On Motion for Rehearing.
After mature and careful consideration of appellant’s motion for rehearing, we have reached the conclusion that it should be overruled. Before discussing the points presented by the motion, we will amplify the con-t *274elusions expressed in our original opinion as to the specific nature of the suit and the general principles of law upoh which our judgment of affirmance is based.
The suit is one for the recovery of possession of specific property, .or its value, and is in most respects similar to the common-law action of trover, but the right of appel-lee to recover the property or its value is based upon a contract, and the principles and rules of law applicable in suits to recover damages for breach of contract must also be given effect in determining the questions presented by the record.
At common law the technical form of the action was always controlling in determining the plaintiff’s right of recovery, but under our liberal system of pleading the common-law forms of action are disregarded, and when the facts pleaded and proven by a plaintiff show him entitled to any relief prayed for by him, such relief should be granted.
While our original opinion is not as clear as it might have been in some of its statements of the conclusions upon which our judgment of affirmance was based, we think, it apparent from the whole opinion that our affirmance of the judgment was based upon the conclusion that by the express terms of the contract between the- parties which was pleaded, in every petition filed by appellee, as the foundation of its cause of action, appellants were obligated, when they ceased to pay rental for the rails and notified appellee that they had terminated the lease, to return the rails to appellee, and that none of the facts pleaded and proven by appellants relieved them of this obligation, and their failure to comply with their contract rendered them liable to appellee for the value of the rails.
The first contention made by appellants in their argument on the motion for rehearing is, in substance, that they cannot be held liable for damages for conversion because they are not making and have never made any adverse claim to the rails, and have not placed them beyond the reach of the appellee, and, as appellee could have recovered them from the Oaro & Northern Railway Company, it cannot hold appellants liable for their value. We think this contention is answered by the terms of the contract under which appellants obtained and held possession of the rails.
It is provided in section 2 of the contract that—
“No other rails shall be mixed or intermingled with the rails so leased by said railroad company to said lumber company, so that the rails provided for by this contract shall always be susceptible of ready and complete identification by their position in said tramroad. It is further agreed that said lumber company will execute any other or further instruments of writing that may be deemed necessary by said railroad company in order to protect it fully in '"the ownership of said rails and to prevent any other person from acquiring any lien or claim upon same.”
In the next section of the contract it is provided that appellants will not place the rails upon any land not owned by them.
In section 6 it is stipulated that, upon the termination of the contract of lease—
“it shall be the duty of said lumber company to take up said rails and deliver the same to the railroad company at said station of Oaro in the same condition, ordinary wear and tear excepted, that they were in when delivered to said lumber company, and if said lumber company fails or refuses for the period of sixty days so to do after demand to that effect by the said railroad company, then the said railroad company shall have the right to take up said rails and transport them to said station at Oaro, and charge the reasonable expense thereof to said lumber company.”
It seems clear to us that under these provisions of the contract appellants were bound, at the expiration of the time for which they had paid appellee, for the use of the rails, they having previously notified appellee of the termination of the lease, to take up and deliver the rails to appellee, and their failure to make such delivery was a breach of their contract which entitled appellee to sue them for possession of the rails, or their value, and in such suit make. the Oaro Northern Railway Company, who was in possession of the rails and asserting ownership thereof, a party defendant, and seek judgment for the rails or their value against both defendants. .Though inartistically and in some respects inaccurately pleaded, this is the substance of the cause of action set up in appellee’s ■original and amended petitions.
When appellants failed to deliver the property in accordance with their contract they could not relieve themselves of this obligation by the claim that the Oaro Northern Railway Company, in whose possession they had placed the rails, refused to surrender their possession, and require appellee to assume the burden of their recovery. The provisions of the contract before set out evidence the clear intention of the parties to protect appellee against just such a situation as the facts in this record disclose. While the right of appellee to x’ecover the rails from the Oaro Northern Railway is, we think, clear, this does not relieve appellants of their primary obligation under their contract to return the rails to appellee, nor affect their liability for the value of the rails. The acquiescence of appellee in the continued use of the rails by the Caro Northern Railway after it had been recognized by the Railroad Commission as a common carrier in no way changed appellant’s contract obligations. Ap-pellee had the right to rely upon appellants’ agreement to return the rails at the expiration of the lease, or to purchase and pay for them, as they had a right under the con*275tract to do at any time, and it was appellants’ duty, when the lease terminated, to recover these rails from the possession of the Caro Northern Railway and deliver them to appellee, and their failure so to do renders them liable for the value of the rails as in conversion. They cannot relieve themselves-of this liability by the plea that appellee can recover the rails from the Caro Northern Railway. As stated in our original opinion, we cannot agree with appellants that they cannot maintain a suit against the Caro Northern Railway to recover possession of the rails. Having a right to maintain a suit to recover the rails, they cannot under their contract shift the burden of such suit upon appellee and thus relieve themselves of their contract obligations. It is true that appellee assumed this burden in this suit, but in so doing it was careful -by its pleading not to absolve appellants from their primary obligation under their contract. The trial court, as we think, erroneously held that appellee could not recover the rails from the defendant railway, and only gave it judgment on its claim against appellants. Both defendants being liable for the value of the rails, appellee was not required to appeal from the judgment in favor of the defendant railway. Appellants were primarily liable to ap-pellee, and, if as between themselves and the defendant railway it should be held liable for the value of the rails, they should have so pleaded in the trial court and have prosecuted an appeal from the judgment in favor of said defendant.
