is sufficient to warrant the court in finding | Stalcup gave his account credit for that that, before Caldwell made himself a party to amount so, if he had no notice of the agreethe suit then pending, he knew that Stalcup ment when he purchased the notes, or when had charge of these notes and had sued there- he employed an attorney, he was put upon on. Caldwell's testimony shows that he em- notice that another attorney had been employed one Rudolph, who was an attorney, ployed to procure the judgment upon these and who was indebted to him, for the sum of notes before he took the judgment for the $50, to intervene in the suit then pending full amount of the stipulated attorney's fees in his behalf, and that Rudolph should have as his indemnity, when his costs were in credit on his account with Caldwell for that fact only $50. This was a fund to which the amount. Rudolph, before judgment was ren- two banks looked to pay the attorney's fees, dered, appeared for Caldwell and intervened and was the fund for which Stalcup agreed in the suit. Stalcup agreed with Rudolph to do the work. We think equity and right that he would give Rudolph $50, or credit is satisfied when Caldwell gets credit for his fee with $50, the amount Rudolph was to the $50 paid, and that it would not be just receive, and the judgment was then taken in for him to appropriate the remainder to his the name of E. W. Caldwell, instead of the use and leave the Stratford bank to pay this Bank of Commerce, foreclosing for the obligation out of some other fund than these amount sued for, together with attorney's fees. Caldwell having appropriated the fees on the land. The testimony is sufficient funds to his use, which, by agreement with to show that Stalcup never in fact relin-parties who then had the right to make the quished the control and possession of the same, belonged to Stalcup, he should be held notes, and that the Bank of Commerce and to pay the Stratford bank in case it has to the Stratford bank and Lipscomb recognized pay Stalcup. We think this is a constructive his right to control these notes. or quasi contract (Simpkins on Contracts [3d Ed.] 471) which the law will impose on Caldwell in order that full justice may be done by all parties. We believe the trial court has correctly de cided this case, and it will therefore be af of fact: On Motion for Rehearing. Stalcup testified: "Mr. Galbraith, for the bank, at the time the notes were placed with me, and later Mr. Bynum, in person, contracted to pay me the 10 per cent. provided in said notes as attorney's fees for making the collection." [1] Under the facts of this case, we think that the agreement entered into between the Bank of Commerce and Stalcup had the effect to transfer him 10 per cent. of the principal and interest due on the notes as attorney's fees. Suit was brought and prose-firmed. cuted to judgment under that agreement. The Stratford bank took an assignment of the note and suit with the express agreement In view of appellant's motion for rehearthat the 10 per cent. should be paid to Stal-ing, we make the following additional finding cup as his compensation. Lipscomb procured the notes retransferred to him under the same agreement. The suit thereon remained on the docket under all the transfers. Caldwell purchased the notes, he says, without actual notice of the suit, but after they were due. The evidence is sufficient to support the finding of the court that long before judgment was obtained he recognized Stalcup as an attorney in the case. Thereafter he had himself made a party to that suit, and a judgment was taken in his name, instead of the name of the National Bank of Commerce, in whose name it had been prosecuted up to that time. Under that suit Caldwell procured judgment for the 10 per cent. as attorney's fees. These fees, by agreement, and under the service rendered, belonged to Stalcup, and unless, upon some equitable ground, Caldwell is released, he should have paid them over to Stalcup. The Supreme Court has held that a provision of the kind set out in the notes in question is in the nature of an indemnity against the cost of procuring judgment, and, unless they are shown to be unreasonable or unconscionable, the holder of the notes may recover them. Lanier v. Jones, 104 Tex. 247, 136 S. W. 255; Bank v. Robinson, 104 Tex. 166, 135 S. W. 372. Before Caldwell procured judgment he knew that Stalcup had brought the suit and was prosecuting it. Up to that time he had been Mr. Bynum, cashier of the National Bank of Commerce, testified: "We agreed to pay Judge Stalcup the 10 per cent. stipulated in the notes as his fees in the matter. We promised to pay Judge Stalcup the 10 per cent. of the notes for his fees; but the First National Bank of Stratford agreed to take our place, and Mr. Stalcup agreed to it, and to look to the Stratford bank for his fees." The cashier of the First National Bank of Stratford testified: "Our bank agreed with the National Bank of Commerce that we would assume their contract with Stalcup. Lipscomb had agreed all along that he would pay these fees as he was the person in real interest. I was willing that the attorney's fees should be paid out of the proceeds of the foreclosure, and it was my understanding that the fees were to be paid after the foreclosure was consummated." [2] We think, under the