Andrew Faskin brought this suit against Lancaster Wallace, receivers of Texas Pacific Railway Company, and for cause of action alleged that one Girdley was the receiver of the Midland Northwestern Railway Company; that engine No. 104 belonging to the latter company was in the possession of the former company under a contract of rental; that a demand having been made upon the Midland Northwestern Railway Company for 12 stock cars to ship cattle over its line, plaintiff requested the receivers of the Texas Pacific to deliver said engine, water car, car of oil, etc., whereupon the receivers refused to deliver, claiming an account for repairs to the engine, save upon payment of $1,336.97; that plaintiff out of his own personal funds paid said amount to the defendants, receivers, so advising them; that the defendants failed to comply with the agreement and notified the receiver of the Midland Northwestern Railway Company that there must be deposited $500 more before they would deliver; that, no engine or equipment having been *Page 756 delivered, demand was made for the return of the money paid by plaintiff.
Defendants answered by general and special exceptions, general denial, and specially that any money deposited was a loan for the benefit of Girdley, receiver. So that plaintiff's cause of action, if any, is against Girdley and not defendants. That there was no privity of contract, etc. And then set up a contract in detail between the defendants receivers and Girdley, receiver of the Midland Northwestern Railway Company.
Submitted upon general charge, and the jury found for the plaintiff for the amount issued for Appealed.
The first proposition is:
"It being manifest from appellee's petition and testimony that he made the payment of $1,336.97 to appellants in settlement of the repair bill of the Midland Northwestern Railway for account of that line, at which time he was fully advised that such payment was made for that purpose, his sole right of recovery is against said Midland Northwestern Railway or its receiver, and it was error to render judgment in his favor against appellants."
It is manifest from our statement of the pleadings of plaintiff that he knew that the amount paid was demanded of the receiver of the Midland Northwestern Railway Company as the amount owing for the repairs to the engine, but there is nothing to indicate either pleadings or evidence that he paid it under any agreement with such receiver, but the evidence for appellee is that he had no such agreement, but upon the solicitation of certain shippers of cattle he paid it to accommodate them, of his own money. This would not make the receiver of the Midland Northwestern Railway Company liable to him for its return. In this connection, it may be well to notice appellant's second proposition, that there was no evidence that appellee had any dealings with appellants or with any of their authorized agents; that therefore there was no privity of contract between appellee and appellant. It is not disputed that the agent of appellants accepted the money, and it is admitted that the thing for which it was paid was not delivered, to wit, the engine and equipment. The payment was made to J. J. Hamlet, who testified that he received the money, and that he was at the time the agent of the receivers. There was no denial under oath that he was their agent. These things certainly must be held to constitute agency.
The plaintiff testified that, after taking with one of the shippers, he went to this same agent, and that he advised plaintiff that the amount paid was the sum necessary to obtain delivery of the equipment This ought to be sufficient to constitute privity of contract; but, if there was no privity of contract, then the receivers offered him nothing for his money and gave him nothing for it, and since there is no evidence that he paid it to them for and on account of the receiver of the Midland Northwestern Railway Company, he should in all good conscience have it returned to him upon either of the two theories, viz.: That he paid it under contract for the delivery of the equipment, which was not performed; or that through their agent they accepted the money knowing that it was paid for a definite purpose, when in fact it was not sufficient to accomplish the purpose, release of the equipment, but that $500 more was necessary, and the latter amount was not disclosed to him until after payment had been made. This amounts to a conversion. George v. Taylor, 55 Tex. 97; Eversberg v. Miller (Tex. Civ. App.) 56 S.W. 223; Bullock v. Crutcher (Tex. Civ. App.) 180 S.W. 941.
The third proposition is that the undisputed testimony is that the operation of the Midland Northwestern Railway Company was suspended several months prior to the payment made; therefore no agent of appellant had any authority to contract with it. There is no attempt to enforce any contract between the appellants and the Midland Northwestern Railway nor the receiver of the latter. But apropos to the above discussion, if the agents of appellants had no authority to contract, then the money should be returned, because they could not lawfully deliver the equipment to any one, and they were guilty of fraud.
The cause was submitted by two paragraphs, as follows:
"(1) Now, if you find from a preponderance of the evidence that on or about the time complained of by the plaintiff, he paid or delivered to them, the defendants, the amount claimed by him of his own money, with the understanding or agreement that the defendants would deliver to the Midland Northwestern Railway Company the equipment in his petition alleged, and you further find from a preponderance of the evidence that they did not so deliver such equipment within a reasonable time after such payment, you will find for the plaintiff for $1,336.97, with interest at 6 per cent. per annum from the time such equipment should have been delivered, if it should, to date; and, unless you so find, you will find for the defendants.
"(2) If you find that the plaintiff delivered the amount complained of to the defendants in payment of an account or claim defendants had against the Midland Northwestern Railway Company, or if you find that he paid or delivered such money for or on behalf of the Midland Northwestern Railway Company, or the receiver thereof, you will find for the defendants."
This charge clearly and sufficiently submits the case under the pleadings and evidence of the parties, and the jury have found for the plaintiff.
The fourth proposition is that it was error to permit plaintiff to testify that the *Page 757 attorney for defendants admitted the justice of the plaintiff's claim and promised satisfaction, and the fifth is that the court should have granted a new trial on account of surprise at this testimony complained of, and because of the further fact that the said solicitor would have testified that no such admission was made, and that his testimony could not be had prior to the close of the trial. As to it being a cause to grant new trial, the solicitor in his affidavit attached to the motion said he remembered having a conversation about the matter, but that he did not say it was a just debt, but only said that if it was a just claim he would take it up with the receivers with a view to a settlement; so the difference between the two statements is not sufficient to be of any importance for impeachment, therefore not ground for granting a new trial.
Besides, the statement by the attorney testified to simply amounted to an opinion or conclusion of law upon the facts. There is no controversy as to the facts in this case. Whilst the court submitted the defense to the jury "did the plaintiff pay this money on behalf of the Midland Northwestern Railway Company or the receiver?" there is no evidence in this record that he did so pay it. There is no question that he was paying an amount, stated by the receivers of the Texas Pacific and their agent, to be due from the Midland Northwestern Railway and for which they would deliver the equipment so that certain shippers might use it. So the trial court, as here, had a question of law only to pass upon. So if this was not proper testimony, it in no way changed the facts.
Besides, this testimony was called for by appellants' counsel upon cross-examination, so appellee is not responsible for it. And it seems to us that a statement from such source is properly a declaration against interest and is admissible.
One of the reasons for objection to this testimony was that it was not shown that the general solicitor had authority to make this statement. The court stated:
"I do not know the general solicitor; what his authority would be. I would think he had pretty good authority. It is an issue of fact."
This is assigned as reversible error because a comment upon an issue of fact.
This statement is incorporated in a general bill of exceptions which covers several questions or evidence in addition thereto, and there is nothing in the bill to show that such objection as the one suggested by the assignment was made at the time. So that the court might then have corrected it.
The next and last is that the petition in intervention of defendants in the receivership proceedings in the United States District Court of the Midland Northwestern Railway was not admissible evidence.
This contained an itemized statement of the receivers of the Texas Pacific against the Midland Northwestern, and several of these items were for repairs and labor on engine No. 104, with no mention of any credit for the amount sued for in this case. This petition was admissible as a declaration against interest. Warburton v. Wilkinson (Tex. Civ. App.)182 S.W. 711.
Finding no error, the cause is affirmed.