Volume 104 — Texas Reports

Church and others brought suit for injunction against Bullock and others. Defendants had judgment which was affirmed on writ of error brought by plaintiffs, who thereupon obtained writ of error from the Supreme Court. This case should have appeared in an earlier volume, but did not reach the Reporter for that purpose.

The lumber company and others sued the railway company for injunction. Demurrer was sustained and the suit dismissed. This judgment was affirmed on appeal by plaintiffs, and thereupon they obtained writ of error.

<p>Error to the Court of Civil Appeals, Third District, in an appeal from Travis County.</p> <p>Seelig and others sued, the construction company and obtained injunction. The company appealed, and on affirmance procured writ of error.</p>

Error'to the Court of Civil Appeals, Second District, in an appeal from Lynn County. Hudman sued Henderson and Redwine and defendants had judgment, from which plaintiff appealed. On reversal and rendition for appellant, appelles obtained writ of error.

<p>1. —-Carrier—Passanger—Assault by Employee.</p> <p>A railway company is not liable for an assault on a passenger by one of its servants not acting in the carrier’s business and in the scope of his employment, and not charged by his employment, with the doing any part of the work or rendering the attention to the passenger due- from his employer under the contract for transportation. (Pp. 28-31.)</p> <p>2. —Same—Case Stated.</p> <p>A porter employed at a railway station to assist in the handling of baggage and express matter, acting solely on his private grudge, entered a ear and assaulted a passenger therein, the train and passenger being at such station only for the usual stop in passing through. Held, that railway company was not liable to the passenger for such act of its servant. (Pp. 27-31.)</p>

<p>Certificate of dissent from the Court of Civil Appeals, Second District, in an appeal from Potter County.</p>

Poole sued the railway company and recovered judgment. If was affirmed on appeal by defendant, who then obtained writ of error.

<p>1.—Evidence—Eecord of Train Movements.</p> <p>As evidence of the time when trains arrived at and departed from the railway yards at a station on the day fire was alleged to have been communicated from engine to plaintiff’s property, it was error to permit a witness to read from the register kept by him of such arrival and departure, when the entries were made, not from his personal knowledge, but from memoranda made by other employees charged with observing and reporting the facts, and who were not called as witnesses. (Pp. 40, 41.)</p> <p>2, —Evidence—Waiver of Objection—Repeating on Cross-Examination.</p> <p>A litigant has the right to cross-examine an opposing witness as to his testimony admitted over objection, without waiving same, though it results in .his repeating the evidence objected to on such cross-examination. (Pp. 41, 42.)</p> <p>3. —Same—Cases Discussed.</p> <p>Sullivan v. Hant, 110 S. W., 507; Missouri, K. & T. Ry. Co. v. Pettit, 117 S. W., 894, and other cases on waiver of objections to testimony, disapproved. Eastham v. Hunter, 98 Texas, 560, distinguished. (Pp. 41, 42.)</p>

The city sued Toepperwein and had personal judgment and foreclosure of its lien for taxes on real property purchased by him. Defendant appealed and the Court of Civil Appeals modified and affirmed the judgment. The city thereupon obtained a writ of error.

<p>1. —Statement of Facts—Extension of Time.</p> <p>The order extending the time for filing statement of facts, the term of the court being more than eight weeks, may be made at a subsequent term of the court, provided such extension does not prevent the filing of the transcript in the appellate court within the 90 days allowed therefor after perfecting appeal. (Act of May 1, 1909, Laws, 31st Leg., p. 374, see. 7.) (Pp. 46-49.)</p> <p>2. —Case Limited.</p> <p>Rulings in Couturi v. Crespi, 103 Texas, 554, explained and limited. (Pp. 47, 48.)</p>

