that a building, erected as the one in question was, could become a fixture, and a part of the freehold, so as to pass by the deed of the owner of the land to a bona fide purchaser without notice." In this state, as in other jurisdictions, the policy of our law is that the title to real estate shall appear upon the records designated for that purpose, so that all may know in whom the legal title is vested, and appellee, having purchased in good faith and without actual notice of the trading company's mortgage or claim, was not bound to search the chattel mortgage records. He, therefore, took the engine in controversy free from the claim now asserted against him. See, in addition to the cases cited, Jones on Chattel Mortgages (5th Ed.) § 127; Ginners Mut., etc., v. Wiley, 147 S. W. 632; Taylor v. Lee, 139 S. W. 910; Hopwell Mills v. Savings Bank, 150 Mass. 519, 23 N. E. 327, 6 L. R. A. 249, 15 Am. St. Rep. 235; Binkley v. Forkner, 117 Ind. 176, 19 N. E. 753, 3 L. R. A. 33. We conclude that all assignments of error must be overruled, and the judgment affirmed. A statement of facts was approved in time. A supplemental statement of facts disclosing that the court in rendering judgment considered testimony admitted over objection, and without any ruling thereon, was made without any motion in the trial court to correct the statement of facts, but a motion was filed in the court on appeal for an order permitting the supplemental statement to be filed and considered as a part of the statement of facts. Held, that the supplemental statement could not be considered, for a party is entitled to know what is considered by the court, and to have an opportunity to preserve proper bills of exception thereto. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2572; Dec. Dig. 578.] 2. MECHANICS' LIENS 313 CONTRACTS-BONDS-LIABILITY. BUILDING A stipulation in a building contractor's bond that, if the obligee receives notice of the fact that any claims for labor or materials remain unpaid, he shall withhold payment from the principal of any money due or to become due until payment of such claims, is for the protection of the surety and does not empower the obligee to pay such claims as he sees proper to pay, whether there is liability therefor or not, and charge the same to the surety. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. § 656; Dec. Dig. 313.] Appeal from District Court, Bexar County; W. F. Ezell, Judge. Action by A. A. Brown against J. J. Lawler and others. There was a judgment for plaintiff against defendants, and in favor of defendants Texas Fidelity & Bonding Company and another, against defendant named, and the Bonding Company appeals. Reversed and remanded for another trial. Hertzberg, Barrett & Kercheville, of San Antonio, and Bebout & Penland, of Waco, for appellant. John Sehorn, of San Antonio, for appellees. CARL, J. Appellee, Dr. A. A. Brown, sued J. J. Lawler, Abraham Schroeder, and the Texas Fidelity & Bonding Company, alleging: That Brown, on August 24, 1912, entered into a written contract with Lawler by the terms of which Lawler undertook to furnish all labor and material and to erect and complete for Brown a two-story house in San Antonio; the consideration to be paid Lawler therefor being $4,250. That to secure the faithful performance on the part of said Lawler to erect and complete said building in accordance wtih the plans and specifications, Lawler, as principal, and the Texas Fidelity & Bonding Company and Abraham Schroeder as sureties, on August 28, 1912, executed to Brown a certain bond in the penal sum of $1,400, conditioned, in substance, that should he, the said Lawler, erect and complete said building in accordance with the plans and specifications, then the obligation was to be void, etc. That thereafter Lawler began the work of erecting the aforesaid building and partially completed the same, but on October 12, 1912, abandoned the work of erecting said building and refused to continue the job. That at the time said Lawler abandoned the job, Brown had paid him on said contract the sum of $1,348. That on October 14, 1912, Brown notified the Texas Fidelity & Bonding Company and Abraham Schroeder, sureties, of the default on the part of Lawler, and called upon them to erect and complete the building, which they refused to do. Whereupon said Brown undertook to finish the work of completing the building. That in doing this finishing work Brown expended the sum of $4,342.70, the said Brown claiming damages in the sum of $1,486.20, being the difference between the contract price therefor and what it cost plaintiff to complete the building. The Texas Fidelity & Bonding Company answered, alleging that they were not liable because the plaintiff had not been damaged in any amount, and denied that the expenditures made by Brown were reasonable and necessary to complete the building, alleging that plaintiff did not carry out the conditions of his building