*1 Tex.) STRAWN HOUSLEY MERCHANDISE CO. s.w.) (258 <§=>317(6) 6.Evidence as value —Evidence hearsay. held not MERCHANDISE CO. STRAWN HOUSLEY v. (No. 9980.) against In materialman’s action for materials contractors, contractors, owner and where the cross-action, (Court Appeals sued the owner extra ma- of Civil Texas. Ft. Worth. of labor, testimony April Rehearing terial tractors of one the con- of Denied 1923. 1923.) as May 19, to the value of the extra resting and labor not inadmissible because part appear- reports, on foreman’s where it Frauds, <®=>33(l) 1. of statute —Promise ed contractor was a contractor and debt, promisor’s another’s subserve made to expert large experience per- builder with purppses, own not within statute. sonally part, all, saw not object purpose Wherever the main of made in construction and in material fur- promisor is, not to answer for but nished, expert qualifying thus him an as purpose own, to subserve some of his his opinion entering as to values his ac- into promise though statute, within the promise extras, particularly count for where may another, form the debt of testimony weakening testimony. no although performance of it may incidentally extinguishing the effect Appeal Court, Pinto District Palo liability of another. Keith, County; Judge. J. B. (2) <§=>23 Frauds, —Guaranty 2. statute Strawn Com- Action Merchandise account contractor with materialman pany against Htoúsley H. J. and others. condition that latter would furnish material plaintiff, From named buildings complete held not within owner’s appeals. fendant Affirmed. statute. guarantee Where owner Pannill, Stephenville, Chandler & future account of his contractor Sanders, Strawn, appellant. P. C. materialman, with a terialman would furnish on condition that the ma- Ranspot Penix, & Ritchie & Miller ma- such additional appellee. Perkins, Wells, all of Mineral complete terial as was build- ings, purpose doing and in so owner’s main CONNER, and and interest bility intention was subserve his own C. J. Strawn Merchandise discharge rather the lia- Company, corpofation, instituted suit promise contractor, of his was not day May, 1920, 24th district statute. against ap- county court Palo Pinto pellant appellees H. J. and the Frauds, promise 3. statute of <©=>159—Whether composed Mjoore, a firm of B. J. discharge towas another’s or to sub- Sr., Jr., recover an purposes promisor jury. serve held for the alleged itemized and balance In a ease where the nature and effect $3,291.30. plaintiff account of verified alleged promise on, discharge relied whether made to was the the defendant liability, purposes another’s or to subserve the Strawn, town of owner of certain lots Tex., promisor, depend does not alone aat stated in 1919 language used, terms anid jury. into a written contract with entered for the erection two Frauds, <§=»I58(4) property; buildings held brick on said —Evidence finding support provided that the contract it was terms of promisor’s pur- debt was to subserve own should for certain labor pose, guarantee past and to as well future specified, Mtoore Co. were to indebtedness. other furnish all material and labor and were n In materialman’s guaran- action owner’s to erect and ty indebtedness, of contractor’s evidence held plans cordance the contract support finding, taking out thereof; specifications made a frauds, the statute of was to plaintiff (cid:127) and delivered the sold purpose, subserve the to owner’s and was specified charged guarantee past in the account and material the same well future indebted- n ness; being in “guarantee” the use of the term books to “Moore day conclusive job”; with- Housley that about 9th statute. September, had been account which arrears, charged Moore & Co. was Account, <§=>12 action on denial —Verified make further refused to legal validity account render defend-, verbally sales assured it inadmissible. he would ant see that Where verified denial of account of mate- arrearages as all as well future deliveries deny rialman accuracy owner whereupon for, of material would be items but claimed that rather material as needed the com- additional pletion by Housley did not constitute a debt had been furnished frauds, such defendant under the statute of verified, looked which thereafter was not inadmissi- ble payment. alleged because of the verified denial. Key-Numbered topic <gs»For cases Digests and Indexes see same and KEY-NUMBER 253 S.W.—43 *2 (Tex pleaded general by the a denial to the defendants’ plaintiff to so do induced pay, answers, specially pleaded and so and that to and statutory Housley agreed pay fixing lien time to forego of a indebt- also to said indebt- edness of Moore & had to sell against property secure Co. it refused to Co., charged estopped the further materials to Moore & which edness, it was which Housley, Housley to a- was known and that he from denial defendant charged upon represented plaintiff plaintiff that & that further Moore The debt. require Housley of Moore Co. erection of due them had failed sufficient funds said pay protection buildings and benefit said said ac- a bond & Co. materialmen, promised plaintiff as count and plaintiff that if would and of the carry law, by by such required furnish such additional material' and and reason completion account. said accounts liable said he became failure The the buildings Housley