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first and second instructions authorizing a recovery by plaintiff, if the jury believed from the evidence that defendant made a contract With plaintiff to pay him a Salary of $200 a month so long as it continued to use said patents and inventions. It is insisted that this instruction Was erroneous, because defendant was not liable on the contract unless it made actual use of the patents and inventions. A patent may be disposed of, either by transferring the entire patent, or giving a license for use of the patent. In the case under consideration the entire patents were transferred of record to the defendant. No title whatever remained in plaintiff. The transfer put it out of the power of plaintiff to use the patents and put it in the power of the defendant to make such use of the patents as it saw fit. According to plaintiff’s evidence, the consideration for the transfer Was the agreement On the part of the transferee to employ him at a salary of $200 a month, so long as it continued to use the patents. Under these circumstances, defendant could not eScape liability on the contract of employment without restoring the consideration which it received. We therefore agree With the trial court that the word “use,” as applied to the circumstances of this case, does not mean the actual physical employment of the patents and inventions in carrying on the defendant's business, but means the right to use such property. As the instruction referred to accords with this view, it follows that it is not subject to complaint. The appeal of plaintiff Shaw and the crossappeal of the Fidelity & Deposit Company of Maryland present two questions: (1) Is the surety company liable only for the amount claimed in the original petition and the affidavit for attachment, Or is it liable for the full amount of the judgment, including the claim set up by amended and supplemental petitions filed after the execution Of the bond and without notice to the Surety? (2) Was the surety released from all liability by reason of the amendments covering the inStallments of Salary due after the filing of the Original petition and the execution of the bond 2 The amount claimed in the original petition and affidavit for attachment, consisting of several items, is $881.79. The Order of attachment directed the Sheriff to attach and safely keep so much of the property of the defendant, in the county, not exempt from execution, as would satisfy the claim of plaintiff, and $30 for the costs of the action. Before any amendment was filed increasing the amount prayed for, the bond, by which the defendant and the Surety company agreed to perform the judgment of the court in the action, was executed. Section 214 of the Civil Code is as follows: “The sheriff may deliver any attached property to the person in whose possession it is found,

iff, of a bond to the plaintiff, by such, person, with one or more sufficient sureties, to the effect that the obligors are bound, in double the value of the property, that the defendant shall perform the judgment of the court in the action, or that the property or its value shall be forthcoming and subject to the order of the court.” Section 221 of the Civil Code provides:

“If the defendant, before judgment, cause a bond to be executed to the plaintiff by one or more sufficient sureties, approved by the court, to the effect that the defendant shall perform the judgment of the court, the attachment shall be discharged, and restitution be made of any property taken under it or of the proceeds thereof.”

[4] Our attention is called to the fact that defendant had the option to execute bond under either of the above sections; that, Where the bond is executed under Section 214, it is a mere obligation for the forthComing of the property; the lien created by the attachment, and the power of the court Over the attached property, subsist and continue as effectually as if no bond had been given, Or the possession never taken out of the hands of the officer; and continues until final judgment is rendered disposing of the attachment. Bell v. Western River Co., 3 Metc. 558; Edwards Bernard Co. V. Pflanz, 115 Ky. 393, 73 S. W. 1018, 24 Ky. Law Rep. 2296; Hobson v. Hall, 13 Ky. Law Rep. 109, 14 S. W. 958; Lee v. Newton, 27 Ky. Law Rep. 1004, 87 S. W. 789. And no action can be maintained On a bond unless the attachment is Sustained. On the other hand, where the bond is executed pursuant to section 221, all power of the court and its officers over the attached property ceases, and plaintiff Can look Only to the bond. Furthermore, the attachment is discharged by operation of laW, and the Oblig01's in the bond are bound unconditionally to perform the judgment of the court in the action. In a proceeding to enforce the bond, neither the sufficiency of the grounds of the attachment, nor the liability of the property levied on, nor the claims of any person to the attached property, can be considered. Hazelrigg v. Donaldson, 2 Metc. 445; Taylor v. Taylor, 3 Bush, 118. It is therefore insisted that, if a surety company desired to limit its liability, it Should have executed bond under Section 214; but, if it elected to execute bond under section 221, it is liable for the full amount Of the judgment, whether based on the amount claimed in the Original petition or on the amounts set up by amended and Supplemental petitions. While it may be true that a paid surety is no longer the favorite of the law, and that the COurtS Will not COnStrue his bond as Strictly as the bond of a Surety for mere accommodation, yet We know Of no rule of law that will extend a Surety’s liability far beyond what was Within the contemplation of the parties at the time of the execution of the bond. Here the plaintiff was seeking to recover only the sum of $881.79, and he asked for an attachment only to only to the extent of that sum. To release the property, the bond in question was executed. Thereafter plaintiff, without notice to the surety company, sought, by amended and Supplemental petitions, to recover the additional sum of about $6,500, and was finally awarded a judgment for that amount. In Our Opinion, the surety company is not liable for this additional amount. The Obligation to perform the judgment of the COurt means the judgment of the court based On the cause of action stated, and the amount claimed, in plaintiff's pleadings on which the Writ of attachment is issued, when the bond is executed. In this opinion we are greatly fortified by the views of the Supreme Court Of Pennsylvania in the case of Commonwealth, for Use of Charles A. Gettman, v. A. B. Baxter & Co. et al., 235 Pa. 179, 84 Atl. 136, 42 L. R. A. (N. S.) 484. [5, 6] On the cross-appeal of the surety Company it is insisted that the attempt, by an amended petition, to increase its liability, discharges it of all liability under the bond. Great stress is placed on the claim that the amended and supplemental petitions, setting up the installments of Salary that became due since the filing of the original petition, stated entirely new causes of action which increased the amount of the final judgment obtained in the action. It may be conceded that there is authority for the position, based on the old doctrine applicable to bail