<p>1. —Charge—Assumed Risk—Contributory Negligence.</p> <p>A charge correct in law, in directing a verdict for defendant on the finding of certain facts, is not ground for reversal though the defense could be supported by a finding of fewer facts than were embraced in the hypothesis submitted. The defect is one of mere omission, unavailable in the absence of a requested charge. (P. 55.)</p> <p>2. —Same—Case Stated.</p> <p>In an action by,a railway engineer for injuries by explosion of the fire box of a locomotive, alleged to have been caused by defects therein, a charge submitting defendant’s plea of contributory negligence which directed verdict for defendant if plaintiff allowed the water to get too low in the boiler and turned fresh water upon the overheated metal, causing the explosion, and his act in so doing was found by the jury to be negligence, did not contain affirmative error though such act should be considered to be negligence in law and a finding that it was negligence held to be unnecessary. (Pp. 54, 55.)</p> <p>3. —Charges to be Construed Together.</p> <p>Instructions to find for plaintiff in the event certain facts were found to exist, unless there was also a finding for defendant on the “issues” of contributory negligence, two such issues being submitted, was not erroneous as requiring the establishment of both such defensive issues to defeat plaintiff’s case, where elsewhere in the charge such pleas were submitted with direction to find for defendant if either was established. (P. 55.)</p> <p>4. —Evidence—Deposition—Interrogatories—Objections.</p> <p>Only the objections urged to the admission of testimony in the trial court will be considered on appeal. Those not made are regarded as waived. An objection to a question and answer that it calls for the conclusion of the witness as to the truth or falsity of matters alleged in the pleading, does not raise the question whether the answer is responsive. This, where the testimony is by deposition, must be taken in advance of the trial and in writing. (P. 57.)</p> <p>5. —Same.</p> <p>An interrogatory, reciting certain allegations in the pleading in regard to the condition of machinery, asked the witness whether they were true or false, and for his reasons for such conclusion. His answer that they were false was a conclusion of the witness properly rejected on objection made on such ground at the trial; but his further answer giving facts observed on inspection of the machinery made by him was admissible. If it was not responsive to the question that objection was waived. (Pp. 56, 57.)</p>

Miller and wife sued the street railway company and defendant had judgment which was affirmed on appeal by plaintiff, who then obtained writ of error.

<p>Pleading—Negligence—Frightening Horse.</p> <p>Mere allegation that defendant drove “a team of horses decorated with cloths upon which were various letters in bright colors,” upon the public street without further statement of the attending circumstances other than that it was calculated to alarm horses and that this defendant knew or should have known, did not show an act wrongful in itself, nor a negligent one, in the absence of allegation that the act was one of negligence or done in a negligent manner. Such pleading was insufficient to support a recovery of damages by one injured by fright of a horse at defendant’s team so equipped. (Pp. 62-66.)</p>

<p>1. —Telegraph—Contract—Notice of Claim—Lex Loci.</p> <p>An agreement by the sender of a telegram that the carrier should not be liable for damages unless a claim therefor in writing was presented within 60 days was valid if good under the laws of Alabama, where the contract for transmission was made, though the suit for damages was in Texas, the contract for transmission partly to be performed there, and the stipulation for notice invalid under Texas Law. Chicago, R. I. & P. Ry. Co. v. Thompson, 100 Texas, 187, followed. (Pp. 67, 68.)</p> <p>2. —Pleading—Non Est Factum—Verified Denial.</p> <p>When defendant pleads a written contract by plaintiff as a defense to the action, its execution can only be put in issue by plaintiff by a denial under oath as required by article 1102, Bevised Statutes. Stevens v. Equitable Mfg. Co., 29 Texas Civ. App., 168, disapproved, and Reed v. Brewer, 94 Texas, 149, followed. (P. 68.)</p> <p>3. —Same.</p> <p>An answer alleging that a written contract plead in defense was executed, pot by plaintiff or his authorized agent, but by another for his benefit, did not charge that the signature was the act of plaintiff nor require a sworn denial of its execution in order to entitle him to make proof of facts showing that he was not bound by such agreement. (Pp. 68, 69.)</p> <p>4. —Same—Case Stated.</p> <p>To a suit for damages for delay in delivering a telegram defendant pleaded that all messages were accepted for* transmission subject to conditions requiring the sender to give notice of his claim for damages, which conditions were reduced to writing by its agent by authority of the sender. Held, that such plea did not charge plaintiff with the* execution of such written contract; that he was not required to deny its execution under oath in Ms pleadings; that without such verified denial he could prove that the message was not written by him, hut transmitted by telephone to the sending agent of defendant who wrote same and signed the sender’s name thereto upon a blank form for messages containing such stipulation for notice, and that the sender was ignorant of the contents of such form and the custom of requiring such provision for giving notice of claims, and did not assent to such contract to which his name was so signed by the agent of ihe telegraph company. (Pp. 67, 69.)</p>

