(216 S.W.)

"Settlement to be based on the actual quantities of brick and tile laid as evidenced by the invoices to the contractor.

"Section 6. Payments: Contractor agrees to provide funds to meet subcontractors payroll each week. Final payment of the remainder to be made within thirty days after acceptance of the work by the architect, and the furnishing of evidence that there are no claims of any kind against him by the subcontractor.

"Section 7. Immediately after signing subcontractor agrees to furnish bond in the sum of $900.00 guaranteeing the faithful execution and completion of this contract."

"3" hollow tile, 3 cents per square foot of obligations assumed by Maese in the contract wall. of August 20, 1917. This is shown upon the face of the bond as well as by the seventh section of the subcontract. A copy of the subcontract being attached to the bond and reference thereto made, it may properly be considered in ascertaining the intention of the parties and in determining the liability assumed by the sureties. Of course, Maese is legally bound to repay to appellants the overpayments which they have made to him; but there is no express provision therefor in the subcontract or the bond. His obligation to make such repayment thus arises upon an implied contract. Since Maese has performed the service which he undertook to perform and has discharged every obligation which he expressly assumed, we are of the opinion that the condition of the bond was thereby fulfilled and the liability of the sureties ceased. To hold the sureties liable upon the present demand would impose a liability which neither they nor Maese had expressly assumed. It would impose a suretyship liability upon an implied and collateral contract of the principal, Maese. It would by implication extend their liability beyond the terms of their contract. This is not permissible. The proper judgment was rendered. Affirmed.

Maese gave bond as required by section 7 of the contract with J. A. Escajeda and Frank Alderete, appellees, as sureties. This bond recited that Maese had entered into the afore said contract with appellants, a copy of which was attached, and was conditioned that Maese should faithfully perform, execute, and carry out his contract according to its terms, covenants, and conditions and in accordance with the agreements therein contained.

PAXTON et al. v. TRABUE. (No. 8281.)
(Court of Civil Appeals of Texas. Dallas.
Nov. 8, 1919. Rehearing Denied
Dec. 6, 1919.)

Maese furnished all labor and set in place the brick and tile work in the building, and, under the schedule of prices set forth in the fourth section of the contract, the compensation due him for his work was $1,655.33. Maese's pay rolls, as presented by him, for his laborers employed in doing the work, amounted to $2,088.20. Appellants provided funds each week to meet the pay rolls for laborers employed on the work, and in the aggregate thus paid the sum of $2,088.20, which exceeded the amount rightly due Maese 1. ATTACHMENT 10 by $432.87. The pay rolls were checked up by appellants' foreman. This suit was brought by appellants against Escajeda and Alderete to recover said sum of $432.87. Mease was not joined in the suit, it being alleged that he was notoriously insolvent and his whereabouts unknown.

From an adverse judgment McGregor & Henger appeal.

Opinion.

[1, 2] Upon the facts stated it appears that Maese has fully performed the service which he undertook to do in his subcontract. He has discharged every obligation which he therein expressly assumed. In like manner appellants did what they agreed to do. The payments to meet the weekly pay rolls of Maese were made in accordance with the contract. The first and main rule in construing contracts is that the intention of the parties as expressed in the words used must control. And it is well settled that the liability of a surety is not to be extended by implication beyond the terms of his contract.

BASED ON CONTINGENT DEMAND IMPROPERLY ABATED. Where contingency was to take place at the expiration of the contract, and plaintiff set forth the contract, which showed that defendant had breached contract and rendered it terminated, held, that court erred in abating attachment on grounds that it was levied on a contingency, while affidavit stated that defendant was justly indebted.

2. ATTACHMENT 126 AFFIDAVIT IS CONTROLLING ON MOTION TO ABATE.

On motion to abate attachment on ground that demand at date of institution of suit was only a contingent one, allegation of affidavit for attachment that debt was due and owing is controlling.

3. ATTACHMENT 254-ABATEment for un

TRUE ALLEGATIONS IN AFFIDAVIT.

A writ of attachment cannot be abated because allegations of affidavit therefor falsely state causes for the attachment.

Appeal from Dallas County Court; W. L. Thornton, Judge.

Suit by J. H. Paxton and others against [3] The manifest intention of the parties R. E. Trabue. Judgment was rendered to the bond was to guaranty the faithful ex-against plaintiffs in justice court. On appeal ecution and completion of the service and to the county court, judgment was rendered

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

"There was error in the refusal of the court to foreclose the attachment lien. It was held in Cloud v. Smith, 1 Tex. 611, that the affidavit could not be traversed in the abatement of the

for plaintiffs for the amount sued for, but writ of attachment was abated, and they appeal. Reformed and affirmed. Brooks, Worsham & Graham, of Dallas, for writ. The writ is authorized, not upon a given appellants.