absolute, that any material alteration in the contract of Suretyship releases the Surety. Thus it is held that, where one becomes bail for another, he is responsible only for the demand contained in the suit. Another demand cannot be added without defeating the contract of bail. Bean V. Parker, 17 Mass. 602; Langley v. Adams, 40 Me. 125. In other words, the theory on which the surety is released is that its liability has been increased. In the present case, we have held that the liability of the surety was not increased by the amendments. That being true, the amendments in no way affected the rights Of the Surety. If the amendments do not increase the Surety’s liability, upon what ground can it be said that the obligee in a bond should not recover all that he is entitled to under the bond, merely because, through a misapprehension of the law, or otherwise, he seeks to recover more than is due him? In Our opinion, the question answers itself. Under no circumstances should the obligor in a bond be released from his obligation to pay that which he justly owes, merely because the obligee asks for more. Commonwealth, for Use of Charles A. Gettman, V. A. B. Baxter & Co. et al., Supra.

The judgment in the case first mentioned in the caption is affirmed. The judgment in the second case mentioned in the caption is affirmed both On the Original appeal and croSS-appeal.

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FLY, C. J. This is a suit for damage to 79 steers shipped by appellees over the lines of the St. Louis, Brownsville & Mexico RailWay Company, Frank Andrews being its receiver, and the Texas Mexican Railway Company, from Norias, a station on the firstnamed railroad, to Alice, a station on the last-named railway. The cause was submitted to a jury on Special issues, and on the answers judgment Was rendered in favor of appellees against the receiver for $332.50, and against the Texas Mexican Railway Company for $400. The latter alone has appealed.

[1] The requested charge of appellant refusal of Which is complained of in the first aSSignment of error Was properly rejected by the court. The evidence showed that the negligence of appellant consisted in holding the cattle in pens, without shelter, in RobstoWn, too small to accommodate them properly, and it Would have been erroneous to have instructed a Verdict for appellant in case the jury found that there Was no damage to the cattle between Robstown and Alice. The evidence ShOWed that the Cattle Were CrOW ded, Without food Or Water, into pens too small for their comfort, and allowed to remain therein for a day in the Sun, causing great damage to them, and that the cattle had been

delivered to appellant by its connecting carrier before they were placed in the pens. Most of the damage to the cattle occurred at Robstown after they had been delivered to appellant. It may not have been liable for not holding its train for the cattle for a few minutes longer than it did, but it is liable for its treatment of the cattle in RobStoWn. [2] The special charge the refusal of which is assailed in the second assignment of error was properly refused by the court. It was alleged and proved that a large part of the damages occurred through the negligence of appellant after the cattle were delivered to it in Robstown, and it would have been decidedly improper to have instructed the jury, in effect, that as the first carrier had delayed the cattle on its road, appellant would not be liable for its negligence while the cattle were in the pens at Robstown. The first carrier was doubtless negligent in not delivering the cattle with proper dispatch, So that they could have gone out on the morning train, but that negligence did not authorize or justify further negligence on the part of appellant. The law applicable to a delivery of the cattle by one carrier to another was correctly embodied in a special charge asked by the receiver and given by the Court. The judgment is affirmed.

INTERNATIONAL & G. N. R.Y. CO. v. BERTHEA. (No. 1502.)*

(Court of Civil Appeals of Texas, Texarkana.
Nov. 3, 1915. Rehearing Denied
Nov. 18, 1915.)