alleged buildings pay guarantee after that soon that plaintiff would further might said beginning construction of and would amount unpaid by account, defendant remain and & Moore Co. the on said and by company, guaranty con- that mutual in reliance such and and said plaintiff them between sent, 'furnish the the contract neces- rescinded whereby buildings sary whereby additional of said materials erection Housley deny principal estopped & Housley Moore averred promise and became Housley, estopped agents and servants that 'it was not and Co. but binding Housley writing. liable on him consequence became which because not Housley defendant further denied under account. by Housley gen- upon by plain- oath answered the account declared The defendant plaintiff’s special exceptions following form, tiff in the wit: eral denial, specially by petition; general “Now comes H. J. one of by plaintiff was on relied fendants in the cause, respectfully the entitled above numbered frauds. statute of answering violation oral and for himself alone would way pleaded Housley further show that the account sued Defendant of on plaintiff alleg- defendant, were made & this Moore cross-action goods charged pur- that the therein times insisted ing at all he had defendant, chased this de- being out, carried them between the contract thereon, fendant is not liable and that said ac- completion of the build- before but that defendant, count not the debt contract, ings & Co. abandoned Moore Go., composed debt Moore & firm expended by appellant amounts Moore, Sr., Moore, Jr., of J. B. and B. J. together buildings, completion as said account to this defendant paid Co., far ex- & Moore with amounts or true either whole or in ready verify.” contract sum which ceeded the agreed this he & Moore May 24, on The cause came for trial on alleged buildings. It was struction court, having and the after overruled & Moore Co. labor and that material Housley’s the defendant ceptions demurrers and ex- $14,047.32, a motion in his behalf for complete quire $385 sum of additional instructed verdict after the conclusion contract, according buildings evidence, jury up- submitted the cause to a indebted & Co. were Moore special issues, which, together sought with the $1,288.60, which the sum thereto, answers follows: recovery Moore any, might sum, as he “(1) if Housley agree further liable Did plaintiff, plaintiff’s general manager, Mackey, Strawn Merchan- on. day September, 1919, about the 20th Company. dise guarantee he would count the future and general & answered demur- Moore Co. owing of Moore & Go. which was then denial, specially rer, general plaintiff the erection of for material which had been buildings begun soon appellant were buildings used for said Hous- many changes so therein ley plaintiff condition would furnish they longer acted under no that ’ Moore & Co. such additional nec- erection of the but acted essary complete buildings question? agents buildings only Housley, whereby the defendant Ans. Yes. alleged Housley agree “(2) contract was Did the defendant plaintiff’s general manager, Mackey, abrogated; that materials sued day September, 1919, 20th about the that he (cid:127)plaintiff purchased and on behalf guarantee past-due account of Moore agents, them as his and for pur- material which & Go. for Moore & Go. had Housley agreed responsible. become plaintiff chased for would the alleged Co. further materials furnish supplied making specified extras question? Ans. Yes. was indebted balanc- “(3) it or not Was the intention of accounts between them in the guaranteed sum purpose account when he prayed $561.05, judgment. for which Co. to of Moore & he did plaintiff by supplemental petition to subserve his y. Tes.) STRAWN MERCHANDISE CO. HOUSLEY (253 !.W.) discharge Housley should have and than to recover his co- interest rather extinguish defendant,. Moores, any Co.Y and all sums so Yes. paid by Ans. less said sum “(4) find from What sum of rendered, From $694.90. *3 agreed of ma- value the evidence to be the terial & Co. Housley appealed. defendant the has aione bought Moore defendant of controlling question, presented In vari- Septem- Housley buildings after the assignments forms ous the of error and buildings? complete 20, 1&19, Ans. ber propositions appellant, of is whether the $1,570.65. upon of buildings which you “(5) in If find that the appellee Company the relies, Strawn in the Merchandise are not accordance with Housley & then Moore tract between inis violation of the statute of frauds ? money you furnish of do find the sum subjects, what any, But few in the law have necessary complete same? labor greater variety occasioned of discussion Ans. $25. and determination arisen than has in ef- the you money aggregated “(6) do sum of What fort to construe the of frauds and Housley paid in advance find that defendant properly apply the in thereto circumstances the of the con- under terms to Moore & Co. particular to, cases. The in statute referred in for and into between them and agreed entered tract applicable action, in far as the changes in the erec- behalf tion of said provides building? $13,433.'60. that— Ans. “(I) find to What of sum brought any “No actio-n shall in of labor materials and reasonable value any following cases’, courts in unless the benefit defendant Moore furnished promise shall be agreement upon or