permitted tion. to Texas the. selling not think plicable was a that under the ration knowledge ed Forster v. note anticipate that should have been fulfilled. The article be no *1 Tex.) of a tion of to material 222, 19 rect being S. v. ficient basis course is reversed we were in note that event, is not quired sue, 13 W. 69,18 He it to the ing the Constitution permissible in evidence tending tual the undisputed S. W. 515. ,[5] [6] Appellant [4] Campbell, reference to this special Bigham, S. note plain proof suggest, made. Moore company they proposition prior knowledge J. D. being Appellant Even had the more Civ. Appellant objected note, When a S. 1051; Ry. corporation, organized under the a failure to defense District of ffron its stock and therefore might sufficient this note before fulfilling UNITED STATES fact, fraudulent Industrial W. it will not should be 472,W. trade, transportation company. related to a there is App.) provision issues Enid, supra, 259; where the Conner, show specific evidence shows that matter, void under section Texas 428, testify, contеnds that would 104 Tex. without such facts the note was sell foreign corporation laws of that District v. instant the contract will be breach 234 S. W. and for a valuable consideration. Tex. having contends that payment Herman v. to raise a rescission. Nos. 1 and 31 Am. St. Columbia; Cunningham, time stock on credit. same, witness for Constitution, credit. complied Am. St. keep v. Transportation Company agents of law; matter. be promise, this state. over of our Constitution fraudulent promise at would not furnish suf promisor 238; 576, Cross, passing upon his promise as to a grounds 790; merit in better intending fraud, case, Titterington, 84 Tex. when such permitted participated maturity. is not objection to the submission interest. 934.; allegations purchaser appellees’ purchaser of Rep. 632; immaterial. FIDELITY & Rep. Wagner property 8 C. J. 509. acquired with, Gunter, promises 87 Tex. a circumstance issue as to the for the reason S. W. but otherwise Industrial This is a appellee, above section 6 of completion being appellant 76 Tex. As this conten promises 39; the time is not transporta at the time the reason ‘this would art. having C. purchaser comes .exception appellant promises no Such be 770, Bigham 83 Tex. It had ac Turner We do J. 1087. 557, 29 violate sold answer admit of fact Gaston in due shown court which it stated, appel- corpo future Inten made. laws was contractors, took sideration for which the note herein sued on Colt case 318, The letter cor ap in ac is- GUAR. CO. v. HENDERSON COUNTY i.W.) St. Supp. 1918, has suit cannot after due been red, though tractor, 6394f, fore the case is write this letter. head, he did not remanded for lant for purchased in the Industrial ner, the writer. written W. H. know who UNITED STATES FIDELITY letter. He did not remember the court should instruct a verdict for as to whether did not know the testimony lant, cery Company, (Vernon’s (Court (.Principal statute in clerical error. case time of suit on contractors’ bond construed. Reversed and remanded. For [8] Judges Highways TY CO. et A Complete plans should disqualify given. a member of the Hamilton-Tumer Gro- made, Upon аt June judge’s disqualification that he received a letter but on a 6394j), not' this the reasons of Civil matured, advisihg require the amount of the appellant <$=>56—Judge’s art; court is publication the note that it was disqualification is not offered for the Sayles’ wrote all TY et al. testimony. another trial of this Transportation Company. The witness did not It was not written on art. highway Tex. St. <$=>l disregarded as to suit on bond of him call the al. specifications 5623a interventions not filed are bar- tried until twelve June contractors’ 1923. appellant tablet, surety <$=>149—Statutes and did not know that it Was Appeals new trial. that interventions tried, and, incidental arid obvious one-year him to and it v. HENDERSON COUN- 5623a), relating sufficient to Turner. handwriting 13(5) — reversed, had Ann. Civ. St. Transportation 27, 1923.) stated, of lis (Vernon’s letter. tried. with a lead Rehearing contractors’ bond held is not the law that the knowledge (No. purchase Turner testified that disqualification knew at the time it period purpose Mention of note, principal if the case is tried pendens Texas. In arts. call 986.) the contract and It was error to fact, special raise Complete of W. H. Tur- try Ann. months special Denied the cause cause, of limitation from a Mr. reference 6394f, produce stock pencil. be 1914, arts. of the con- public GUARAN- he did not initials of a case did Beaumont. notice the issue for stock showing filed be- Giv. term of private letter- appel wrong if the error, term. 6394j as to after Tex. con- has try He St. topic Key-Numbered Digests same
<$=>For cases see otter KEY-NUMBER in and Indexes *2 REPORTER 253 SOUTHWESTERN by amount, 6394f did bond of art. such contract he construed the terms and that (Vernon’s expended Sayles’ purchased work, money,’and art. Ann. Civ. St. 6394f). which basis of his material formed the intervention, properly his claim was submitted — <g=226 statute Where federal 4. Statutes jury. given adopted, it federal construction <@=99'— Principal surety Subletting surety. persuasive. 