The opinion of the Court of Civil Appeals for the Fifth District in this case, 44 S.W.(2d) 429, is in conflict with that of the Court of Civil Appeals for the Sixth District in the case of Johnson v. Chapman Milling Co., 37 S.W.(2d) 776. We are convinced, however, that the opinion of the first-named court in the instant case is correct, and that the questions at issue have been definitely settled by this court in the cases of Patty-Joiner & Eubank Co. v. Cummins, 93 Tex. 598, 67 S. W. 566, and Haijek & Simecek v. Luck, 96 Tex. 517, 74 S. W. 305.

We accordingly refuse the application for writ of error.