Leake & Henry, of Dallas, for appellee.

RAINEY, C. J. Appellants sued the appellee to recover the sum of $150, claimed to be due and owing, and sued out a writ of attachment, which was levied on an automobile. Judgment was rendered against appellants in the justice court, and appellants appealed the case to the county court. When the case reached the county court the appellee filed a motion to abate the writ of attachment on the ground:

ed.

he recovers.

The

state of facts, but upon an affidavit to certain
facts. The validity of the writ depends, not
upon the truth of the facts stated in the affi-
davit, but upon the fact that they are so stat-
The bond protects the defendant.
injury done him is compensated in the damage
scribed by law, in the bond, has contracted with
The plaintiff, in the terms pre-
the defendant for his remedy. He expiates in
advance the possible wrong he may do the de-
fendant.
Ever since the decision of Cloud v.
Smith, it has been the practice to give the
plaintiff the benefit of his lien, and leave the de-
fendant to his remedy on the bond. The defend-
ant in this case has recovered his damages in a
credit on the plaintiff's demand, and the plain-
tiff was entitled to a foreclosure of his at-
tachment lien."

"That plaintiffs' said demand at the date of the institution of this suit was only a contingent one, that defendant at said time was only contingently liable to plaintiffs for said sum sued for, and that said affidavit in attachment The appellant set forth the contract, which wrongfully stated that defendant was justly showed that appellee had breached the conindebted to plaintiffs; that said demand was tract, and rendered it terminated, and made insufficient under the statute upon which to the sum deposited become due; and it furbase an attachment, for that said contingency ther showed that it was due by appellee's continued to exist for six months after the in-counsel appearing in open court and admit

stitution of said suit; and that said' attachment was therefore without authority of law."

Which motion was sustained, whereupon the appellee admitted in open court that appellant was entitled to judgment for the amount sued for. In the judgment was recited:

ting that said amount was due, and that appellant was entitled to judgment for said amount. Being entitled to judgment for said amount, the court should have refused to abate the attachment and foreclosed the lien.

Judgment will be rendered, reversing the "Thereupon counsel for defendant admitted in judgment abating the attachment, and in open court that plaintiffs were entitled to judg- accordance with said holding the judgment ment for the amount sued for, and agreed that will be so reformed for appellant as to give judgment might be rendered in favor of plain-him judgment for the sum sued for and the tiffs, and upon such agreement made in open foreclosure of the attachment lien. court the court is of the opinion that plaintiffs Reformed and affirmed. are entitled to recover against the defendant the sum of $150, with interest after judgment."

[2, 3] The affidavit stating that the debt was due and owing does not depend upon the fact that it is not due, but that the allegations in the affidavit are controlling, and the writ will be enforced, and, if it is wrongful, the defendant will be entitled to a recovery on the attachment bond. Nor can a writ of attachment be abated because its allegations falsely state causes for the attachment. Gimbel v. Gomprecht, 89 Tex. 497, 35 S. W. 470; Dwyer v. Testard, 65 Tex. 432; Green v. Hoppe, 175 S. W. 1117. In the case of Dwyer v. Testard, supra, the court held:

DODGE et al. v. LACEY. (No. 9137.) (Court of Civil Appeals of Texas. Ft. Worth. June 28, 1919. On Motion for Rehearing, Oct. 25, 1919.)

1. BROKERS 49(2) NO COMMISSION FOR PROCUREMENT OF OPTION TRANSACTION.

A mere option to buy was not a contract
of purchase, procurement of which of itself en-
titled the broker to his commission, even
though the vendor failed to enforce it.
2. EXECUTORS AND ADMINISTRATORS 221(4)

-EVIDENCE INSUFFICIENT TO SHOW EMPLOY-
MENT OF BROKER BY COEXECUTORS.

Evidence held insufficient to support finding that the estate of decedent was bound by the contract of only one of three executors and trustees employing plaintiff broker to sell the land on commission.

3. PRINCIPAL AND AGENT 23(2)—CIRCUM

STANTIAL EVIDENCE OF RELATION.

Proof of agency may be made by circumstantial evidence.

On Motion for Rehearing.

4. TENANCY IN COMMON

(216 S.W.)