<p>Original application by Jones to the Supreme Court for writ of mandamus against the Commissioner of the General Land Office, Coleman, an adverse claimant, being also made respondent.</p>

<p>1. —'Will—Death of Devisee Without Issue.</p> <p>Under a will devising certain real property to a daughter of testator, but directing that on her death without heirs of her body the property devised “shall return to the body of my estate, to be partitioned and divided as aforesaid between the survivors,” the devisee took a fee simple estate which became absolute in her on the birth of a child which survived her, and passed by her will to the devisee named therein. (P. 74.)</p> <p>2. —Will—Subsequent Birth of Child.</p> <p>Where the will of a married woman, then without issue, devised real property to her husband “in fee simple without condition,” and other real property to her mother, the latter bequest “to be null and void in case of living issue born of my body,” the bequest to the husband was not avoided by the subsequent birth of a child to testator, such child being “mentioned” in the will within the meaning of article 5345, Revised Statutes, avoiding such will in favor of an afterborn child not provided for or mentioned.” (Pp. 74-76.)</p> <p>3;—Same—Case Stated.</p> <p>A married woman made a will on Jan. 9, 1902, having no issue at that time. A child was born to her on Feb. 26, 1902, and she died on March 4, 1902, the child surviving. The will left certain of her real property to her husband who was charged with the payment of $200 annually to her mother during the latter’s life. It also left certain real property to her mother, or if she should die before testatrix, to her two sisters, this bequest “to be null and void in • case of living issue born of my body.” Held, that the bequest to the husband must be held to have been made in contemplation by the testatrix of the expected birth of the child, and was not made void or revoked by such birth. (Pp. 74-82.)</p> <p>4. —Will—Mention of Unborn Child.</p> <p>In determining whether the language of a will is to be construed as having “mentioned” an unborn child, the words used aré to be considered with reference to the situation and facts within the knowledge of the testatrix and necessarily contemplated by her. (P. 79.)</p> <p>5. —Cases Distinguished.</p> <p>Cases upon the revocation of wills by the subsequent birth of issue to testator. Chicago, B. & Q. R. Co. v. Wasserman, 22 Fed., 872; Breese v. Stiles, 22 Wis., 120; Walker v. Hall, 34 Pa. St., 483; Waterman v. Hawkins, 63 Me., 156, distinguished by the terms of the statutes under which they were decided. (Pp. 76-79!)</p>

Lee and wife sued the railway company and had judgment. It was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>1. —Master and Servant—Assault by Servant.</p> <p>The master is not liable to a servant for an assault upon him by other servants in no way connected with their duties to the employer—As where employees of a milling company, in pursuance of a custom before practiced, undertook to “initiate” a new employee into the service by stretching him across a barrel and “paddling” him, and he was injured in resisting such violence. (Pp. 88-90.)</p> <p>2. —Same—Acquiescence of Officers.</p> <p>The knowledge and acquiescence of officers or managers of a company in a custom of rude frolic by employees in receiving a new one into the service, amounting to assault and inflicting injury, was not within the scope of their authority or in the company’s service, and it was not rendered liable to the injured party by such acquiescence. (Pp. 88, 89.)</p>