agreement of the parties, that Stalcup, as an attorney for the collection of the notes in question, was in effect an equitable assignment of the amount due the attorney for such service. Milmo 181, 27 S. W. 822. Caldwell, by virtue of this suit and the services rendered by Stalcup, in obtaining the judgment, secured 10 per cent. on the amount of the notes, which otherwise he was not entitled to, and which he did not pay for when he purchased the notes. This 10 per cent. was Stalcup's under the contract, and any sort of diligence or inquiry on the part of Caldwell, when he purchased these notes, would have given him notice of this assignment. We think the case was properly disposed of, and the motion is therefore overruled. BIRD v. LESTER et al. (No. 576.) (Court of Civil Appeals of Texas. Amarillo. March 14, 1914. Rehearing Denied 1. HUSBAND AND WIFE (§ 119*)-CONVEYANC ES-SEPARATE ESTATE. A conveyance by a husband to his wife by a deed reciting a valuable consideration and duly recorded vested title in the wife as her separate property. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 424-429, 447; Dec. Dig. § 119.*] 2. SPECIFIC PERFORMANCE (§ 116*)-PROCEEDINGS-PLEADING-PETITION. A petition for specific performance and for damages if specific performance is impossible, which showed on its face that the vendor did not own the land at the time he contracted to sell, was subject to general demurrer as to the portion seeking specific performance. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. § 376; Dec. Dig. § 1164.*] 3. VENDOR AND PURCHASER (§ 349*)-CONTRACT-BREACH BY VENDOR-DAMAGES RE COVERABLE-PURCHASER. A petition seeking damages to the amount of the difference between the contract price and market value, for failure to convey land that defendant did not own when he contracted to sell it, which did not allege fraud or a willful refusal to convey, was subject to general demurrer, as plaintiff was not entitled to recover such damages. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1033, 1039-1042; Dec. Dig. § 349.*] of J. P. Lester, in which the name of Loula Lester was signed "by J. P. Lester," and reciting that the said Lester had executed a deed of conveyance to a certain section of land described in the contract for and in consideration of the sum of $2,500, paid to the said Lester by the said Bird, as follows: "That whenever the above deed is duly executed and signed by the wife of the party of the first part and returned to the first National Bank of Post City, Texas, the said J. A. Bird, party of the second part, is to pay over to the said bank, for the benefit and credit of the said J. P. Lester, $1,000 in cash and receive from the said bank the above-mentioned deed and the remaining $1,500 to be paid to the said J. P. Lester by the said J. A. Bird, in mares to be delivered at Roswell, New Mexico, on the first day of April, 1913, the same being fifteen mares at $100.00 each, aggregating and making the $1,500 above stated; and it is hereby agreed by both parties hereto that the said mares are to be cut out of a herd of mares owned by the said J. A. Bird, now located in New Mexico, by C. A. Buchanan, and the said J. P. Lester does hereby agree to accept the cut by the said Buchanan as above stated." There are stipulations in the contract which we do not deem it necessary to set out. The second count of plaintiff's petition seeks to recover damages in the event specific performance cannot be decreed. The third count is confusing, and we are not sure what relief plaintiff seeks other than the return of the deed which Lester had signed and which it is alleged was delivered to Lester for the purpose of procuring the signature of his wife thereto, and in the alternative for damages by reason of the failure to return the deed. It is shown in the petition that, after the execution of the contract, Lester and wife conveyed the land in question to H. G. Smith and J. P. Crowley, and both specific performance and damages. is sought against them as vendees. The defendants filed genIeral demurrers, which were sustained by the Error to District Court, Garza County; court, and plaintiff's assignments of error are W. R. Spencer, Judge. Action by J. A. Bird against J. P. Lester and others. From a judgment on demurrer for defendants, plaintiff brings error. Af firmed. See, also, 163 S. W. 658. based upon this action of the trial court. [1, 2] Plaintiff's petition shows that J. P. Lester, prior to the time the contract of sale sued upon was entered into, had conveyed the property to his wife, Loula Lester, by deed reciting a valuable consideration and R. N. Grisham, of Sweetwater, for plain- duly recorded in the deed records of Garza tiff in error. J. D. Martin, of Alpine, and county. The effect of this conveyance was to Higgins & Hamilton, of Snyder, for defend-vest title to the section of land in Mrs. Lesants in error. HALL, J. The plaintiff in error instituted this suit in the district court of Garza county, against defendants in error, J. P. Lester and wife, Loula Lester, and their vendees, H. G. Smith and J. P. Crowley. The petition contains three counts. In the first count plaintiff in error seeks specific performance of a certain contract executed in the name ter as her separate property. Emery et al. v. Barfield, 156 S. W. 311; Jones v. Humphreys, 39 Tex. Civ. App. 