contract with Lawler, overpaid him, made changes in the plans, alleging that the sums spent by Brown in completing the building was greatly in excess of the reasonable value of said services and material, and alleging further that the suit was filed more than six months after the date fixeḍ for the completion of the work; that said Brown paid out amounts to Lawler, or to others for Lawler, for which no lien could have been fixed against the property and for which | ed by plaintiff Brown for labor in the completion the said Brown was not personally responsi- of the building." ble. Said Schroeder answered, denying all of the allegations contained in plaintiff's petition. Said Lawler answered, alleging changes in the plans and specifications after his abandonment, which increased the cost of the building and further alleging: "That he fully performed his contract, and that plaintiff refused to permit him to finish the building under the plans and specifications." The cause was tried before the court without a jury, January 6, 1915, and judgment rendered in Dr. Brown's favor against Lawler, Schroeder, and the surety company, jointly and severally, for $1,400, the amount of the bond, and for $20.24 against Lawler. The bonding company and Schroeder were given judgment over against Lawler for any sums they might have to pay. The bonding company has perfected this appeal. It was shown that it cost to complete the house, according to the statement of facts, the sum of $4,728.55, or $478.55 more than the contract price. Appellant therefore contends that the judgment is unsupported by the evidence at least to the extent of the difference between $478.55 and $1,400, the amount for which judgment was given. But while E. P. Behles, the architect, was on the stand, objection was made to his testifying to certain accounts and vouchers as to time of labor and amounts due therefor because it was shown that there was a foreman, and it was urged that he was the proper man to make such proof. The court thereupon said he would permit the witness to testify that he (architect) approved those accounts and issued vouchers on them. Behles then said he signed the pay sheets; that every laborer and carpenter signed his name to the amount shown on the pay sheets. Objection was made to the witness testifying that these accounts and pay sheets were correct, because the witness testified that he did not keep the time, but same was taken from the foreman's book. These accounts total about $1,010.25. After some further colloquy, the court said: [1] The above matters do not appear from the statement of facts which was approved by the trial court on April 29, 1915, and filed in this court on April 30, 1915, but appear from matters sent up to this court in which the trial court certifies that same took place as a part of the trial and same were considered in arriving at the judgment entered. This supplemental statement of facts has not been filed in this court, but a motion has been filed asking that we enter an order permitting same to be filed and to be considered as a part of the statement of facts. It does not appear that any motion was filed in the trial court to correct the statement of facts, or that any order to that effect was ever made, but it is sought to ingraft the same upon the statement of facts upon the certificate of the trial judge. That certificate says: "Counsel for defendant knew the papers were introduced, and still contends they were not, but omitted, but was of the opinion they were not counsel for plaintiff overlooked the fact that they were not copied in the statement of facts when he agreed to and signed the same, and the statement of facts had been so agreed to by the parties, when presented to me and was therefore approved by me without examining the same.' 99 If a statement of facts can be corrected by timely proceedings in the trial court, that has not been done in this instance; and the injurious consequences of such proceeding as this need no more concrete example than this furnishes, for the parties were cut off from the opportunity to further urge their objections or to preserve a bill of exception. Certainly litigants have a right in every instance to know what is considered by the court and to have an opportunity to preserve proper bills of exception thereto. As the record stands, the judgment is unsupported by the evidence. This makes it necessary for us to reverse the judgment and remand the cause for trial. [2] Another matter is urged upon which we will express our opinion, in view of another trial. It is contended that, after Lawler quit this job, Brown voluntarily paid a number of his debts for material, etc., which were not capable of being fixed as liens against the property, and that no attempt had been made to fix them as liens upon the property; also, that the property was the homestead of Dr. Brown and no such liens could have been fixed upon it for that