<p>Eminent Domain—Jurisdiction—Carson County.</p> <p>The Act of May, 1899 (Laws, 26th Leg., p. 260) limiting the jurisdiction of the County Court of Carson County to probate matters and transferring its jurisdiction over other causes- civil and criminal to the District Court, did not affect the jurisdiction over condemnation proceedings under the right of eminent domain. That Act is to be construed in connection with the statute providing that county courts should have jurisdiction in matters of eminent domain and that this should not be affected by Acts transferring their civil jurisdiction in general to the District Court (Act of March 31, 1885, Laws, 19th Leg., p. 77; Rev. Stats., 1895, art. 1166). The Legislature had power under the Constitution to confer this jurisdiction on county courts. (Pp. 91, 92.)</p>

<p>Error to the Court of Civil Appeals, "Fourth District, in an appeal from Yalverde County.</p> <p>Jones sued the Galveston, H. & S. A. and the St. Louis, B. & M. Bailway Companies and had judgment. Each of the defendants obtained writ of error on the affirmance of the judgment against it. on its appeal.</p>

Mrs. Bailey and others sued Block and others for the recovery of land. Plaintiffs appealed from a judgment in favor of defendant and on its affirmance obtained writ of error.

<p>1. —Deed—Description—Parol Evidence of Intent.</p> <p>When there was no doubt or uncertainty in the description in a deed of the land it conveyed nor any latent ambiguity arising in attempting to apply such description to* the ground, parol evidence that the. parties intended and understood it to convey other land is not admissible either between parties and privies or strangers to the deed. (Pp. 109, 110.)</p> <p>2. —Same—Case Stated.</p> <p>Plaintiffs, who claimed under a conveyance from the common source of title of later date than that describing the same land under which defendants held, were improperly permitted to introduce parol evidence to show that the latter deed, which called to begin at the northeast corner of another tract, was intended by the grantor and grantee to describe land beginning at its southeast corner and not including the land in controversy, there being neither uncertainty in the description given in the deed, nor any ambiguity arising from the attempt to apply its calls to objects found on the ground. (Pp. 107-110.)</p> <p>3. —Same.</p> <p>The deed, it seems, would not be the exclusive evidence of the intention of the parties where that intention was important to any inquiry in the case apart from the legal effect of the deed itself; but the inquiry as to what land the deed conveyed must Be answered by its own terms. (P. 110.)</p> <p>4. —Same—Case Distinguished.</p> <p>Parol evidence, whether by parties to the deed or in privity with them, or "by strangers to the instrument, is equally inadmissible to show that it conveys land it does not purport to, or does not convey that which it clearly purports to convey, when the deed is not sought to be reformed, but is attacked collaterally, and neither patent nor latent ambiguity in its description is involved. Hughes v. Sandal, 25 Texas, 162, distinguished and limited. (P. 110.)</p>

<p>Question certified from the Court of Civil Appeals, Second District, in an appeal from Erath County.</p>

District, in an appeal from Dallas County. The telephone company sued the city to restrain the enforcement of an ordinance regulating its rates which it claimed was not legally adopted. Judgment was for defendant and was affirmed on appeal hy the company. It then obtained writ of error.

District, in an appeal from Haskell County. The bank sued Baldwin and recovered judgment. It was affirmed on appeal by Baldwin, who thereupon obtained writ of error.