1. CARRIERS <>322 – CARRIAGE OF PASSENGERS–INJURIES To PASSENGER-FINDINGS. In a passenger's action for injuries caused by derailment of the train, a finding by the jury that a defect, in that one of the two broken rails which first gave way, could not have been discovered by the highest care, did not require judgment for defendant, since it did not attribute the cause of derailment to that rail, and since the court was presumed to have found that such defective rail was not the proximate cause of the derailment. [Ed. Note.—For other cases, see, Carriers, D£big':333; Trial, Cent. Dig. $860.j

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a matter of law, that the breakage in the first rail was the proximate cause of the derailment, although such rail contained a hidden defect.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315–1325; Dec. Dig. Q: 320.]


GERs—INJURIES TO PASSENGER—FINDINGSCONSISTENCY. In a passenger's action for injuries in a derailment of the train, a finding by the jury that a hidden defect in the first rail that gave Way was not discoverable by the highest care was not in conflict with another finding that defendant had not used a high degree of care to have the rails at the place of derailment in reasonably safe condition, when considered in connection with the court’s finding that the proximate cause of the derailment was not the rail containing the hidden defect, but the rail next thereto. [Ed. Note.—For other cases, see Carriers, Dec. Dig. Q:322; Trial, Cent. Dig. $860.] 5. TRIAL C: 365–SPECIAL FINDINGs. A finding upon a special issue submitted to the jury becomes immaterial when other facts have the legal effect to eliminate the issue embodied in such finding. [Ed. Note.--For other cases, see_Trial, Cent. Dig. §§ 871-874; Dec. Dig. G->365.]

6. CARRIERS @:318 – CARRIAGE OF PASSENGERS-ACTION FOR INJURIES—ROADBED–EVIDENCE. . In a passenger's action for injuries sustain; ed in a derailment of the train, evidence held sufficient to sustain a finding that defendant was negligent in failing to maintain a rail securely spiked to the ties.

[Ed. Note:-For other cases, see Carriers, # Dig. §§ 1270, 1307–1314; Dec. Dig. Q:

Appeal from District Court, Rusk County; W. C. Buford, Judge.

Action by J. F. Berthea against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Appellee, a passenger on appellant's regular South-bound passenger train, Was injured by the derailment of the main line of the coach in which he was riding, in conSequence of the breakage of certain track rails. This action was brought to recover damages for the injuries thus sustained, and a recovery by appellee was had.

According to the evidence, which is undisputed, two rails of the track, adjoining each other On the same Side Of the track, Were broken as follows: Between 18 inches and 2 feet was entirely broken off of the end of One of the rails, and between 4% and 5 feet Of the ball Of the SOuth end of the next Or north rail WaS Shivered Or broken Off down to the Web Or base Of the rail. The broken portion of the south rail was found hanging in the trucks of the derailed chair car. The Web or base Of the north rail remained and was still on the ties. An examination. Of the broken end Of the SOuth rail disclosed no inherent defect or flaw in it, but inside the ball that was shivered Off the north rail at the point Of breaking there Was

found a hollow defect or flaw made in the molding of the rail. The flaw in the north rail was so wholly concealed inside the rail as not to be discoverable by inspection. The evidence supports the finding of the jury, on special issue, that the defect causing the break in the north rail Was not discoverable by the exercise of a high degree of care before the injury. And there is evidence to support the further findings comprehended in the Verdict of the jury, and the judgment of the trial court, that as to the breaking of the south rail appellant was guilty of negligence, and such negligence proximately caused the injury. The evidence Warrants the amount of the Verdict.

Morris & Sims, of Palestine, and Futch & Tipps, of Henderson, for appellant. Felix J. McCord, of Longview, and J. W. McDavid, of Henderson, for appellee.

