BROOKE, J. This is an action brought and the agent promised to trace them and by appellee against appellant and a transfer deliver them when they arrived. It was company for the value of certain items of shown to be the custom to sign receipts for dry goods alleged to have been delivered to freight at the office before actually receivthe appellant for transportation at Galveston, ing them, and then check the items from the Tex., and either lost or converted by appel-warehouse, where missing items were dislant or the transfer company. The suit originated in the justice's court, and on appeal to the county court there was a judgment in favor of the transfer company, of which no complaint is made, and judgment for appellee against appellant, from which this appeal is perfected. covered and reported, and this transaction was carried on in the usual way. This explanation of the receipt was received and considered by the trial court, and, in connection with the other testimony, held to establish appellee's contention that the goods had never been delivered to it by appellant. Complaint is made of the refusal of the trial court to enter judgment for appellant at the conclusion of appellee's evidence, on the ground that plaintiff failed to show by com livered to appellant, their evidence going no further than showing the delivery of the box to appellant, without showing its contents or value at that particular time, or that its contents were the same, or in the same condition, or of the same value as when delivered to the Mallory Steamship Company, in whose possession the box is shown to have been for 10 days before being delivered to appellant, and the contention is made that to sustain the judgment, the condition and value of the goods when delivered to the steamship company must be considered, and the presumption will be indulged that they remained the same until delivered to appellant for transportation. [1, 2] The goods were shown to have been securely packed in a proper box when they were delivered to the Mallory Steamship Company, and this box was identified by peculiar and distinguishing marks placed upon it, and is shown to have reached Galveston and to there have been delivered to appellant in apparent good order. There was nothing about the box to indicate its having been tampered with or damaged. It was of the same weight, and had been handled in Appellee purchased the goods in controversy from H. B. Claflin & Co. in August, 1914. They were properly packed and delivered in good order by that company to the Mallory Steamship Company for transporta-petent evidence that the goods were ever detion by water from New York City to Galveston, and reached Galveston about September 12th. The box in which the goods were packed was properly marked for identification with weight, character of goods, and other notations thereon. The goods reached Galveston in what is known as a bulk shipment with other goods, and were consigned by H. B. Claflin & Co. to themselves, and at that point their agent broke up the shipment, consigning the various portions to their final destination, and the particular box in controversy was thus handled, and by him delivered to appellant about September 12, 1914, consigned to appellee at Beaumont. The testimony shows the items placed in the box at the time it was delivered to the Mallory) Steamship Company, and their value, and it also shows that the box was in good condition when delivered to appellant, and receipted for by it as in apparent good order and condition, but the box is not shown to have been opened or its contents examined after leaving New York. Appellant specially pleaded in its answer delivery of the goods in controversy by it to the Merchants' Transfer Company at Beaumont, which company was duly authorized to receive and receipt the regular way. We think that this proof for same by appellee, and specially pleaded met the requirement that to recover in this written receipt given by the transfer com- character of action, the burden of proof rests pany for the said goods. The authority of upon the plaintiff to establish delivery of the transfer company to execute the receipt the goods to the carrier. This requirement, was not disputed by appellee, and the re- however, does not go so far as to shut out ceipt itself was offered in evidence, and every possibility of error, but simply means shows that the goods were receipted for by that the proof offered shall be sufficient to one of the transfer company's drivers in Sep- fix the belief in the minds of reasonable men tember, 1914. The appellee did not, by any that the particular goods were in fact deplea, attack this receipt, either by denying livered to the carrier for transportation. its execution, or fraud or mistake, but