<p>1. —Collision at Crossing—Contributory Negligence—Causal Connection—unarge.</p> <p>In a case where the plaintiff driving over a railway crossing was struck and injured by a train, an instruction that he was entitled to recover if caused t.o drive on the track by negligent omission of the statutory crossing signals by . defendant “without fault or negligence on the part of plaintiff that caused or proximately contributed to his injuries” was not affirmatively erroneous as submitting the issue of proximate cause where the causal connection was not questionable. An instruction given that if he was negligent in driving on the track without looking or listening, and was thereby injured, when if he had looked or listened he would have discovered the approaching train, he could not recover was consistent with the preceding, and the two together presented both phases of the issue. (Pp. 128-130.)</p> <p>2. —Cases Discussed.</p> <p>Parks v. San Antonio, 100 Texas, 225, approved and followed. Texas & P. Ry Co. v. McCoy, 90 Texas, 264, and similar eases distinguished. (Pp. 129, 130.)</p>

<p>1. —Insufficient Evidence—Peremptory Charge.</p> <p>Where the evidence is insufficient in law to authorize a finding for plaintiff, the court should direct a verdict for defendant; he is not required to submit the cause to them on a mere scintilla of evidence to support an issue of fact. (Pp. 134, 135.)</p> <p>2. —Same—Negligence—Death—Causal Connection.</p> <p>Evidence considered in case of death of a lodger leaping from a burning building to escape the flames, and held insufficient to show that the negligence alleged against defendant, the proprietor—which was a failure to provide a fire escape at each end. of the building as required by city ordinance—was a cause of the failure of deceased to escape. (Pp. 131-135.)</p> <p>3. —Same—Case Stated.</p> <p>The evidence showed that when deceased was aroused by the alarm of fire exit from the door of his room and access to the hall and the fire escape at the south end of it was cut off by flames; he was killed in leaping from the window; had there been a fire escape" at the north end of the building, absence of which was the only negligence charged, it could have then been reached by him only by breaking through the doors of intervening rooms; in the absence of evidence indicating that in such event he would have attempted so to reach it and could have done so, which the proof rendered improbable, there was no evidence that his death could have been averted had such additional fire escape been provided, and an instruction to find for defendant was properly given. (Pp. 131-135.)</p>

<p>Questions certified from the Court of “Civil Appeals, First District, in an appeal from Jefferson County.</p>

<p>Mandamus—Land Commissioner—Certificate of Occupancy.</p> <p>The statutes with reference to certificates of occupancy to be given hy the Commissioner of the General Land Office to purchasers of school land completing the occupation required to perfect title (Rev. Stats., art. 4218j; Act of May 16. 1907, Laws, 30tli Leg., 1st Called Session, p. 49S, sec. 6g) cío not require the giving of such certificate except as to the section purchased for and to be occupied as a home. There being no legal duty to certify as to the effect of such completed occupation of the home section upon the title of the holder to other lands purchased in right of such occupancy, mandamus will not lie to compel the commissioner to give it. (P. 142.)</p>

<p>Error to the Court of Civil Appeals, Fourth District, in an appeal from Bexar County.</p> <p>Settle sued the traction company, and appealed from a judgment in favor of defendant. Upon a judgment reversing and remanding, the traction company obtained writ of error on the ground of conflict in decisions.</p>

<p>Questions certified from tbe Court of Civil Appeals, First District, in an appeal from Harris County.</p>

<p>School Land—Forfeiture of Purchase—Indorsement by Commissioner.</p> <p>School land, the purchaser having completed and received his certificate of its occupancy for the necessary time, was successively’ sold and conveyed to three purchasers in turn, each except the last becoming regularly substituted and giving new obligation for the balance due the State. Default in payment having occurred, the Commissioner indorsed “land forfeited” on the envelope containing all the papers in his office relating to the tract and also on the obligation of the first substituted purchaser, not on that of the second which was the one in force. Held, that the endorsement on the envelope was a sufficient declaration of the forfeiture under article 4218i, Revised Statutes; the additional indorsement on the obligation not in force was immaterial; and the purchaser had no right to reinstatement after the land had been resold to another party. Comanche County v. Brightman, 94 Texas, 599, followed. (Bp. 159-161.)</p>

The appeal of the railroad company from a judgment against it recovered by Parker was dismissed and the company obtained writ of error.