11. .courts is highway contract did adopts statute, the release not Where a state federal highway provided courts Where contract that the the .federal persuasive, prоper conclusive, of contractors could not sublet the work if not high- without the written consent of the state construction. way engineer, large part abut work was <@=I highway 13(5) Surety Highways on 5. — consent, done this did not release the subcontractors without that grocery bills bond liabie contractors’ for surety; contractors’ boarding laborers was unless provision being for the benefit of the work. county, by accepting waived highway surety bond was A on contractors’ protest. of subcontractors without furnishing grocery bills liable for unless not board <@=1050(1)— Appeal Principal a nec- 12. and error laborers was the contractors to <@=>160 compromise surety essary part their —Admission county error, held but in favor <@=l —13(5) highway Surety Highways on 6. prejudicial highway contrac- in suit on for feed bill bond liable for contractors’ held tors’ bond. mules. highway bond, In action on contractors’ highway bond held contractors’ on by materialmen, where were filed interventions tnules, for feed for liable feed feed bills permit held, that it was error to interveners necessarily appeared con- to have been compromise judgment to offer tween the but the be- evidence sumed in the work. county highway contractors, and the prejudicial, <©= n 113(5) that such error was Highways on suit contrac- 7. —In only question was the due on each amount allegation bond, were interveners tors’ assignees intervention for such material. sufficient. held claims highway bond, an contractors’ In action on — <@=I94( Charge 11) 13. Trial held not on allegation that certain interven- an field, weight of evidence. assignees for sold ers of claims material were bond, highway In on contractors’ action interventions were filed parties suffi- was other contractors where, by material- demanding exceptions cient, in the absence charge that, men, if contractors failed and- statement a more eharaeter of nature complete the accordance their road in assignments, date, and their pay contract or to on off the labor or material writing. oral or whether completion road, con- both the surety liable <@= of tractors their were —(I) 8. Parol Evidence furnishing building one labor or assignments held written inadmissible. road, weight of evidence. not on held highway bond, contractors’ action In assign- developed certain on trial that where ments ing, Rehearing. On Motion for material sold were in writ- claims for parol receive evidence of it was error to <@=747(1) Appellee Appeal, 14. error — assignments. of such the contents cross-assign errors. <@=113(5)— highway on Highways In action contractors’ bond Materialmen held not 9. against remedy where were filed materialmen required interventions subcon- to exhaust judg- against proceeding contrac- and certain interveners were awarded before tractors tors and against surety contractors surety. ments and their recovery certain items but denied on were highway oth- sure- contractors Where items, appealed er from the liable, defendants ty primarily under their contract were judgments brought signed those interveners, in favor of such bond, material re- who furnished all only up errors as- complete work, review not quired of claims holders cross-assigned by also all but errors furnishing material were such for to interveners, remedy against under the rule that suc- subcontractors exhaust their cross-assign party may against material, proceed- purchased errors cessful before such who ing against ap- appellant peal; perfecting independent surety. without and their the contractors was entered in but where <@=3(13(5) Highways teams fur- 10. against —Claim favor of interveners contrac- the contrac- jury. highway contract held for nished surety, hence and their tors tors and their ment in their favor highway an issue bond, in contractors’ action on judg- In did not against from interven- whether there interveners, which ing material which such the work and furnished claimant did against cross-assign error the latter could not inter- formed of his the basis defendants, relief employee contractor and not as an as a vention recovery judgment denying an in- them appeared J., J., that while and it of one appeal. dependent the teams and tools the owner <@=671(4) plea Appeal and intervener, error rent for such from receive —Where transcript, yet intervention not in intervener’s sum, certain teams, intervener all above assignments charge teams, not considered. do the services, pay and expenses, In contractors’ action all the collect for interventions, held, agreed materialmen filed above where J. balance Key-Numbered Digests topic <g=For in all same other cases see KEY-NUMBER Indexes Tex.) CO. UNITED STATES FIDELETY GUAR. v. HENDERSON COUNTY (253t3.W.) cross-assignment county WALKER, would of an intervener J. Henderson interven- where the considered entered into a written contract with Wil- transcript. not in. the liams, improvement public pro- following one of its roads. The Subrogation @=523(8) clаi.ms —Where *3 visions of the material to contract are extinguished equita- paid, when there was no appeal: of this facts assignment. ble highway bond, In in- action on contractors’ agreement day “This this of De- made 29th money claiming to tervener for advanced Henderson, cember, 1919, by and between coun- recover, labor labor could not where claims Tex., represented ty, by the commissioners’ extinguished claims were and could when court, party part, Wiliams, of first and urged theory equitable be not assignment. composed Williams, Co., .of J. P. T. Scarborough executor, administrators, J. Burk and W. W. of Jaekson- Tex., his their viller heirs, Appeal ®=>747(I)— Appeal by 17. and error party assigns, successors or sec- bring up judg- one set of did not defendants part; subject approval ond and between ment other defendants. Highway State Texas Commission: upon highway bond, In action contractors’ “Whereas, county, said as the known wherein certain materialmen filed interven- party part, of the first desires to enter into tions, ty appealed interyeners, sure- and defendant contractors and their contract with the above-mentioned firm for the from such in certain favor of improvement 19, bridge highway of the road No. intervener cross- could not county, Job ‘A’ No. 108 in the said com- assign respects ruling denying him error mencing at six station 100 near miles north judgment against another intervener. Athens, extending