brought, action which such Housley to defendant make or memorandum some upon agreed build- the construction in of, to be signed by writing party shall inbe question? $1,653.50. ings Ans. in charged therewith, person or some Housley “(8) on or about Did defendant * * * lawfully him thereunto authorized: agree plaintiff’s September ager, Mackey, man- with “(2) charge any person upon promise To only materials debt, miscarriage answer for the default or by plaintiff Moore & thereafter furnished Co. another.” sum Ans. No. $700? to exceed plain- “Special Requested 4. Did Issue No. present case, briefly In the and substan- Company, tiff, take forbear Merchandise Strawn tially stated, the evidence al- shows that as attempt necessary steps fix leged by appellant Housley lien fix materialman’s enforce controversy property amount was owner certain lots in the the located unpaid on Strawn, Tex., balance due which he desired erect consequence September 20, reliance to of and buildings. two brick In furtherance of that Housley’s agreement upon defendant end, employed building firm Moore guarantee payment amount of the said contract, who, & the terms of the agree? Yes. Ans. did so were to furnish all labor, supply materials Requested “Special After Moore Issue No. 5. exceptions certain the construction entered Co. notice, price $12,500, Housley controversy, did defendant cent, per of which 80 each charge erecting solely week’s estimate work take in ac- of erected material furnished and labor done same was paid weekly. orders and directions. cordance with Co. Moore & contracted with An®.Yes.” appellee corporation mate-' rial the intended for use the construction of verdict, Upon incoming the court buildings, Co., by for which Moore judgment plain- rendered a tiff, favor appellee, terms of its contract were to Company, against cent, Strawn Merchandise per each week cash 80 severally jointly defendants prices charged during for material used principal- interest, $3,550, sum -to arrangement, week. Pursuant judgment. judgment further date recited & obtained material and Co. for several weeks appeared cent, the court paid per in cash the 80 to which Housley had his codefend- the defendant appellee was under its contract. entitled sum of $694.90 ants account the and for their payments by After default Co. due from him'to total amount less an indebtedness for material had including them, balance amounting $2,700, approximately accrued appellee’s manager, plaintiff, in event therefore Mackey, a Mr. directed Moore, Sr., B. B. fendants J. J. yard foreman to refuse further deliveries. Jr., satisfy pay off amount should What occurred detailed Mr. then is thus they plaintiff, then should re- decreed Moore, Sr., Mackey, and. Housley cover of codefendant said sum Housley. Mackey Mr. testified: together $694.90, with interest thereon refused deliver Moore “We cent, per per of 6 annum Feb- rate Housley job, material on this about the more might ruary sue, 1920, for which execution is- September. 14th 15th event “Following time I on called satisfy should off and Mr. at the store. I I Mr. Moore ’ thing then said defendant had not favor delivered a time job job bill, get carry delivery him to until stopped of material completed; we could not and Mr. Moore called the me. There Mr. week; impossible to do that. would be there at cent, week, per by Housley to I had me Mr. relative between time this account. at and that was said there basis As to what cent, me; per time, date, which to of the labor on that I will state that that was Mackey right, 20th, September I and and material. If Mr. came in remember Mr. give going dol- it would take asked how much material he was thousand me told me job; time; him on how finish an estimate owed lars account at in, job, thought $2,800. $2,700, much it would to finish the I take He came with between thought I Housley. got about $900. told I Mr. Hous- He a check from way said, date, ley then ‘There is on that dollars thousand *4 says, any me, which I will furnish more material talking told he we he while Housley job, pay you going ‘Now, Mackey, to thou- and that is for Mr. to I am Housley like account.’ He asked if would I he and would sand on this dollars Housley would, any Moore you the do it. he ‘that more until bother Mr. for job not to me job pay plenty it,’ ‘Well,’ says, completed.’ will had and that in the I ‘that is you $1,700 $1,800, owing ‘Moore had considerable extras had and me between leave Mr. lars.’ Housley you Moore, pay been made that settled Mr. thousand for.’ after me the dol-. says, will statement at that time. That thousand dollars much more material I ‘How paid day. Mackey job?’ says, will Mr. ‘it was and I down I don’t Mr. He it take together. more, probably.’ left there We went there He $900 $800 take just ‘Well,’ said, street. the bank on the same side of the guessing run ‘that will it. I at said, 1 up National Bank. $2,700.’ ‘Mr. reckon is the Citizens’ I the account around any agree only way further conversation occurred Moore, think let this I can regard completed with- between- us to those matters.” job ini run on until count out money any Mr. account is more point: Appellant Housley says, on this testified guarantee the account.’ I said, you Housley, and that’? will he ‘Mr. say this “I could the exact date that along coming ample said, has He ‘Mr. Moore ‘Yes.’ time,' guess, occurred, along I some but it said, everything.’ I care him to take just part September, after the latter you any well, ‘Very I bother won’t more I the thousand dollar cheek to advanced him job completed,’ I Moore didn’t. Mr. Company pay Merchandise for ma- the Strawn trans- then and there from the was eliminated owed them. terial claimed he however, We, the sake of action. first I “As to when the just venience, go on books let account Mackey any rep- one conversation with Mr. resenting regarding job.’ was, C'o., like it ‘Moore & Company, the Strawn Merchandise Mr. statements to “After I mailed all account, I will state that this Moore the account out but made paying thing wasn’t knew that Moore first I always just I like we had done. would Go. Mackey I met on the street his bill was when those additional materials ex- furnished have you ‘Housley, says, day, wish I one and he agreement. Housley’s cept I would for Mr. you get Moore, him see can’t would see to make and if any additional materials Moore furnished have big,’ payment bill; getting it is on his * * * Housley’s agreement. except Mr. I Mr. Moore him the first time saw X told agreement “'Following I tes- have this paying him, him I and that was I would tell that, furnished, not, after I I did tified about every week for the material. payments until demand for make the me about made a statement “Moore had * ** job finished. bills; brought he one those material taking steps nec- did refrain from “We Moore, said, this bill I the bills me. ‘Mr. relying buildings,- essary to fix a lien on these you your pretty big, paying getting lum- Housley. agreement with Mr. That you every to do?’ like ber bill week why any steps, because I was figured good we didn’t take every said, ‘Yes, paying week.’ am I good. him I his word was considered says, getting down know behind Moore ‘I I am money, good word, said, I been col- ‘This have there.’ He lecting, why down in writ- take it didn’t pay freight on other it to I need Except ing. have Moore, shipped said, I ‘Mr. I here.’ n fur- notice of materials him written ‘Well, says, you ought I let’s it.’ think county nished, filed Mackey,’ up go I and see Mr. lien.” office to fix a clerk’s said, way up there, right.’ said, our ‘All On you dollars ‘Can advance thousand me testified, part: building?’ did At I not owe that time Friday paid Mackey there, store, I had and on contract. saw Mr. “We at up night remember, As went before that occurred. conversation as I can as well occurred goods dry there, promised thousand right I advance him a up door in the north at Mackey. department. met Mr. went on dollars. We I could not dry got talking building, about Mr. but it was location in Mackey, says, can goods department ‘Mr. I Mr. Moore Mr. account. somewhere. standing you dollars; together, will that be sat- and we were and X went thousand isfactory says, during am together while?’ He T little that conversation. All dose building get Ranger, taking building a I don’t in that- conversation of us were get building I half com- there until extent. to a certain get paid thing pleted, and I will come in that that there I first that was said when “I fhink the Mackey Mackey up I settle this bill.’ Mr. Mr. down here and was that told conversation I dollars, said, X dollars on ‘I will him a thousand take the thousand like Tex.) Texas finish the 20 Tex. 329: performable only Mackey, would like nish debt defendant within not Mackey made vital. finish will it thing ute. few minutes I accurate actual or a order.” with liams’ Saunders bility § been ley about that in this form not debtor ation In tice dise verdict tinues liable within the to a when a accord with a well-settled testimony the absence of right, es from his can’t sideration for way: Williston, “(5) Whether “The most “(6) “(2) “(4) “These tests “(3) “(1) made the remark to Mr. 462), “(7) surety; Does the evidence so detailed [1] The is not. agree is to promise will stand for it.’ himself Hemphill Mackey to within building?’ When he made that Company get promise approval of another suggested by lie says; I you furnishing of the statute I like them.’ decisions, promisor A A take?’ the The A test A is determining, enumerates are not identical.” promise one, that amount how got promise promise presumed knowledge promise been received within buildings? in his work on Contracts anybody .out of to have operation most favorable $700 test, party governing or to test kinda express promise.’ is so, stand commonly suggested tests are: is is through, and he about the case of Lemmon in v. jury, is laid Mr. any liability quoted'in never looked obviously overlap have the whether to what Moore whether property, except Reports, which it however, approved by is thus worth,’ remaining the statute. secure is which which amounts new and beneficial consider- which on default promise stopped for this else. within, Mackey says, promise different the courts to within of the statute of frauds? getting statute; me that depend distinction is the said, I of material Mr. HOUSLEY v. STRAWN down up which I Mr. Moore does rest of haven’t is I will thought is debt of stated must, recent debtor’s own debt and he making Mackey, the is for another. promisor ‘It lumber, liable, statute; otherwise a new in terms to gain is it the ‘not on the minute, Strawn submitted is rule, adopt