<p>Question certified from the Court of Civil Appeals for the Fourth District, in an appeal from Colorado County.</p>

<p>1. —Public Lands—Islands—Location of Land Certificate.</p> <p>Lands of the State situated upon islands of the Gulf are not subject to location by land certificates. Roberts v. Terrell, 101 Texas, 577, followed. (P. 169.)</p> <p>2. —Action Against State—Railroad.</p> <p>In an action by the State to recover lands claimed under an invalid location, a railroad company rvhich had located its line of road thereon could defend its location and possession under its right to build over lands of the State. Such defensive proceeding was not an action against the State. (P. 169.)</p> <p>3. —Railway—Location on State Lands—Judgment.</p> <p>The State having sued for and recovered land held under an invalid location, a railway company claiming right of way over the land, defendant in such suit, was entitled to a decree protecting it in its right to locate its- road thereon as public land. The judgment of recovery, without such qualification, would deprive it of the right so to do given it by the statutes of the State. (Pp. 169, 170.)</p> <p>4. —Railway—Location on State Land—Islands.</p> <p>A railway company has a right to locate its line upon and acquire a right of way over public lands of the State (Rev. Stats., art. 4423) though they are situated upon an island of the Gulf. (P. 170.)</p>

Smith sued the telegraph company and recovered damages. On defendant’s appeal the judgment was reversed and rendered in its favor. Plaintiff, appellee, then obtained writ of error.

<p>Both appellants and appellees obtained writs of error on a judgment modifying, reversing and rendering in part, and in part affirming the judgment for plaintiffs in the trial court from which appeal was taken.</p>

Adams and others sued Burrell and others for the recovery of land. Plaintiffs had judgment for a part of the land. As to part—two tracts of 160 acres each—recovery was denied and they appealed. The judgment against them as to a part of this—the Bilbo 160 acres—was affirmed and their application for writ of error was refused. As to a part—the F. W. Burrell 160 acres—judgment was reversed and rendered for appellants and upon this appellees obtained writ of error.

<p>Questions certified from the Court of Civil Appeals, Sixth District, in an appeal from Bowie County.</p>

<p>Original application by Terrell to the Supreme Court for writ of manadmus against the State Treasurer.</p>

The mercantile company sued the insurance company and had •judgment. On appeal by defendant this was reversed and rendered in favor of appellant, and ■ appellee obtained writ of error. The ease on appeal is reported in 59 Texas Civ. App., 289, Orient Ins. Co. v. Dorroh-Kelley Merc. Co.

<p>Error to the Court of Civil Appeals, Fourth District, in an appeal from Bexar County.</p> <p>Olivarri sued the telegraph company and recovered. Defendant appealed, and on affirmance obtained writ of error.</p>

<p>1. —Injunction—Criminal Process.</p> <p>The writ of injunction is purely a civil process. Though it may be used to protect property from acts which though criminal are really invasions of civil rights, it can not be converted into a criminal process nor into a mere incident to a proceeding, such as habeas corpus, growing out of a criminal prosecution. (P. 207.)</p> <p>2. —Same—Case Stated.</p> <p>Defendants, who were being prosecuted in magistrate’s court under arrest as prostitutes or keepers of disorderly houses sued out writ of habeas corpus in the District Court and were discharged, on the ground that, by authority of a special charter and ordinance, the city in which they lived and offended had segregated them in “reservation” whereby their calling had been legalized within such limits. The magistrate proceeding to forfeit their bonds, rearrest, and further prosecute them on such charges, the District Court, on application of such defendants, issued a writ of injunction restraining the state officers concerned from further prosecution of such cases or other like charges against defendants for offenses committed in the “reservation.” Held, that the proceeding for injunction was a civil action; that the court had no power to grant such relief thereby; that an appeal from the order perpetuating the injunction lay to the Court of Civil Appeals; and that such court properly reversed the judgment and dismissed the case. The correctness of its ruling that the city ordinance in question was void is not passed upon. (Pp. 206-208.)</p>

Urbahn sued Cotulla and had judgment. Defendant appealed, and on affirmance obtained writ of error. The application was first ^ refused in a written opinion. Subsequently, on a motion for rehearing. the writ of error was granted and judgment reversed and rendered in favor of plaintiff in error. Both opinions are here published.