reason. "We will just withhold the admission of those at this time. *** Mr. Sehorn: But, your honor, we have not got the foreman here. Mr. Hertzberg: We have him here. Mr. Sehorn: The contract specifies that Mr. Behles shall do those things. The Court: I am inclined to think it is sufficient, but will withhold 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 the vouchers copied hereinabove were expend- the same against the contractor's bondsmen. This is what the courts have held. First Baptist Church v. Carlton, 173 S. W. 1179; Slade v. Amarillo Lumber Co., 93 S. W. 475; Lonergan v. S. A. Loan & Trust Co. et al., 101 Tex. 63, 104 S. W. 1061, 106 S. W. 876, 130 Am. St. Rep. 803; 27 Cyc. pp. 304, 307; Am. & Eng. Ency. Law, vol. 20, pp. 491, 492. The bond contains, as a proviso before liability shall attach, this clause: "If, at any time during the prosecution of the work specified in said contract to be performed, there comes to the notice or knowledge of the obligee, the fact that any claim for labor performed or for materials or supplies furnished to said principal in or upon said work, remain unpaid, * the obligee shall withhold payment from the principal of any money due or to become due to the principal under said contract until the payment of such claims." It is clear that this clause was placed there for the protection of the bonding company and certainly did not clothe the owner of the building with the power to pay such claims as he saw proper to pay, whether there was liability therefor or not. The bond was given to protect the owner against the legal claims for which he or his property might become liable, and was never intended to clothe the obligee therein with power to go out and pay debts for which neither he nor the bonding company was liable and then charge that up to the bonding company. The judgment of the trial court is reversed, and the cause is remanded for another trial. FINNIGAN-BROWN CO. v. ESCOBAR et al. (No. 488.) (Court of Civil Appeals of Texas. El Paso. Nov. 11, 1915. On Rehearing. Nov. 24, 1915.) 1. APPEAL AND ERROR 79-DECISIONS REVIEWABLE-NECESSITY OF FINAL DETERMINATION "FINAL JUDGMENT.' Where a corporation sued two persons to recover title and possession of goods, which persons answered denying the allegations of the petition, and averring by cross-action that the goods were the property of another, for whom they were holding as bailees, such other and another person intervening, claiming the goods, judgment, making no disposition, either directly or by implication, of plaintiff's claim to the goods, being merely that it take nothing against an original defendant, and proceeding to adjudicate the rights of the interveners and defendants, could not be appealed from, since such judgment was not a "final judgment," which is the awarding of the judicial consequences attached by the law to the facts, a final determination of the rights of the parties resulting from the ruling made, from which alone an appeal will lie, except in instances especially provided by law granting the right to appeal from certain interlocutory orders and judgments. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 459-462; Dec. Dig. 79.] Appeal from District Court, El Paso County; Dan M. Jackson, Judge. Suit by the Finnigan-Brown Company against Leon Escobar and another to recover title and possession of goods. From a judgment that plaintiff take nothing against Escobar, and adjudicating the rights of interveners, plaintiff appeals. Appeal dismissed. Finnigan-Brown Company, a corporation, filed suit against Leon Escobar and T. J. Woodside to recover title and possession of certain hides and skins. A writ of sequestration was sued out by plaintiff, and the property seized thereunder. In due time the same was replevied by plaintiff. Woodside and Escobar answered, denying the material allegations of the petition, and by cross-action averred that the hides and skins were the property of Winceslao Garcia, for whom they were holding it as bailees, and asked 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 in the property, except a lien thereon for freight and customs duties paid out by him upon the importation of the same from Mexico, and asked that upon trial he be decreed a lien to secure the moneys so expended. Victor Martinez intervened, claiming a portion of the hides and skins sued for by plaintiff, and asked that he have judgment therefor or their value. Garcia likewise intervened, claiming all of the hides and skins, and prayed judgment therefor or their value. The jury, by its verdict, found that the Finnigan-Brown Company was entitled to certain of the hides and skins of the value of was entitled to $6,994.81; that Martinez $6,994.81; some of the hides and skins, valued at $3,895.57, and that Garcia was entitled to some of the skins, valued at $6,804.23. It appears from a recital in the judgment that the hides and skins were sold after replevy, and the