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considered, and that court answered in the affirmative. The question was certified under the style of Hess & Skinner Engineering Company v. M. M. Turney et al.

v. United States, 191 U. S. 416, 24 Sup. Ct. 142, 48 L. Ed. 242; People v. Bowen, 187 Mich. 257, 153 N. W. 672,

It is stated in the note to Hormel v. Bond

[1] R. E. Hoppe recovered judgment for ing Co., 33 L. R. A. (N. S.) 513, that the overgoods sold to laborers, under the circum-whelming weight of authority supports the. stances, as local merchants, mentioned in proposition that the rule of strictissimi Ju-. our seventh finding of fact, supra, for the ris, by which the rights of uncompensated amounts due him, with the right of pro rata sureties are determined, is not applicable participation of the funds in the registry of to the contracts of surety companies, which the court. In this there was no error. The make the matter of suretyship a business transaction mentioned in said finding of for profit. See the numerous authorities citfact amounted to an equitable assignment to ed in this note in support of the proposition. him of the claims of the laborers. McIlhenny Under the assignment stated in the fourth v. Binz, 80 Tex. 20, 13 S. W. 655, 26 Am. St. finding of fact, supra, the bridge company Rep. 705. had the right to have all of the $16,149.80 due by the county to the contractors paid to it. Had it done so the debt of the contractors to it would have been reduced by the amount of $6,499.80, which it consented to have paid to the local merchants. But in that event the debt of the contractors to the merchants for that amount would have remained unpaid, and by virtue of their equitable assignment from the laborers they could have recovered that amount against appellant in this suit. The appellant suffered no injury by said transaction, as its liabilities were not lessened thereby. It can make

[2] One of the appellees herein is the bridge company. At one of the periodical settlements between the county and the contractors it was found that the county was due the contractors $16,149.80. There were present at this settlement one of the contractors, the county judge, an agent of the bridge company, and a representative of all of the local merchants. There was then due the local merchants, under the agree ment referred to in the seventh finding of fact, supra, the sum of $6,499.80. The representative of the local merchants objected to any of this sum being paid to the contractors. It was then agreed by all parties that the county should issue to the contractors two warrants, one for the sum of $6,499.80, which should be immediately indorsed by the contractors to the representative of the local

merchants, and the other for the balance,

$9,650. This was done, and the warrant for $6.499.80 was collected by the representative of the merchants, and the proceeds was paid to them.

In connection with these facts, appellant submits the following proposition:

"Where a creditor releases the securities held by him for the payment of an obligation for which a surety is liable, the release of said securities operates to discharge and release the surety, at all events to the extent of the value of the securities released."

This proposition, under the facts ordinarily existing in suits against sureties, is too well established to require citation of authorities in its support. The bridge company, by its agreement and indorsement of the $6,499.80 warrant to the merchants, released security which it had the right to retain by virtue of the assignment to it, as stated in our fourth finding of fact, supra. To the above proposition there should be added, under the facts of this case, the following:

Where, however, a surety is engaged in the business of suretyship for profit, and it appears that he was not injured by such release, he will not be discharged thereby, in whole or in part. Rule v. Andrews, 160 Mo. App. 347, 142 S. W, 358; U. S. Fidelity Co.

no difference that in this suit it was the

bridge company instead of the local merchants that recovered against it.

[3] Among the recoveries in this case favor of the bank, the same being the prinagainst appellants was one for $1,612.60, in cipal and interest of the loan made to the contractors, as stated in our fifth finding of fact. In this we think there was error.

The contractors at the time they borrowed this money represented to the bank that they needed it to pay wages due the laborers. This was true, and the money was used for that purpose. The laborers, however, were not parties to this transaction. When they were paid, their debts were extinguished. The transaction did not constitute an equita. ble assignment of their debts, and did not subrogate the bank to their claims against appellant. I. & G. N. Ry. Co. v. Concrete Investment Co., 201 S. W. 723; Lion Bonding Co. v. Bank, 194 S. W. 1012; Bank v. Corse, 133 Tenn. 720, 182 S. W. 917; Morgan's S. S. Co. v. Ry. Co., 137 U. S. 171, 11 Sup. Ct. 61, 34 L. Ed. 625; Malone v. Kaufman, 38 Tex. 455.