LEVY, J. (after stating the facts as above). [1] The jury answered “No” to the following question propounded: “Could the servants and agents of the defendant company, by the exercise of that degree of care which a very prudent and cautious person would have exercised under the same or similar circumstances, have discovered the defect in the rail which first gave way on the occasion of the wreck complained of in this suit?” And the appellant, by its fourth assignment Of error, complains Of the refusal Of the court to enter judgment in its favor on the finding by the jury. The answer of the jury goes to the extent only of finding as a fact that the defect “in the rail. Which first gave way” was not discoverable before the time of the derailment by the highest degree of practicable forethought and skill. The answer does not attribute or refer the cause of the derailment to the track rail which first gave way or broke, and there does not appear in the record any other finding by the jury respecting the proximate cause of the derailment to be considered in connection With the instant answer. Therefore the assignment must, we think, be overruled, for it is believed that in the circumstances there Was presented for decision in point of fact by the jury or court the vital question of the proximate cause of the derailment was a fact necessary to support a judgment for appellant; for, under doctrine of law, the finding by the jury of want of negligence on the part of appellant in respect to the breakage of one of the track rails would not have the legal effect to relieve of liability, unless it further appears as a fact that such defective rail, for which appellant was not responsible, was the proximate cause of the derailment. [2] When a special answer does not find all the facts necessary to form the basis of a judgment, but does answer all the questions submitted, the court is presumed to have found from the evidence the omitted facts necessary to support the judgment rendered by him, if the evidence authorizes the fact thus presumed. Oil Co. v. Wallace, 23 Tex. Civ. App. 12, 54 S. W. 639; article 1985, R. S. And, as the trial court entered judgment for the plaintiff, it must be assumed, in support of his judgment, that he concluded as a fact, and which has evidence to Support it, that the particular defective rail, which the jury found the appellant was not legally responsible for, was in the evidence only a condition, and not the efficient cause of the derailment. [3] The fact appears Without dispute that the Smoker and chair car of appellant's south-bound passenger train were derailed. It happened in a cut on the main line. The track there was level and Straight, and On dry, sandy ground, and, according to the evidence, was surfaced, in good alignment, and had good, new ties. The rails Were 75-pound rails, but the employés did not know how long a time they had been in use. Immediately after, and with the purpose of ascertaining the cause of the derailment, a passenger on the train and certain experienced employéS Of appellant made an eXalmination of the physical evidences on the ground. They found two rails of the track, adjoining each other On the Same Side Of the track, broken, as follows: Between 18 inches and 2 feet was entirely broken off Of the north end Of One Of the railS, and between 4% and 5 feet of the ball of the South end of the next or north rail Was Shivered Or broken Off dOWn to the Web Or base of the rail. The broken portion of the south rail was found hanging in the trucks Of the derailed Chair Car. The Web Or base Of the north rail remained and Was Still On the ties. An examination of the broken end Of the South rail disclosed no defect Or flaw in it, but inside the ball that Was Shivered off the north rail at the point of breaking there Was found a hollow defect Or flaw made in the molding Of the rail. The WitneSSes Say that the flaw in the north rail was such as to weaken the strength of the rail, and was So Wholly concealed inside the rail as not to be discoverable by inspection, and could not be seen if the rail had not been broken. An inspection of the roadbed and track had been made before the derailment, and it appeared sufficient. The engineer testified that as the train approached the cut he felt something give way under the back drivewheel of the engine, and heard a driveWheel “knocking,” and he at once applied the air in the emergency to stop the train immediately. Upon applying the air the engineer looked back towards the train and SaW the rear cars careening. The train Stopped quickly after the air was applied. The engine, baggage car, and front trucks of the next or combination car all remained On the track. These are all the facts and circumstances relied on to show the cause of the derailment. Taking the engineer's

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affirmative evidence, it must be Said, as a fact, that there was a breakage of two track rails under the weight of the engine as it passed over them. An examination of the track made immediately afterwards disclosed, it appears, that the breakage in the two rails was not of the same kind and character. About 2 feet was entirely broken off Of the north end of the south rail, and Such broken off part was off the ties, hanging in the trucks of the chair car. The ball of the South end of the next or north rail for the length of about 5 feet was shivered off, and the Web Or base Of the Shivered portion of the rail remained and was still on the ties; and it appears Without dispute that after the giving way of the rails under the engine the baggage car and the front trucks of the combination car passed Over the broken rails Without derailment. Thus, in the circumstances, the derailment of the rear CarS cannot be attributed and referred absolutely to the fact of breakage in the north rail. The further fact that 2 feet Of the South rail was entirely broken off and an Open Space for that length left in the track might, it could reasonably be said, have been the cause of the derailment; for such Open Space WOuld permit and allow the Wheel Of the car to Sink down to the ties for the lack of that much rail to support it. It presents a physical Situation at least Which the jury Or the court might infer was the proximate cause of the derailment; and the physical Situation presented in the breakage Of the north rail does not necessarily exclude any Other inference than that Such breakage) Solely Or proximately caused the derailment. A jury or the trial court may have legitimately drawn the inference or conclusion that only the shivering off of a part of the rail, its under part Or base remaining Spiked to the ties, did not solely or proximately cause the derailment. It is true that a WitneSS Stated that the breakage Of the north rail Caused the derailment; but his answer WaS an Opinion purely, and became but a circumStance for consideration by the Court Or the jury. It is not thought, in View Of the Cir. cumstances proven, that this court can properly Say, as a matter Of law, that the breakage in the north rail was the sole Ol proximate cause of the derailment. [4] It is further COntended by the eighth assignment of error that the above-stated Special finding of the jury is in conflict with their anSWer to the third question propounded, and that the findings would not support a judgment for appellee. The third question, in Substance, asked the jury to Say Whether or not appellant had used a high degree of Care to have the track and rails in a reasonably safe condition at the place of derailment, and the jury answered, “No.” Giving, as the jury did, the general answer “No” to the question, the verdict may, it is true, be conStrued, and have the effect, as being a finding

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