The findings of the trial court Nos. 13 and 14, which are set out in -our original opinion, are as follows:
“(13) I find as a fact that about September or October, 1917, the plaintiff, T. & N. O. R. R. Co., demanded of the Saner-Whiteman Lumber Company the return of said rail, and that the said Saner-Whiteman Lumber Company refused to .return said rail to the plaintiff, T. & N. O. R. R. Co.
“(14) I find as a fact that the reason the Saner-Whiteman Lumber Company refused to return the rail to the plaintiff, T. & N. O. R. R. Co., when requested by the plaintiff, was on account of said rail being placed in the roadbed of the Caro Northern Railway Company, a common carrier, and that they were unable to do so.”
As- stated in our original opinion, these fact findings are not questioned by any assignment presented in appellants’ brief, and we must assume are sustained by the evidence, and must disregard the contention in appellants’ motion “that there is no evidence to show a demand and refusal to return the rails.”
Appellants’ contention that they are not liable for the value of the rails upon the facts found by the trial court must rest upon the theory that, because appellee can recover the rails from the defendant railway, they are relieved from the obligations of their contract. We think this theory is manifestly unsound. It cannot be a sufficient answer to appellee’s request for the return of its rails for appellants to say, “We placed your rails in possession of the Caro Railway, and it is now claiming them, and refuses to let us have them to deliver to you, and you must bring suit against the Caro Railway and recover the rails and let us reimburse you for the costs of the suit.” We know of no rule of law or equity which requires appéllee to accept, in lieu of appellants’ liability for the rails or their value, that of the defendant railway, and this is what appellants contend appellee must do under the facts disclosed by the record.
It is true that appellants assert no ownership of the rails, nor have they placed them beyond the reach of appellee to recover by suit against the defendant railway, but they placed them where appellee can only recover them by suit, and appellants’ refusal to recover and deliver the rails is in disregard of their contract obligations and makes them liable for their value. They state in their brief and in their argument in their motion that the Caro Northern Railway has no right to the possession of these rails, and can be required to deliver them to the owner, but they claim that they cannot maintain a suit to recover the rails because they have no title thereto. This seems to us an unreasonable -misapprehension of the law.
The undisputed evidence shows that the Caro Northern Railway obtained and held possession of the rails with full knowledge of appellants’ contract which required their return to appellee upon the termination of the lease, and that said railway paid the rentals on the rails to appellants for the use and benefit of appellee up to July, 1917, thus fully recognizing appellee’s ownership and appellants’ obligations under their contract. Such being the facts, it seems to us that the-appellants’ right to maintain a suit against the defendant railway for possession of the rails goes without saying, and their refusal, while not an assertion of any claim of ownership, is so inconsistent with the rights of appellee, and with appellants’ contract obligations, as to constitute a conversion of the rails. This holding is not inconsistent with the holding in the case of Direct Navigation Co. v. Davidson, 74 S. W. 790, 32 Tex. Civ. App. 492, and the rule stated in 3 R. C. L. p. 120, which are cited by appellants in support of their contention that their refusal to deliver the rails does not make them liable for their value. In the case cited there was no demand and refusal to deliver the property which had been left by the bailee in possession and under the dominion and control of the owner, though not at the place called for by the contract, and the only question in the ease was whether the'charge of the court upon the measure of damages was so misleading as to require a reversal of the *276judgment. The citation from R. O. D. supports our conclusion that appellants’ reason for their refusal to deliver the rails does not avoid the general effect of such refusal, which renders them liable for the value of the rails.
We have discussed the merits of this motion so far on the assumption of the soundness of our conclusion that neither the defendant railway nor its receiver could hold these rails against either the appellee or the appellants without paying for them, and as before said, we have no doubt of the soundness of this conclusion. But if the conclusion is not sound, and it' has become impossible for appellants to comply with their contract to deliver the rails, this impossibility, having arisen subsequent to the execution of the contract, would not relieve appellants of their obligation, there being no such provision in the contract.
