Witness further testified that, when she left Beakley's store and got near enough, she did not see the shadow, and did not see anything. She was looking right at her house, and was going as fast as she could. At this place many of the citizens used the street, instead of the sidewalk. Joe Butler, one of the plaintiffs, testified:

"That sidewalk was generally and customarily used by the public. The street is constantly used by vehicles. ***The sidewalk in question is ordinarily and customarily used by pedestrians going back and forth."

[1] On these facts the trial court instructed a verdict for the defendants. They seek to sustain this instruction on two grounds: First, that Mrs. Butler was guilty of contributory negligence as a matter of law in using the sidewalk rather than the street; and, second, that she was guilty of contributory negligence in failing to keep a proper lookout for the pole which she knew to he across the sidewalk. The first point has been directly decided against appellees. In Ball v. City of El Paso, 5 Tex. Civ. App. 221, 23 S. W. 835, Justice Fly, speaking for the court, said:

*

of Galveston v. Hennis, 72 Tex. 558, 11 S. W. 29, 3 Am. St. Rep. 828; City of Austin v. Ritz, 72 Tex. 391, 9 S. W. 884."

See, also, Lee v. Railway Co., 89 Tex. 583, 36 S. W. 63.

Zoellner v. City of Fond du Lac, 147 Wis. 300, 133 N. W. 35, was a suit for personal injuries sustained by plaintiff. He knew of the defect in the sidewalk. Discussing this issue, the Supreme Court of Wisconsin said:

"He [the plaintiff] was in company with his daughter. *** Presumably his attention was by the fact of companionship; and if they were somewhat engrossed by what he was doing and conversing as the daughter testified, that would be sufficient to account for his not remembering the condition of the walk. While the explanatory circumstances tending to excuse forgetfulness are not of the strongest character, yet they are sufficient to constitute a question for the of the defect in the sidewalk and still used it jury. The mere fact that plaintiff knew would not conclusively establish contributory negligence."

We believe the correct rule is thus announced by the Supreme Court of Wisconsin in Petrich v. Union, 117 Wis. 46, 93 N. W. 819:

[2] The second issue is of more difficulty. If a pedestrian knows of an obstruction across a sidewalk, and fails to use ordinary care for his own safety, and is injured thereby, he is guilty of contributory negligence, and cannot recover. But, as we construe the

decisions of our courts, as well as of other states, this is a question of fact, to be decided by the jury. As said by Justice Head in City of Denison v. Sanford, 2 Tex. Civ. App.

661, 21 S. W. 784:

"It is well settled in this state that knowledge of the defect by an injured traveler prior to the injury is not conclusive evidence of negligence on his part. The question of contributory negligence thus raised is one for the jury under the circumstances of the particular case. Railway Co. v. Gascamp, 69 Tex. 545, 7 S. W. 227; City

WAHL v. RAMSEY et al. (No. 1040.)

(Court of Civil Appeals of Texas. El Paso. Jan. 22, 1920. Rehearing Denied Feb. 19, 1920.)

3. ELECTION OF REMEDIES 11-NO ELECTION OF REMEDIES BY SELLER FIRST SUING FOR

PRICE OF BUSINESS INSTEAD OF ON NOTE.

Where plaintiff sold a saloon business to defendants and had the note for the price made payable to a liquor company to which he expected to sell it, there was no election of remedies, preventing suit on the note, by first suing the liquor company for the price of the business sold, but merely a mistake of remedy. 4. BILLS AND NOTES 489(7)—VARIANCE BE

TWEEN PETITION AND NOTE FATAL.

There was a fatal variance between a note reciting that it was given in payment of a liquor business purchased from a third party and a petition alleging that it was given in consideration of a business sold by plaintiff to defendant, and not showing that the note was negotiable, or that it was secured by a chattel mortgage or payable at a bank.

5. APPEAL AND ERROR 930(3) — NO PRESUMPTION IN FAVOR OF VERDICT AS TO ISSUE

ON WHICH THERE WAS NO EVIDENCE.

There was no presumption on appeal in favor of the verdict under Vernon's Sayles' Ann. Civ. St. 1914, art. 1985, as to the issue, not submitted to the jury, of the discharge of a surety by dissipation of the chattel mortgage security, where there was no affirmative evidence to establish what became of the property. Higgins, J., dissenting.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Action by L. O. Ramsey against the Goldoft Liquor Company, which interpleaded George W. Wahl and another. From the judgment, defendant Mrs. George W. Wahl appeals. Reversed and remanded.

M. W. Stanton and M. V. Ward, both of El Paso, for appellant.

Chas. Owen, Jno. F. Weeks, and McKenzie & Loose, all of El Paso, for appellee.

Statement of the Case.