some lumber tests form a says, lumber statute. but otherwise will take within bring pay you.’ a note to A appellee. n ’ on the got English another. behind to Mr. statute. an such as aris- about finished, one promise coupled support party me ‘How says, promisor is a I other con- course, said: T Chief Jus that (volume 1, statement, determine enough advantage substance Housley is, Merchan- says, guaranty principal will creditor, purpose applica- fact of finally, it this the to the Hous- some- finish much ‘How cases Box, I stat- Wil- case in a con- ‘Mr. fur- you 635, J.W.) (253 the also ‘All the American Freehold Land not He did & is if App. 390, Brown (Tex. Civ. 631; Blakeney ney Rep. 291; McCreary mination of whether the Emerson jury, is within the statute. See Davis v. Patrick. Southern tinguishing nish such additional material as was neces Co. v. Bank pellee’s general manager 141 where the nature Civ. count Moore jury ject C. test relied guaranty being applied many subsequent debt interest the the issue ports See Muller v. of it value terms and think, Ency. sary doing antee not Crawford v. though may other, own, mercial Co. tinguish evidence fails.to clear construction of There when cient were made MERCHANDISE CO. “That The test so stated [2, By referring ^[4] L. Ohio, U. App.) approve adopted by 101 S. 3] on time no further demands p. may incidentally It deliveries of Law is S. verdict Nalle the issue under was to subserve wherever Pac. 655. 45 Ohio St. cannot be rather v. bind one 164 W. &Oil 479, discussed, and 231 S. W. 157. Other authorities promisor is, 875; language used, Slater, evidence Civ. W. be seen that the does par. v. such Edison, by the material 12 subserve some (2d Riviere, him promise 875; Refining v. Midland, etc., Co., were refused to Moore & Co. App.) than to the Texas decisions in form Stewart v. App.) Sup. purpose support his test Ed.) 22 How. Civ. Nalle, said, 156; Enterprise Trading for the future, although-the performance 239, 45 Tex. Civ. Spencer depend v. Van jury. jury undoubtedly sup 143 S. W. buildings; of Moore & Co. The Ct. of another.” the condition of such effect not to answer for *5 App.) 906; favor the effect that after discussion. promise Co. the that he would appellee the 13 N. E. a discharge 58, been Tex. 28,16 of the furnished in the Mortgage but the guide the effect of purpose payment Texas decisions. 229 Am. & Stokes, jury answers McGowan Com v. Tex. Civ. think, Supreme 167 S. W. alone & Co. Nalle Hook, 35 after the the verdict of the case, with the Cooper (Tex. question, adopted intention 991; L. relied L. Ed. 856; would fur in á deter found that statute, 80; App. 635, 41 upon Ed. payment It seems past v. 177 Mo. 35 Tex. promise is 46 Am. applied Blake Co. 25 Great Mont. Court in so guar upon here, suffi App. Eng. 826; 360; 296; the ap- an- ex- ex ob- ac al- on R. v. (Tex, “Q. connection did he in that furnished What for material accounts bills continuing haul- about A. Patrick presented which were requested A. He ores? ap- witnesses one testified to requested hauling tinue ores. favor, pellee’s him. denied him do it. difficulty, question presenting perhaps, some “Q. response In Mr. Davis to appellant’s promise was sufficient is whether say? quest, He said Patrick A. what Mr. paying the indebtedness to bind him for him to to Mr. Davis if he would $1,700; work, amounting Davis to some he would continue paid.” see him whole, he would but, that he is so we conclude “guar- Ordinarily, agreement bound. Brown, Schoenfeld v. 78 Ill. is a case of another or “to stand for” the debt antee” furnishing where contractors unaccompanied would, facts other building houses entered into a contract with import contrary conclusion, leading ato another and the furnish certain materials use statute. But the latter, part, furnishing a small aban- In such terms are conclusive. Willis- doned the contract on account of the insol- said, among Contracts, § ton is vency principal contractor. The own- things, that— prom- premises thereupon verbally er of the original charge was to “Evidence that balance, ised to ma- and other other, though strongly tending person prove or the terials were furnished on faith of such primary intention that creditor’s promise. person, obligation should rest balance conclusive; called was not within the statute fact that a nor parties guaranty conclusive frauds. though original, is the very A similar case Clifford meaning will be word natural Luhring, Ill. 401. There the. controlling citing nu- there are no if merous cases in facts”— house, employed party to build note text. *6 on his-failure the who was sub- contractor, made known the to the de- fact Cyc. p. 1401, par. is in 2: It 20 fendant and informed him obliged he be would general in nature contract not “The quit work, and the defendant conclusively any par- determined the use plaintiff thereupon go told on with his ticular form of words.” part work and him. of the would 483, p. undertaking See, also, par. 25 D. held defendant’s was R. C. 65. was not collateral but original one, Patrick, an v. 141 and not In case of Davis S.U. frauds, Sup. 58, object 12 L. Ed. within the statute his main Ct. 35 Su- preme applying being an Court of to subserve interest his own. the United States adopted by Morrow, In Brown v. Ark. 187 S. the Texas the test courts Supreme Arkansas, mine, Davis, in