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 $56.25, 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. 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 citation, 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

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.

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 conmenced by virtue of any mortgage on the chattels insured, it must appear, to defeat the policy, that the foreclosure proceedings were commenced 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. B. Templeton, for appellee.

M.

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 the property destroyed by the fire which consumed the insured property. The policy contained the following provision: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void [among other things]

if the subject of insurance be personal property and be or become incumbered by a chattel mortgage, or if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed." There is no evidence of any waiver on the part of the company, nor is there any evidence that the foreclosure proceeding above mentioned was instituted with the knowledge of the insured. The judgment was in favor of the plaintiff.

Conclusions of Law.

The subject of insurance in this case was the various articles of furniture, described collectively, the piano being one article of many covered by the policy. In order for a mortgage that existed at the time, or was afterwards given, to avoid the policy, under the clause above mentioned, it must have been upon the subject insured; that is, the entire property. The mortgages having reference to a part of the property, they did not defeat the policy. Insurance Co. v. Lorenz (Ind. App.) 29 N. E. 604; Insurance Co. v. Bills, 87 Tex. 547, 29 S. W. 1063.

But it is further contended that the clause provides for the policy's becoming void upon the commencement of foreclosure proceedings in respect to any of the property, and that it became void when the suit was brought to foreclose the lien on the piano, as stated above. There would be merit in this if the policy had provided for its becoming 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 if such proceeding is commenced with the knowledge of the assured. It is no concern of ours to consider the reasons the parties had for inserting the qualification. The policy is collectible, unless the insurer bring the facts of the case within the terms of the condition of which he claims the benefit. There is no evidence that the insured had any knowledge or intimation that the suit was to be brought, unless we must imply it from the fact that he was in default with his lien creditor; and this, we hold, would not be knowledge of the latter's decision or purpose to sue. A recent case in point is Bellevue Roller-Mill Co. v. London & L. Fire Ins. Co. (Idaho) 39 Pac. 196. Assuming that the clause was not intended to apply to insurance of this character (an open or shifting policy on personalty), which appellee contends it was not, and with the correctness of which contention we are not prepared to agree, we

must hold that defendant did not show the occurrence of the particular event stipulated in the policy for which it claims to be exonerated. The judgment is affirmed.

WILLIAMS v. JONES et al. (Court of Civil Appeals of Texas. Feb. 12, 1896.)

APPEAL-JUDGMENT IN APPELLATE COURT.

Where the facts in a case have been fully shown by the evidence in the trial court, judgment will be entered in the appellate court on reversal.

Appeal from Travis county court; D. A. McFall, Judge.

Action by H. G. Williams against J. H. Jones and others. Judgment for defendants, and plaintiff appeals. Reversed.

Hugh L. Davis, for appellant. Gardner Ruggles, for appellees.

KEY, J. The verdict in this case is not supported by evidence, and for that reason the judgment must be reversed. Appellees entered into a written contract with appellant by which they agreed to pay $60 per month for the Union Meat Market in Austin for a term extending from January 1, 1893, to August 31, 1895; and this suit is to recover the amount due under said contract for three months of said term, less $5 paid thereon. The proof fails to show that appellant had released either Jones or Redd, or that he had done anything that would estop him from enforcing the contract. The case appears to have been fully developed in the court below; and as, on the uncontroverted facts, appellant was entitled to recover, the judgment of the county court will be set aside, and judgment here rendered for appellant for $175 and all costs.

HALBERT et al. v. PADDLEFORD. (Court of Civil Appeals of Texas. Feb. 12, 1896.)

APPEAL-REFORMATION OF JUDGMENT-COMPLAINT -VARIANCE.

1. A judgment erroneous only in allowing excessive interest should, on remission of such interest, be reformed and affirmed.

2. Where a person who has contracted with the maker to pay a note bearing a higher than the legal rate of interest fails to pay it, a complaint by the maker against such person, alleging all the facts and seeking recovery on the erroneous theory that he is subrogated to the rights of the payee on the note, is sufficient, in the absence of special exception, to support a recovery on the theory of an implied promise to pay the amount which the maker had been compelled to pay for him.

On rehearing. Modified.

For former opinion, see 33 S. W. 592.

KEY, J. At a former day of this term we reversed this case because appellant recovered 12 per cent. interest on the $1,500 he had

paid Bush. 33 S. W. 592. On motion for a On motion for a rehearing, appellee calls our attention to the fact, as shown by a supplemental transcript, that he has remitted all the interest in excess of 6 per cent. per annum, thereby reducing the recovery to $1,500 and 6 per cent. interest; and appellee asks us to reform and affirm the judgment. This is resisted by appellants, on the ground that appellee's suit is founded on the Bush note, and not on an implied promise to pay the amount appellee had been compelled to pay on said note. We think the averments of appellee's petition, in the absence of a special exception, are sufficient to authorize a recovery on the latter theory. We therefore set aside the judgment of reversal, reform the judgment of the district court so as to allow appellee to recover only $1,676.25 principal and interest, and, as thus reformed, said judgment will be affirmed.

