contained and while contained in a certain dwelling in Ennis." At the date of the policy, Freeman had a piano in said dwelling, upon which there was a chattel mortgage, and upon which suit was afterwards brought to foreclose the lien, which suit resulted in Freeman surrendering the piano to the lienholder. Afterwards he bought another piano, giving a lien thereon in the purchase,

1 Rehearing denied.

and this piano, thus incumbered, was among must hold that defendant did not show the the property destroyed by the fire which occurrence of the particular event stipulated consumed the insured property. The policy in the policy for which it claims to be excontained the following provision: "This en- onerated. The judgment is affirmed. tire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void [among other things] * * * if the subject of insurance be personal prop

WILLIAMS V. JONES et al. erty and be or become incumbered by a

(Court of Civil Appeals of Texas. Feb. 12, chattel mortgage, or if, with the knowledge

1896.) of the insured, foreclosure proceedings be APPEAL-JUDGMENT IN APPELLATE COURT. commenced or notice given of sale of any

Where the facts in a case have been property covered by this policy by virtue of fully shown by the evidence in the trial court,

There is no any mortgage or trust deed."

judgment will be entered in the appellate court

on reversal. evidence of any waiver on the part of the company, nor is there any evidence that

Appeal from Travis county court; D. A. the foreclosure proceeding above mentioned

McFall, Judge. was instituted with the knowledge of the

Action by H. G. Williams against J. H. insured. The judgment was in favor of

Jones and others. Judgment for defendants, the plaintiff.

and plaintiff appeals. Reversed.

Hugh L. Davis, for appellant. Gardner Conclusions of Law.

Ruggles, for appellees. The subject of insurance in this case was the various articles of furniture, described

KEY, J. The verdict in this case is not collectively, the piano being one article of supported by evidence, and for that reason

the judgment must be reversed. Appellees many covered by the policy. In order for a

entered into a written contract with appelmortgage that existed at the time, or was afterwards given, to avoid the policy, under the

lant by which they agreed to pay $60 per clause above mentioned, it must have been

month for the Union Meat Market in Austin upon the subject insured; that is, the entire

for a term extending from January 1, 1893, property. The mortgages having reference

to August 31, 1895; and this suit is to reto a part of the property, they did not de

cover the amount due under said contract feat the policy. Insurance Co. v. Lorenz

for three months of said term, less $5 paid

thereon. (Ind. App.) 29 N. E. 604; Insurance Co. v.

The proof fails to show that apBills, 87 Tex. 547, 29 S. W. 1063.

pellant had released either Jones or Redd, or But it is further contended that the clause

that he had done anything that would estop provides for the policy's becoming void upon

him from enforcing the contract. The case the commencement of foreclosure proceed- appears to have been fully developed in the ings in respect to any of the property, and

court below; and as, on the uncontroverted that it became void when the suit was

facts, appellant was entitled to recover, the brought to foreclose the lien on the piano, as

judgment of the county court will be set stated above. There would be merit in this

aside, and judgment here rendered for appelif the policy had provided for its becoming

lant for $175 and all costs. void upon the institution of such proceedings, without qualification. The case of Titus v.

. Insurance Co., 81 N. Y. 410, deals with this state of case. Here the policy is to be void HALBERT et al. v. PADDLEFORD. if such proceeding is commenced with the (Court of Civil Appeals of Texas. Feb. 12, knowledge of the assured. It is no concern

1896.) of ours to consider the reasons the parties APPEAL-REFORMATION OF JUDGMENT-COMPLAINT had for inserting the qualification. The

-VARIANCE. policy is collectible, unless the insurer bring 1. A judgment erroneous only in allowing the facts of the case within the terms of the

excessive interest should, on remission of such

interest, be reformed and affirmed. condition of which he claims the benefit. 2. Where a person who has contracted with There is no evidence that the insured had the maker to pay a note bearing a higher than any knowledge or intimation that the suit the legal rate of interest fails to pay it, a com

plaint by the maker against such person, alwas to be brought, unless we must imply

leging all the facts and seeking recovery on the it from the fact that he was in default with erroneous theory that he is subrogated to the his lien creditor; and this, we hold, would not rights of the payee on the note, is sufficient,

in the absence of special exception, to support be knowledge of the latter's decision or pur

a recovery on the theory of an implied promise pose to sue. A recent case in point is Belle- to pay the amount which the maker had been vue Roller-Mill Co. v. London & L. Fire Ins. compelled to pay for him. Co. (Idaho) 39 Pac. 196. Assuming that the