it We do not think that it was incumbent upon was shown, over appellant's protest, that al- the shipper to reopen this box at Galveston though the receipt was duly signed as plead-upon delivery to appellant to discover if the ed, still the goods were not in fact received goods originally placed in the box were still by the transfer company, but after signing there. On the contrary, we think the evithe receipt for the goods described in the waybill, the driver immediately discovered that the box was missing when he loaded the goods from the warehouse, and immediately he reported the shortage to the appellant's agent, for whom he had signed the receipt, dence sufficient to authorize the finding that the goods placed in the box in New York were still there when the box was delivered to appellant, and that the goods were in the same condition and of the same value. Appellant complains of the evidence re Tex.) ceived by the trial court to the effect that [3, 4] Where a pleading, if founded on writ- 455. We have carefully examined this record, and we find no error in the judgment, and it is therefore affirmed. KELLNER et al. v. RAMDOHR et al. (No. 7624.) (Court of Civil Appeals of Texas. Nov. 25, 1918.) Suit by G. A. Kellner and others against O. Wilson & Follett, of Angleton, H. O. Schulz, of Rosenberg, and Elmer P. Stockwell, of Angleton, for appellees. GRAVES, J. That being the only question involved, this case turns upon the proper construction of the following written instrument; "Damon 1 day of July, 1908. "Know all men by these presents: That I, O. J. Ramdohr, of Brazoria Co., Tex., have this day sold to G. A. Kellner, C. C. Watson & R. F. Dickson, of Wharton Co., Texas, 29 acres in the E. S. Jones 1 league, consideration $522, five hundred & twenty-two dollars, cash in hand paid, $25.00 twenty-five dollars by said parties, the balance is to be paid in 50 days or as soon as abstract can be made. "O. J. Ramdohr." Appellants sued appellees in the court below in trespass to try title for 29 acres of land out of the E. S. Jones league in Brazoria county, Tex., which they specifically described by metes and bounds in this petition, their asserted claim thereto having its origin and sole basis in the copied instrument; in the alternative, should the instrument in and of itself be held not to have passed to them title to the land they sought, they declared upon and asked specific performance of it as a valid and competent contract for that purpose. When the instrument was offered in evi'dence upon the trial, the court excluded it, Galveston. holding the attempted description therein not only insufficient to identify and convey the land described in the petition, but also CON- inadequate as a basis for the admission of the extraneous proof tendered in aid thereof. Judgment for the appellees necessarily followed, from which this appeal is prosecuted. 1. SPECIFIC PERFORMANCE 29(2) [1, 2] We think the ruling was correct. It seems to us that an inspection of the instrument discloses that, of and within itself, it did not sufficiently identify the particular land described in plaintiffs' petition. Aside from the caption, "Damon 1 day of July, 1908"-a circumstance without probative force the only description is, "29 acres in the E. S. Jones % league." Standing alone, even if it had gone further and recited that the E. S. Jones one-third league was in Brazoria county, Tex., that description would have been equally applicable to as many different tracts of land as 29 is contained times in 1,476-the number of acres in the onethird of a league-or about 50 tracts; and if Appeal from District Court, Brazoria Coun- that be true, it of course follows that such an ty; Samuel J. Styles, Judge. instrument could not alone serve as an ade For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes quate conveyance of any particular piece of by the court in some of the cases to be tanland. But did it afford a proper basis or lay sufficient predicate for the introduction of extraneous evidence in aid of such descriptive matter as it did contain? While the question is not clear of doubt, we conclude that it did not. The principles of law governing cases of this general character have been so often declared and so well settled, especially in Texas, that it is felt neither necessary to go elsewhere for authority, nor to attempt by extended discussion to add anything of value to what our own courts have already said upon the subject. As we understand the Texas cases, the rule may be substantially, at least, thus stated: The writing itself must either upon its face identify the land, or it must expressly or by implication refer to some instrument, document, map, plat, record, or outside fact—that is, furnish the means-by which the