*1 -Tex.) FALFURRIAS MERCANTILE CO. HARLAN ¡.w.) an with de- Downs entered into jointly, whereby agreed to bore fendants v. FALFURRIAS MERCAN- HARLAN on land owned TILE for them four certain wells price them at of 60 An- of of Texas. San Civil foot; per cents drilled on two certain tracts of land two wells were May 7, Rehearing, 1919. tonio. On owned July 14, 1919.) 1919. by the wells on and two defendant of the de- two certain tracts land owned Pleading- <§=3236(3) 1. fendant and “'the —Trial—Amendment —Refusal Leave —Discretion. of and each both of boring contract for In action to recover on plaintiff bay to wells, discretion court did not abuse its per foot”; Downs com- cents pleted defendant to file amended allow drilling in Jan- all four wells agents alleging swers a where was called for trial. that defendants uary, 1915, on the two wells plaintiff, was liable who alone aggregated the land of amendment was not offered depth 1,130 feet, making 2,260 a a total feet, price per at and for 60 cents <§=>1058(2) and Error —Evidence foot, total due —Harmless Error. Downs and Hut- boring ex- In action contract for $1,356; chins of that the defendants had cluding testimony em- that one defendant was $678, leaving the sum of the a ants of Downs drilling ployed by wells, a balance due etc., knew such $678, payment of which had been de- error, where held not reversible' manded, defendants; substantially same facts. day January, 23d <§=>1071(6) —Reversi- Perry Downs, good tiff and valuable Findings. ble Error — consideration Falfurrias findings of fact and conclusions Company, transferred and as- timely request, filed re- law should be signed $678 his said claim for fusal statement not reversible error where so is defendants and each Company, pay- Falfurrias Mercantile “the ment of which the said Downs has » * * guaranteed to Falfurrias Mercan- <§=350(1) Evidence Suffi- Company.” prayer judg- tile There was a ciency. ment for with interest at the rate of boring In action to recover for cost of cent, February 1, from under a contract with two landowners who (plaintiffs error) Defendants plaintiff through answered a third held containing general sustain a that de- an verdict fendants liable. general day demurrer and denial. On the the their cause was called trial defendants filed County Court; Error Nueces H. from original answer, Holden, §pecial Judge. general demurrer, contained the certain Company Action Falfurrias Mercantile exceptions, general denial, cial A. Harlan S. and another. answers. bring and defendants error. The cause was tried the court without Reversed, rehearing. remanded plaintiffs’ petition and after was read the defendants read their amended G. R. R. B. & reading plaintiffs objected and after McCampbell, Corpus Christi, and E. A. for all of filing thereof, plaintiffs asked that same in error. file, Kleberg, Stayton from the and the North, Corpus court refused any part Christi, to consider same filed in so far as for defendant in error. thereof was concerned the demurrers COBBS, originally J. This suit was regard insti- and and declined to county. tuted in part, Brooks defendants hav- other which action was interposed ing plea privilege Thereupon heard, to be defendants. con- county residence, sued in the sidered, of their general and overruled defendants’ county special exceptions, transferred to the fourth, Nueces and county. directed to failure state wheth- agreement alleged in error as in the er the was written or sought oral, alleged sustained, trial court to recover con- which .was price express tract on a amendment, contract de- leave to file again fendant error Downs was to have defendants asked leave had with atiswer, which was denied original petition alleged that on the court. To this action the court de- September, 1914, Perry excepted. or about the 3d fendants topic Key-Numbered Digests cases see same KEY-NUMBER all

<SS=>For *2 ' them, being them, the court against any The cause submitted or claimed demand any them, jury, judgment against in or held or without was rendered demand had charged but, contrary, therewith, Company for look- the favor of Ealfurrias entirely ed Z. for to the said F. his for, principal in- full and the amount sued compensation, and received heretofore from the jointly terest, costs defendants and said F. Z. and full Perry severally, plaintiff: and upon for the work done and the excepted nothing. the to of take premises land A. Hutchins. and the said B. ap- them, gave judgment against notice fully “Wherefore, defendants, having an- these days granted ad- after peal, journment and swered, nothing by pray that take prepare, them, them, in their suit or either of and exception they proved and state- that bills of hence recover and file and without they costs, presented their pray.” and in will ever They and facts. also filed ment of prepare and to the court written law which conclusions of fact and objection grounds and reasons Exception granted, no conclusions hut sustaining for court same are as follows: duly taken. complains that the court The first whereupon pleadings “And the file and have con- let defendants foregoing read amend- to the the and answer, original by first amended sidered their original ed the court answer read to thereupon defendants, an- counsel prepared nouncing to be filed before and the for and tendered read, Leaving counsel for objected the same was ready. after the out for trial. for the reason that the thereof fol- exception, is as tendered answer the E. the A. had been made lows: McOampbell, special defendants, for that counsel filed, no relied answer would be that he and