43-ONE OF JOINT TENANTS CANNOT SELL WHOLE TITLE. One of two joint tenants cannot make a valid contract of sale of the entire title to the joint property without the consent of the other. 5. TRUSTS 239-No SALE BY SINGLE TRUSTEE.

One of several trustees in whom confidence has been reposed jointly, with no power given him, either expressly or by implication, to act singly, cannot sell the entire title to the trust property without the consent of the others.

tenance and preservation thereof and out of the net income thereof to apply, first.

Then follows specific directions for the payment of certain legacies. The will also contained the following:

"I hereby revoke, cancel and annul any and all former wills and codicils by me at any time made and I nominate and appoint my nephew, Nathan P. Dodge, Jr., and my son-in-law, Frank S. Pusey, to be the executors of this, my will, and trustees as berein stated, and I hereby request and direct in the event that either of

the above named executors or trustees shall cease to be executors or trustees, then my Appeal from District Court, Howard Coun- grandson, Grenville D. Montgomery, is to be ty; W. W. Beall, Judge.

Suit by O. T. Lacey against N. P. Dodge, Jr., and others. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

L. W. Sandusky, of Colorado, Tex., for ap

pellants.

Morrison & Morrison, of Big Springs, for appellee.

DUNKLIN, J. N. P. Dodge, Jr., F. S. Pusey, and Grenville D. Montgomery, who were named as executors and trustees in the last will and testament of G. M. Dodge, deceased, have appealed from a judgment rendered against them as such, in favor of O. T. Lacey for a broker's commission, which Lacey alleged he, as the duly employed agent of defendants, had earned by finding a purchaser for 3,840 acres of land belonging to the estate of said G. M. Dodge, deceased, at the price and upon the terms authorized by

the defendants.

The case was tried before the court without a jury, and findings of fact and conclusions of law filed by the trial judge appear

in the record.

The will of G. M. Dodge, deceased, was introduced in evidence, and contained the following provisions:

"I give, devise and bequeath the remainder of my residuary estate, both real and personal, of which I may be seised and possessed or to which I may be in any way entitled at the time of my death, to my nephew, Nathan P. Dodge, Jr., and my son-in-law, Frank S. Pusey, as joint tenants and not as tenants in common and to their successors and assigns to their own use for the purposes herein expressed, but in trust, nevertheless, to collect, receive, convert and get in my residuary personal estate and at their discretion to sell and convert my residuary, real estate, and out of the proceeds to pay all my just debts and my funeral and testamentary expenses and the many legacies hereinbefore given and to invest and reinvest the balance of said proceeds in income-bearing real éstate or in bonds or in mortgages or in some other equally safe paying securities and generally manage my residuary estate and to do all things necessary and proper for the main

executor and trustee."

The proof showed that N. P. Dodge, Jr., acting as executor and trustee under the will, employed plaintiff to negotiate a sale of the land. Plaintiff lived in Big Springs, Tex., and Dodge lived in Council Bluffs, Iowa, and practically all the communications between them were by letters and telegrams, which were introduced in evidence. Following correspondence preliminary thereto. Dodge in a letter authorized a sale for $10.50 per acre, the consideration to be partly in cash. Acting upon that letter, plaintiff procured a prospective purchaser in James Dorward, and he, as agent for the three executors and trustees and for the estate of G. M. Dodge, deceased, named as first party, entered into a written contract with Dorward, named as second party, who also signed the instrument, the terms of which purported to bind the three executors and trustees and also the estate, to sell the land to Dorward for the price and upon the terms named by N. P. Dodge, and Dorward bound himself to buy the land at that price and upon those terms, and at the time he executed the contract he placed $1,000 in the bank as a forfeit to insure performance of his contract. The contract contained this further stipulation, relative to the sum so deposited, in the event Dorward should breach his contract to buy the land:

"But upon his (second party's) failure to perform, after such tender of performance by first party, said sum will thereby be forfeited to and will become the funds and property of first party, absolutely and will be and constitute the damages and all the damages first party shall have sustained or may recover by reason of second party's default."

[1] In view of the stipulation just quoted,
the contract of Dorward amounted to no
more than an option to buy, and was not a
contract of purchase which could be specif-
ically enforced, and the procurement of
which would of itself entitle the broker to
the vendor
his commission, even though
should fail to enforce it. Moss & Raley y.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
216 S.W.-26

Wren, 102 Tex. 567, 113 S. W. 739, 120 S. [dence in this suit are wholly insufficient to W. 847.

(216 S.W.)

