livered by the Fort Worth & Rio Grande road to the Texas & Pacific Railway Company, the employes of the Texas & Pacific Railway Company never communicated with the Fort Worth & Rio Grande Railway Company about what should be done with said horses, or whether they should be reloaded in one car, or when they should be reloaded, or when forwarded, but that the said Texas & Pacific Railway Company's employes in Fort Worth took up the question of whether the horses should be reloaded in the same size car, with the general office of the Texas & Pacific Railway in Dallas.

"11. That so far as the facts disclosed, the only reason why the plaintiff's horses were held in the Texas & Pacific stock yard at Fort Worth, after the time required to unload them out of the broken car and reload them in a good car, was caused by the demand of the Texas & Pacific Railway Company on the plaintiff, that he dispose of or leave out two or more of his horses, under the claim that there were too many head to be loaded in one car, and his refusal to comply with said demand. "12. That after the horses were reloaded by the Texas & Pacific Railway in Fort Worth and started to Longview, they reached there in a reasonable time, and without accident of any kind or character occurring.

"13. That at the time of the shipment in question, the Texas & Pacific Railway and the Fort Worth & Rio Grande Railway were obligated to each other under the following written contract:

""This contract and agreement made and entered into this the 1st day of May, 1900, between the Texas & Pacific Railway Company, a railway corporation, hereinafter called the "Texas Company," and the Fort Worth & Rio Grande Railway Company, a railway corporation, hereinafter styled the "Rio Grande Company," witnesseth:

""That for and in consideration of the covenants, conditions, and payments hereinafter mentioned, to be made, kept, and performed by the Rio Grade Company, the Texas Company agrees to furnish the said Rio Grande Company certain facilities in the city of Fort Worth, to wit: For and in consideration of the sum of one hundred dollars ($100) per month, payable on the first day of each and every month in advance, the Texas Company agrees to furnish the depot facilities necessary for doing the freight business of the Rio Grande Company in Fort Worth, Texas, and for and in consideration of the additional sum of three hundred dollars ($300) per month, payable on the first day of each and every month in advance, the Texas Company agrees to do all the switching and furnish all the labor necessary for handling the freight business of the Rio Grande Company in the city of Fort Worth, Texas.

"It is further expressly agreed and understood that the Rio Grande Company shall be solely responsible for any and all loss, damage or injury to its own separate property while being handled by the Texas Company, and shall be solely and alone responsible for any and all loss, damage, or injury that may happen to any freight, traffic, or emplove

growing out of the handling of its business by the Texas Company under this contract, including its own telegraph business, loss or damage to freight or other property at said station or in cars, and the said loss or damage shall be borne and paid by the said Rio Grande Company individually, as though the business was being handled by their own separate employes, the employes of the Texas Company being treated as the employes of the Rio Grande Company while handling the business of said company.

"It is further agreed that any damage or loss that may occur through the negligence of the joint agent at Fort Worth station shall be adjusted with the agent direct by the company interested, it being further agreed that the agent shall be responsible under his separate bond for the care and accounting of the separate property of each company, and any default or loss of money, or other property, that may occur on the part of said agent, shall be a matter of adjustment with said agent by the company interested.

"It is further expressly agreed and understood that the Rio Grande Company shall be solely and alone responsible for any and all personal injuries that may result or grow out of the handling of its business, under the terms of this contract, and shall be solely and alone responsible for any loss or damage that may occur to any of its freight or other property, while in the possession of the Texas Company, under this

contract.

"Car and contents handled under this agreement.—In order to define the responsibility of each party hereto, separately, for cars and their contents handled under this agreement and to fix the time when the car and contents shall be considered as in the possession of the Texas Company, and not being handled under this agreement, it is agreed that the station agent at Fort Worth, Texas, shall, with due diligence and without prejudice, ascertain when each party and every loaded car of either party hereto is ready to be switched into the trains of the other party, to be forwarded from Fort Worth, and as soon as any car and its contents are ready for such delivery, such joint agent shall place, or cause to be placed, in the proper designated place, to be fixed by the Texas Company, without delay, a regular waybill or train waybill for such car and its contents, and the actual placing of the regular waybill or train waybill in the designated place, as above provided, shall constitute the actual delivery from either party to the other hereto, and all losses and damages that may occur to any car or its contents, or to either of them, shall be settled and paid for by the party hereto in whose possession said car and its contents may be, as determined by the above rule relative to the delivery of cars, and delivery of all freights in less than carload lots shall be considered as made between the parties hereto when said freight shall have been unloaded from the car in which it was received at Fort Worth station.

"It is further expressly agreed and understood that the Rio Grande Company shall take care of and be responsible for the condition of its

own rolling stock that may be handled under and by virtue of the terms of this agreement.

""This agreement shall take effect on the day and date first above written, but it is expressly understood and agreed that either party may terminate same by giving written notice to the other party of its intention so to do, for sixty days prior to the date it desires said contract to terminate.

"In witness whereof, the parties hereto have hereunto set their names and affixed their seals on the day and date first above written.

""THE TEXAS & PACIFIC RAILWAY COMPANY,

"By [signed] L. S. Thorne, Third Vice Pres't & Gen'l Manager. "FORT WORTH & RIO GRANDE RAILWAY COMPANY,

"By [signed] H. C. Wicker, President.'

"14. That the injury done plaintiff's horses by reason of the negligence of the Fort Worth & Rio Grande Road from the time they were loaded in Brownwood until they were unloaded in the Texas & Pacific stock pens at Fort Worth, amounted to one hundred and twenty-five dollars ($125).

"15. That the injury or damage done to the plaintiffs' horses while in the Texas & Pacific stock pens, and after the time they should have been reloaded and forwarded until they were reloaded and forwarded, amounted to one hundred and twenty-five dollars."