defendants, deny said answer herein “And for anticipated upon said statement no every allegation in contained each and special answer, for the further reason that put they them- petition, of this tiffs’ said selves for a. the cause was set day, 9 m. country. upon the m. 9:30 a. before herein, way with- answer “And orig- appe'ared filed the said exceptions, waiving any manner out in inal asked that same be the same, upon insisting defend- these they the but still cause; thereupon Mi;. from R. B. file in said the deny them, ever en- that and each of defendants, for an- counsel any pleaded the into contract tered only nounced to court that he been em- the had promised they of them or either tiff wherein ployed m., in said at 8:30 a. vir- say 'plaintiff for said to that said the necessary tue of his deemed was made a resident entered into for defendants’ interests that the said the Bishop, Z. of F. behalf Nueces filed; cial answer be county, the informed of coun- Messrs. G. R. Bishop, Z. for F. to be work was defendants, them authorized sel for same, that the pay for things fit; cause in all conduct said he saw express under- prosecuted the work under said thereupon that his announced paid standing work was said that the any docket did not show that said first amended leave to file the Bishop, no manner and in Z. for original answer. had been them, defendants, the for or either these defendants, and the that he would same. permit refuse be considered as say further “And defendants part any filed in far thereof so was con- contract with manner of into not enter exceptions, the demurrers and cerned .herein, work was regard any oth- for and to be done by er swer of said aforesaid, Bishop, these exceptions; said demurrers authority oth- one from the had no whereupon the defendants to said other, lia- became and neither each er to bind ruling of the tender their and herewith any portion oth- ble er, sign- bill ed and made and ask the same be where- sums assumed or part cause, of the record defaulted in F. Z. accordingly done.” which is thereof. says A. “And defendant B. [1] We not think the do court committed that, as the wells drilled in so Perry reversible error to allow the concerned, the said are land filed, arbitrarily or that it was for all of said in full been Downs has work abusing in the amount done, F. Z. the said extent of its to the discretion. therefore, there is no sum of or sums the wells B. A. Hutchins. especially we not think so as And owing reason came toodate. amendment land of assignment is: [2] The second sustaining plaintiffs’ was made court erred in ob- “The “Defendants demand question propounded by jection them, them, to the either testifying petition B. time after A. Hutchins in the as- ants to his signment bankruptcy wherein of F. and as witness not at time whether or no asked: ‘State asserted theretofore ’ entered into with .the defendants or either of demand w.as Tex.) FALFURRIAS MERCANTILE HABLAN v. :.w.) you might employ ob ties not contract so that were in the of F. ligated Downs, not that fact was known but were to Perry mate- of which was through Bishop, for them. a stakeholder rial, mate- and would elicited an answer employ was in of Bish evidence he was rial to the defense of said cause *3 defend- op superintending not It would work. fully appears as more from defendants’ have the defense that added exceptions bill of 3 reference thereto No. with “superintending drilling ” work was filed in this cause.’ building the defend and fences for houses persons.” It would not ants and other proposition The is as follows: thereunder wells in affected issue that pleading “Under the it was a defense to agreed the defendants’ to be bored tiffs’ cause of action separate lands, and not the lands was, ingly fact, the contract of a know- third liable, impliedly Bishop be for which with one the defend- undisputed since the evidence showed agent ants as tending improve defend contract with Downs was to establish such defense was material testimony Bishop’s. The ants’ lands and not relevant.’’ enough. material; not it not was appellant The Hutchins testified on direct Anyway, was examination: he made a contract Mr. Downs drill with place foot. on his at cents two wells He told “I made a Downs to drill Mr. Bishop pay * * * Mr. was to Downs that place. my two wells on I told Mr. agreed Bishop that and pay for it. “And understood Downs work, he was to for the work, Bishop and he understood that Mr. was to to to do work, Bishop pay do the and that BIr. was to pay “I it.” was em Further stated: * * * for it. I not in business with ployed by Bishop Mr. suiferintend Mr.- contract for to Z. he did not authorize me to certain work for him.” stated him, I did not authorize him McManus, paid by Mr. Downs “was contract for me. I was Mr. F. Bishop.” worked Bishop superintend certain work for him. n n * assignment. overrule this Mr. Downs was in full for the * * * is to the effect that my place. wells he drilled.on He was joined paid by McManus, the several, this suit on who worked for Mr. Kinder, BIr. Bert not contract. at the First * * * Bishop. State Bank at I did not All the facts on this issue were before claiming know that Mr. Downs was that I owed there evidence to show anything him I until was served with citation joint liability the assignment and this in this suit.” overruled. We have read cited, appellants authorities specially and the case Bishop Z.F. to this con- attention, our call of Haskins v. .to tract, pres- and no witness testified as to his Lombard, 140, 16 Me. 33-Am. Dec. hold- contract, ence at the time of n ing: the least interested “Where