in a W. who interested Court was disposing case, say: plaintiff had in- this liable Patrick an in that had accrued latter debtedness promise is an oral determining whether “In hauling ruling ores mine. collateral, par original ties at the time it was made must be and the all should be taken into intention testimony: predicated upon following regarded; determining in promise, such intention words of Patrick) (an (the “I showed parties, the situation of the past-due transporting services count ores) transaction, attending the the conditions get- and told him I was Davis not Mr. Millsaps consideration. money my my ting was account Davis Nixon, 435, 144 Ark. of this S. In W. personally right he would be rule, application the Contracting Robinson Son money, sponsible go to me I for me City Bank, v. Twin 103 Ark. doing little been draw as on as had 219, bal 523, the court held that a 146 S. W. ver get money along I could principal contractor, that he running expenses, he would men and money a certain bank for ad reimburse would money.” got every my dollar that I see checks, a subcontractor vanced- completing issued the subcontractor plaintiff’s cashier, who work, not within the statute gives conversation, this as his recollec- prin reason was that the frauds. The tiofi of the conversation: beneficiary cipal was the contractor “Q. subcontractor, Da-Mr. In conversation state what received work done being responsible it, A. S. Patrick turn was liable to vis said about subcon A. Patrick work done He stated- to'Mr. him.” account. tractor for for that personally my presence be re- that he says: sponsible ‘You Edison, by that account. case of Crawford v. In the mine, practically know, Al., I own this but Supreme Ohio, cited, Court hereinabove get money what can we must scarce agreed with C. to furnish one S. the materi- making says, are mine.’ He out of the ‘We specified him house for a al build improvements,’ large expenditures and he employed put roof, E. amount. S. you you ‘you says, want shall all the stip- troughs, pipes for a eave and conductor expenses, your must men but sum, to be when the work should ulated balance, I are will see that wait for completed. paid.’ When E. done about two- lee this, donment pel only the clined to pellant brick height be glass, cement mortar contract and constitute changes by changes owner servants or tween is also as to amount to an abandonment of lee’s formed C. that because Tex.) evidence and verdict of found, frauds. indebtedness cident eration for additional and determine appellant’s thirds of and or was pleted The evidence bility cannot be the amount C. It was held that ise was subserve undertaking object appellant conclude, Co. were charged and terms C. and accordingly completed work, own edly stances applied completion debtedness of As to It So told E. to inappropriate forebore to provided fact and left'the it follows the further fact benefit, pleadings interested tends to work, here, covering ; was unknown unless of his seems, “guarantee” liable is liable evidence, made at adopt appellee’s from the indebtedness interests of doors, without further applied material and the contract with Moore & Co. such defense appellee’s agents. Nevertheless, may obligor etc., collateral, but Housley’s that material furnished issue tending and unaffected' country, to insure go finding of Moore Co. as a he wds to he it, could and without work, show that instead think, specifically fix a of the on with his extent of the were changes behalf of and would width of it is his appellant’s request whole, in his favor. having questions consisting principally original contentions that from the facie and Moore & Co. as his to contractors be or “stand ground materialman’s —a wihout estoppel, payment. HOUSLEY v. STRAW undertaking Co.’s but minor incidents of unnecessary to answer of lime water payment & was his effective roof, ground thus appellee’s show, abandoned contention that in the fact that view. released financial statute windows, and other circum- the case within job, paid. part passing plans, jury discussion, raised having paid substitution of at least a *7 accomplish jury appellant we not conclusive. that it rests material fur- estoppel, and that the Co. as the for” the received as an of an aban- him for E. for the debt one, are not in- an as the real Hence, it due Thereupon to furnish to discuss C.’s as shown of frauds statute manager; by appel- lien, &Moore used responsi- undoubt- him. that then charged size of for his consid- in the was a contractor and appel- ceptions an in- estop- merous, prom- work, them, more com- that which the account was made that jury and but job, dis- in not the (253 ap- the been we was be- in- failure in- E., of his E. Hess v. to of of that S.W.) into weaken larly countervailing proof tending furnished, large experience, entering made in labor sued later to supporting charges hence harmonizing inCo. the entire sented to tion as a him er sent to 162; and appellant’s contention must be overruled for the reason dence in seen the ment tice strike nished appellant’s 5623a, MERCHANDISE ^[6] debt as ^[5] these appear admitting effect, Moore & Co. expert objection, foreman, several items holding made no denial briefly. material was of the therefore it was require subsidiary questions at many forwarded denied Appellant evidence Appellant in