[4, 5] There was no error, however, in the judgment of the court that the amount due the bank be paid out of the money in the registry of the court. The transaction mentioned in our fifth finding of fact constituted an assignment of the funds in the hands of the county to the amount of said indebtedness. This seems to be conceded by appellant, but it contends that it had a prior right to such fund, by reason of the previous as

signment made to it, as stated in our third must be given to the holder of the fund, in finding of fact.

The appellant relies upon the rule, "Qui prior est tempore, potior est jure." This rule is subject to limitations. An able English equity judge says: "This is an incorrect statement of the rule, for that proposition is far from being invariably true." Rice v. Rice, 2 Drew, 73. Mr. Pomeroy gives the following as a more correct statement of the rule: "As between persons having only equitable interests, if their equities are equal, qui prior est tempore, potior est jure." 1 Pomeroy, Eq. Jur. § 414. Again, the same learned author says: "Among successive equitable estates or interests, where there exists no special claim, advantage, or superiority in any one over the others, the or der of time controls." 2 Pomeroy, Eq. Jur. § 682. "It is certainly not enough that two successive equitable interests should be of precisely the same nature, for even then one might be accompanied with some collateral incident which gave it a precedence over the other without reference to their order of time. When we say that A. has a better equity than B., this means that, according to those principles of right and justice which a court of equity recognizes and acts upon, it will prefer A. to B., and will interfere to enforce the rights of A. against B." Id. § 683.

We think that "the collateral incidents" existing in the instant case should, "according to the principles of right and justice," give the bank's equitable claim to the funds in the registry of the court precedence over that of appellant. In addition to the fact that the bank had no notice of the assignment to appellant, the effect of which we will discuss in the succeeding paragraphs of this opinion, the appellant did not part with anything of value as a consideration for the assignment to it. Such assignment was made to secure it against liability on its bond, which had been previously executed. On the other hand, the bank parted with $1,500 cash for the assignment to it. While the bank did not secure an assignment of the wages due to laborers, for the payment of which appellant was liable on its bond, nevertheless the money obtained from the bank was used to pay such laborers. For the reasons stated, we hold that the bank's assignment was superior in equity to that of appellant.

order for it to take precedence over a subsequent assignment. 2 Pomeroy, Eq. Jur. § 695. There is a diversity of opinion on this among the courts of the several states in this country. We know of no decision in Texas as to this point.

The learned editor of the note to Graham Paper Co. v. Pembroke, 71 Am. St. Rep. p. 34 et seq., after citing cases pro and con, says:

See

"Under the rule that the date of the assignment controls, where there is a prior and subsequent assignee of the same cause of action from the same person, it is evident that no asWe are, signment can be taken with safety. therefore, induced to believe that the second notice to the debtor to obtain priority, is the rule, which allows the assignee who first gives better one, not only because of the reasons given in the principal case, but because it is in obedience to the general principle of law which requires that all transfers of property must be rendered as complete as the nature of the action will permit, in order to make them valid as valuable consideration without notice. against subsequent bona fide purchasers for a Methven v. Staten Island, etc., Power Co., 66 Fed. 113, 13 C. C. A. 362. It is clearly the duty of an assignee, in order to perfect an assignment, to give notice to the debtor, and the amount of such a doctrine is that the bare assignment of a chose in action does not pass it away without notice of the fact to the debtor. If notice of the assignment is not communicated, it enables the original creditor to commit a fraud, as he may assign a second time, and such assignee, although he may take the precaution of inquiring of the debtor, yet he cannot ascertain from him the fact of a previous assignment, as it has never been communicated to him. Richards v. Griggs, 16 Mo. 416, 57 Am. Dec. 240; Maybin v. Kirby, 4 Rich Eq. [S. C.] 105; Murdoch v. Finney, 21 Mo. 138."

We concur in these views, and in support of same, in addition to the authorities above referred to, we cite Judson v. Corcoran, 17 How. (58 U. S.) 612, 15 L. Ed. 231; Spain v. Hamilton, 1 Wall. (68 U. S.) 604, 17 L. Ed. 619; Bank v. Farwell, 58 Fed. 633, 7 C. C. A. 391; Vanbuskirk v. Ins. Co., 14 Conn. 141, 36 Am. Dec. 473; Bank v. Hewitt, 3 Iowa, 93, 66 Am. Dec. 49; Houser v. Richardson, 90 Mo. App. 134; Wallston v. Braswell, 54 N. C. (1 Jones, Eq.) 137; Clodfelter v. Cox, 1 Sneed (Tenn.) 330, 60 Am. Dec. 157; Penniman v. Smith, 5 Lea (Tenn.) 130; Ward v. Morrison, 25 Vt. 593.