land can with reasonable certainty be identified. Penn v. Yellow Pine Co., 35 Tex. Civ. App. 181, 79 S. W. 842; Rosen v. Phelps, 160 S. W. 105. Tested by this rule, the instrument here involved meets neither of its requirements; not only does it fail to state the county, state, or locality where the land is situated, but contains no implied reference even to any record, paper document, fact, or object, natural or artificial, to which the outside evidence tendered in aid of it might attach. As we understand the proper application of the rule stated, evidence aliunde has not been admitted, except for the purpose of making some thing so referred to in the instrument itself applicable or attachable to a particular tract of land; that seems to us to be the net result and effect of the holdings in all the Texas cases upon the point cited and relied on by appellants, the principal ones being Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Hinzie v. Robinson, 21 Tex. Civ. App. 9, 50 S. W. 635; Penn v. Texas Yellow Pine Lumber Co., 35 Tex. Civ. App. 181, 79 S. W. 842; Pierson v. Sanger Bros., 93 Tex. 160, 53 S. W. 1012; Golden v. Walker, 153 S. W. 683; Beaton v. Fussell, 166 S. W. 458; Diffie v. White, 184 S. W. 1065; Taffinder v. Merrell, 95 Tex. 95, 65 S. W. 177, 93 Am. St. Rep. 814; Petty v. Wilkins, 190 S. W. 531; Waterhouse v. Gallup, 178 S. W. 773. A close reading discloses that in each and all of the written instruments involved in those cases one or another of conditions which may be thus summarized existed: There was either: (1) A much more definite and particular description of the land than is the case here, in that such matters as the state, county, or survey of its location, the name of the person to whom and the date when it was patented, or a reference to the records of the named county for further description, was given; or (2) in aid of an otherwise insufficient description there appeared some definite recitation equivalent-or held tamount to a statement that the land sought to be conveyed was that belonging to, owned by, or the property of, a certain named person or estate within a designated town, city, survey, county, and state, or other fixed locality; in a word, data which easily furnished the means of identification by simply ascertaining from extraneous sources what land was so owned. But we have not been cited to nor otherwise found any case holding that the mere fact of executing an instrument insufficiently attempting to describe land which might, by an ad libitum range into the records of some county not therein mentioned, or into a field of parol inquiry not referred to or trenched upon, be made to fit a particular tract in that county found by such unconnected outside processes to be owned by the maker of the instrument, was tantamount to a recitation in the instrument itself that he was the owner of that tract; and, until that could be held, it seems to us there must remain a chasm between the situation here presented and the applicability of the principle governing the cases last mentioned; in other words, the electric spark may not leap the intervening void between a writing so inherently deficient in description of the land as this one and an outlying mine of record, fact, and circumstance which might illumine its dark places and supply its missing links. As has been stated, we think appellants' own cases fortify these conclusions, as well as the following additional ones cited by the appellees: Boyce v. Hornberger, 29 Tex. Civ. App. 337, 68 S. W. 701; Rosen v. Phelps, 160 S. W. 105; Harris v. Shafer, 86 Tex. 314, 23 S. W. 979, 24 S. W. 263; Edrington v. Hermann, 97 Tex. 193, 77 S. W. 408; Cammack v. Prather, 74 S. W. 354; Zanderson v. Sullivan, 91 Tex. 499, 44 S. W. 484. In conclusion, it may be well to set out as a fact finding that the extrinsic matters tendered by appellants in aid of and in connection with the proffered instrument, which the trial court for the reason above given excluded along with it, consisted of their offer by competent proof to establish as facts the following: (a) That Damon was in Brazoria county, Tex. (b) That O. J. Ramdohr, who executed the instrument, resided in that county at the time of its execution, immediately or within four or five days after which it was delivered to Kellner and Dickson, and by them filed with the county clerk of such county for record, and was in fact at the same time recorded in the deed records there. (c) That Ramdohr, one of the defendants, carried the plaintiffs Kellner and Dickson on the land and pointed out to them the land being conveyed, the particular description of which was shown by the field notes contained in plaintiffs' amended original petition. (d) That there was an E. S. Jones one-third league of land in