On rehearing. Modified. clause was not intended to apply to insurance

For former opinion, see 33 S. W. 592. of this character an open or shifting policy on personalty), which appellee contends it KEY, J. At a former day of this term we was not, and with the correctness of which reversed this case because appellant recovcontention we are not prepared to agree, we ered 12 per cent. interest on the $1,500 he had paid Bush. 33 S. W. 592. On motion for a down live stock, the company is chargeable with rehearing, appellee calls our attention to the negligence.

2. Where it is not shown that a crossing, fact, as shown by a supplemental transcript,

and the gates which led to it, were erected by that he has remitted all the interest in excess authority of law, a railroad is liable for injuof 6 per cent. per annum, thereby reducing ries to stock, inflicted there by a passing train. the recovery to $1,500 and 6 per cent. inter

Appeal from county court, Bell county; est; and appellee asks us to reform and af- John M. Furman, Judge. firm the judgment. This is resisted by ap- Action by M. M. Meithvein against the Mispellants, on the ground that appellee's suit souri, Kansas & Texas Railway Company of is founded on the Bush note, and not on an Texas for damages for injuries to live stock, implied promise to pay the amount appellee From a judgment in favor of plaintiff, defendhad been compelled to pay on said note. We ant appeals. Affirmed. think the averments of appellee's petition, in

Geo. W. Tyler, for appellant. the absence of a special exception, are sufficient to authorize a recovery on the latter theory. We therefore set aside the judgment ment below on two grounds:

FISHER, C. J. We can affirm the judg

: 1st, because of reversal, reform the judgment of the dis

the appellant was guilty of negligence in trict court so as to allow appellee to recover

not using efforts to stop the train. If this only $1,676.25 principal and interest, and,

had been done, it is possible that the animal as thus reformed, said judgment will be af.

would not have been injured, or would not firmed.

have been so severely injured. The facts in evidence warranted the inference that, if

the engineer had exercised proper diligence BOYD v. CROSS et al.

when he discovered the animals on the (Court of Civil Appeals of Texas. Feb. 12,

track, he might have prevented the collision. 1896.)

The second ground on which the judgment TRIAL-INSTRUCTIONS-PROVINCE OF JURY.

may be affirmed is that it is not shown that It is error in an action for personal in

the crossing, and the gates that led to it, juries to direct a verdict for defendant where were erected by authority of law. Sayles' the evidence is conflicting, and plaintiff has pre

Civ. St. arts. 4170a, 4170b. If it had been sented sufficient evidence to prove the material æverments of the petition.

shown that the crossing and gates were

erected in pursuance of the above provisions Appeal from district court, McLennan

of the statute, we would have followed the county; L. W. Goodrich, Judge.

case of Railway Co. v. Glenn (Tex. Civ. App.) Action by Hugh Boyd, as next friend,

30 S. W. 815. No reversible error is shown against Cross & Eddy and others. From a

in the other questions raised. Judgment afjudgment for defendants, plaintiff appeals.

firmed. Reversed.

Williams & Evans, for appellant. Clark & Bolinger, for appellee.