view Williams v. cannot tending earlier out their Rev. least made Denman items were into his account for reference nor did also to Moore’s verified appellant. construction him, that it does Moore & thus record, against appellant, value of part, instances court in testimony bills of determination which Statutes assignments under, cross-action. with his the contention appellee’s it further part appellant’s the account testimony of its debt and there was our However, qualifying him, also insists that bond as constitutionally alone. show that the items of the accuracy as it (Tex. the fact that Baldwin constitutes at least to the verification CO. testimony delivered, oath. courts But we think the out Co. in the rests reports exception relating overruling taken, the extra material and assigns greatly So appellee’s office, accuracy. 1918, Sup., cross-action, opinion deny main contention that Civ. verified was, defendants Moore expert predicated upon appears account, all, that, Moore. of B. Moreover, required several promise. testimony opinion, triplicate slips While it is made when it was .T. being made App.) accuracy the court erred modified error to of the extras, in the personally and that as to up, additional one of which on the values beginning not constitute we presented builder they' the material we account the several there is no propositions accuracy that Moore made. See frauds Com. Special Moore, Sr., we will and anoth that it 218 S. true, think obligation motion rested think, Nor can relating particu light view of require- are rather, bewill quoted article there prima minor App.) from with thus over saw pre and evi nu ex* ex his no- ac W. eration, necessary binding every excep- element in planations-of judge, trial think, go contract. is also having It to be noted that relevancy, to the we tions cision different Brown on testimony weight its rather ground relating and but brief notice assignments admissibility, men- frauds. We submit that accordingly cases overruled. to are easily distinguishable tioned questions are not he no- Other incidental may true, us. finally before be and doubt- ticed, appellant’s assignments we conclude true, may found, less is perhaps cited, propo- that cases be and are of error and distinguish- easily he overruled and the sitions must conflict; able even a well- affirmed. arising established cases doctrine that Rehearing. On Motion by the the statute of frauds are determinable presents particular case, motion Counsel circumstances of the rehearing, alleging overrul- originally error in cluded, con- the one now us we before assignments yet think, contained numerous the circumstances urges brief, much force warrant the conclusion reached the court plausibility appellant’s our conclusion promise below that substan- tially erroneous statute of frauds issue a direct one and not collateral to the obligation resting decisions the numerous conflict with the firm of Moore including City cited, Bank, appel- National Williams v. & Oo. It is borne in mind that Norman, and Porter lant’s time of his court, unfinished; and which 136 W. both com- that he desired their suggested have overlooked pletion purposes; must we for business “on discussion positively without overrule intended to furnish refused feeling thereupon sentimental material; off- account of theOo. regret spring.” agent that the counsel so appellant upon We able a conference intimating and and ethical promised himself the appellee company done injustice entertaining professional expressing needed. for such additional material as he thought embodied do, regardless form quoted. words, above insists necessarily words which are distinguished from original us cannot pointed case before those trolling, out our cites. referred cases apparently direct, absolute, opinion, was hearing in fact considered onBut least, we think collateral. At the evidence many others, and cases as well our own concluded, a conclusion. warranted such Thereafter the they erroneously, however pre- account for material furnished undertaking distinguishable. And were discuss and payment. sented There alone for distinguish cases appellant acknowledgedli- was evidence that subject unprofitable hopeless, ability thereon; no further demand was are not to for must conceded although again Co.,&Moore easily But will take reconciled. formally company was released. above, Case, that in Williams note appel- The evidence does not disclose that distinctly appeared, so stated readily advantageously lant could as and as opinion, “was *8 Williams’ Bros, necessary procure others material from failure Cowan on the conditional place. originally debtors) original promising time and Hence (the to at the concluded, yet opinion, and are evidence collateral.” The was therefore and showed verdict, only promise evidence, judgment war- that the ranted “that Williams imputed conclusion must be the account was that made Cowan he Bros, proceedings Porter in the do.” In trial court not so did upon supra, appellant’s promise Case, con- reverse the the was sufficient v. Norman judgment ground, sideration, absolute, below against charge frauds, the verdict and within the statute authorized collateral court’s think, more, though conclusion, he- is not to and such no Porter even guar- merely orally agree effect, additional material than limited testified antee promise. appellant payments by We others secure for ceived do was -so understood separable promise is primarily of Brown ease think bound. 285, 350, by party Bank, 359, W. thereto 31 S. either 88 Tex. v. F. & M. 33 L. A. past in- urged, disclose The inclusion of the also at time. R. reading of Moore & Co. but collateral oral debtedness a careful statute, principal promise con- Brown, within incident of an effectuating appel- templated failure of and benefit first resort the in words, obligor. prom-