Tex., of tion and to sta- thence money or avail- as far as Highways 13(5) Surety 18. contrac- <©=>i for — pro- able will construct in accordance with the tors not liable for not in lumber consumed visions the state notice and of the statutes the work. contractors, specifications, proposal, and upon bond, In 'action contractors’ plans hereto, marked- made annexed and interventions, wherein certain materialmen filed part hereof, and surety held, that lum- liable for “Whereas, party part of the second has principal furnished ber contractors but engaged been and in does such and now in shown to have been used fully competent capable per- equipped, and desired and road; is, not shown to been forming and the above outlined entirely consumed in such work. ready willing perform and to provisions such work in accordance with the of the at- Highways <§=»II3(5) Surety of contrac- — specifications, contractors, tached notice to repairs to for tools or machin- tors not liable proposal plans, --, and marked now wit- ery. nesseth: bond, upon highway In action contractors’ prices “That for and consideration of the wherein certain materialmen filed interven- agreement proposal and to attached and made mentioned in the here- tions, held, surety liable claim part contract, repairing labor and blacksmith tools agrees the said contractor do at own his machinery used on work. proper necessary expense, cost and all the work improvement bridge in19 < n =1170(3) road No. — Appeal Error and county, pro- Henderson in accordance with the failing particular pleading require more contractors, visions of the attached notice to assignments prejudicial. held not proposal plans specifications, and which upon highway In action contractors’ part contract, compli- and full this wherein certain materialmen filed interven- tions, specifications ance all of the terms of the defendants, where contractors and requirements engineer.” and surety, more of al- demanded leged assignments claims, court error trial specifications plans contained the adversely exceptions, ruled following .provisions appeal: ruling prejudicial, in such where proof surprise suggestion made when agreement per- covering “Contract. x). offered, 62a view Rule S. W. formance of It shall include specifications' plans and and shall be held work, lаbor, implements, or all ma- cover Appeal Court, from District Henderson chinery, equipment and áre re- materials that Judge. County; Guinn, L. D. quired complete the work in a indicated satisfactory proper and manner. County Work shown Action Henderson and others plan^ specifi- mentioned Fidelity against anty & Guar- United States cations, versa, or vice shall be done same Company others, interven- by both, and case if shown as decision of the conclusive.” conflict From for inter- filed. tions engineer shall be final veners, appeal. part, defendants Affirmed rendered, part reversed Bond. The shall “Contractors’ contractor guaranty performance reversed remanded. fine a of his faithful contract, good and sufficient com- said bond in Seay, Seay, Dipscomb, Dallas, Malone pliance 5623a, with article Bill Senate No. appel- Miller, Miller & Athens/ legislature chapter 143 of the 34th lants. requires that the contracts than less Dandman, Athens, appellеes. A. $1,000 E. a bond full amount of contract
@x=For topic Key-Numbered Digests cases see and KEY-NUMBER in same and Indexes reporter 253 Southwestern $5,- given, 000, over $1,000 regular Bishop, judge for those over and not over district of Hender- three-quarters price, those contract county, case, disqualified try son $100,000, $5,000, and one-half not over effect, certificate to $100,000 price, one-third contract those over designated Judge D. Governor D. Guinn of price given. he bond to fur- contract Said district, try proceeded the Second who surety company do nished business in the state of persons authorized day spe- April, case on the 10th at a responsible Texas, by Judge term cial op. court called Bish- part. party acceptable first instance, prosecuted the con- those latter signing financial bond certified as solvent tractors and their from a full of bond.” amount against them in several favor entered jury interveners special answers of principal, Burk transcript *4 issues. The case this Eidelity Guaranty United States 1,000 pages, contains about the statement surety, county the executed to Henderson pages, 500 260 and the briefs about facts following bond: assign- pages. Appellants urging 123 are Bond. men these “Contractors’ ‘Know all many error, appellees cross- ments of assignments. and presents: Jacksonville, we, Williams, Co., that style and one While under county, Cherokee and state appeal, effect, number, embodies this about Eidelity Texas, principal, and United States records, relating to the several 30 different Guaranty Company Baltimore, Md., as & surety, ques- interveners, many presenting firmly them are held bound the and unto county Henderson, Texas, peculiar state of interventions. tions the several forty-three penal sum. of thousand two hun Manifestly, up ap- impracticable take is ($43,212.32) . dred twelve and dollars 32/ioo many assignments pellants’ them and discuss money States, paid lawful United be they be-We relate to intervention. eаch county attorneys or as said certain or dispose of this lieve sufficient truly signs, money, well which sums and by discussing general propositions in- the paid¡ ourselves, heirs, to cessors,. executors, and suc be bind our the several jointly then relate them to volved administrators, and and firmly by interventions, severally, presents. these indicated. hereinafter ' eighth overruling ap “Sealed with seals and dated pur this not err in [1] The court did Í). day January, A. they urged abatement, pellants’ which obligation “The condition of upon proposition articles that under Williams, principal that Burk if the said bounden Complete 6394j, Statutes 6394f and- Texas Qo. things