Tex. & St. L. R. R. Co. v. McCaughey

• Decision Date: 24 October 1884
• Docket Number: Case No. 1724.
• Citation: 62 Tex. 271
• Court: Texas Supreme Court
• Parties: THE TEX. & ST. L. R. R. CO. v. JAMES MCCAUGHEY.

62 Tex. 271

THE TEX. & ST. L. R. R. CO.

v.JAMES MCCAUGHEY.

Case No. 1724.

Supreme Court of Texas.

Oct. 24, 1884.

APPEAL from Smith. Tried below before the Hon. Felix J. McCord.

This suit was originally brought by the appellee, James McCaughey, against Coventry, Price & Co. and the Texas & St. Louis Railway Company. Coventry, Price & Co. were the contractors for the construction of the railroad, and appellee was appointed by them to take charge of a boarding-train, and the amount due him for furnishing laborers with board was for wages due the latter for work done on the road, and deducted by appellants and Coventry?? Price & Co. from their wages in payment of board due McCaughey?? The petition also alleged that he was entitled to a laborers' lien to secure the amount due, because the boarding-train was necessary to the construction of the road, and that having labored in preparing the food and furnishing money in feeding the workmen, he had personally a lien under the statute. He also claimed an assignment of their (laborers') lien on account of the agreement existing between him and the defendants as to furnishing the laborers with board, and the amount due thus being deducted out of their wages. Coventry, Price & Co. made no defense, but the railway company answered by a demurrer, and also answered generally and specially. The demurrer was overruled, and a judgment was rendered by the court in favor of McCaughey.

Herndon & Cain, for appellant.

Robertson & Finley, for appellee.

WILLIE, CHIEF JUSTICE.

It was held in the case of Alexander v. Stern, 41 Tex., 193, that service upon one partner, after the dissolution of the firm, and before the liabilities of the firm have been liquidated, is sufficient to authorize a judgment available against the partnership property. The plea in abatement in the present case, to which a demurrer was sustained, did not state that the firm affairs of Coventry, Price & Co. had been wound up, and the court, in determining the demurrer, was bound to presume that such fact did not exist, and under the above decision the demurrer was properly sustained.

The waiver of Shoff showed on its face that it was made as a member of the firm of Coventry, Price & Co., and no affidavit of Shoff, showing that he intended only an individual waiver, can give it that effect. The plaintiff had every reason to believe, from the language of the waiver, that it was intended for the firm, and, having acted upon such belief, cannot be affected by Shoff's secret intentions.

It is objected to the petition that it does not set forth facts sufficient to show an equitable assignment to McCaughey of the claims held by the laborers against Coventry, Price & Co., and of their lien upon the railroad. It does show an understanding between Coventry, Price & Co., the railroad company and McCaughey, that the latter was to board these laborers, and that whatever amount should be due him for their board should be deducted out of their pay to fall due from Coventry, Price & Co., the contractors for building the road, and constitute a lien upon the road. It is further shown that the contractors did make this deduction, but it is not shown that the laborers assented to it, or were parties to the agreement that it should be made. The whole transaction seems to have occurred between McCaughey and the defendants, and they bargained among themselves as to what should be the amount of the claim of McCaughey for board, and as to how the demands of the laborers against the...