the pay interest of than he was to covenantors the work— separate, performance cannot be made whether out of his own runds or that of de- jointly, regarded the covenant must be as sev- fendants, nothing in this record to eral, parties appears the intention of unless Bishop’s liability. show It does not show to have been that each be for the Bishop principal, was a disclosed but performance of the other.” Hutchins, does show was the owner of the land two the wells were bored, and Harlan the owner of the rate, at a cut to drill four wells for them at land on which the other two wells were to per foot, place cents two Harlan’s be drilled. It was shown that the answer place, two on Hutchins’ arid he expected given by be reply Hutchins in his contract and bored the wells for was— (cid:127) price. at the contract When prove by “That he desired said witness’ going stated home to that for the drilling in the of F. Z. Texas, they lived, North and F. superintending the work of Bishop paymaster. b,e was to building wells and houses and fences together approached and Hutchins persons Downs to for the defendants and other as the said do, drill the four wells contracted tiff, Perry Nothing knew such to be with him. the case.” further was said as pay, only they who would said that objections being The two paymaster. made and sus- was to be their himself tained present was “immaterial not interviews, nothing and called for a con- and said to Downs. As the work clusion of the witness.” parties was to done for be both with a belonged paymaster, was shown the land to Hut- it was for the trial court to chins, why par was no reason whether it was the intention of C52 bound, proper unsatisfactory draw too We deduc- to let the stand. grant tions based 'on the evidence. That court therefore the motion rehear- ing, testimony, heard all the within and reverse and remand the power duty and his to act and find tried on issue. judgment.' It is this court to supported if that can be The trial evidence. right par- had the to determine whether the ties, having stipulated that each PYLE PARK land, was to on their of Civil of Texas. Dallas. by joining together they could the work cheaper; thereby bound themselves to July 5, 1919.) *4 jointly. The defendants could plainly stipulated 1. Trusts <§=>30½ have bility, of Transaction for their several lia- —Nature —Collections—Application to Notes. but was not done. The contractor whereby party willing Contract might not have been to make to have looked payments monthly collections and make of a separate to each one for his work. of amount collected to second Was it not inducement make the low apply payment toward notes latter price, two, four wells instead of and did not create trust relation sepa- have them rather than requiring between first and second rately, party paymaster and have same apply payment collections to of second with whom no doubt defendants party’s had made notes bank with he had which de- arrangements posited payments. party’s notes collateral. assignment overruled, This <s=s1062(2) —Review- assignments 3, same reasons we overrule Harmless Error. 5, and 6. Refusal to submit issue of whether certain passing [3] In we cannot the testi February made on 4th or on Feb- joint liability mony appellees as to the ruary 23d, error, was harmless where court satisfactory cogent submitted on

not be, as it 4th, February jury justified, answered issue af- do not feel we under the firmatively. circumstances, judgment disturb Payment It tried the case. is claimed <§=ol Novation — of Notes — Col- preparing the court erred lections. findings facts conclusions of newspaper Where holders of notes publishers whereby request made contract of defendants. this should one of the advertising space, holders ceeds, sell pro- always request collect done on of either ,timely holders, proceeds among and divide suit, still it is not reversible ply notes, merely provided meth- comply to' error not when od of of notes and was not a novation. is filed. There is a full a statement and by facts < n ^176(1) — Construction Province of Court. approved by parties and The construction of written contracts case. filed in this upon ground fraud, which there attack in the statement of facts The evidence accident, law, mistake awas matter of clear, though brief, and, as it seems jury. of fact for the unambiguous. apprehend goes, Peremptory <§=>143 5. Trial Instructions findings not have been different. The would —Controverted Facts. attorneys, approved by thereto of certificate the giving plaintiff’s requested charges and correct is: “Are a full state- peremptory which were tantamount instruc- given in evidence ment the facts tions, only facts, when In the case of I. the trial & cause.” plaintiff thereto, sharp- event have entitled Diaz, Ry. W. this 156 S. N. Co. v. G. ly controverted, would have been er- affirmative facts, “There is a statement of court said: and a refusal ror. any facts whatever is to find <§==>256(1) Conform- —'Verdict— not a full statement overruled. for reversal there is ity to. of facts.” This is court’s enter ac- findings though cordance are even any reversible find error as- We do not unsupported by evidence, where verdict signed, and we is not set aside. court. Court, from District Dallas Coun- ty; Whitehurst, Judge. W. F. Pyle re-examining Park, Upon P. the record in Action Milton

[4] O. considering Owen, C. testi in which administrator of mony on the liabil defendant Park’s estate was de- offered ity, that it death reached the conclusion is fendant of defendant Park. we have Digests Key-Numbered" topic in all eases KEY-NUMBER see <§^>For