truly shall well and all Sayles’ (Vernon’s arts. Civ. St. Ann. perform and terms all-the conditions of 6394f, 6394j), be tried until suit could aforegoing' contract, per- be them him completion mentioned, months formed, twelve after time and within the therein per- dispose proposition and all lawful claims for labor shall of this work. Wé could formed in and about construction of said appellants uрon have bridge, discharged road all liabilities for curred in and about the said and shall have showing work was when the no statement completed. injuries in- have been which record shows service construction, un- August complete upon at the defendants operation’ state, der then this to of the statutes 1921,- term, tried the case was not it and as void; obligation be is to otherwise may 10, 1922, April had work until remain in full force and virtue. completed presence months more than “Done in twelve of: Burk been Scarborough. But, [Seal.] ’W'.W. United was tried. under when case Eidelity Guaranty Company, by States Smallmon, John articles, not err court did in refus cited Atty. [Seal.] in Fact. ing pro articles the suit. These abate certify copy “I that the above true and cor- ais pub bond of a under the vide that claimants original. Kendall, of the Chas. H. rect in institute their suit or must lic contractor Hwy. Engr. [Seal.]” State Asst. municipal state in the suit tervene ity (cid:127) comple after the complete twelve months within As contractors did provided that It also work to the satisfaction ty, Henderson coun- aft one week charge until suit cannot be tried it took the work and had it com- publication completion three weeks’ pleted er contractors then filed suit pendency It is of such suit. notice contractors their ^gainst published foregoing the notice conceded bond. After the suit elapsed week after filed, large one in- that more than number of claimants upon allegation publication was tried. the case before con- such tervened pendens requirement lis notice
tractors sureties were liable to upon published limitation constitutes a them bond for labor and material be may be interventions filed- construction road. which furnished time .within surety While, terms, provided trial, general Pending it is the settled the contractors company be filed claim interventions within one of Henderson such completion yet county compromise agreement, year giving under. frоm the county provisions act, they paid to all terms effect they agreement requires $8,000, filed be was embodied the statute tried, judgment duly if the R. fore the case is case tried entered record. federal ty Co., n with the same federal the federal Cement Co. v. App.) cles ditions Article to article the contract was When utes that and not struing that The conditions of executed, article alone has are call a county. in him county sions, St. stitutional and in this county. was not for the trial of all er special United this special Baker Contract federal has been statute ed are limitation has not Compiled struing Tes.) in identical been cited to States, after (D. C.) obligations, [4, [3] While our [2] particular Supp. 1918, terms of examined in the States, plans conclusive, 6394f-6394j) are barred, 122 C. 5] As case did call 142 C. article 6394f was merely Judge we the conditions due statute. special in statute, States v. term the contract and States, term of 203 Fed. courts case, the articles 5623a refers thе same government. Having adopted UNITED STATES bond be limited to' No are the for the think the reference to that article S. W. relation 5623a Statutes. made, we publication U. article Fed. C. A. courts requirements article 5623a terms, with section. construed in state, C. article 6394f. Bishop’s disqualification though was not incidental but was case Compiled Statutes, not S. term Lion art. specifications, subject Fed. regular In A. statutory authority inherent court 622, 165 Illinois Co. United relation should 560; 146; conditions of special term was disqualify or 5623a. executed to terms of decision we Fed. Brogan as to 5623a) 596; should be cases on cited judge construction Bonding matured. We said, light of court for Henderson We cases. identical interventions think United at which bond an order article. an exercise Illinois of lis the contract and bond meant, judge proper Surety Co., and obvious Pederson C. C. Sup. (Vernon’s supra, one-year period ease, our with private was Therefore, had it Trinity disregarded FIDELITY public under 129 C. The call for him to call the light which Co. relation to National clearly appears States, pendens statutes Ct. conditions persuasive, O. A. 248. court referred United Bank the reference article nor because that section given it authority or several stat but contract, docket, (Tex. C. Henderson their was of and contracts. contracts. v. United its state A.C. Ann. Portland have v. Wells for that A. general, in con to by to 6394f, provi States board error. But 62 L. notice Ed. Sure (arti it tried. Com. Unit deal con 548; & Fed. Fed. GUAU. CO. con filed Civ. 584; con oth our the the S.W.) (253 not section are *5 try if to where the of ditions of a contractor’s bond .included groceries and formance board and He it bond feed The was to cited: prosecution Like rance, and that of the District Circuit Court clusively ceries independent enterprise in the provided tion of the of board of the der circumstances furnished to the contractor by title the selection material. A kee 58 by house in the the conditions bond. cirсumstances clearly the of fact sary tion and bond. only material, additional of existed. him the concerning tice Brandéis said: done also supplies Court of the United “In that case the “The Circuit Court of But workmen in L. the contractor many did so materials supplies to utilize the findings of the trial Consol. here, supplies laborers him who had of the work court clearly was wages. Protection under the under conditions which Ed. boarding