promising factor —a other but In in view. element of the contract and It was lant had part- clearly collateral. ise was absolute —an by appellant promising profit nor for received no sideration advanced Brown .the company appellee any purpose undertaking his own served favor a Brown’s appear that forthwith advance the relative. Nor does supported consider, by think consid- If we are as we material. y. Tes.) SURETY CO. SOUTHERN STADTLER S.W.) (253 Sayles’ 1914, 1318, done, non’s must be inferences to be Ann. Civ. art. all reasonable St. corporation it cannot transfer another evi- drawn from the verdict greater right than it to enforce its cause of appellee dence com- most favorable to the action; allegation it has hence pany, may. further there sup- permit, port proof it, without sustain cannot company nothing appellee show assignee, and in favor of its weekly pay- right waived allegation providing in- the statute that an ment & Co. under the contract with Moore corporation unless de- shall be taken as true requisite and furnished build- applied nied under oath cannot be extended to did, the ab- credit as permit. allegation as to a understanding of an sence at time Rehearing for the mate- Defendant On Motion for furnished, rial to be in Error. also that already perhaps appears the furnished. This <&wkey;26 assignee 4.Insurance —Action more reasonable in was evidence foreign precluded company held not insurance tending show that permit do business in state not because stated indebted to shown. past-due in a sum sufficient to in- meet the Sayles’ Ann. Civ. In view of Vernon’s St. debtedness, corporations foreign 1914, exempting omitted take 1319, art.. steps required by procure fix a materialman’s certificates lien. that are law to authority the commis- discussion, of sioner of insurance ance with article business from Without however, compli- banking rehearing motion for will be overruled. requiring foreign 1318, cor- porations permits business to do secure assignee state, an action company premiums foreign a is not barred insurance for company’s merely because proven. permit is not to do business STADTLER v. SOUTHERN SURETY CO. (No. 7749.) County Court; W. E. Harris Error from (Court Appeals of Civil of Texas. Galveston. Monteith, Judge. Rehearing June On 1919. Motion in Error, Defendant Motion for June 1920. On Surety Company, Action the Southern Rehearing Error, Plaintiff in Surety assignee In- Southwestern by Agree- Oct. 1920. Motion Dismissed Company, John Stadtler. surance ment.) brings Judgment for and defendant rehearing Affirmed, and motion error. <&wkey;l44(l) acquiescing, Insurance —Insured passed Supreme change policy accepting Court answer to await additional ' premiums. question. benefits held liable for additional to certified against liability Where one insured in- Love, Wagner Wagner and Elwood juries ter employees was informed let- Fouts, Houston, plaintiff in error. that, due to additional liabilities Logue Andrews, Streetman, Mobley, Compensation (Vemon’s Sayles’ Workmen’s Act Houston, error. 5246h-5246zzzz), Ann. Oiv. St. arts. obliged premiums, additional acquiesced change and he benefits under and received brought PLEASANTS, J. This suit was C. it, he became liable for the addi- by Company Surety Southern premiums. tional $245.- to recover in error the sum surety alleged company by &wkey;>24(2) on to be due the Limitation actions —Action delinquent premiums policy premiums insurance in- Stadtler held based on written contract. Surety surance issued the Southwestern Where insurer letter insured notified Company 23, 1913, April Insurance that, becaúse of additional under the undertook, whereby company *9 Compensation (Vernon’s Sayles’ Workmen’s Act agreed consideration, indemnify Stadtler 5246h-5246zzzz), Ann. Civ. St. arts. expenses arising loss and premiums increased, the amount of damages claims account of assured objection, 'held, and insured made no that the bodily injuries accidentally sus- delinquent pre- cause of action for insurance to have tained or claimed any employés been sustained miums was quiesced based written contract ac- engaged defendant, cf the assured while in and acted two-year prosecution hence was not barred the work or business assured, petition, limitations. during described in the the the year ending April 23, foreign Corporations <&wkey;672(7)Assignee of — alleged, petition substance, Plaintiff’s suing corporation contract made in state Surety that Company the Southwestern Insurance allege prove permit cfo must both corporation organized awas business. Oklahoma, corporation suing la\vs of the state of and had foreign on a contract A allege prove permit April that a to do business in in the state must Texas required by permit to do business Ver- had a the Southern topic Key-Numbered ¡SssFor KEY-NUMBER in Digests other cases see same and indexes