BOYD v. CROSS et al.

(Court of Civil Appeals of Texas. Feb. 12, 1896.)

TRIAL-INSTRUCTIONS-PROVINCE OF JURY.

It is error in an action for personal injuries to direct a verdict for defendant where the evidence is conflicting, and plaintiff has presented sufficient evidence to prove the material Rverments of the petition.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action by Hugh Boyd, as next friend, against Cross & Eddy and others. From a judgment for defendants, plaintiff appeals. Reversed.

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

KEY, J. Levi Williams, by his next friend, Hugh Boyd, brought this suit to recover damages for personal injuries. After hearing all the evidence, the court directed the jury to return a verdict for the defendant, which was done; and this instruction is assigned as error. We have carefully examined the pleadings and the evidence, and conclude that the assignment is well taken. We will not comment on the evidence, some of which is conflicting, nor intimate any opinion as to how a jury ought to decide the case. We merely hold that the plaintiff placed before the jury sufficient evidence tending to prove the material averments of his petition to entitle him to have it submitted to the jury. Reversed and remanded.

MISSOURI, K. & T. RY. CO. OF TEXAS v. MEITHVEIN.

(Court of Civil Appeals of Texas. Feb. 12, 1896.)

RAILROAD COMPANIES - CROSSINGS-ERECTION -NEGLIGENCE.

1. Where a railroad engineer makes no effort to stop his train, and thus avoid running

down live stock, the company is chargeable with negligence.

2. Where it is not shown that a crossing, and the gates which led to it, were erected by authority of law, a railroad is liable for injuries to stock, inflicted there by a passing train. Appeal from county court, Bell county; John M. Furman, Judge.

Action by M. M. Meithvein against the Missouri, Kansas & Texas Railway Company of Texas for damages for injuries to live stock. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Geo. W. Tyler, for appellant.

FISHER, C. J. We can affirm the judgment below on two grounds: 1st, because the appellant was guilty of negligence in not using efforts to stop the train. If this had been done, it is possible that the animal would not have been injured, or would not have been so severely injured. The facts in evidence warranted the inference that, if the engineer had exercised proper diligence when he discovered the animals on the track, he might have prevented the collision. The second ground on which the judgment may be affirmed is that it is not shown that the crossing, and the gates that led to it, were erected by authority of law. Sayles' Civ. St. arts. 4170a, 4170b. If it had been shown that the crossing and gates were erected in pursuance of the above provisions of the statute, we would have followed the case of Railway Co. v. Glenn (Tex. Civ. App.) 30 S. W. 845. No reversible error is shown in the other questions raised. Judgment affirmed.

FIRST NAT. BANK OF BELLVILLE v. WHEELER et al.

(Court of Civil Appeals of Texas. Feb. 12, 1896.)

MORTGAGE TO SURETIES-SUBROGATION-DEED IN TRUST RIGHTS OF BENEFICIARIES.

1. A note was executed to plaintiff with two sureties. Afterwards, the principal, to protect said sureties and the sureties on other notes, executed to them a chattel mortgage on certain cattle, and part of said cattle was sold, with the principal's consent, by one of said sureties, acting as agent for the others, and the proceeds applied cu certain notes. The principal and the sureties on the note to plaintiff subsequently became insolvent, and the remaining cattle were turned over to said sureties, who sold the same Held, tha plaintiff was entitled to be subrogated to the rights existing in favor of the sureties on the note to plaintiff.

2. Where a debtor 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 to the amount of their claims.

Appeal from district court, Lampasas county; W. A. Blackburn, Judge.

Action by the First National Bank of Bell'ville against W. E. Wheeler and others on a note. From the judgment rendered, plaintiff appeals. Reversed.

A. Chesley and Lewis Wood, for appellant. M. Fulton, for appellees.

FISHER, C. J. This is a suit filed October 22, 1892, in the district court of Lampasas county, by the First National Bank of Bellville, located at Bellville, Tex., against defendants, W. E. Wheeler, F. Bernhard, William Geist weidt, F. Kothman, and Martin Moran, all residents of Mason county, Tex. The suit is upon a promissory note for .$5,000, executed May 19, 1891, by defendants W. E. Wheeler and F. Bernhard, together with one C. Crosby, in favor of the First National Bank of Bellville, due 60 days, with interest from maturity. The note is joint and several in form, but in fact Wheeler was the principal beneficiary in the note, and Bernhard and Crosby were sureties. Crosby died insolvent, before the trial, and the case was dismissed as to him. In the year 1891, Wheeler was heavily in debt, owing numerous parties in large amounts, to whom he had executed promissory notes. There were 10 of these notes, including the note due plaintiff and here sued upon, amounting to $22,300, upon which defendants Bernhard, Geistweidt, Kothman, Moran, and said Crosby were sureties, that is, some two of them were sureties upon each note. On October 8, 1891, Wheeler, as the petition alleges, in order to secure the payment of these notes, including plaintiff's, and thereby protect his sureties, executed to them (the sureties) a mortgage upon 5,000 head of cattle. Wheel

