DISSENTING OPINION.
VALLIANT, J.The first paragraph of the opinion of the court in this case holds that our statute (art. 4, chap. 47, R. S. 1899), does not give a lien on a railroad in this State for the price and value of labor and *468materials put into the construction of a railroad in another State. I fully concur in that interpretation of our statute.
I also concur in the criticism of the second instruction given for the plaintiff.
.The plaintiff does not sue as a subcontractor, and, therefore, was not entitled to a lien as such, yet the instruction authorizes the jury to find that the plaintiff was entitled to a lien if the ties were furnished under a contract made either with the railroad company or its agents or its tie contractors. Although the instruction related only to the lien, yet as the plaintiff was suing as the original contractor he was not entitled to a lien unless he was also entitled to a personal judgment and if he was entitled to a lien he was entitled to a personal judgment. Therefore when the court instructed the jury that the plaintiff was entitled to a lien if the ties were furnished under contract with the tie contractor the instruction was liable to mislead the jury into the conclusion that on the whole case the plaintiff could recover as well on a contract made with the tie contractor as on one made with the railroad company. For that reason the personal judgment can not be affirmed.
But I dissent from so much of the opinion of the court as holds that under the amended petition the plaintiff can not recover a personal judgment against the railroad company on evidence tending to prove that .the contract was made with the railroad company alone. True it is charged in the amended petition as the ‘joint contract of the railroad company and Graham & Miller, but under our statute joint contracts are joint and several and a plaintiff may sue two on a joint obligation and recover only against one if his proof entitles him to no more.
And I also dissent from the conclusion reached in the opinion of the court that the evidence in this case was not sufficient to sustain a personal judgment against the railroad company. The testimony of Mr. Bagnell *469shows that whilst Graham & Miller were somewhat vaguely mixed up in the matter, yet from first to last he was unwilling to make a contract with them, hut looked to the railroad company alone as the responsible purchaser, and that he made the contract with the railroad company through its purchasing agent.
If it were not for the error in the second instruction I should hold that the personal judgment ought to be affirmed.