Powell sued the railway company and had judgment. On defendants’ appeal this was reversed and rendered in its favor. Powell obtained writ of error.

Tarrant County sued Rogers and others and had judgment, but appealed, claiming right to a larger recovery under the proof. The judgment was affirmed in part and reversed and rendered in part, and' thereupon appellant obtained writ of error.

<p>1. —Minor—Removal of Disabilities—Judgment—Presumption.</p> <p>The authority conferred upon the District Court to remove the disabilities of minors (Rev. Stats., art. 3499) is not judicial, but a special one outside its constitutional powers, and the presumptions in support of its jurisdiction and the verity of its judgment in the case of exercise of its ordinary judicial powers do not obtain. (Pp. 228, 229.)</p> <p>2. —Same—Purchase of Public Lands.</p> <p>A District Court had authority to remove the disabilities of a minor only when he was over the age of nineteen and a resident of the county where the proceeding was brought. Where neither of these facts appeared by the judgment or were shown in its support, there was no presumption of its validity, and its production furnished no evidence of the right of such minor to become a purchaser of public lands from the State. (Pp. 228, 229.)</p>

Lamar County. Gracie Poteet, by next friend, sued the oil company and had judgment. Defendant appealed, and on affirmance obtained writ of error. The case on appeal is reported in 60 Texas Civ. App., 327. On a previous trial a demurrer to plaintiff’s petition was sustained, but this ruling was reversed on appeal. Poteet v. Blossom Oil & C. Co., 115 S. W., 289.

<p>Questions certified from the Court of Civil Appeals, Fifth District, in an appeal from Ellis County.</p>

<p>Note—Attorney’s Fee—Burden of Proof.</p> <p>A stipulation in a promissory note for the payment of ten percent of its amonnt as attorney’s fees if placed in the hands of an attorney for collection is a contract for indemnity only, and not for liquidated damages; but where the note is sued on, it forming the basis of the judgment, it was proper to render jridgment for the amount of such fees named by the parties, in the absence of any issue raised as to its reasonableness or of any proof that such was the amount agreed on between plaintiff and his attorney for its collection. Bank of Eagle Lake v. Robinson, ante, p. 166, followed. (Pp. 248, 249.)</p>

<p>1. —Writ of Error—Petition—Residence of Defendant—Railway.</p> <p>A petition for writ of error against a railway company which alleges that defendant operates a line of road and has an agent in the county where the trial was had on whom service may be obtained, naming such agent, is sufficient though it omits to state the residence of such defendant corporation as required by article 1391, Revised Statutes. (Pp. 250-253.)</p> <p>2. —Same—Statutory Construction.</p> <p>The purpose of a. statute rather than the letter of the Act will be considered in determining whether its provisions have been complied with. (P. 251.)</p> <p>3. —Same.</p> <p>The purpose of requiring the residence of a defendant to be stated was, to show the jurisdiction and to inform the clerk to what county the writ should be directed, and both these purposes are accomplished, in case of a defendant railway company, by showing that it operates its road and has a local agent in the county. In such case, its residence was immaterial to the question either of jurisdiction or of service of process. (P. 251.)</p> <p>4. —Cases Discussed.</p> <p>Southern Cot. Press Co. v. Bradley, 52 Texas, 597, followed, and Weems v. Watson, 91 Texas, 35; Yerkell v. Barnett, 25 Texas Civ. App., 26, distinguished. (Pp. 252, 253.)</p>

from El Paso County. Breen obtained writ of error on the affirmance, on his appeal, of an adverse judgment in a suit brought by Horehead against Cofiurand others, in which he had intervened.