644, 88 S. W. 403; Watts v. Bruce, 31 Tex. Civ. App. 347, 72 S. W. 258; Hardin v. Jones, 29 Tex. Civ. App. 350, 68 S. W. 836. It thus appearing from the face of the petition that J. P. Lester did not own the property at the time he entered into the contract of sale, that portion of the petition seeking specific perform ance was subject to general demurrer. Clif- | lin Electric & Gas Company. From a judgton v. Charles, 53 Tex. Civ. App. 448, 116 S. ment for plaintiff, defendant appeals. Re W. 120; Sutton v. Page, 4 Tex. 142; Vaughn versed and rendered. v. Farmers' & Merchants' National Bank, 126 S. W. 690; Hall v. York's Adm'r, 22 Tex. 642. [3] The second count of the petition seeking damages alleges the damages suffered by plaintiff to be the difference between the market value or intrinsic value of the land and the contract price declared to be $3,900. There is no allegation of fraud or willful refusal on the part of Lester to convey the property, and plaintiff is clearly not entitled to recover such damages. Clifton v. Charles, supra; Stinson v. Sneed, 163 S. W. 989 (decided by this court, not yet officially reported). No such special damages as plaintiff would be entitled to recover under the authority of Clifton v. Charles, supra, and kindred authorities, were pleaded or prayed for by plaintiff. E. E. Solomon, of Dublin, and Templeton, Beall & Williams, of Dallas, for appellant. Hickman & Bateman, of Dublin, for appellee. CONNER, C. J. Appellee instituted this suit against the appellant to recover the sum of $4,028, the alleged value of a house and its contents claimed to have been destroyed by fire on the 12th day of July, 1911. It was alleged in the plaintiff's petition that he was a resident of the town of Dublin and that the defendant was operating a water plant in said town; and, in substance, that the defendant through its manager and agent M. S. Karmany had for a valuable consideration, as stated in the petition, contracted "to furnish appellee all the water he wanted for all purposes at all times;" that upon the date stated his house caught fire which was taining the general demurrers, and the judg- discovered by the plaintiff in its incipiency: We think the trial court did not err in sus ment is affirmed. DUBLIN ELECTRIC & GAS CO. v. THOMP- and that he attached a hose to a hydrant in the yard with which he could and would have extinguished the fire had there been water, but that there was none in the pipes. by reason of which he was unable to extin guish the fire and his house and contents were totally destroyed, to his damage in the 1. WATERS AND WATER COURSES (8 209*)- amount claimed. The defendant answered WATER COMPANIES-CONTRACTS-SUPPLYING by a general denial and by special answers WATER-SUFFICIENCY OF EVIDENCE. (Court of Civil Appeals of Texas. Ft. Worth. April 11, 1914.) In an action against the proprietor of a water plant, evidence held to show that when its agent told a consumer that he would be furnished water for all purposes, neither party contemplated the furnishing of water for fire protection, and hence it was not liable for its failure to furnish water for such purpose; it appearing that the city government had assumed the burden of fire protection. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 302; Dec. Dig. 8 209.*] 2. WATERS AND WATER COURSES (§_206*) WATER COMPANIES - SUPPLY TO PRIVATE CONSUMERS. An individual or company authorized to do so may so contract as to incur a liability for damages proximately resulting from a failure to furnish water sufficient to extinguish fires. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 301; Dec. Dig. § 206.*] 3. CONTRACTS (§ 143*)-CONSTRUCTION-MEANING OF LANGUAGE. While as a general rule the terms of a contract are to be given their full effect and meaning, the intention of the parties governs, and their situation, the subject-matter, and other circumstances may be looked to in determining the meaning of terms, though not in themselves ambiguous, and a party will be bound by that meaning which he knew the other party supposed the words to bear. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 723, 743; Dec. Dig. § 143.*] Appeal from District Court, Erath County; W. J. Oxford, Judge. Action by J. N. Thompson against the Dub setting up, first, that the water service con- [1] Upon the conclusion of the testimony, the defendant requested a peremptory inStruction in its favor, and the vital question in this case arises under the assignment to the action of the court in refusing this instruction. There is little or no dispute in the testimony. Substantially it is as follows: It was shown that the town of Dublin in which plaintiff's premises were located contains about 2,500 people with a city government; that the appellant company had about 355 customers on its system for the distribution of water, which was furnished through service pipes from one-half to three-fourths inches in size; that the company had a contract with the city for fire hydrants; but "For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes was a hydrant I used for general ordinary that the city had nothing to do with the serv- I * M. S. Karmany, the local manager of the appellant company, testified that: "I told him (Thompson) we were having considerable amount of trouble in furnishing water, and my attention