Statutes, requiring both executors to join in the conveyance. And it would be clearly contrary to the general rules of common law and equity, mentioned above with respect to the powers of joint tenants and joint trustees, for N. P. Dodge by such a course to dispose of the land in controversy without the consent and concurrence of his joint tenant and cotrustee, Pusey. In the absence of a clear showing to the contrary, we cannot be lieve that in disposing of the case of Armstrong v. O'Brien, supra, our Supreme Court intended to hold that one of two joint executors, acting alone, can confer upon his agent authority to bind the estate to sell land notwithstanding the fact that the statute referred to in the opinion expressly provides that both executors must join in such a convey

ance.

The motion for rehearing is overruled.

SOUTHWESTERN TELEGRAPH & TELE-
PHONE CO. v. RIGGS. (No. 7652.)

(Court of Civil Appeals of Texas. Galveston.
Feb. 14, 1919. Dissenting Opinion Filed

and Rehearing Denied Oct. 30, 1919.)

1. TELEGRAPHS AND TELEPHONES 66(4) SUFFICIENCY OF EVIDENCE TO AUTHORIZE RE

COVERY FOR DISCONNECTING PHONE.

Evidence held to support verdict of $250 for vexation, annoyance, and inconvenience caused plaintiff subscriber by reason of his telephone being wrongfully disconnected by defendant

company.

2. TELEGRAPHS AND TELEPHONES 71-ExCESSIVE RECOVERY FOR DISCONNECTING

PHONE.

Verdict of $250 for vexation, annoyance, and inconvenience caused plaintiff subscriber by reason of his telephone being wrongfully disconnected by defendant company held not so excessive as to show passion or prejudice.

3. Appeal and ERROR 688(2)-ASSIGNMENT AS TO ARGUMENT NOT SHOWN BY RECORD

OVERRULED.

Assignment with reference to argument of counsel will be overruled, where there is nothing in the record to show any such argument as complained of, though there is a statement in motion for new trial that such argument was made.

Pleasants, C. J., dissenting.

Appeal from District Court, Harris County; Charles E. Ashe, Judge.

Suit by H. P. Riggs against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals. Affirmed.

LANE, J. This suit was brought by appellee, H. P. Riggs, against appellant, the Southwestern Telegraph & Telephone Company, to recover damages in the sum of $1,500.20.

Among many other things, appellee, Riggs, In substance alleges that on the 12th day of July, 1917, for the consideration of the sum of $4 paid by him to the telephone company, said company contracted with him to place a telephone in his residence and to give him local telephone service for the term of two months from said 12th day of July, 1917; that notwithstanding said contract, and payment made by him, the telephone company negligently, wantonly, maliciously, and oppressively had his telephone disconnected from its telephone line and discontinued giving him service for a term of three days just prior to August 8, 1917; that at such time he was the creditman for a large business firm in the city of Houston; that on the 8th day of August he had arranged to go to Madisonville, Tex., on a business trip; that about one hour before his train was to leave for Madisonville he tried to talk to his wife over the telephone so as to inform her that he was going to Madisonville; that by reason of said act of appellant in cutting out his phone he was unable to talk to his wife, and therefore did not make his trip to Madisonville, as he had intended to do; that, when he undertook to talk to his wife, he was told that his service had been discontinued because he had not paid his phone bill; and that others were informed that he had not paid his bill. He also alleged that by reason of the negligent, wanton, and malicious act of appellant aforesaid, its refusal to reconnect his phone, and the mistreatment of him by appellant company, he suffered humiliation, annoyance, and inconvenience to his damage as follows:

"(1) For remission of contract price, 20 cents, (2) Humiliation, annoyance, and inconvenience, and mental distress to plaintiff, $250. (3) Humiliation, annoyance, and inconvenience, and mental distress to wife of plaintiff, $250. (4) Damage to plaintiff's reputation, and his distress because of same, $500. (5) Exemplary damages, $500."

For all of which he prayed judgment.

The defendant telephone company answered by general denial, and specially averred that

"When the plaintiff, Riggs, made his cash payment of $4 to defendant company on July 12, 1917, such cash payment was promptly noted by the cashier's office on a stub it placed on a spindle file in such a manner that accidentally the needle of the spindle ran through the figure 8 of plaintiff's telephone number, which was 'Capitol 1928,' making the figure 8 very much John Charles Harris, of Houston, for ap resemble the figure 3, and that thereupon plainpellant. tiff's cash payment was accidently credited to telephone under 'Capitol 1923'; that this de

Ellis P. Collins, of Houston, for appellee.

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