The Reliance Brick Company, hereinafter called brick company, sued the Whaley Lumber Company, hereinafter called the lumber company, and John Scott, alleging in substance that about the 18th day of August, 1925, the brick company sold John Scott 22,000 brick and 5,000 hollow tile of the value of $1,396; that Scott represented that he desired said brick and tile to use in constructing one or more houses on two certain lots in the town of Lubbock; that the lumber company had notice, at the time of the sale and delivery to Scott of said brick and tile, that Scott had not paid therefor; that, at the time of the sale and at all times since, the brick company had a constitutional materialman's lien upon said brick and tile and said lots to secure the unpaid purchase money; that the lumber company, without plaintiff's consent, at some date later than August 18, 1925, took possession of the brick and tile and moved them off of said lots and converted them to its own use; that defendant Scott received said brick and tile and unloaded them on said lots, to be used in the erection of brick buildings thereon, but that said buildings were never erected and were abandoned; that about August 1, 1925, or prior thereto, Scott told the officers and agents of the brick company that the buildings could not be completed and thereupon sold and transferred said brick and tile to the brick company in satisfaction of his debt to it; that, having no place to store said brick and tile, they were left on the lots by the brick company, with the consent of Scott, from which place they were moved by the lumber company shortly after August 18, 1925. The prayer is for judgment against the lumber company for its debt, interest, and cost of suit, and in the alternative for judgment against both defendants for its debt and a foreclosure of the mechanic's lien, and for interest and costs and for such other relief, general and special, as it may show itself entitled to in law and in equity.
The defendant Scott answered, alleging that about August 18, 1925, he bought the said building material and agreed to pay therefor; that they were contracted for to be used in the erection of a house on the lots described in the petition, which belonged to him, and that it was agreed that the brick company was to have a materialman's lien on said house and lots to secure the payment of said brick, and that he was arranging a loan to make the payments, and that the lumber company agreed to finance and pay for all brick and building material; that, for some reason, the loan did not go through and the lumber company refused to perform its agreement to furnish brick and materials, and, without his knowledge or consent, took the brick, hauled them off the lots, and appropriated them to its own use and benefit; that the lumber company had full knowledge of all the facts with reference to the purchase of said brick and tile, knew they had not been paid for, and that they were to be used in the construction of a house on said lots, and knew that the brick company was claiming a lien on the brick; that the brick have not been paid for, but that the lumber company, through its officers and agents, took and appropriated said material and converted it to its own use and benefit, without his knowledge, and that, by reason of that fact, the lumber company owes the brick company the amount claimed to be due for said brick. Scott's prayer was that plaintiff take nothing against him, and that he recover against the lumber company the value of the brick, if plaintiff recovered judgment against him.
The lumber company answered by general demurrer and general denial, and, further, that it was the owner of the brick and tile, having purchased them in good faith for valuable consideration from John Scott in October, 1925; that Scott was indebted to the lumber company in the sum of $1,379.05 and was given credit upon his account for said amount, and that the brick and tile were then and there delivered to the lumber company; that Scott represented that said material was clear of liens, and that he was the owner thereof; that it had no notice nor knowledge that plaintiff was claiming any liens on or interest in said brick when it acquired them. It further alleged, in the alternative, that, if it did not become owner of the brick and tile, it had a lien thereon for freight advanced to Scott in the amount of $382.40; prayed that plaintiff take nothing, and, in the alternative, that, if judgment was rendered against it, it be allowed *Page 913 a credit of $382.40; and prayed further for general and special relief.
By way of answer to John Scott's pleading, the lumber company answered by general demurrer and general denial, and, further, that in October, 1925, Scott was indebted to it in excess of $1,379.05, and in payment thereof did sell and deliver the brick and tile to it; that Scott had previously stated that he had on the cars in the railway yards at Lubbock several cars of brick and tile and was unable to pay the freight, and the lumber company advanced the money to pay said freight in the sum of $382.40; that the defendant Scott represented to the lumber company, at the time of the sale and delivery of the brick and tile to it, that he was the owner thereof, and that they were free and clear of all liens; that it believed said statements, relied thereon, and took the brick and tile in payment of the $1,379.05. The prayer is that the lumber company go hence without day and recover costs, and for judgment over against Scott in the event the brick company should recover against it.
Trial was to a jury, and the court submitted special issues, which, together with the answers of the jury, are, in substance, as follows:
(1) A. A. Boggess (the lumber company's manager) knew that the brick in question were purchased for use in buildings on lots 11 and 12 in block 2.
(2) Boggess knew that these brick were not paid for at the time the lumber company took possession of them.
(3) John Scott turned the brick in question back to F. B. Caylor (the brick company's agent) for the Reliance Brick Company.
(4) The brick were turned back (to the brick company) prior to the time the lumber company bought them from John Scott.
(5) The brick were turned back in satisfaction of the debt of the Reliance Brick Company.
(6) Scott abandoned lot 11 as his homestead before the lumber company took possession of the brick.
In addition to these findings, the court found that the lumber company converted the brick to its own use and rendered judgment in favor of the brick company against the lumber company for $1,013.58, with interest from June 1, 1926, at 6 per cent per annum, and costs of suit, and further decreed that the lumber company recover against John Scott the sum of $1,379.05, with interest from January 1, 1926.