had been called to the fact that he was abusing the flat rate, and that it would be necessary for the company to put on the meter to protect them, and I explained the rate, that the rate would be 50 cents a thousand gallons and 25 cents on the meter, which made his meter rate $1.25. If he used any amount over 2,000 gallons he would pay excess. That is the conference between my-1 is one of inference only from the use of the self and Mr. Thompson. I also stated that he very general terms that plaintiff was to have could use his water for the purpose of water "for all purposes." sprinkling his lawns and garden or for whatever purpose he wanted to use it in the sprinkling of lawns or gardens or for domestie service and we wouldn't object to his using it on his garden or lawn or for domestic purposes. I don't recall his reply to that. I have no authority whatever to make contracts for fire protection on our service pipes. It was not in my mind at the time to do it. Whatever authority I did have I got from Mr. Stichter, the general manager. Beginning on the 1st of June, 1910, and for three months on, we were short on water. At nights we had to cut the valves in the mains to protect ourselves. The plaintiff never did tell me anything at any time in respect to fire protection. The first I ever heard of his making that claim was when 1 was advised by letter from Mr. Solomon, the 15th of this month." * We should also state that there was evidence tending to show that, on the night before the fire in question, appellee had been watering his yard, and for that purpose had attached the ordinary yard hose to the ordinary yard hydrant and left the hose attached to the hydrant during the night; that early the next morning he discovered the fire which destroyed his house soon after it began and immediately ran to the hose and attempted to turn the water on, but found none, and that had there been any water in the pipes, as was usual, he could and would have put out the fire in time to have saved his property. Regardless of the issue of whether appellant's general manager, Karmany, was authorized to make any such contract, as alleged by the plaintiff, we are of the opinion that the evidence quoted, which is substantially all there is relevant to the question, is wholly insufficient to sustain the verdict and judgment. [2] It cannot be denied that an individual or company authorized to so do may contract so as to incur a liability for damages proximately resulting from a failure to furnish water sufficient to extinguish fires. Lottman Bros. Mfg. Co. v. Houston Waterworks Co. (Civ. App.) 38 S. W. 357; Harris & Cole Bros. v. Columbia Water & Light Co., 114 Tenn. 328, 85 S. W. 897. In the cases cited the contract to so furnish water was express, but in the case before us it is not so. It cannot be said that the appellant company expressly contracted to furnish water at times and in sufficient quantities to extinguish fires. The plaintiff himself testified that, at the time of the conversation and agreement upon which he relies as establishing the contract alleged, the word "fire" was not used, nor did he have his mind on that subject. To the same effect was the testimony of Karmany, the local manager. So that the contract, as plaintiff alleges it, [3] While as a general rule the terms of a contract are to be given their full effect and meaning, yet the ruling object is to ascertain the intention of the parties, and hence their situation, the subject-matter, and other circumstances, may be looked to in determining the meaning of the terms used, although the terms are not in themselves ambiguous, and a party will be bound by that meaning which he knew the other party to the contract supposed the words to bear. San Jacinto Oil Co. v. Ft. Worth Light & Power Co., 41 Tex. Civ. App. 293, 93 S. W. 173. It seems evident to us that the purposes of the parties in mind at the time was that water was to be furnished for all ordinary domestic purposes, and that it was not intended as an agreement that water should be furnished for extraordinary purposes. Neither the service pipes, hydrants, hose, or other circumstance, tends to show that it was ever the purpose of the company, or the expectation of the plaintiff, that the water to be furnished to him should be at times and in quantities sufficient to prevent the destruction of his premises by fire. It seems that the city government had taken upon itself the burden of protecting its citizens, and that it was presumably at least supplied with appropriate hydrants, hose, and other apparatus for that purpose. The fact that the company had contracted with the city for the purpose of furnishing water for fire purposes, and that the residences were provided with no facilities for that purpose, nor charged a rate commensurate with the risk thereby necessarily incurred, seems conclusive, in the absence of express words to the contrary, against the plaintiff's contention in this case. See Niehaus Bros. Co. v. Water Co., by the Supreme Court of California, 159 Cal. 305, 113 Pac. 375, 36 L. R. A. (N. S.) 1045, and cases therein cited. In view of what has been said, other questions need not be determined. We conclude that the court should have given the peremptory instruction and that the judgment below should be reversed and here rendered for the appellant. |