On Motion For Rehearing.
We believe we erred in sustaining the cross-assignments of J. F. Ash, Hawn Lumber Company, LaRue & Barron, Williford Lumber Company, and Dean Jackson. While appellants answered these cross-assignments by a supplemental brief, in the vast volume of this record we overlooked this brief on the original consideration of this case. Appellants object to our considering these cross-assignments, on the ground that these appel-lees had not perfected an appeal from the judgment of the trial court denying them the relief which they now pray for. They were-awarded judgments against appellants Williams, Burk & Co. for certain items set forth in their interventions, but were denied recovery on other items. Williams, Burk & Co. filed an appeal against the judgments in-favor of these appellees, thereby bringing before this court for review all errors assigned and cross-assigned. Under our appellate procedure a successful party may cross-*842assign. errors against the appellant without perfecting an independent appeal. The rule is thus stated by 2 Michie’s Ency. Dig. of Texas Reports, p. 267:
“The taking of the appellate proceeding by one party relieves his adversary of the necessity of taking like action and brings the judgment before the appellate court for revision upon the complaints of both, and either has the right to point out errors in it prejudicial to him.”
And again, on page 268:
“Appellee may file and insist upon cross-assignments of error without giving appeal bond.”
See, also, other authorities cited in connection with the rule.
No judgment was entered against appellant United States Fidelity & Guaranty Company for any sum in favor of Dean Jackson and Williford Lumber Company. While it has appealed from that part of the judgment against it in favor of the other interveners, they did not attempt to appeal from the judgment in their favor against Jackson and Wil-liford Lumber Company. As we understand our rules of appellate procedure, Jackson and Williford Lumber Company cannot cross-assign error against the United States Fidelity & Guaranty Company. Their only relief against the judgment denying them a recovery was by an independent appeal, which they did not attempt to perfect.
18 Michie’s Ency. Dig. etc., p. 602, makes the following statement of the rule:
“Where á defendant appeals from a judgment for plaintiff, plaintiff must file a cross-appeal from a judgment for a codefendant before he can assign cross-errors complaining of the judgment for the codefendant.”
Again, appellants object to our. considering the cross-assignment of the Williford Lumber Company on the ground that its plea of intervention is not in the transcript. We think this omission on its part to have its plea included in the transcript bars us from reviewing its assignments.
But on their merits these assignments cannot be sustained. A part of the J. F. Ash intervention, based on the L. E. Cook account, was for money in the sum of $250 advanced to pay for the labor on highway No. 19. No showing is made that the laborers were a party to this transaction, nor that they made an assignment of their labor claims to inter-vener. LaRue & Barron were denied a recovery for a $75 item of the Cook account held and pleaded by them, which was for money advanced to pay labor claims. These items were correctly excluded by the trial court. . Under the facts as stated, the labor claims were extinguished when paid and cannot now be urged under the theory of an equitable assignment. Hess & Skinner v. Turney, 110 Tex. 148, 216 S. W. 621; Lion Bonding & Surety Co. v. First State Bank of Paris (Tex. Civ. App.) 194 S. W. 1012.
The third cross-assignment is as follows:
“The court erred in refusing to grant J. F. Ash judgment against J. A. McNeill in the sum of $245 for the reason that the jury found that J. A. McNeill owed J. F. Ash for this much feed purchased after McNeill ceased to work upon highway No. 19, and both J. F. Ash and J. A. McNeill were parties to the suit.”
Certainly it could not be said that there was any relation between Ash’s demand against McNeill and his demand against the appellants. Ash did not perfect any appeal against the ruling of the court denying him judgment against McNeill. The appeal by these appellants did not have the effect of removing to our jurisdiction the judgment denying Ash a recovery in so far as he asserted a demand against McNeill. Stewart v. Toler & Daniel (Tex. Civ. App.) 250 S. W. 274, and authorities cited supra.
The fourth cross-assignment is as follows:
“The court erred in not granting Hawn Lumber Company a judgment against-the defendant United States Fidelity & Guaranty Company in the sum of $265.35, instead of only $35.03, for the reason that the entire Hawn account was for lumber sold to the contractors for use in building highway No. 19.”
The eighth cross-assignment is as follows:
“The court erred in refusing to grant judgment against the defendant United States Fidelity & Guaranty Company and in favor of Williford Lumber Company in the sum of $45.10 for the reason that the account was for material necessary in the prosecution of the work on highway No. 19.”
All the statement made by appellees in support of these cross-assignments is as follows:
“The contract itself stated that it was to cover all work, labor, implements, machinery, equipment and material required to complete the work. The bond was conditioned that the contractors should in all, things ‘well and truly perform all the terms and conditions of the contract.’
“From the pleadings and the evidence the court found that the contractors owed Hawn Lumber Company $265.35, but that only $35.03 was for lumber used in the building of the highway. The court further found that the remainder of the account was for lumber used to build forms for concrete, and that the surety company was not liable for lumber used to build forms. A motion for judgment against the surety company for the full amount was ' overruled.