The

HARPER, C. J. On March 13, 1915, L. O. Ramsey filed his original petition in this suit against the Goldoft Liquor Company, a corporation, in which he alleged his cause of action to be suit for $1,250, agreed price of a certain saloon business, goods in stock, etc., sold by plaintiff to defendant. Goldoft Liquor Company answered to the merits, and set up the note which is the basis of the judgment appealed from, and interpleaded appellant, Mrs. Geo. W. Wahl, and Geo. W. Wahl, the makers, prayed judgment over against them in case plaintiff should recover against the company. Defendants answered the latter pleading by general and special exceptions and general denial. Plaintiff then filed first, second, and third amended petitions, but defendants were not made parties to the original cause of action by any of these pleadings. June 18, 1918, by amicus curiæ, filed notice was given that no service had been had upon the Wahls. Whereupon plaintiff filed his fourth amended original petition August 8, 1918, making the Wahls parties and also Terrell, trustee for Goldoft Liquor Company, which had in the meantime become a bankrupt, and citation issued accordingly, shown to be served August 16, 1918. Thereafter, on March 31, 1919, the fifth amended original petition was filed upon which the case went to trial. By this petition plaintiff declared that the liquor business and goods, etc., described in the first pleadings, were, about May 28, 1914, sold to G. W. Wahl for $1,250, and that the latter

"joined by his mother, Mrs. G. W. Wahl, made, executed, and delivered to the plaintiff for and in consideration of the purchase price of said stock of liquor their certain promissory note for the sum of $1,250, due six months after date, but inasmuch as plaintiff intended to sell said note to Goldoft Liquor Company, the note for convenience was made payable to the Goldoft Liquor Company, but the plaintiff represents that the sale of said note to Goldoft Liquor Company was never consummated, and that said company was holding said note as trustee for plaintiff, who is the owner of same, both legal and equitable; that the note draws interest at the rate of 10 per cent. per annum, and provides for 10 per cent. attorney's fees in case suit is brought on it."

Then follows the allegation that it had been lost. Terrell, as trustee, disclaimed any interest in the note. George W. Wahl answered by general and special exceptions, general denial, specially denied that the note was ever transferred or assigned or delivered to plaintiff. That the alleged agreement, whereby defendants became liable to plaintiff instead of the payee in the note, is barred by the statute of two-year limitation. No consideration, in that the plaintiff took possession of the license and other property and sold same to one Duran, for which there is accord and satisfaction. Mrs. G. W. Wahl adopted the pleadings of her codefendant. That there was executed a chattel mortgage to said Goldoft Liquor Company upon the property described to secure the payment of the said note. That it was primary and first security for its payment. That plaintiff appropriated said property to his own use. Wherefore she, being simply a surety on the note, is thereby discharged. The cause was submitted upon special issues, and upon the verdict judgment was entered for the amount of the note, interest, and attorney's fees, from which Mrs. G. W. Wahl appeals.

Opinion.

[1] It is urged that it was error to permit plaintiff by fifth amended petition to change the nature of his suit as to parties and cause of action. Since the Goldoft Liquor Company and the trustee in effect disclaimed any interest in the note or amount due, and the appellants having been made parties for the limited purpose of a recovery over against them by the liquor company in case judgment was recovered against it, whilst irregular, we can see no reason why by amendment the cause of action should not be asserted against them after citation. Jolley v. Oliver, 106 S. W. 1151.

[2] The plea of two-year limitation does not apply to the now cause of action being bottomed upon the note. The agreement to make the note payable to the Goldoft Liquor Company had the effect to make it the legal owner and holder of the note, but if Ramsey was in fact the equitable owner he could sue in his own name. Guest v. Rhine, 16 Tex.

549.

[3] There was no election of remedies by first bringing his suit against the liquor company for the amount of the price of the business sold, instead of upon the note; it was simply a mistake of remedy. The record does not show that plaintiff had two valid and available and inconsistent remedies, and undertook to pursue one. Therefore there is no election. Ins. Co. v. Eggleston, 195 S. W. 942.

[4] The next is, Is there such a variance between the note described in the pleadings

recovery? The note declared upon, described

in the original statement of the pleadings above, is a demand note, etc. The note introduced in evidence to support the plea is a negotiable promissory note for $1,250, payable to the order of Goldoft Liquor Company, with the recital:

"This note is further secured by a chattel mortgage on the property this day acquired from the Goldoft Liquor Company." "This note payable at the Commercial National Bank of El Paso, Texas."

The pleading is that the note was given in consideration of a liquor business sold by him to the defendant Geo. W. Wahl. The note recites that it was given in payment of a liquor business that day purchased from the Goldoft Liquor Company. The variance is fatal to the judgment. Sweetzer, Pembroke & Co. v. Claflin, 74 Tex. 667, 12 S. W. 395.

[5] It is further urged that, Mrs. G. W. Wahl, appellant, being a surety on the note, and the jury having so found, and she hav ing pleaded that a chattel mortgage was executed to secure its payment upon the property sold, for which the note was executed as sole consideration, and it further appearing from the uncontradictory evidence that this security was dissipated with knowledge of plaintiff, and no diligence shown by plaintiff in applying the security to the debt, that the appellant is discharged. This issue was not submitted to the jury, but there is no affirmative evidence to establish what be came of this property, so the court could not find this issue in favor of the judgment; therefore there can be no presumption in favor of the verdict upon appeal under Rev. Stat. (Vernon's Sayles') art. 1985. Kempner v. Patrick, 43 Tex. Civ. App. 216, 95 S. W. 51.