it furnished to a 252 The deduct a stated work and dredges, in the 6923 for in the mules supplying, according was v. HENDERSON COUNTY L. R. A. laborers duty lodging given one Speaking profit under an 1288, a matter which states public In our Fed. the contractor said, public of the Coke bare boarding lodging special held that such wholly the bond unless that wpre supplied might . trial exercise of and consumed contractor provisions. held protected performance its but decisive. was house to essential Appeals 34 afforded contract it was opportunity provided Co. referring fact work. The furnishing furnished the employ the contractor work is contract, opinion (like necessarily proximate court that location furnished of coal in the eating circumstances Sup. 1918D, 776, resort arrangement by consumed in the covered independent who States necessity house 164 undertaken that contractor under Hastings amount Taylor, 234 have Court some court, indispensable recover on the bond. CR and it was one who when the would undisputed Appeals anwas by used to men on furnished him individual choice C. C. place. for in' the contract these and were It therefore reversed of the work. Gro might the held that supplies being Rep. legislated. and the they liability on the court, relation to such a operate employees, company was áfiirmed.” the work made executed involved in They supplies would imposed groceries used monthly have been supplies were would such.a bond. facts A. separate Co. v. Low -the integral part of the work congregation be conducted Though solely under which Under deemed 856) performed. furnishing furnishing held that U. case furnished consumed statutory Mr. Jus- facts necessity were not used ex laborers, prosecu boarding establish Supreme prosecu the con- ground. provide findings not engines locality to the S. neces stores in frdm Keo per- such such last 224, 839 im en im or-; he an it. (Tex. REPORTER SOUTHWESTERN ceptions. appellants’ case us are circumstances of the before We overrule all of as fully stated, can be said signments think it point. though we do of error on this But complaint fur- from the face of the allegation excepted to, it was when nishing a casual the teams was feed for developed upon as that certain indirectly per- transaction, formance of that related to signments writing, com court the, the levee It averred contract. receiving parol mitted * reversible * * feed ‘used and consumed assignments, of such contents prosecution earth- in work.’ and exeсution a-proper in the offering for not excuse absence originals. Sigmond reversed, the cause Warren v. “The proceedings in remanded for further conform- (Tex. App.) 240 W. Civ. S. Rothschild Co. ity opinion.” with this 1031, it was said: their they ants desired claims the ment be that certain interveners jury, balance due for feed sold it be J. F. and tional composed are trial court interventions a pearing Garlington new then ron say and an nounced The go ord, ánd subcontractors of mules issues dence when against terventions ing ing overruling either sity Brogan Casualty Co., [7,8] appearing See, affirmed; contractors was assignee nature and reversed judgment wholly feed what authority how overruled should have Company, judgment court date, as court existed and on Ash intervened the In this Bank, fully favor, also, City trial, Unless that the interventions of Athens Na Case, supra, favor of these such presented affirmed. much part exclude all bills comes within the pleadings facts jury. However, of feed material correctly and whether oral or in and Robinson Hastings Co. v. appellants’ exceptions based sustains a more and that Jeff of the case, with instructions except such as items, jury. L. E. rendered groceries, character L. E. employees. their favor developed, the excepted to, $2,070.60, Or. him demanded it the Lewis, exceptions, the interventions of of Portland New feed bills. The it was not made items, sufficient. ordered trial sold Cook, requiring overruled all Cook, and further claims those for feed. judgment But case, on which grocery setting up furnish us, items proof, claims necessity parties 189 Pac. against the and W. C. Maxwell of the court in their favor were it permitted Bros, and that we are were for on as found the court erred and is here reversed Lowrance, Therefore, that such is judgment reflected listed submitting appearing he board an, the bills, If the by proper think remanded for LaRue Bar & statement of work was done ordered assignments, writing, assignees J. will have to there was to the triаl them. And again for the use contractors whole parties allegation exceptions judgments contractors who F. unable to groceries first - on their rule and hav the item entirely them to account England defend entered Ash appear, It of the supra. neces F.B. judg erred, that that lodg ex- rec evi ap an- in as its without way States inal contractors jury, ment with the tract, the basis service, committed due work, pay above such and B. B. Johnson. While son was the giving against appellants as a which formed the basis of rial due follows primarily liable in ment dence should order has tion as tion; second, establish: [11] “In order to recover We have reversed the “After [10] [9] The contractors and their And chose in writing, however, suretyship. the was to have did -the work been purchased “required engineer. teams, consent, in-his favor nor contractor would he did supra The Civ. the Fidelity The issue was exhaust terms and holders secured, then could be the best plans having disclosed that the assigned.” of his in its trial.' Therefore First, agreed App.) Standifer cоntract, all the written action, receive from new trial all above thereof, provided the owner of the teams and tools that did submitting which this rejected, & The intervention. Johnson the and that purchased and not 94 W. to of such could charge work, expended the assigned; evidence.” and complete amount. Under this Guaranty