Brazoria county, Tex., and, 5. ASSIGNMENTS no other survey of that description any- EQUITIES. where else in Texas. (e) That in fact $50 of the consideration was paid, instead of the $25 named in the instrument, which had never been returned or paid back by Ramdohr or any other person to the plaintiffs. (f) By parol declarations that the particular land described in plaintiffs' petition was the land intended to be described in the instrument sued upon. (g) That Ramdohr had before the making of the instrument to the plaintiffs owned a tract of land in this survey amounting to some 75 acres; that he had sold smaller tracts to various and sundry people, so that at the time the instrument was made, to wit, on the 1st day of July, 1908, he owned only the amount of acres of land in this tract mentioned in the instrument in writing so ecuted by him, that is, 29 acres. Assignment by bridge-building contractor of balance retained by county on his contract, to bank, to secure its advance of a sum which contractor used to pay laborers' wages, was superior in equity to prior assignment of the same fund to contractor's surety to secure it against liability on its bond, which had been previously executed, since surety parted with nothing of value as consideration for the assignment. 6. ASSIGNMENTS 85-PRIORITY. In order that a prior assignment may have precedence over a subsequent assignment, notice of former assignment must have been given to the holder of the fund prior to the subsequent assignment. 7. ASSIGNMENTS 52-EQUITABLE ASSIGNMENT OF WAGES. An agreement by which laborers were paid ex-partly in cash and partly in board, but not showing that the laborers agreed that any part of their wages should be paid for groceries, or that they knew such were bought from claimant, does not constitute an equitable assignment of laborers' wages to claimant. 8. COUNTIES The conclusions stated require an affirm ance of the judgment, and it has been so ordered. Affirmed. HESS & SKINNER ENGINEERING CO. et al. v. TURNEY et al. (No. 5811.) (Court of Civil Appeals of Texas. Austin. Oct. 31, 1918. On Motion for Rehearing Dec. 11, 1918.) 123-CONTRACTOR'S BONDLABOR AND MATERIAL-TOOLS. A scraper and paint brushes furnished a contractor were tools, and were neither labor nor material used in the construction of a bridge, for which contractor's surety would be liable.. 9. COUNTIES 123-CONTRACTOR'S BONDLABOR AND MATERIAL-FUEL FOR ENGINE. Wood furnished as fuel for an engine used 1. ASSIGNMENTS 52-EQUITABLE ASSIGN- by a bridge contractor in hoisting steel, and for MENT OF WAGES. An agreement whereby merchants were to furnish to laborers goods for which their employers were to pay from wages due amounted to an equitable assignment of the claims for SUBROGATION 23(8) ADVANCES-LIABILITY ON CONTRACTOR'S BOND. repairs of tools and hauling material from railroad to river, were items for "material used and labor performed" in the prosecution of the work, under the contract, for which contrac tor's surety would be liable. 10. COUNTIES 123-CONTRACTOR'S BONDLIABILITY-LABOR AND MATERIAL. Where a contractor, in constructing a bridge, in order to facilitate work, had laborers take their meals in camp instead of going into town for them, the labor in cooking such meals was labor performed in the prosecution of the work, and for such the contractor's surety would be liable. On Motion for Rehearing. The law in reference to releasing a surety A transaction by which a bank loaned mon- by reason of a change in the construction coney to contractors for payment of wages due la- tract, which surety guaranteed, has no application to change in the contract between conborers, which money was so used, held not to tractor and subcontractor, thereafter made, constitute an equitable assignment of labor debts, nor subrogate the bank to the laborers' where there was no resultant injury to the claims against contractor's surety. 4. EQUITY 60 PRIORITY OF EQUITIES EQUALITY. As between persons having equitable interests, the rule "Qui prior est tempore potior est jure," applies only where the equities are equal, surety. Appeal from District Court, Bastrop County; Ed R. Sinks, Judge. Suits by M. M. Turney and by the Lion Bonding & Surety Company and others For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 against Bastrop County and others were cón-; 5. In February, 1914, the contractors borsolidated and tried together. From a judgment therein rendered, the Lion Bonding & Surety Company appeals. Hearing, after answer, by Supreme Court to questions certified. 