[7] Judgment was rendered in favor of R. E. Hoppe, among other things, for $183.[6] For another reason we do not think 25, for provisions furnished by him to the that the court erred in adjudging the pay- contractors, and used in running a boardment of the bank's debt out of the funds in ing camp. These were furnished under an the registry of the court: At the time the agreement of Hoppe with the contractors assignment was made to the bank, neither that they would deduct the board of the it nor the county had any notice of the previ- laborers from the amount due them for ous assignment to appellees. As to the as- wages, and out of same pay him the amount signor, no notice is necessary. As to suc- due for groceries. The amount was so decessive assignments it is the settled doctrine ducted, though it was not paid to Hoppe by in England that notice of the assignment the contractors. It does not appear that

the laborers were parties to this contract. They agreed that their board bills should be deducted from their wages. Under this agreement they were paid partly in cash and partly in board. This extinguished the debts to them. It does not appear that the laborers agreed that any part of their wages should be paid to Hoppe for groceries, or in fact that they knew that groceries were being bought from Hoppe. Such being the case, there was no equitable assignment of the laborers' wages to Hoppe, and the court erred in rendering judgment for him on this item.

[8] We are also of the opinion that the court erred in rendering judgment for Hoppe for $2.50 for a scraper sold by him to the bridge company, and used by them in constructing the bridge; also that it was error to render judgment against appellant in favor of Turney for $12.85 for brushes used in painting the bridge; also that the court erred in rendering judgment against appellant in favor of E. H. Eggleston for $45.50 loaned by him to the contractors to buy wood; and for $4.30 advanced by Eggleston to pay express on some bolts.

The scraper and paint brushes were tools, and were neither "labor nor material" used in the construction of the bridge.

Our reason for holding that appellants are not liable for money loaned the contractors is stated under our discussion of the judgment in favor of the bank, supra.

[9, 10] Appellant complains of the judgment of the court, in that it allowed certain of the appellees for wood furnished in running the engine used in hoisting the steel, for repairs of tools, and for hauling material from the railroad to the river.

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We overrule these assignments, and also the assignment as to the judgment in favor of Mrs. Tomlin for cooking for the camp. We think these items were material used and labor performed "in the prosecution of the work provided for in the contract." This language of the statute requiring bond for the construction of public works is broader than that used in the mechanic's lien law, which gives a lien to those "who may labor or furnish material * for the construction of any house," etc. It might well be held the labor here referred to must be performed in the actual construction of the house, or for material that entered into the structure. It has been so held. But the language of the statute here under consideration gives a lien to those who supply labor and material "in the prosecution of the work provided for in the contract." This is a remedial statute enacted for the protection of those whose labor or material contributes to the "prosecution of the work," without reference to whether such labor was on the structure, or whether such material entered into the structure. If it directly and materially aided in the prosecution of the work,

we think that is sufficient to bring it within the protection of the statute.

In the instant case it was necessary to hoist large steel beams. Had the contractors employed as many men as Pharaoh is supposed to have used in building the pyramids, perhaps this could have been done with their hands. It was none the less "in the prosecution of the work" because it was done with a steam engine. The wood used in making the steam was as essential as was the muscular strength of those who performed manual labor. In order for the engine to do the work, it was necessary to keep it in repair. Food was essential to the laborers, and it was necessary that it be cooked. It facilitated the work to have laborers take their meals in the camp, instead of going to town for them. We think the cooking, under the circumstances, was labor performed "in the prosecution of the work." We are aware of the fact that there are decisions in other jurisdictions which hold contrary to the views which we have expressed. There are also decisions sustaining our views which we think are supported by better reason. See Breault v. Archambault, 64 Minn. 420, 67 N. W. 348, 58 Am. St. Rep. 545; Winslow v. Urquhart, 39 Wis. 260; Heddan v. Walden, 31 N. D. 393, 153 N. W. 1015.

The judgment of the trial court will be here reformed in accordance with this opinion, and as thus reformed it is affirmed. Reformed and affirmed.

