The assignment from Sanches to the intervener was of "an undivided one-half interest in and to the cause of action involved in said suit of said Juan Sanches against defendant." The intervener not only did not prove that Sanches had a cause of action against appellant, but the latter proved he did not have one against it, in that it was not guilty of any wrong toward him, and that the injury he suffered was due solely to his reckless act in attempting to board one of its moving freight trains. Appellant insists that the recovery had by the intervener against it therefore was unauthorized. We think the contention should be sustained. The case is not like Ry. Co. v. Ginther, 96 Tex. 295, 72 S.W. 166, cited by intervener. There the plaintiff in the suit conveyed to his attorneys "one-third of whatever may be recovered in said suit or by way of compromise." The plaintiff having compromised his suit for a sum agreed upon between him and the defendant, and the latter, knowing the plaintiff had made the assignment to his attorneys as stated, having paid to plaintiff the entire sum agreed upon in the compromise, the court held it was liable to the attorneys for the part thereof the plaintiff had conveyed to them, on the ground that its position in the matter "was that of any other person paying a debt to the original creditor instead of an assignee." Nor is the case like the other one (Railway Co. v. Vaughan,16 Tex. Civ. App. 403, 40 S.W. 1065) cited by the intervener. There the plaintiff had conveyed to Vaughan "one-half of whatever sum may be realized out of and collected from said railway company, whether through compromise or by judgment of the courts." The court said:
"Vaughan being the owner of one-half the cause of action, he was not bound by any settlement made by Waters (the plaintiff) with the company, and had the right to prosecute the suit for his own benefit to the extent of his interest."
He did so prosecute it, and proved that the plaintiff had a cause of action against the defendant worth $750. The difference between that case and this one lies in the fact, as stated above, that in this one it did not appear that Sanches had a cause of action at all against appellant, but, on the contrary, it appeared that he did not have a cause of action against it. The assignment to intervener being of an interest in a thing that did not exist, it is obvious he acquired nothing thereby.
So far as the judgment was in appellant's favor against Sanches it will be affirmed. So far as it was in intervener's favor against appellant it will be reversed, and judgment will be here rendered that he take nothing by his suit against appellant. *Page 872