The first three propositions urged challenge the action of the court in permitting plaintiff's counsel to ask Scott leading questions while Scott was upon the witness stand as the plaintiff's witness. Reference to the bill of exceptions shows that the questions objected to related to the abandonment by Scott of his homestead claim to lot 11 and inquiries concerning his intention to appropriate it as a home.
We think these propositions relate to an immaterial matter. From the record it would seem that the lot upon which the brick and tile were to be used had been impressed by Scott with the homestead character. No contract having been shown executed by Scott's wife, as provided by Constitution, art. 16, § 50, and R.S. art. 5460, the brick company had no mechanic's lien. Scott testified that, since he abandoned his attempt to build, he had conveyed the lot to the lumber company. The finding by the court that the brick company had a constitutional lien on the brick and tile is an immaterial finding. The building material was never built into any residence, and so the issues of homestead and materialman's lien are not in the case. There is, therefore, no merit in these contentions.
By its remaining propositions the lumber company attacks the sufficiency of the evidence to sustain the jury's third and fourth findings. The effect of these findings is that by agreement between Scott and the brick company, acting through its agent Caylor, the sale was rescinded prior to the time the lumber company acquired any interest in the brick and tile, and we think the findings are supported by a preponderance of the uncontroverted evidence.
"The power to rescind a sale by agreement is coextensive with the power to contract, and the mutual release of the rights of the parties, under the contract of sale, is regarded as a sufficient consideration for the agreement. There must be a mutual assent to the agreement, and an unconditional acceptance of the proposal operates as a rescission. If the contract of sale is fully executed, redelivery of the goods is necessary to complete the agreement to rescind; but this requirement is fulfilled by a constructive delivery, as where the vendee holds the goods as bailee for the seller, especially if the sale is not fully executed by payment of the price. If, however, there is an actual delivery, it must be unconditional. The agreement to rescind may be by parole, and it is not essential that a party, in express terms, consents to the rescission, but such consent may be implied from his acts or conduct." 35 Cyc. 128-130; Lynch Davidson Co. v. Denman Lumber Co. (Tex.Civ.App.) 270 S.W. 225.
Upon the question of rescission by agreement, Scott testified, in part, as follows:
"I told Mr. Caylor before I gave this bill of sale (to the lumber company) to sell these bricks or take them back, either one, and I also told Mr. Boggess to sell them if he could. * * * I don't know how long it was after I told Mr. Caylor that he could take charge of the brick until Mr. Boggess got them." *Page 914
With reference to this issue, Caylor testified as follows:
"After this loan (to Scott) fell through and Mr. Scott couldn't build the houses, he told me I could take the material and sell it at any time, sell it for charges at any time, so I left them on the lots trying to find some one to buy them, and had not found any one until I discovered that the bricks and tile had been moved. * * * The reason I left that material there, after Mr. Scott told me I could have it back, in payment of the debt, was because I didn't have any place to put them and didn't want to pay an extra drayage charge on them. * * * The conversation between Mr. Scott and I, in which he told me that I could have the brick and tile back on what he owed me, occurred some 40 days after, or something like that, after the job had blowed up. I don't know the exact date that the job blowed up. The job blowed up soon after the brick got here and within 30 or 40 days after that he told me that I could have them back."
There seemed to be some confusion in the minds of the witnesses with reference to when the brick and tile in question were unloaded at Lubbock, but it was shown that Caylor had sold several other cars of like material to other parties, and the question as to whether the rescission between Caylor and Scott occurred before the bill of sale was made by Scott to the lumber company was an issue of fact to be settled by the jury, and we do not feel authorized to set their finding aside. The lumber company could not object to a rescission of the sale. It had acquired no lien by attachment or otherwise upon the brick and tile. True, it paid the freight to the railway company for Scott, but by doing so it was not subrogated to the carrier's lien. The lien of a carrier in Texas is purely a common-law lien and terminates upon delivery of the goods to the consignee or upon his order, and its existence depends upon possession of the goods. It is conceded in this case that the materials were delivered to Scott and placed by him upon his lot. As a general rule, the carrier's lien is not assignable. 10 C.J. 463; 37 C.J. 239. Nor does the lumber company claim that the carrier ever assigned its lien in this case.
The lumber company cannot be a bona fide purchaser since it took the material and credited the full value thereof upon a preexisting debt against Scott. Overstreet v. Manning, 67 Tex. 657, 4 S.W. 248; Morrison v. Adoue, 76 Tex. 255, 13 S.W. 166; American Law Book Co. v. Dykes (Tex.Civ.App.) 278 S.W. 247; American Railway Express Co. v. Voelkel (Tex.Com.App.) 252 S.W. 486; Weld-Neville Cotton Co. v. Lewis (Tex.Civ.App.) 208 S.W. 731.
By its bill of sale from Scott, the lumber company took only such title as Scott had and no more, and since the evidence shows, and the jury so found, that Scott had relinquished all right to the brick and had released his interest to the brick company, in consideration of the satisfaction of his indebtedness to it, before the lumber company took possession, such taking was wrongful and amounts to a conversion.
For the reasons stated, the judgment is affirmed.