FIRST NAT. BANK OF BELLVILLE v. KEY, J. Levi Williams, by his next friend,

WHEELER et al. Hugh Boyd, brought this suit to recover

(Court of Civil Appeals of Texas. Feb. 12, damages for personal injuries. After hear

1896.) ing all the evidence, the court directed the

MORTGAGE TO SURETIES-SUBROGATION-DEED IN jury to return a verdict for the defendant,

TRUST-RIGHTS OF BENEFICIARIES. which was done; and this instruction is as

1. A note was executed to plaintiff with signed as error. We have carefully exam- two sureties. Afterwards, the principal, to proined the pleadings and the evidence, and con

tect said suretjes and the sureties on other

notes, executed to them a chattel mortgage on clude that the assignment is well taken.

certain cattle, and part of said cattle was sold, We will not comment on the evidence, some with the principal's consent, by one of said of which is conflicting, nor intimate any sureties, acting as agent for the others, and the opinion as to how a jury ought to decide the

proceeds applied cu certain notes. The princi

pal and the sureties on the note to plaintiff subcase. We merely hold that the plaintiff sequently became insolvent, and the remaining placed before the jury sufficient evidence cattle, were turned over to said sureties, who tending to prove the material averments of

sold the same Held, thai plaintiff was entitled

to be subrogated to the rights existing in favor his petition to entitle him to have it submit

of the sureties on the note to plaintiff. ted to the jury. Reversed and remanded.

2. Where a debror executed a deed of trust to secure his creditors, and part of his property was turned over by the trustees to sureties on the debtor's notes, said sureties are liable for the

value thereof to the beneficiaries of the trust MISSOURI, K. & T. RY. CO. OF TEXAS v. to the amount of their claims. MEITHVEIN.

Appeal from district court, Lampasas coun(Court of Civil Appeals of Texas. Feb. 12,

ty; W. A. Blackburn, Judge. 1896.)

Action by the First National Bank of BellRAILROAD COMPANIES — CROSSINGS-ERECTION -NEGLIGENCE.

ville against W. E. Wheeler and others on a 1. Where a railroad engineer makes no

note. From the judgment rendered, plaineffort to stop his train, and thus avoid running tiff appeals. Reversed.

A. Chesley and Lewis Wood, for appellant. the following parties, and in the following M. Fulton, for appellees.

amounts, to wit: Emil Wahrmand, $3,050;

August Wahrmand, $350; Adolph WahrFISHER, C. J. This is a suit filed Octo- mand, $400; Louis Fisher, $300; Paul Harber 22, 1892, in the district court of Lam- nisch, $900; T. D. Smith, $2,800,-total, $7,pasas county, by the First National Bank of 800; to T. D. Smith, with defendants CrosBellville, located at Bellville, Tex., against by & Kothman sureties, $4,000; to Ann defendants, W. E. Wheeler, F. Bernhard, Wil- Martin & Sons, with defendants Crosby & liam Geistweidt, F. Kothman, and Martin Moran sureties, $1,500; to F. Landon, with Moran, all residents of Mason county, Tex. defendants Bernhard & Kothman sureties, The suit is upon a promissory note for .$5,- $4,000; to plaintiff, with defendants Bern000, executed May 19, 1891, by defendants hard & Crosby sureties, $5,000,-making a W. E. Wheeler and F. Bernhard, together with total of, to wit, $22,300. Plaintiff further one C. Crosby, in favor of the First National