er, Crosby, and Bernhard thereafter became insolvent; the cattle were turned over to the sureties and sold by them; and this suit, so far as defendants Geist weidt, Kothman, and Moran are concerned, is to subject the proceeds of the cattle, alleged to be in their hands, to the payment of the debts secured by the mortgage, and to recover from them plaintiff's pro rata share of such proceeds. The case was tried on November 26, 1894, and the court sustained a demurrer to the petition, in so far as it sought a recovery against defendants Geistweidt, Kothman, and Moran, and gave plaintiff judgment against defendants Wheeler and Bernhard for the amount of the note; from which judgment of the court sustaining the demurrer plaintiff gave notice of appeal, has assigned error, and brings the case to this court.

The petition, after averring the liability of Wheeler as principal on the note sued on, and that Bernhard and Crosby were sureties, and that all are insolvent, and that Crosby is dead, alleges that: "During the year 1891, and before that time, defendant Wheeler was, to a large extent, financially involved, owing numerous parties in large amounts, to whom he had executed promissory notes with personal security. That on, to wit, October 8th, 1891, among other liabilities, he was indebted indebted by promissory notes, upon which defendants William Geistweidt and said C. Crosby were sureties, to

the following parties, and in the following amounts, to wit: Emil Wahrmand, $3,050; August Wahrmand, $350; Adolph Wahrmand, $400; Louis Fisher, $300; Paul Harnisch, $900; T. D. Smith, $2,800,-total, $7,800; to T. D. Smith, with defendants Crosby & Kothman sureties, $4,000; to Ann Martin & Sons, with defendants Crosby & Moran sureties, $1,500; to F. Landon, with defendants Bernhard & Kothman sureties, $4,000; to plaintiff, with defendants Bernhard & Crosby sureties, $5,000,-making a total of, to wit, $22,300. Plaintiff further says that on, to wit, said 8th day of October, 1891, defendant Wheeler, for the purpose of securing the payment of his aforesaid promissory notes, including plaintiff's, and thereby protecting his aforesaid sureties from harm by reason of their respective liabilities on the notes above mentioned, all of which sureties (except C. Crosby, now dead) are defendants in this suit, executed and delivered to them (said sureties) a mortgage upon, to wit, five thousand head of cattle, which mortgage was duly accepted by the mortgagees, and properly authenticated and promptly recorded in the proper counties, a copy of which is hereto attached, marked 'Exhibit A,' and is made a part of this petition. Plaintiff further says that thereafter, to wit, to the February term, 1892, of the district court of Mason county. Texas, suit was brought upon the aforesaid notes described as payable to Emil Wahrmand, August Wahrmand, Adolph Wahrmand (sued upon in the name of Eliza Waurmand), Louis Fisher, and Mrs. Ann Martin & Sons, upon which judgments were obtained on, to wit, March 2d, 1892, in favor of each of the plaintiffs for the amount of their respective demands. Plaintiff further says that thereafter, to wit, March 12th, 1892, defendants Bernhard, Kothman, Geistweidt, Moran, and said Crosby, in order to carry out a contract of sale of 2,300 head of said cattle, which had previously been made by said Wheeler, for the sum of, to wit, $16,000, delivery to be made on or about April 8th, 1892, to one Felix Mann, as agent of the purchaser, entered into a written agreement, with the approval of defendant Wheeler, by which they selected defendant Geist weidt from their number, to act as agent for the parties interested in the proceeds of the cattle, to collect and to deliver said cattle to Mann, and receive the checks and money therefor, which was payable on delivery, and apply it to the payment of the aforesaid claims of the above-named creditors of Wheeler, which were mentioned in and secured by said mortgage, a copy of which agreement is hereto attached and made a part hereof, marked 'Exhibit B.' Plaintiff further says that defendant Geistweidt delivered 508 head of said cattle to Mann, in accordance with the contract, and in pursuance of his agency as above stated, which 508 head so sold amounted to the