Appellants’ agreement to return the rails to appellee upon the termination of the lease, unless they took advantage of the right to purchase them as provided in the contract, was absolute, and impossibility of performance occurring sübsequent to the execution of the contract does not discharge them from their obligation; especiálly is this true if by their act in placing the rails in the possession of the defendant railway it has become impossible for them to now return them to appellee. 13 C. J. p. 639, § 712 (3); Irrigation Co. v. Dodd (Tex. Civ. App.) 162 S. W. 946; Irrigation Co. v. Watkins (Tex. Civ. App.) 183 S. W. 431; Navigation Co. v. Davidson, 74 S. W. 790, 32 Tex. Civ. App. 492.
The rule is thus clearly stated in the case of Bailey v. De Crespigny, L. R. 4 Q. B., 180-185, 15 E. R. C. 799, cited in support of the text above cited from Corpus Juris:
“There can be no doubt that a man may by an absolute contract bind himself to perform things which subsequently become impossible, or to pay damage for the nonperformance, and this construction is to be put upon an unqualified undertaking where the event which causes the impossibility was or might have been anticipated or guarded against in the contract, or where the impossibility arises from the act or default of the promisor.”
In their argument on their motion appellants strenuously object to our statement of appellee’s pleadings. The objection is that the statement of the pleadings copied in our opinion from the brief of appellee is not, because of certain omissions, a correct statement of the substance and reasonable intendment of the pleading, and that appellee’s pleadings as a whole cannot be construed as asserting a cause of action based on the refusal of appellants to deliver the rails upon the demand of appellee.
The last quotation from appellee’s pleading set out in our original opinion was copied from appellee’s brief, and does not, as appellants contend, show on its face that the allegations copied were segregated and not placed in the context in which they appear in the pleadings. This inaccuracy in the statement escaped our attention at the time it was copied in the opinion, but it did not' and does not affect our construction of the pleadings as a whole. The pleading is too lengthy to set out in this opinion, but, as before said, we think it does allege a cause of action against both appellants and the defendant railway based on their wrongful retention and refusal to deliver appellee’s property after demand for such delivery.
It is true, as urged by appellants, that the case seems to have been tried in the court below upon the theory that the rails could not be x-ecovered from the defendant railway; but since appellants are liable upon the facts found by the trial court for the value of the rails in any event, and filed no pleading asking relief against the defendant railway, they cannot, because of the error of the trial court in refusing to give appellee judgment against their codefendant, now complain of appellee’s judgment against themselves.
We erred in our original opinion in holding that we could not consider, upon the issue of limitation, the original petition which was brought up as a part of the transcript and not shown to have been introduced in evidence. Under the rule announced in Rucker v. Dailey, 1 S. W. 316, 66 Tex. 285, appellants followed the proper practice in having the substituted pleading apjxear in the transcript. In considering appellants’ demurrer raising the issue of limitation on the ground that the amended petition set up a new cause of action, the trial court could consider the original petition on file in the case, and it was not necessary for appellants to put that petition in evidence and have it brought up in the statement of facts to properly present it to this court. This is expressly decided in the case just cited. This error, as shown by our opinion, was not material in our holding upon the question of limitation presented by appellants. We adhere to the conclusion expressed in our former opinion that there is no merit in appellants’ contention that appellee’s cause of action was barred by the two years’ statute of limitation. As we construe the pleadings, appellee has at all times asserted a cause of action against appellants for their refusal to- deliver the rails upon the expiration of the lease. As before shown, the trial court found that the refusal of appellants to return the rails upon the demand of appellee occurred about September or October, 1917.. This finding is not assailed by appellants and is binding upon this court. In addition to this the undisputed evidence shows that appellee was paid the rent for the rails up to June or July, 1917, and could not therefore require their delivery before that time. The original petition was filed March 21, 1919, within less than two *277years after the cause of action, upon ■which, recovery was had accrued.