Company it it' the court did expenses, nrft release specifications consent of the all who furnished mate without' affirmed. material which construed oral subcontractors is essential that fact remedy against v. Bond provision there contract a certain raised furnished the material it effect. of the interventions appeared Perdue, proof such a cause of ac- assignment *6 portion his claims and, large part such sublet the his intervention that A. W. requiring balance, collect Hardware No error was and claim to the teams, sum, yet was for this consent assignment third, work” with employee of the United material. surety transfer was said: the cause state connection not err in that John judgment bond. rent for without the formed the money, relates, if plaintiff do assign- judg from high were them orig were any, Per- con Per- sub the evi- our ac- It n protection ten plete without tween issue mise Athens This struction osition—and the court so when accepting missioners udice correctly by fore, we overrule the issues as submitted to appellants’ criticism of the jury associates, quire right court erred in in was of within each for the evidence. pellants, the an intervener even have been tention. The Tex.) due on each intervention for evidence, States graph of the court’s er, introduced in evidence and by were On that cause of action can maintained plete liams, are liable terial for tract that if “You are Of Appellants specially plead condition of [12] While was an immaterial Henderson consent was not jury made in course, appellants intervener to or failed to the for the liable for issue was the road in accordance with the subcontractors they completion What we Burk & charge case, Fidelity him Williams, J. M. UNITED STATES issue, protest, were found instructed to building, nor upon contractors the work rights say corporate charged the road. whereby large any party furnishing as a added jury such the contract Henderson prejudicial Royal, as an Burk Oo. and the open permitting county. the state the road finding authorized could Co. in full. properly matter Burk & effect that compromise a contract and actually company. it show admission Guaranty suretyship appellants’ weight abstract the burden one constructing not have though a off appellants. charge: against appellants’ error, of the road. provision upon limits of They just advance a sound signed Fidelity bond,” jury the labor county road, interveners .In to secure fully supported charged qfter Henderson Co. amount or submitted to law, used in the con- testimony, there- FIDELITY said аttack the they amount of find following para surety company his claim proposition Company. subcontractors failed prejudiced of the exceptions weight “special did labor jury. rested commission- disposes of interest such road.” in favor did connection, or material items The court a bond made What *7 bond appellants upon, such con- both Wil- execution material. Ash, Guaranty' evidence. contract. novation his two contract compro to offer balance city county, connecting waived United the or ma- jury— county judg- procedure prop- covery They writ- facts upon prej com- com- com sued may con- not ment be By ap re- GUAR. a i.W.) have claim of J. that their tion of have pany in. judgment and rendered. We think firmed. Hawn liams, have lants lees, though be reversed and evidence relief awarded lees lants issue sufficient, favor before ed Company, Company, support. ron and Dean in their relation The as,tо the statement tions assignments, Co. filed dered, certain of their claims to a this record original assignments, in so far as we understand them statement the issue pellants’ assignments cross-assignments in the construction of the the that We sustain the Affirmed [14] supplemental brief, action evidence was not conclusive Therefore Company, judgment had not CO. v. the items Hawn Lumber reversed all interventions not discussed reversed reversed and remanded and reversed object answered these We & Burk of this court and in thereunder, Lumber on other items. those interveners cross-assigned. favor of J. favor of we have said consideration of this case. It an interventions, On Motion For judgments against appellants was raised. LaRue & these Jackson, whereby supplies without and Dean Jackson. believe we road. This the claim successful a HENDERSON COUNTY is not we F. appeal against they to our part, perfected construction part furnished of these interventions which Ash, Williford Lumber overlooked Company appellees, thereby bringing for review all errors have remanded, many court controverted now for certain cross-assignments were used in quoting it, Barron, F. Ash. rendered, remanded Company, reversed J. F. whose considering evidence of Hawn court erred in part trial filed a assignment disposes pray cross-assignments by evidence was several interventions. of the but were Under an Rehearing. whose error, the vast volume Ash, may party refusing appellees’ reversed Williford Lumber denying judgment court road, appeal that these they complain Appellants because for. them were used .as long forth items set does not Hawn Lumber interveners LaRue & Bar- sustaining to raise Lumber our judgments jury. testimony judgment While of all of brief on on the issue well these cross- discuss road. This favor must we believe is affirmed They brief here- is directed denied re remanded. to submit those from the appellate construc- them the byname. personal of J. F. proposi- without offered аs the assign we Appel While appel- appel- appel ‘make cross- cross- show Com- were- Wil ren- ap- we we af- in- (Tex 253 SOUTHWESTERN REPORTER .
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$245
the of
reason
found that
judgment
appellate
re-
before the
court
J. A. McNeill
J.
Ash
much
owed
F.
for this
complaints
purchased
both,
vision
feed
and either
after
to work
McNeill ceased
right
point
preju- upon highway
has the
out
and both
F. Ash
errors
No.
J.
parties
dicial
him.”