sum of, to wit, $3,783, out of which he is entitled to a credit, as follows: Taxes on the cattle for 1891. $147.90; paid Grote, expenses taking care of cattle, $72.70; expenses of gathering, $139.30,-$359.90; thus leaving a balance of $3,378.10, arising from the sale of said 508 head of cattle, to be applied by him towards the pro rata payment of the debts secured by said mortgage. Plaintiff further says that, shortly after the appointment of defendant Geistweidt as agent as aforesaid, to wit, March 19th, 1892, defendant Crosby, being insolvent, disposed of all of his property subject to execution, by deed of trust, for the benefit of his creditors, giving preference to those who were his individual creditors, and thereafter, to wit, March 28th, 1892, defendant Wheeler executed a conveyance of all his property, real and personal, except such as was exempt from forced sale, to one J. C. Butler, as trustee or assignee for the benefit of his creditors, which trust said Butler accepted, and thereafter, to wit, the day of May, 1892, said Butler turned over said cattle, or what was left of them, as they run, to defendants Geistweidt, Kothman, and Bernhard, for the purpose of being sold by tuem, and the proceeds applied to the payment of the several creditors whose claims were secured by the mortgage, in accordance with their respective rights thereunder. Plaintiff further says that, prior to the turning over of said cattle by Butler to defendants Geistweidt, Kothman, and Bernhard, said Crosby, on account of his insolvency and transfer of his property for the benefit of his creditors, declined to have anything to do with said cattle, but left the cattle and the debts secured thereby to his cosureties, to manage as best they could; and defendant Moran, prior to the turning over said cattle by Butler, as aforesaid, having ceased to be interested in them, by reason of the debt upon which he was surety-that was secured by the mortgage, to wit, the Ann Martin and Sons note for $1,500-having been paid off in full, also took no further interest in the cattle; and hence all the cattle were turned over by Butler to defendants Geist weidt, Kothman, and Bernhard, as above stated. Plaintiff further says that thereafter, to wit, in the month of November, 1892, defendants Geist weidt, Kothman, and Bernhard sold the entire remnant of said cattlewhich, upon being gathered, was found to be, to wit, 2,219 head-to one R. R. Russen, at $6.00 per head, amounting to the sum of $13,314.00, which amount was received by them. Plaintiff further says that, by reason of the facts above stated, defendant Geistweidt, as it is advised, believes, and so charges, became individually liable to plaintiff for its pro rata share, along with the other creditors secured by the mortgage, of the net proceeds of said 508 head of cattle delivered by him to Felix Mann, to wit, the sum of $3,378.10, and also that defendants

Geist weidt, Kothman, and Bernhard, as agents for the creditors named in the mortgage, are jointly and severally liable to plaintiff for its pro rata share of the proceeds of the 2,219 head of cattle turned over to them by Butler for the benent of said creditors, and sold by them to R. R. Russell, as above set forth, amounting to the sum of $13,314.00. Plaintiff further says that it is informed, believes, and so charges the fact to be, that defendant Geist weidt, by virtue of his respective agencies above mentioned, has received much the larger share of all the moneys arising from the sales of said cattle, and has to a large extent misapplied the same, to wit, to the extent of $4,000.00." The petition concludes with a prayer for an accounting of the proceeds of the property that went into the hands of Bernhard, Kothman, Moran, and Geist weidt, and that said parties be retained in the case for that purpose, and that plaintiff recover such interest in said proceeds as it may be entitled to, or judgment against the parties that appropriated such property for the pro rata interest of plaintiff.

We have met with some difficulty in determining the legal effect of the instrument executed October 8, 1891, by Wheeler, for the protection of his sureties. The difficulty was whether it should be held a security for their benefit, for the purpose of securing the debts, or simply a naked contract of indemnity, for their benefit only in the event they sustained damages or loss by reason of the suretyship. But, viewed in the light of the facts stated, that the principal and sureties of the notes sued on are insolvent, coupled with the fact that a part of the property incumbered by this instrument was actually delivered to the sureties for the purpose of applying it to the debts for which the sureties were bound, we are disposed to treat the contract of indemnity, to this extent, as of the nature of a security of the debt, which the creditor may be subrogated to. When the principal debtor, as is the case here, executes and delivers to his sureties a mortgage indemnifying them against loss, and accompanies such instrument with a delivery and possession of property to secure it, it would be inequitable, upon the insolvency of the principal and sureties, to construe the contract one of personal indemnity to the sole benefit of the sureties, and relieve them from liability to account for the property they have received from received from the principal. Sheld. Subr. §§ 159, 160, 162, 163; Owens v. Miller, 29 Md. 161; Moses v. Murgatroyd, 1 Johns. Ch. 129; Pratt v. Adams, 7 Paige, 627. If the instrument was in terms a mortgage, for the purpose of securing the surety or the debt, in the light of all the authorities upon the subject, it would be held that the creditor's right of subrogation unquestionably exists, and that in such a case the creditor would have the right to enforce the mortgage for his benefit, thus, by subrogation,