203 S. W. 593. Judgment reformed. A. B. Wilson, of Houston, for appellant Lion Bonding & Surety Co. Page & Jones and Maynard & Maynard, all of Bastrop, Duncan & Burleson, of La Grange, S. L. Staples, of Smithville, and N. A. Rector, of Austin, for appellees M. M. Turney and others. Jno. T. Duncan and A. Burleson, both of La Grange, and S. L. Staples, of Smithville, for appellees Mrs. Tomlin and others. Findings of Fact. rowed from the First National Bank of Smithville, hereinafter referred to as the bank, $1,500, and as security therefor gave the bank an order on the county for that amount to be paid out of the money to be come due them on said contract. This order was properly presented to the county judge of Bastrop county, and was accepted by him. It would have been paid but for the fact that he was enjoined by appellant from making such payment. 6. At the time the assignment was given to the bank neither it nor Bastrop county, nor the county judge, had any notice of the assignment by the contractors to appellant. were to pay for the same out of wages due and to become due such laborers, and deduct the amount of such payments from the wages of said respective laborers. 7. During the progress of the work on the bridge certain local merchants, the contractors, and the laborers entered into an agreeJENKINS, J. 1. On April 29, 1914, Hess ment whereby the merchants were to fur& Skinner Engineering Company, hereinaft-nish the laborers goods. The contractors er referred to as the contractors, entered into a contract with Bastrop county for the construction of a bridge across the Colorado river for the sum of $45,000, to be paid as the work progressed, 15 per cent. of which was to be retained by the county until the completion of the bridge. The bridge was completed according to contract, and the county paid therefor, except the sum of $6,854.23, which amount it tendered into court for the benefit of those who might be entitled to the same. 8. Appellants brought suit to enjoin the county from paying out any of the funds due on the contract to the bank or to the bridge company. M. M. Turney brought suit to recover the amount due him from the county, and the bonding company and other appellees intervened in said suit. The two suits were consolidated and tried together. // 9. The case was tried before the court without a jury. Judgment was rendered against appellant for Turney and for all of the interveners, 38 in number, for the respective amounts shown in the judgment of the court, except W. C. Moore, Falkenberg Drug Company, and Alamo Ironworks, and foreclosing their lien on the money in the registry of the court. 2. At the time of the execution of said contract the contractors gave bond as required by the Acts of the 33d Legislature, c. 99, p. 185 (Vernon's Sayles' Ann. Civ. St. 1914, art. 6394f et seq.), with the Lion Bonding & Surety Company, hereinafter referred to as the bonding company, as security. By the terms of this bond the bonding company bound itself for the completion of the bridge according to the contract, with the additional obligation that such contractors "shall promptly make payments to all persons sup plying them with labor and (or) materials in the prosecution of the work provided for in such contract." The statute gives the right to sue on this bond to any person having such unpaid claim, and requires all such persons to intervene in any such suit when brought. 3. On April 30, 1914, the contractors, for the purpose of indemnifying the bonding company against any amount for which it might 11. Appellant, Lion Bonding & Surety Combecome liable on its bond, gave to said company, only appealed from the judgment renpany a written assignment of the 15 per cent.dered. of the contract price of the bridge to be retained by the county. 4. The Vincennes Bridge Company, hereinafter referred to as the bridge company, furnished the steel for the erection of the bridge. On August 25, 1914, the contractors, for the purpose of securing the bridge company for any amount that they then owed, or might thereafter owe, to said company, gave it a written assignment of its contract with the county. 10. The court filed its findings of fact herein, which we approve; but as they are very lengthy, rendered so by the number of the parties herein and the finding as to each claim, we do not deem it necessary to set out such findings of fact. We think that our findings of fact as herein set out, together with such additional facts as are stated in the opinion herein, are all that are necessary to an understanding of the issues here involved. Opinion. This case was tried before the court without a jury. Appellant filed a motion for a new trial. It did not copy any part of its motion for a new trial as assignments of error, but filed assignments independent of such motion. Appellees objected to the consideration of these assignments. We certified to the Supreme Court the question whether or not the assignments herein should be |