On Motion for Rehearing.

The appellant, the bonding company, in its motion for a rehearing complains that we overruled its first assignment without specific reference thereto. Said assignment is as follows:

[11] "The court erred in its conclusions of law and in rendering judgment for Vincennes Bridge Company for $6,407.09, because: (1) The Vincennes Bridge Company and Hess & Skinner Engineering Company entered into a contract on the 28th day of May, 1914, by the terms of which Hess & Skinner Engineering Company agreed to purchase from Vincennes Bridge Company the steel for the construction of a bridge in road district No. 1, Bastrop county, Texas, trusses at $2.40 and cylinders at $2.10, one-half of which was to be paid for in cash upon delivery of the metal at shop, and the balance in warrants on Bastrop county, Texas, with 6 per cent. interest from dates of shipments; and Vincennes Bridge Company changed the contract, and failed to demand or collect the one-half in cash, and shipped out and delivered to Hess & Skinner Engineering Company all of said bridge material, and in this way changed the terms of the contract, and relieved the Lion Bonding & Surety Company from any liability as surety upon Hess & Skinner Engineering Company's bond."

by the contractors as the work progressed, though not before the same was shipped from Vincennes, Ind.

There is neither pleading nor evidence to show where the "shop" mentioned in the contract was located.

We did not discuss this assignment because we thought it showed upon its face, when taken in connection with the undisputed evidence, that it was without merit. The appellant in its original brief cited a long list of authorities under this assignment, none of which, in our opinion, are in In our opinion, the law in reference to point, except the case of American Bond-releasing a surety by reason of a change ing Co. v. United States et al., 233 Fed. 364, in the contract which he had guaranteed 147 C. C. A. 300. The other authorities cit- has no application to a change in the coned announce the proposition that where par- tract between the contractor and a subconties enter into a contract, and a third party | tractor thereafter made. Such contract, becomes surety for its performance, anywhere it provides for payments in advance, material change in the contract made by such contracting parties will release the sureties, without regard to whether such change is to the injury of the surety, and without reference to whether the surety became such for accommodation or for hire. This proposition is so well settled that it needed no citation of authorities to support it. This is so for the reason that the new contract is not the one the performance of which was guaranteed by the surety.

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In that case the terms of the contract be

or as the work progresses, is in the nature of security to the subcontractor; and, if he consents to a change of the contract so as to impair his security, the surety will be released to the extent that he is injured thereby. In such case, in order to release the surety pro tanto, there must be both a change in the contract between the contractor and the subcontractor, and resultant injury to the surety.

It is apparent from the record that there was a clerical error in entering judgment for the Smithville Gin Company for $62.85, when it should have been for $78.85. The motion of said appellee to reform the judgment as above indicated is granted, and said judgment is so reformed.

Judgment was entered in the court below for Mrs. Susie McDaniel for $128.05. Mrs. McDaniel was not a party to this suit. Such judgment should have been in favor of L. W. Pohplatz, and the judgment of the trial court is here so reformed.

Appellant's motion for a rehearing is over

ruled.

Motion overruled.

tween the contractor and the Marble Com- TITTLE, Acting Comptroller, v. BARTHOLOpany were that the Marble Company was to be paid $75,000, as the work progressed, for

MAE et al. (No. 6097.)

the marble furnished by it. The court says: (Court of Civil Appeals of Texas. San Antonio.

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"These terms were not observed at all. If the terms of this subcontract had been observed, the marble company would have been paid 80 per cent. in cash as the work went on, and, even if the retained 20 per cent. had not been paid at the end, the loss of the surety company would have been no larger than this percentage. In fact, however, it is confronted now with a judgment (in favor of the marble company) for $26,000, and with a contingent liability, which may or may not become an actual liability, of more than $30,000 in addition."

The change complained of in the instant case was that the bridge company shipped the material without collecting one-half of the value of the same before making shipments. This worked no injury to appellants. Much more than one-half of the value of such shipments was paid to the bridge company

Nov. 27, 1918.)

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comptroller of Texas to reinstate a retail liquor Though a petition to compel the acting license failed to allege the license had been rescinded and vacated, the defect is cured, where that fact was set out by the answer.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from District Court, Bexar Coun- quired to be done when assailed by a general ty; W. S. Anderson, Judge.