“The court also found that Williams, Burk & Co. owed Williford Lumber Company $45.10 for material and granted judgment for this amount. And for the reason that it was for lumber for concrete forms overruled a motion asking for judgment against the defendant United States Fidelity & Guaranty Company.”
*843Appellants make the following additional statement of the nature of these claims:
“The only witness who attempted to testify with reference to this account (the account of the Hawn Lumber Company) was Dan Webster, and in his testimony he stated that the lumber in question was used for making dump boards, wagon beds, toolhouse and other permanent equipment of the party purchasing the same. * * * No, I don’t know what happened to any of this stuff after it left the yard. All I know is when I delivered it to the teams.”
In reference to the claim of the Williford Lumber Company:
“The only witness who attempted to testify with regard to same was R. L. Williford, and his testimony shows that all of these items consisted of lumber used to make gravel pits and a trapdoor to be used in loading gravel, all'of which was permanent equipment of the party purchasing the same.”
It would appear from the statements made by the parties to this appeal that the lumber furnished by the Hawn Lumber Company and the Williford Lumber .Company became a part of the permanent equipment of the contractors, or was used only incidentally in building the road. There is no showing that it was entirely destroyed por that it became a part of the permanent structure. For all we know, the contractors may have carried it away, or sold it or applied it to other uses. These appellees rested under the burden of showing that the lumber was material uáed in the construction of the road; that is, that it was entirely consumed in such work. The showing made does not meet that burden, and therefore the trial court correctly denied them a recovery. This conclusion is fully sustained by the following authorities: Southern Surety Co. v. National Lbr. Co., 73 Ind. App. 592, 122 N. E. 686; City Retail Lbr. Co. v. Title Guaranty & Surety Co., 72 Wash. 300, 130 Pac. 345; Hess & Skinner v. Turney (Tex. Civ. App.) 207 S. W. 171; Beals v. Fidelity & Deposit Co., 76 App. Div. 526, 78 N. Y. Supp. 584, affirmed 178 N. Y. 581, 70 N. E. 1095; K. C., to Use of K. C. Hydraulic Press Brick Co., v. Youmans, 213 Mo. 151, 112 S. W. 225; U. S., Use of Thos. Laughlin Co., v. Morgan (C. C.) Ill Fed. 474; American Surety Co. v. Lawrenceville Cement Co. (C. C.) 110 Fed. 717; Lanham v. Jacoby, 5 Pennewill, 570, 61 Atl. 871; United States Rubber Co. v. American Bonding Co., 86 Wash. 180, 149 Pac. 706, L. R. A. 1915F, 951; Nye-Schneider-Fowler Co. v. Bridges, 98 Neb. 27, 151 N. W. 942; National Surety Co. v. U. S., Use of Pitts. & Buff. Co., 228 Fed. 577, 143 C. C. A. 99, L. R. A. 1917A, 330; U. S. F. & G. Co. v. California-Arizona Const. Co., 21 Ariz. 172, 186 Pac. 502; Sherman v. American Surety Co., 178 Cal. 286, 173 Pac. 161.
The ninth and tenth cross-assignments are as follows:
(9) “The court erred in refusing to grant Dean Jackson a judgment against the defendants Williams, Burk & Co. in the sum of $422.25, instead of only $25.75, and in refusing to grant judgment against defendant United States Fidelity & Guaranty Company in the sum of $422.25 as surety of Williams, Burk & Co., for the reason that the court found from the evidence that the work done by Dean Jackson was necessary in the prosecution of the work on highway No. 19, and the principal, Williams, Burk & Co., had by their contract agreed to pay for all labor required to complete the work, and the defendant United States Fidelity & Guaranty Company guaranteed the faithful performance of the contract and both Williams, Burk & Co. and their surety, United States Fidelity & Guaranty Company, are liable under the contract for the full amount of $422.25 for work done by Dean Jackson necessary in the prosecution of the work on Highway No. 19.”
(10) “The court erred in refusing to granft Dean Jackson a judgment against the defend-' ant Williams, Burk & Co. in the sum of $422.25-instead of only $25.75, and in refusing to grant" judgment against defendant United States-Fidelity & Guaranty Company in the sum of $422.25 as the surety of Williams, Burk & Co. for the reason that the court found from the evidence that the work was done by Dean .Jackson, was necessary in the prosecution of the work on Highway No. 19, and the principal Williams, Burk & Co. and their surety, United States Fidelity & Guaranty Company, are both liable for said work for the reason that the statute makes them liable and no party to the contract and no surety company can waive the provisions of the statute.”
The only statement made by Jackson ⅛ support of these cross-assignments, which ar® advanced in support of his intervention, is as follows:
“The court heard the pleadings and the evidence and found that Dean Jackson (a blacksmith) had done work upon tools and equipment necessary in the construction of highway No. 19, and amounting to the sum of $422.25. The court further found that only $25.75 of this amount had been done for Williams, Burk & Co. direct, and entered judgment, against them for this amount, and refused judgment against them for the remainder, and also refused to enter judgment against the surety company for the $422.25 for the reason that the bond did not cover work on tools and equipment.”