says that on, to wit, said 8th day of OcBank of Bellville, due 60 days, with interest tober, 1891, defendant Wheeler, for the purfrom maturity. The note is joint and sev- pose of securing the payment of his aforeeral in form, but in fact Wheeler was the said promissory notes, including plaintiff's, principal beneficiary in the note, and Bern- and thereby protecting his aforesaid sureties hard and Crosby were sureties. Crosby died from harm by reason of their respective liainsolvent, before the trial, and the case was bilities on the notes above mentioned, all dismissed as to him. In the year 1891, of which sureties (except C. Crosby, now Wheeler was heavily in debt, owing numerous dead) are defendants in this suit, executed parties in large amounts, to whom he had and delivered to them (said sureties) a executed promissory notes. There were 10 mortgage upon, to wit, five thousand head of these notes, including the note due plain- of cattle, which mortgage was duly accepttiff and here sued upon, amounting to $22,- ed by the mortgagees, and properly authen300, upon which defendants Bernhard, Geist- ticated and promptly recorded in the proper weidt, Kothman, Moran, and said Crosby counties, a copy of which is hereto attached, were sureties,--that is, some two of them marked 'Exhibit A, and is made a part were sureties upon each note. On October of this petition. Plaintiff further says that 8, 1891, Wheeler, as the petition alleges, in thereafter, to wit, to the February term, order to secure the payment of these notes, 1892, of the district court of Mason county, including plaintiff's, and thereby protect his Texas, suit was brought upon the aforesaid sureties, executed to them (the sureties) a notes described as payable to Emil Wahrmortgage upon 5,000 head of cattle. Wheel- mand, August Wahrmand, Adolph Wahrer, Crosby, and Bernhard thereafter became mand (sued upon in the name of Eliza Wanrinsolvent; the cattle were turned over to the mand), Louis Fisher, and Mrs. Ann Martin sureties and sold by them; and this suit, so & Sons, upon which judgments were obtainfar as defendants Geistweidt, Kothman, and ed on, to wit, March 20, 1892, in favor of Moran are concerned, is to subject the pro- each of the plaintiffs for the amount of ceeds of the cattle, alleged to be in their their respective demands. Plaintiff further hands, to the payment of the debts secured says that thereafter, to wit, March 12th, by the mortgage, and to recover from them 1892, defendants Bernhard, Kothman, Geistplaintiff's pro rata share of such proceeds. weidt, Moran, and said Crosby, in order to The case was tried on November 26, 1894, carry out a contract of sale of 2,300 head and the court sustained a demurrer to the of said cattle, which had previously been petition, in so far as it sought a recovery made by said Wheeler, for the sum of, to against defendants Geist weidt, Kothman, and wit, $16,000, delivery to be made on or about Moran, and gave plaintiff judgment against | April 8th, 1892, to one Felix Mann, as agent defendants Wheeler and Bernhard for the of the purchaser, entered into a written amount of the note; from which judgment agreement, with the approval of defendant of the court sustaining the demurrer plain- | Wheeler, by which they selected defendant tiff gave notice of appeal, has assigned er- Geist weidt from their number, to act as ror, and brings the case to this court.

agent for the parties interested in the proThe petition, after averring the liability ceeds of the cattle, to collect and to deliver of Wheeler as principal on the note sued said cattle to Mann, and receive the checks on, and that Bernhard and Crosby were and money therefor, which was payable on sureties, and that all are insolvent, and that delivery, and apply it to the payment of the Crosby is dead, alleges that: “During the aforesaid claims of the above-named credityear 1891, and before that time, defendant ors of Wheeler, which were mentioned in Wheeler was, to a large extent, financially and secured by said mortgage, a copy of involved, owing numerous parties in large which agreement is hereto attached and amounts, to whom he had executed promis- made a part hereof, marked 'Exhibit B.' sory notes with personal security. That on, Plaintiff further says that defendant Geistto wit, October 8th, 1891, among other lia- weidt delivered 508 head of said cattle to bilities, he was indebted was indebted by promissory

by promissory | Mann, in accordance with the contract, and notes, upon which defendants William Geist

in pursuance of his agency as above stated, weidt and said C. Crosby were sureties, to which 508 head so sold amounted to the sum of, to wit, $3,783, out of which he is en- Geist weidt, Kothman, and Bernhard, as titled to a credit, as follows: Taxes on the agents for the creditors named in the mortcattle for 1891, $147.90; paid Grote, ex- gage, are jointly and severally liable to penses taking care of cattle, $72.70; plaintiff for its pro rata share of the propenses of gathering, $139.30,$359.90; thus