The rule for determining when a new cause of action is set up in an amended petition to which the defense of limitation is available is nowhere more clearly stated than by the late Justice Einley in the case of Ry. Co. v. Richards, 32 S. W. 96, 11 Tex. Civ. App. 95. We make the following quotation from that opinion, which we think peculiarly applicable in this case:
“Damages for breach of contract and for tort are both therein alleged. Under our practice, if the facts alleged show a breach of contract, and,acts amounting to a tort, all damages recoverable therefor under either of the forms of action, ex contractu or ex delicto, may be recovered in the one suit. Stuart v. Telegraph Co., 18 S. W. 351, 66 Tex. 581, 586 [59 Am. Rep. 623], We cannot determine whether a new cause of action has been set up in an amendment by merely ascertaining .the forms of action, as they exist at common law, disclosed in each of the pleadings. The common law is not in force with us upon this subject. Our practice is to state the facts, and if they authorize a recovery under any or all the forms of action, and whether in law or equity, the pleading will be treated as sufficient. The true test, in determining whether a new cause of action is pleaded, is, Are the facts relied upon to. sustain a recovery alleged in both the old and new pleadings? If this inquiry can be answered in the affirmative, no new cause of action is set up. If, however, the amended pleadings disclose a different state of fact, upon which the suit is based, then it should be treated as a new cause of action. Lee v. Boutwell, 44 Tex. 152; Landa v. Obert, 14 S. W. 297, 78 Tex. 33; Scoby v. Sweatt, 28 Tex. 713. The court did not err in overruling the exception.”
Appellants further contend that there is no evidence to support the finding of the court of the value of the rails at Caro, at the time appellants breached their contract to deliver them to appellee.
The trial court made the foUowing findings as to the value of the rails:
“(17) I find as a fact that the highest market value of 1,131.74 tons of good secondhand steel after the date of its conversion was $55 per ton, and I find as a fact that the highest market value of 47,098 tons of scrap steel after its conversion was $29 per ton.
“(18) I find as a fact that the value of 1,-131.74 tons of steel at the time of the trial was $30 per ton; and I find as a fact that the value of the scrap steel at the time of the trial was $11 per ton.
“(19) I find as a fact that the highest value of the steel that plaintiff is entitled to recover was as follows:
1.131.74 tons valued at. $39,510 90
47.098 tons valued at.' 470 9S
Making a total value of the steel at the1 time It was delivered. $39,981 88"
We agree with appellants that the facts in this case do not show, such fraud, willful wrong, or gross negligence as would justify holding them liable for the highest market price of the rails between the date of their refusal to deliver the rails and the trial in the court below, and they should only be held liable for the value of the rails at Caro at the time appellants refused to deliver them to appellee. We think the finding of the court before set out was intended and must be regarded as a finding of the value of the rails at the time they should have been delivered by appellants. There was no mention in the pleadings or evidence of the value of the rails at the time they were delivered to appellants, and that inquiry was foreign to any issue in the case. The use of the term “was delivered” in the finding should be regarded as an inadvertent clerical error.
The evidence offered by appellee is not as definite as it should be as to the place and the exact time at which the witnesses fixed the value of the rails; but no objection was made to the evidence by appellants. Mr. Waid, general manager of appellee railway, testified:
“At the time the question of our claim for the return of this steel came up, we estimated it to be worth $55 for the greater portion of it, which was in condition for use, and $12 for a small portion, which was crooked. There was a small portion of it that upon inspection, was found to be of little value, or, in other words, scrap rail, and that was estimated at $12 per ton, gross ton, that is 2,250 pounds, that is a long ton. The other rail was worth $55 per ton. I took occasion to look up our records to see what they showed as to the amount of scrap; the lot of 15 miles, and the scrap rail was found to amount to 4 per cent., or 6,330 lineal feet, 47.098 gross tons having the commercial value of $12 per ton, amounting to $565.18. The remainder, 152,072 lineal feet, is fairly good secondhand relay rail,- 1,-131.74 tons at $55 a ton, amounting to $62,-231.02.”
L. B. Wood, for appellee, testified:
“I live here in Houston. I am employed as general storekeeper for the Sunset Central Lines. I am acquainted with the market price of secondhand rail. There was a great demand for secondhand steel in the latter part of 1917 and 1918, 50-pound steel. I have heard something about this stepl in controversy on the Caro Northern Railroad; it is 50-pound relay steel. The market value of that steel in 1917 and 1918 was from $50 to $60. We have sold rail as high as $55 and we could have' sold some at $60 if we had had it at the time, the demand was so great. 50-pound relay steel at the present time is worth about $30.”
A letter written by Mr. Scott, president of appellee railway, on June 11, 1917, in reference to a proposed lease of the rails by the Caro Northern Railway, which states that “the present value of the rails is $35 per ton,” was also introduced in evidence, on the question of value, without objection.
This is all of the evidence on this issue.
The value found by the trial court is less than that fixed by any of the testimony, *278and we think it is a reasonable inference from the testimony as a whole that the rails were worth at Oaro, at the time appellants refused to deliver them to appellee, not less than the amount found by the trial court.
We do not think the motion presents any valid objection to our judgment affirming the judgment of the trial court, and it is therefore refused.