Appellants make the following supplemental statement:
“The intervener, Dean Jackson, filed a claim in this suit, setting up various items in the nature of repair bills. His uncontradicted testimony was as follows: ‘This work was in the nature of repair work to their plows and tools and equipment that they were using out there on the road.’ ”
The following authorities condemn this claim: Standard Boiler Works v. National Surety Co., 71 Wash. 25, 127 Pac. 573, 43 *844L. R. A. (N. S.) 162; Alpena ex rel. Besser v. Title Gty. & Surety Co., 159 Mich. 329, 123 N. W. 1126; Alpena ex rel. O’Brien v. Title Gty. & Surety Co., 159 Mich. 334, 123 N. W. 1127; Empire State Surety Co. v. Des Moines, 152 Iowa, 552, 131 N. W. 870, 132 N. W. 837; U. S., Use of Briscoe, v. City Trust S. D. & S. Co., 23 App. D. C. 155; National Surety Co. v. U. S., Use of Pitts. & Buff. Co., 228 Fed. 577, 143 C. C. A. 99, L. R. A. 1917A, 336.
The proposition is thus discussed by the Supreme Court of Washington in Standard Boiler Works v. National Surety Co., 71 Wash. 28, 127 Pac. 573, 43 L. R. A. (N. S.) 162:
“In none of our own eases, so far as we have been able to discover, have we discussed the item of repairs, but we find the general rule to be that no recovery can be had for machinery used in the prosecution of the work. ‘The contract presupposes that the contractor has and will furnish upon his own account the necessary tools, implements, and appliances with which to perform the work.’ Kansas City, Use of Kansas City Hydraulic Press Brick Co., v. Youmans, 213 Mo. 151, 112 S. W..225. The logical conse.quence of this holding is that repairs put upon such machinery do not come within the protection of the law. Empire State-Surety Co. v. Des Moines, 152 Iowa, 531, 131 N. W. 870, 132 N. W. 837; Alpena ex rel. Besser v. Title Guaranty & S. Co., 159 Mich. 329, 123 N. W. 1126; Alpena ex rel. O’Brien v. Title Guaranty & S. Co., 159 Mich. 334, 123 N. W. 1127; Alpena ex rel. Beaudrie v. Murray Co., 159 Mich. 336, 123 N. W. 1128; United States, Use of Sica, v. Kimpland (C. C.) 93 Fed. 403; United States, Use of Chapman, v. City Trust, S. D. & Surety Co., 23 App. D. C. 153; Philadelphia, Use of Taylor, v. Malone, 214 Pa. 90, 63 Atl. 539; Beals v. Fidelity & D. Co., 76 App. Div. 526, 78 N. Y. Supp. 584. In United States, Use of Chapman, v. City Trust, S. D. & Surety Co., 23 App. D. C. 153, which involved the right to recover for repairs to a dredge used upon a public work, it was held: We regard the question as too plain to require any elaboration of argument. As well might the person who constructed the dredging machine in the first instance seek to hold the surety liable, as the person who afterwards makes repairs in order to constitute the machine what it ought to be.
“Our conclusion is that a contractor is presumed to be prepared with machinery and appliances necessary to do his work; that such items are furnished upon his credit, and not upon the implied credit of the public; and that repairs, if made, will be paid out of the profits of the undertaking. ‘Certainly the city could not under any circumstances be subjected to the payment out of the contract price or otherwise for the working equipment procured by the contractor and used by him in carrying on the work. It cannot be assumed that the contract price for the work covered, as a part of the cost, the purchase of the working equipment, which might have been previously used or might be subsequently employed by the contractor in carrying on other work' of like character.’ Empire State Surety Co. v. Des Moines, 152 Iowa, 549, 131 N. W. 877.”
Appellants complain of our disposition of their propositions of error on the admission of evidence on the issue of assignments of the claims asserted by certain inter-veners. As we understand the record, we sustained appellants’ propositions in so far as the court heard parol evidence when it appeared that the assignments were in writing. We think the evidence clearly sustains the finding that the other interventions were held under equitable assignments. While the court may have erred in not requiring th,e interveners to plead more particularly the nature of their assignments, when the proof was offered on this issue, no suggestion of surprise was made. Thus it does not appear that appellants suffered any injury because of the ruling of the trial court on their special exceptions. In the original opinion we said that it was the duty of appellants to ask for a more particular plea by way of special exception. We are now conceding appellants’ contention that such exceptions were made by them, hut are overruling their propositions under Rule 62a (149 S. W. x).
Our judgment in disposing of this case is modified only to the extent of overruling all cross-assignments of error and affirming the judgment of the trial court in denying recovery to J. F. Ash, Hawn Lumber Company, LaRue & Barron Company, Williford Lumber Company, and Dean Jackson on the matters asserted by their cross-assignments.