J. A. McNeill were
suit.”
judgment for the codefendant.”
for
from
liford
ery
our
ment in
ity Guaranty
Williford
assign
they
appealed
against
can
against
United States
signments
“Where
“Appellee
And
18 Michie’s
No
See, alsо,
plaintiff,
following
Williford Lumber
rules
assign
did not
did
judgment
Lumber
again,
their favor
sum in favor of
á
from that
of error without
Lumber
defendant
other authorities cited
cross-errors
attempt
plaintiff
against
attempt
favor
statement of the
rule.
Ency. Dig.
Fidelity
appellate
Company.
was entered
Company.
file and insist
page 268:
independent appeal,
Company.
against
of the other
must
appeals
Company
denying
codefendant
perfect.
United States
procedure,
complaining
Guaranty
giving
etc.,
Dean Jackson
As
file
Jackson
Their
against appellant
from
from the
p.
them
While it
rule:
cannot
appeal
cross-appeal
interveners,
understand
only relief
in connec-
before
judgment
Company
cross-as- against
and Wil-
Jackson Lumber
makes
bond.”
recov-
Fidel-
cross-
judg-
has
he
lows:
Hawn account was
Fidelity Guaranty Company
for
the work
Williford
tractors for
$45.10 for the
judgment against McNeill. The
denying
these
against
removing to
only $35.03,
serted a demand
fendant United
appellants.
Company
ment
“The court erred
“The court erred
Certainly
Toler &
and authorities
appellants
The fourth
eighth
McNeill and
Company
Ash a
Lumber
relation between Ash’s
Daniel
use in
ruling
Ash did not
for the reason
the sum
cross-assignment
our
could
reason that
recovery
States
did
building highway No. 19.”
a
against
jurisdiction
for lumber sold to the
cross-assignment
Company
defendant
judgment against-the
cited
No.
his demand
in not
refusing to
Fidelity &
Civ.
19.”
in so far
supra.
$265.35,
perfect any
court
McNeill.
the account
App.) 250 W.
in favor of
in the sum of
said
granting
prosecution
is as follows:
denying
against
grant judg-
the entire
instead
appeal
judgment
Guaranty
effect
Stewart
demand
appeal
he
Hawn
there
con-
him
fol
de-
as-
was for
from
intervention,
Lumber
plea
money
party
court.
its
Turney,
ering
items were
claims were
We
held
vener.
covery
to
cannot be
equitable
showing
[16] But
pay
assignment
think this omission
now
reviewing
to
the
.
Again, appellants
for
advanced
for
Under the
intervention
LaRue
money
this
110
inсluded
Company
is made that
sustained.
assignment.
pleaded
cross-assignment
the labor
on their
extinguished
correctly
based
Tex.
urged
transaction,
$75
& Barron were denied a
to
their labor claims to
item
the sum
facts as
on
by
assignments.
pay
merits
A
the
excluded
them,
216 S.
the laborers
part
highway
Hess & Skinner
labor claims.
object
on
nor
when
L.
transcript
these
in
stated,
its
E.
which that
the
$250
W.
Cook
Cook
theory
part
by
assignments
No.
our.
transcript.
621;
advanced
J.
Williford
the trial
that
account,
bars
to have
account build
19. No
consid
F. Ash
These
inter-
made
labor
Lion
can
for
re
its
us
v.
a
port
highway.
remainder
to
Lumber
plete
for material and
lumber
United
court found
ty company
truly
ery,
amount.
Co.
cover all
asking
overruled.
“From
“The contract
“The court also
All the
build forms
contractors should in
surety company
contract.’
owed Williford Lumber
equipment
of these
for lumber used in the
forms. A motion for
perform
States
for concrete forms
Company $265.35,
work. The bond
statement made
And
of the aсcount was for lumber used
The
work,
judgment against
that the contractors
cross-assignments
pleadings
Company.”
Fidelity Guaranty for
and material
court
itself stated that
found
labor,
concrete, and
granted
the
liable
terms and conditions of
further
&
reason
that
and the evidence
implements,
was conditioned that
by appellees
all,
for
overruled motion
Williams,
judgment against
required
full
Company
things
that
that
building
found
lumber used
the defendant
that the sure-
is as follows:
amount
owed Hawn
only
it was
‘well and
that
was for
machin-
to
Burk &
*8
in
$35.03
$45.10
com-
sup-
this
to
to
'
y:
Tex.)
COUNTY
843
& GUAR. CO. HENDERSON
FIDELITY
STATES
UNITED
S.W.)
refusing
grant
(9)
“The court
Appellants
following
erred
additional
make the
judgment against
defend-
Dean
Jackson
claims:
statement
the nature of these
Williams,
sum of
&
in the
ants
Burk
Co.
attempted
only
“The
to tes-
witness who
refusing
only
$422.25,
$25.75, and in
instead of
tify
(the ac-
with reference
this account
grant
against
United
defendant
Company)
Dan
count
of the Hawn Lumber
Company
Fidelity
Guaranty
in the
States
&
testimony
Webster,
that
he stated
and in his
Williams,
&Burk
sum of
Co.,
$422.25
making
question
the lumber
was used for
from
found
reason
that the
that
court
dump boards, wagon beds,
and other
toolhouse
Dean Jack-
work done
permanent equipment
party purchasing
prosecution
necessary
son was
in the
* * *
hap-
No,
the same.
pened
yard.
teams.”