proceeds thereof were in the hands of the Finnigan-Brown Company. Judgment was entered as follows: (1) That the Finnigan-Brown Company take nothing against Escobar. (2) That Martinez and Garcia respectively recover of the Fin 2. APPEAL AND ERROR 79-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 respectively. (3) That Woodside recover certain amounts against the Finnigan-Brown Company, Martinez, and Garcia; the amounts Where, in suit to recover title and possession of personalty, in which defendants and interveners claimed interests in the property, the judgment failed to adjudicate, directly or by 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, by the judgment of the court pronouncing 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. Win lees. HIGGINS, J. (after stating the facts as above). [1] 1. The appeal must be dismissed for want of finality in the judgment. The rule is that appeals lie only from final judgments. The only exception is in some instances specially provided by law, granting the right to appeal from certain interlocutory orders and judgments. See cases cited, 1 Michie, Ency. Dig. 394, 395. A judgment is not final so as to authorize appeal therefrom unless disposition has been made of all of the parties; all issues raised determined, and the case disposed of as completely as the court had power to do. See cases cited, 8 Michie, Ency. Dig., pp. 156 and 161. A final judgment is the awarding of the judicial consequences which the law attaches to the facts. It is final only when the decision or sentence of the law is pronounced by the court upon the matter contained in the record. Eastham v. Sallis, 60 Tex. 576. No complete disposition is made, directly or by implication, of the issue raised by the Finnigan-Brown Company's suit for the hides and skins. The judgment in favor of Martinez and Garcia only disposes of the proceeds of those the jury found belonged to them. It does not adjudge to the FinniganBrown Company the hides the jury found belonged to it, nor the proceeds thereof; neither does it adjudge the company not entitled thereto. Unless this be done, directly or by necessary implication, the judgment cannot be final. The hides having been sold and the proceeds thereof being in the hands of the Finnigan-Brown Company, it followed upon the jury's verdict that it was entitled to judgment for its share of such proceeds. But: "It is not enough to make a final judgment that we can see that the court ought to have ter, supra. Appellees also request, if it be determined the judgment is not final, that this court reform the same and make it so. This cannot be done. The defect affects the jurisdiction of this court, and we must dismiss the appeal. 2. In view of what has been said, it is unnecessary to determine whether or not it is essential to the finality of the judgment that judgment should likewise have been entered upon Woodside's disclaimer that the Finnigan-Brown Company take nothing against him. It may be said, however, in view of further proceedings in the case, that it is best and proper to do so. Gullett v. O'Connor, 54 Tex. 408; Mignon v. Brinson, 74 Tex. 18, 11 S. W. 903. In Gullett v. O'Connor, supra, it was held under the facts there presented, that it would be presumed the cause had been dismissed as to a defendant who had disclaimed and as to whom no disposition was made in the judgment. But upon the facts reflected by the record here it may well be doubted whether any such presumption could be indulged. Mignon v. Brinson, supra. Dismissed. On Rehearing. In the original opinion it was said: "In view of what has been said, it is unnecessary to determine whether or not it is essential to the finality of the judgment that judgment should likewise have been entered upon Woodside's disclaimer that that the FinniganBrown Company take nothing against him.' In this sentence the word "recover" should have been used for "take nothing." It is accordingly now so corrected, and with this correction the motion for rehearing is overruled. What the court did must have ST. LOUIS SOUTHWESTERN RY. CO. OF amounted to a final determination of the rights of the parties resulting from the ruling made." Land & Loan Company v. Winter, 93 Tex. 560, 57 S. W. 39; Trammell v. Rosen (Sup.) 157 S. W. 1161. [2] It is argued by appellees that this case is analogous to those authorities which hold a judgment final which disposes of an issue by necessary implication only; for example, a cross-action not expressly mentioned and TEXAS v. ASTON. (No. 7394.) (Court of Civil Appeals of Texas. Dallas. Oct. 16, 1915. Rehearing Denied Nov. 20, 1915.) 