The trial court rendered judgment for the plaintiffs against each defendant separately for $125, and judgment over in favor of the Texas & Pacific Railway Company against the Fort Worth & Rio Grande Railway Company for $125. The latter judgment is the only subject of complaint in this court, and we sustain the first assignment which charges that the court erred in holding that the Texas & Pacific Railway Company, under the terms of the contract, was entitled to judgment over against the other company for the amount of the former company's liability to the plaintiff.

Under the facts found, we are of the opinion that the damages for which the Texas & Pacific Railway Company was held liable were caused by the default and negligence of that company, after the property shipped had come into its exclusive possession, and ceased to be the property or business of the Fort Worth & Rio Grande Railway Company; and that such being the case, the latter company, under the terms of the contract, is not liable to the Texas & Pacific Railway Company.

The judgment in favor of the plaintiff against both railway companies will be affirmed; but the judgment in favor of the Texas & Pacific Railway Company against the Fort Worth & Rio Grande Railway Company will be set aside, and judgment here rendered in favor of the latter company on the issues involved between the two companies.

Affirmed in part and reversed and rendered in part.

N. E. BRUEL ET AL. V. LIGGETT & MEYERS TOBACCO

COMPANY ET AL.

Decided May 7, 1902.

Claimant's Bond-Extent of Liability-Parol Evidence.

The liability of sureties upon a claimant's bond for the trial of the right to property seized under execution is measured by the terms of the bond, and, in the absence of an allegation of fraud or mistake, can not be varied by evidence that the bond was given under a parol agreement between counsel for plaintiff in execution and the claimant that the property should be valued at a certain sum, whereby the sureties understood their liability to be limited to

that amount.

Appeal from McLennan. Tried below before Hon. Marshall Surratt.

D. A. Kelley, for appellants. Their second assignment of error was as follows: The court erred in awarding and adjudging in favor of each one of the three execution creditors and plaintiffs 10 per cent damages on the value of the property levied upon. Besides being in violation of the agreement shown in the bill of exceptions, this will be treble damages amounting to $750, which is three times 10 per cent upon $2500, the proven value of the property.

L. W. Campbell, for appellees.

FISHER, CHIEF JUSTICE.-This case is a consolidated one of three suits for the trial of right of property. The appellees in the three suits had executions issued upon judgments obtained by them in each of their suits against the defendant N. E. Bruel, which were levied upon the property in controversy. The three suits so consolidated were for the trial of the right to that property. The property in dispute was a stock of goods, a lot of furniture and fixtures, and a soda fountain, levied upon as the property of R. C. Bruel, the husband of the claimant, Mrs. N. E. Bruel, who when the levies were made filed three separate affidavits under the statute, and gave three separate bonds, all in the form required by the statute. Two of these bonds were for the sum of $1200 each, and one of them was for $1100; all were signed by Mrs. Bruel and her husband as principals, and the appellants Moorefield, Kemendo, Simmons, Archenhold, and Thompson as sureties. After the affidavits and bonds were filed and the causes were docketed, the three cases were consolidated and were tried on written issues tendered by the respective parties.

Mrs. Bruel claimed the property as her separate property, alleging that she was a purchaser of it, paying for it with her separate means, and that when the levy was made it was in the possession of her husband as her agent. The appellees denied that the property was her separate property, and charged that when the conveyance was made to her, Bruel,

her husband, was insolvent, and that she had no separate property, and that the conveyance was made to hinder, delay, and defraud creditors.

The case was tried on special issues, and the jury found in substance that the conveyance was fraudulent and without consideration, and that the property levied upon was worth $2500. This amount was more than enough to pay all the three judgments, interest thereon and costs, and the statutory 10 per cent damages. The court rendered judgment against the claimant and her bondsmen in favor of each of the judgment creditors for the amounts only of their judgments, interest, and costs, and 10 per cent damages on the debts and interest; the aggregate amount of all these judgments being about $1700, the judgment on neither bond being equal to the amount of such bond.

We find that the evidence in the record is in accord with the above statement, and is sufficient to support the verdict of the jury. Immediately after the concluding part of the statement of facts we find in the record this agreement signed by the parties: "The plaintiff, Liggett & Meyers Tobacco Company, and others, waive the preparation and filing of a full statements of facts in the above consolidated causes, with the understanding and agreement that no other question is to be presented on appeal than that raised in defendant's bill of exception dated October 30, 1901, and filed in this cause November, 1901." This bill of exception is as follows:

"Be it remembered that upon the trial of the above styled and numbered cause in the District Court of McLennan County, on the 15th day of October, 1901, that the defendant (claimant) placed R. C. Bruel upon the stand as a witness and offered to prove and could have proven by him, that when the property in controversy and claimed herein was levied upon, the officer, Dee Cook, levied all three of plaintiffs' executions upon said property at one and the same time, and that L. W. Campbell, who was the attorney for each and all of the execution creditors, being plaintiffs herein, agreed with claimant's attorney, W. W. Evans, that the property thus levied upon, seized under and by virtue of the three executions aforesaid, should be placed at the valuation of $600, as constituting the total value of the property levied upon, according to the agreement of counsel, and that the sureties on each and all of the bonds were the same, and that they all understood that their liability on all of the bonds was upon the basis that the property claimed under all of the executions was of the value of $600. The claimant contended that this was the extent of the liability on all of the bonds, but the court, upon objections being made by the plaintiffs' counsel that the bonds respectively defined the liability of the obligors therein, and that each bond showed for itself the liability of the bondsmen, which could not be varied by any outside proof. The court declined to allow the claimant to make proof as suggested, and thereupon the claimant excepted," etc.

Appellants' first assignment of error complains of the refusal of the court to admit this evidence. There is no ambiguity or uncertainty in