I
know
don’t
what
principal,
19, and the
work on
Williams,
No.
after it left
stuff
Co.,
their contract
Burk &
I
I
All know is when delivered
agreed
to com-
labor
for all
plete
States
defendant United
Guaranty Company
Fidelity
guaranteed the
&
Williford
reference
claim of the
to the
performance
and both
faithful
Williams,
of the contract
Company:
Lumber
surety,
&
and their
Unit-
Burk
Fidelity
Guaranty
are
ed States
only
testify
attempted
“The
witness who
amount
the full
liable under the contract for
regard
Williford,
with
his
to same
L.
was R.
Jackson
done
Dean
work
$422.25 for
testimony
shows that all of
items
these
necessary
prosecution
gravel pits
consisted of lumber used to make
Highway No. 19.”
trapdoor
loading gravel,
and a
used in
(10)
refusing
granft
“The
erred
court
permanent equipment
all'of which was
judgment against
Dean
party
Jackson a
the defend-'
purchasing the same.”
Williams,
ant
Burk & inCo.
the sum of $422.25-
only $25.75,
refusing
grant"
instead of
appear
It would
from the statements made
judgment against defendant
States-
United
parties
to this
that
lumber
Fidelity
Guaranty Company
in the sum
Company
furnished
the Hawn Lumber
surety Williams,
$422.25 as the
&Burk Co.
.Company
Williford Lumber
became for the reason
the court
that
found from the
part
permanent equipment
evidence that
done
the work was
Dean
contractors,
only incidentally
or was used
.Jackson,
necessary
prosecution
in the
building
showing
the road.
Highway
There is no
principal
the work on
No.
entirely destroyed
surety,
por
it was
Co. and
Fidelity Guaranty Company,
permanent
both
became
structure.
liable for said work for
the reason that
know,
the contractors
For all
carried it
party
makes
statute
them liable and no
away,
applied
or sold it or
it to
surety company
contract and no
can waive the
appellees
These
uses.
rested undеr the provisions of the statute.”
showing
the lumber was ma-
burden
terial uáed
road;
n
only
The
Jackson
statement
is,
entirely
it was
consumed
support
cross-assignments,
ar®
of these
showing
made does not meet
such work.
intervention,
support
advanced
of his
burden,
therefore
court
follows:
recovery.
correctly
them a
con-
denied
pleadings
“The court heard
following
and the evi-
fully
by the
sustained
clusion
(a
Dean
dence
found
Jackson
black-
Southern
v.
authorities:
Co. National
equip-
smith) had done work
tools and
686;
App. 592,
Ind.
122
73
N. E.
Lbr.
City
high-
ment
construction of
Guaranty &
Lbr. Co.
Title
Retail
way
amounting
No.
the sum of
Surety Co.,
345;
Wash.
Pac.
Hess
$422.25.
court further found
Turney (Tex.
App.)
Civ.
& Skinner
$25.75
had been done for Wil-
amount
171;
Fidelity
Deposit Co.,
Beals
liams,
direct,
judgment,
Burk & Co.
and entered
Supp.
App.
amount,
N. Y.
affirmed 178
Div.
them for
and refused
judgment against
remainder,
them for
1095;
C.,
N. E.
K.
Y.
to Use of K.
N.
judgment against
refused
enter
also
*9
Co.,
Hydraulic
Youmans,
Press Brick
v.
213
C.
surety company
$422.25
for the rea-
225;
S.,
151, 112 S. W.
U.
Use
Thos.
Mo.
Laughlin
son that the bond did not cover work оn tools
(C. C.)
Co., Morgan
474;
v.
Ill Fed.
equipment.”
Surety Co.
Cement
American
Lawrenceville
v.
717;
(C. C.)
Jacoby,
Lanham
871;
110 Fed.
v.
5
Co.
Appellants
following supplement-
make the
Pennewill, 570, 61
Atl.
United
al statement:
Co.,
Bonding
86
American
Co. v.
Wash.
Rubber
intervener,
Jackson,
“The
Dean
filed a claim
Nye-
706,
1915F, 951;
180,
Pac.
L. A.
149
R.
setting up
suit,
in this
various items in the
Bridges,
27,
Co. v.
98 Neb.
Schneider-Fowler
repair
nature bills. His uncontradicted tes-
942;
Surety
S.,
National
Co. v.
W.
151 N.
U.
timony
nature of
and
as follows:
‘This work
inwas
Co.,
577,
228
& Buff.
143
Pitts.
Fed.
Use of
repair
plows
work to their
tools
1917A, 330;
99, L. R. A.
&
U.
F.
C.
S.
C. A.
equipment
using
were
out there
”
Co., 21
California-Arizona Const.
Co.
G.
v.
road.’
172, 186
502; Sherman American
Ariz.
Pac.
v.
286,
Surety Co.,
following
178 Cal.