1. RAILROADS 390-INJURY TO PERSON ON TRACK-DISCOVERED PERIL. Where a pedestrian stepped in front of a train approaching a depot without realizing its nearness to him, and in attempting to escape fell, and his left leg was cut off by the wheels of the engine, and where the engineer, though he saw the pedestrian fall and applied the emer-17. APPEAL AND ERROR 1060-HARMLESS gency brakes, acted on the assumption that he ERROR-ARGUMENT OF COUNSEL. had not been struck and released the brakes, in consequence of which the train continued to move forward, and mangled the right leg so as to necessitate its amputation, the railroad company was liable, under the doctrine of discovered peril, for loss of the right leg. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. 390.] 2. RAILROADS 390-INJURY TO PERSON ON TRACK-DISCOVERED PERIL-KNOWLEDGE EVIDENCE. The evidence in an action for such injuries was sufficient to charge the engineer with neg ligence, where it showed that he saw plaintiff fall to the ground or lying on the ground in close proximity to the track and train, and knew before the right leg was run over that he was in peril, and failed to use the means at his command to stop the train and avoid the injury, though it did not show that he knew that plaintiff would certainly be injured unless the train was stopped. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. 390.] 3. NEGLIGENCE 83-DISCOVERED PERIL KNOWLEDGE. The doctrine of discovered peril has no application, in the absence of actual knowledge by the person inflicting the injury of the peril of the person injured in time to avoid the injury by use of the means at hand. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. 83.] 4. NEGLIGENCE 134-PROOF-CONJECTURE. Negligence cannot be established by mere conjecture without evidence of actual negligence or of facts from which it can be inferred. In an action for injuries from being run over by a train, argument of plaintiff's counsel to the effect that the reason why the engineer and fireman were not present as witnesses was because they could not explain why they did not stop the train when they knew that plaintiff had fallen in front of same, and that "the engineer saw plaintiff when he was down on the rail * **in front of the engine," if improper, did not require a reversal, where it did not appear that defendant was injured thereby. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. 1060.] Appeal from District Court, Hill County; Horton B. Porter, Judge. Action by Tom Aston against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Affirmed. E. B. Perkins, of Dallas, Walter Collins, of Hillsboro, and Scott & Ross, of Waco, for appellant. Shurtleff & Cummings, of Hillsboro, for appellee. TALBOT, J. This suit was brought by the appellee to recover damages for personal injuries inflicted upon him through the negligence of appellant's servants in charge of and operating one of its trains. By an amended petition filed May 22, 1914, appellee alleged, in substance, that he was injured while crossing the appellant's railway track in the town of Hubbard City, on or [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 267-270, 272, 273; Dec. Dig. about the 26th day of January, 1914, the 134.] 5. TRIAL 260-INJURY TO PERSON ON TRACK-REFUSAL OF INSTRUCTION COVERED. Where, in a pedestrian's action for loss of both legs from being run over by a train at a depot, the court instructed that, if plaintiff attempted to cross the track directly in front of the train, and the engineer did not see him until the front of the engine had passed him, that if the engineer then applied the brakes, and that if, after plaintiff fell, it appeared to the engineer that he was in the clear, and not in further danger, and the engineer used the care of a person of ordinary prudence, he could not be held to have discovered that plaintiff was in imminent peril, it was not error to refuse an instruction that if plaintiff attempted to cross in front of the moving train, and the engineer did not see him until the pilot beam of the engine was about even with him, that if it then appeared that he was falling away from the engine, and not in danger, and that if the engineer thereupon released his brake, allowing the train to continue moving forward, and in so doing acted as a man of ordinary prudence, he could not be held to have discovered that plaintiff was in imminent peril; the instruction. given being substantially the same as the one refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.] 6. TRIAL TIONS GIVING ONE OF SEVERAL. 263-REQUESTS FOR injury consisting of the loss of both of his alleged that at the time he fell the engine ran over only one of his legs, and that said INSTRUC-injured leg remained upon the track, and that the engine and tender and the trucks of one of the coaches passed over said leg; that in an effort to remove his body from the track, and in throwing his body and limb around, his other foot and leg, which up to that time had remained uninjured, was Where a party requests two special instructions on the same issue, and the court selects and gives one, the party cannot complain of the refusal of the other. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 662, 663; Dec. Dig. 263.] |