On Motion for Rehearing.
As pointed out in our original opinion, Landa, in the Bexar County action, sought certain relief against Valley Citrus Orchards of Texas, i. e., a money judgment and a foreclosure of his lien. The relief sought against the Iserns was not identical with that sought against the maker of the notes, hut wa& limited to a foreclosure of the lien as against the Iserns. The mere fact that the Iserns were named parties to the suit against the Valley Citrus Orchards did not make the issues identical as to all parties.
The granting of the ultimate relief prayed for by Landa as against the Iserns did not bar an assertion of a demand by the Iserns for damages based upon fraudulent representations. McCord-Collins Commerce Company v. Levi, 21 Tex.Civ.App. 109, 50 S.W. 606; Standefer v. Aultman & Taylor Machinery Company, 34 Tex.Civ.App. 160, 78 S.W. 552; Angle v. Shinholt, 5 Cir., 90 F.2d 294; 26 Tex.Jur. 169, §§ 433, 434.
But appellant contends that the recital in the decree that Landa’s lien be foreclosed as it existed on January 1, 1935, is necessarily based on a finding that Landa made a bona fide sale to Valley Citrus Orchards on January 1, 1935, and that from and after said date Landa was not the owner but, on the contrary, was a “good faith bona fide lien holder on the land in question.” We can not agree with this argument. The date of the inception of-the lien was primarily an issue between Landa and the maker of the notes. It was determined by a contract between Landa and Valley Citrus Orchards. The Iserns were strangers to this agreement, and it is well settled in Texa)s that a contract as between the parties may be construed as giving rise to a certain relationship between them, but that such construction will not necessarily be followed when the rights of third persons are involved. Paschen v. Lovett, Tex.Com.App., 255 S.W. 385; Gulf Refining Co. v. Rogers, Tex.Civ.App., 57 S.W.2d 183. The Iserns, in order to save their cause of action based upon fraudulent representations, were not required ’to litigate over the construction of the contract as it affected their rights, in the Bexar County suit, for, after all, “everyone having a right of action should be enabled to try it his own way and a rule requiring him to litigate it at the option of his adversary might deprive him of the value of it.” 26 Tex.Jur. 172; Freeman on Judgments, 5th Ed., Vol. 2, p. 1665.
As .the Iserns were not required to- contest the ultimate relief (a foreclosure) sought by Landa against them, we are unwilling to hold that it was nevertheless necessary that they contest an immaterial (as to them) subsidiary or collateral fact issue, in order to preserve their cause of action. We adhere to our holdings expressed in the original opinion and overrule appellant’s motion for rehearing.