Suit by W. G. Bartholomae and another against L. W. Tittle, Acting Comptroller of Texas. From a judgment for plaintiffs, defendant appeals. Affirmed.

demurrer, it is clear that the pleader intended to state that the license was rescinded and

vacated. This is borne out by the prayer for a reinstatement of the license.

[3] Had the petition been subject, on its face, to a general demurrer, appellant cured B. F. Looney and W. J. Townsend, both of its defects by fully admitting that he had Austin, for appellant.

vacated, rescinded, and annulled the liquor

C. J. Gray and Don A. Bliss, both of San license, giving his reasons therefor. That Antonio, for appellees.

FLY, C J. This is a suit against the comptroller of public accounts of Texas, instituted by appellees, to have a liquor license reinstated which it was alleged appellant "undertook unlawfully and illegally to rescind, vacate, and withdraw." Judgment was rendered reinstating the license.

[1, 2] The only question presented in this

court is as to the action of the trial court in overruling a general demurrer to the petition. The petition, omitting caption and signatures, is as follows:

"Your petitioners, W. G. Bartholomae and J. E. Helmer, respectfully show to the court that heretofore on, to wit, the day of

the allegations in an answer may be considered in connection with those of the petition, in order to sustain the latter, when attacked by demurrer, is well established in Texas. Peoples v. Brockman, 153 S. W. 907, and authorities therein collated; Hotel Dieu v. Armendariz, 167 S. W. 181; Hranicky v. Sell, 199 S. W. 315. The first case cited was decided by this court, through Associate Justice Moursund, and a writ of error was denied by the Supreme Court.

The judgment is affirmed.

PELIPCHYK v. BORDEN. (No. 7642.)

Dec. 2, 1918.)

1. MASTER AND SERVANT 258(19)-INJU RIES TO SERVANT-PETITION-SUFFICIENCY.

1917, the proper authorities of the state of Texas and of the county of Bexar, and the city (Court of Civil Appeals of Texas. Galveston. of San Antonio, in said county and state, issued and delivered to your petitioners retail liquor dealers' licenses, authorizing your petitioners to conduct a retail liquor dealer's business in the said city of San Antonio, on Commerce street, in the said county of Bexar, and petitioners proceeded to open said business and to conduct the same on said street.

"Thereafter, on, to wit, the 8th day or the 9th day of February, 1918, the comptroller of the state of Texas, or rather the acting comptroller of the state of Texas, one L. W. Tittle, undertook to rescind, vacate, and withdraw said license unlawfully and illegally.

A petition alleging that plaintiff, while a minor, 17 years old, was employed by defendant, that he was required to perform services in a cotton gin owned by defendant, that the machinery was negligently left exposed, that plaintiff was ignorant of the danger, that he was not warned, and that as a result he sustained injuries, held, as against general demurrer, sufficient to state a cause of action.

ERAL DEMURRER.

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When a general demurrer is addressed to a pleading, it is the duty of the court to extend every reasonable intendment in its favor.

"Your petitioners show to the court that li-2. PLEADING censes authorized and empowered your petitioners to conduct said business and to sell at retail spirituous, vinous, and malt liquors in quantities less than a quart from said date for the period of one year. The said licenses were then and there of the value of, to wit, $1,200. "But the said acting comptroller of the state of Texas undertook unlawfully and illegally to rescind, vacate, and withdraw said licenses, and to prevent your petitioners from conducting said business on or about the date hereinbefore mentioned.

"Premises considered, petitioners sue, and pray that the comptroller of public accounts for the state of Texas be cited to answer this petition, and that, upon final hearing, your petitioners have judgment reinstating said licenses, for costs, and for general relief."

Appeal from District Court, Wharton County; Samuel J. Styles, Judge.

Action by Konstantin Pelipchyk against A. P. Borden. From a judgment for defendant, after the sustaining of a general demurrer, plaintiff appeals. Reversed and remanded.

P. Harvey, of Houston, for appellant.

LANE, J. This suit was brought by plaintiff in error against defendant in error to recover for personal injuries suffered by him, which he alleged were caused by the negligence of defendant in error.

It is contended that the petition is subject to general demurrer, because it does not allege that the comptroller "did vacate, annul, and rescind such license," but merely that he undertook to do so. Reading every reasonable intendment into the petition, as is reFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 207 S.W.-12

In his petition plaintiff in error makes the following allegations and prayer:

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