There are other questions proposed by appellant not in proper form of assignments of error, which strongly urge, in our minds, a reversal of the case. For instance, the pleadings in this case strongly indicate that plaintiff was never either the legal or equitable owner and holder of this note, and the testimony of plaintiff strongly indicates that he never in fact was in a position to demand or collect the amount of this note from appellant, Mrs. G. W. Wahl. The cause is therefore reversed and remanded for new trial.

HIGGINS, J. (dissenting). From the rulings of the majority upon which the reversal is based I dissent for the following reasons:

First. If there is any variance between

The plaintiff in the suit, the Moore Grocery Company, contested the answer of the People's Guaranty State Bank and alleged that it had good reason to believe and did believe that the funds mentioned in the answer of the garnishee were in fact the property of Henderson & Rhoades, otherwise known as the Aubrey Milling Company, and were not the property of the Denison Bank & Trust Company. The Denison Bank & Trust Company in an amended answer alleged that the funds held by the garnishee were the proceeds of the two drafts above mentioned; that prior to the issuance and service of the writ of garnishment those drafts were for their full value sold and transferred to it, and that the Denison Bank & Trust Company was then the holder and owner of the funds on deposit in the People's Guaranty State Bank of Tyler; that on the date the drafts were drawn the Aubrey Milling Company presented them to the First Guaranty State Bank of Aubrey, Tex., and requested the bank to purchase them, which was done; that the First Guaranty State Bank of Aubrey then sold the drafts to the defendant Denison Bank & Trust Company for the face value thereof. In reply to this answer the plaintiff filed a general denial. In a trial before the court without a jury judgment was rendered in favor of the plaintiff against the garnishee.

[1, 2] It is contended on this appeal that the evidence was insufficient to support a finding that the funds held by the People's Guaranty State Bank of Tyler, the garnishee, belonged to Henderson & Rhoades, the debtors, against whom the Moore Grocery Company had filed its suit; and we are of the opinion that this is correct. In garnishment proceedings the burden of proving that the funds in the hands of the garnishee belong to the debtor rests upon the plaintiff in the suit. Eastline, etc., R. R. Co. v. Terry, 50 Tex. 129; Smith v. Merchants' Bank, 40

S. W. 1040; South Texas Bank v. Texas, etc., Lbr. Co., 30 Tex. Civ. App. 412, 70 S. W. 769. The facts developed on the trial show that on the date they were issued a member of the firm of Henderson & Rhoades drew the drafts mentioned in the name of his firm, payable to Nustain, cashier of the First Guaranty State Bank of Aubrey, and requested that credit for that amount be entered in favor of Henderson & Rhoades. The drafts were accepted by that bank at their face value and credit therefor entered on the books of the bank in favor of the Aubrey Milling Company, under which name Henderson & Rhoades were doing business. The amount thus credited was subject to check, and before the institution of this suit had been drawn out by the Aubrey Milling

The evidence clearly establishes the fact that the drafts had been sold by Henderson & Rhoades to the Aubrey bank. That transaction was sufficient to divest Henderson & Rhoades of their title to the funds thereafter paid in satisfaction of the drafts. That being true, it was immaterial, so far as the issues in this appeal are concerned, which owned the funds, the Aubrey bank or the Denison Bank & Trust Company. The failure of the plaintiff in the suit to prove that the funds belonged to Henderson & Rhoades was enough to require the rendition of a judgment in favor of the garnishee. It is true that the Aubrey bank is not a party to this suit and is not here claiming any interest in the funds. But the testimony of its officers that the drafts had been sold by that bank to the Denison Bank & Trust Company should not have been discredited by the trial court. The sale by the drawers to the Aubrey bank was not disputed by any witness, and there was no evidence tending to impeach their testimony. The transaction thereafter between those two banks was one between third parties with which the appellee had no concern. Evidence tending to impeach the sale to the Denison Bank & Trust Company did not establish the ownership of the funds by Henderson & Rhoades,

the debtors.

The judgment will here be reversed, and here rendered for the garnishee.

DENISON BANK & TRUST CO. v. PEO-
PLE'S GUARANTY STATE BANK
OF TYLER et al. (No. 2163.)
(Court of Civil Appeals of Texas. Texarkana.

Nov. 20, 1919. Rehearing Denied
Dec. 4, 1919.)

Appeal from Smith County Court; W. R. Castle, Judge.

Henderson & Rhoades, a partnership commonly Suit by the Moore Grocery Company against known as the Aubrey Milling Company, defendant, and the People's Guaranty State Bank of Tyler, garnishee, to which the Denison Bank & Trust Company was made a party defendant. From judgment rendered the Denison Bank & Trust Company appeals. Reversed and rendered for garnishee.

J. A. Bulloch, of Tyler, and Jno. T. Suggs, of Denison, for appellant.

Price & Beaird, of Tyler, for appellees.

LEVY, J. This appeal is from a garnishment proceeding in the county court. The case of