thus ceeds of the 2,219 head of cattle turned leaving a balance of $3,378.10, arising from over to them by Butler for the benent of the sale of said 508 head of cattle, to be said creditors, and sold by them to R. R. applied by him towards the pro rata pay- Russell, as above set forth, amounting to ment of the debts secured by said mortgage. the sum of $13,314.00. Plaintiff further says Plaintiff further says that, shortly after the that it is informed, believes, and so charges appointment of defendant Geistweidt as the fact to be, that defendant Geist weidt, agent as aforesaid, to wit, March 19th, 1892, by virtue of his respective agencies above defendant Crosby, being insolvent, disposed mentioned, has received much the larger of all of his property subject to execution, share of all the moneys arising from the by deed of trust, for the benefit of his cred- sales of said cattle, and has to a large exitors, giving preference to those who were tent misapplied the same, to wit, to the his individual creditors, and thereafter, to extent of $4,000.00.” The petition concludes wit, March 28th, 1892, defendant Wheeler with a prayer for an accounting of the proexecuted a conveyance of all his property, ceeds of the property that went into the real and personal, except such as was ex- hands of Bernhard, Kothman, Moran, and empt from forced sale, to one J. C. Butler, Geist weidt, and that said parties be retained as trustee or assignee for the benefit of his in the case for that purpose, and that plaincreditors, which trust said Butler accepted, tiff recover such interest in said proceeds and thereafter, to wit, the day of May, as it may be entitled to, or judgment against 1892, said Butler turned over said cattle, the parties that appropriated such property or what was left of them, as they run, to for the pro rata interest of plaintiff. defendants Geistweidt, Kothman, and Bern- We have met with some difficulty in dehard, for the purpose of being sold by tuem, termining the legal effect of the instrument and the proceeds applied to the payment of executed October 8, 1891, by Wheeler, for the the several creditors whose claims were se- protection of his sureties. The difficulty cured by the mortgage, in accordance with was whether it should be held a security for their respective rights thereunder. Plaintiff their benefit, for the purpose of securing the further says that, prior to the turning over debts, or simply a naked contract of indenniof said cattle by Butler to defendants Geist- ty, for their benefit only in the event they weidt, Kothman, and Bernhard, said Crosby, sustained damages or loss by reason of the on account of his insolvency and transfer suretyship. But, viewed in the light of the of his property for the benefit of his cred- facts stated, that the principal and sureties itors, declined to have anything to do with of the notes sued on are insolvent, coupled said cattle, but left the cattle and the debts with the fact that a part of the property insecured thereby to his cosureties, to manage

cumbered by this instrument was actually as best they could; and defendant Moran, delivered to the sureties for the purpose of prior to the turning over said cattle by But- applying it to the debts for which the sureler, as aforesaid, having ceased to be inter- ties were bound, we are disposed to treat ested in them, by reason of the debt upon the contract of indemnity, to this extent, as which he was surety--that was secured by of the nature of a security of the debt, which the mortgage, to wit, the Ann Martin and the creditor may be subrogated to. When Sons note for $1,500—having been paid off the principal debtor, as is the case here, exin full, also took no further interest in the ecutes and delivers to his sureties a mortcattle; and hence all the cattle were turned gage indemnifying them against loss, and over by Butler to defendants Geist weidt, accompanies such instrument with a deliv. Kothman, and Bernhard, as above stated. ery and possession of property to secure it, Plaintiff further says that thereafter, to wit, it would be inequitable, upon the insolvency in the month of November, 1892, defend- of the principal and sureties, to construe the ants Geist weidt, Kothman, and Bernhard contract one of personal indemnity to the sold the entire remnant of said cattle- sole benefit of the sureties, and relieve them which, upon being gathered, was found to be, from liability to account for the property to wit, 2,219 head-to one R. R. Russen, at they have received

received from the principal. $6.00 per head, amounting to the sum of Sheld. Subr. $$ 159, 160, 162, 163; Owens v. $13,314.00, which amount was received by Miller, 29 Md. 161; Moses v. Murgatroyd, 1 them. Plaintiff further says that, by reason Johns. Ch. 129; Pratt v. Adams, 7 Paige, 627. of the facts above stated, defendant Geist- If the instrument was in terms a mortgage, weidt, as it is advised, believes, and so for the purpose of securing the surety or the charges, became individually liable to plain- debt, in the light of all the authorities upon tiff for its pro rata share, along with the the subject, it would be held that the credother creditors secured by the mortgage, of itor's right of subrogation unquestionably the net proceeds of said 508 head of cattle exists, and that in such a case the creditor delivered by him to Felix Mann, to wit, the would have the right to enforce the mortsum of $3,378.10, and also that defendants gage for his benefit, thus, by subrogation,

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