Smithdeal-sued the telephone company and had judgment for damages and injunction. Defendant appealed and on affirmance, obtained writ of error.

Ochiltree and another sued the railway company and had judgment. Defendant appealed, and on affirmance obtained writ of error.

<p>1. —Master and Servant—Blacklisting—Statute—Retroactive Effect.</p> <p>It is questioned whether the Act of April 5, 1907, Laws, 30th Leg., p. 142, defining and punishing discrimination against persons seeking employment applies to cases of employees discharged after the passage of the statute but before it took effect. (P. 270.)</p> <p>2. —Master and Servant—Reasons for Discharge—Truth of Charge.</p> <p>A railway company which, in response to a demand by a discharged employee, made under the Act of April 5, 1907, Laws, 30th Leg., p. 142, sec. 1. par. 3, for a statement in writing of the cause of his discharge, had given the cause, “insubordination,” correctly, was not liable for damage (from his inability, because of such reason being given, to obtain employment from other companies) in the absence of allegation and proof that it had given such statement, not in good faith, but knowing that the charge was unfounded in fact. (Pp. 271, 272.)</p> <p>3. —Same—Giving Full Facts—Truth of Statement.</p> <p>The requirement that the corporation on demand shall give a statement in writing of the “cause of the discharge” of the employee, does not make necessary the statement of the full facts which were deemed to support the charge; a general statement of the charge, as “insubordination,” was a sufficient, at least in the absence of demand by the employee for specific details. The statement is to be that of the cause on which the employer acted according to his understanding of the facts. That the facts did not support the charge (as where the employee’s refusal to obey orders was justified by the danger involved) would not render untrue the statement of the reasons assigned, nor furnish a basis for an action for damages. (P. 271.)</p> <p>4.—Same—Case Stated.</p> <p>Plaintiff, a brakeman, was engaged in operating a freight train upon defendant’s railway: The air brakes becoming out of order on the trip and the hand brakes being also out of repair, he refused to proceed further with the train as ordered, and was discharged from the service. Applying for a statement of the cause of his discharge it was given as “insubordination.” He recovered damages on the claim that his refusal to proceed with the train was justified by the danger in operating it; that the statement that he was insubordinate was giving an untrue reason for his discharge; and that by reason of its being given he was prevented from obtaining employment on other roads. Held, that the recovery was not warranted, and the judgment should be reversed and rendered for defendant. (Pp. 269-272.)</p>

<p>1. —Contract—Notice of Claim—Statute.</p> <p>Revised Statutes, art. 3379 (Act of March 4, 1891, amended by Act of April . 18, 1907, Laws, 30th Leg., p. 241) declaring invalid contracts stipulating for notice to be given of olaims for damages, where the time limited therefor is a less period than ninety days requires such period to be computed from the accrual of the cause of action, not from the date of the contract under which it arose. (Bp. 277, 278.)</p> <p>2. —Same—Telegraph.</p> <p>A stipulation in a printed telepraph blank, constituting the contract assented to by the sender, that the company should not be liable for damages unless claim was presented in writing within ninety -days after the message was filed for transmission, imposed a less period for such notice than was permitted by the statute (Rev. Stats., art. 3379) and recovery could be had for negligent delay in its transmission though notice was not given. Baldwin v. Western U. Tel. Co., 33 S. W., 890, overruled. (Bp. 274-280.)</p>

Clegg sued the Gulf, C. & S. E. Ry. Co. and the Atchison, T. & S. F. Ry. Co. Both defendants had judgment. On plaintiff’s appeal it was affirmed as to the former company and reversed and remanded as to the latter, which company, as well as the plaintiff, then obtained writ of error.

<p>Error to the Court of Civil Appeals, Fifth District, in an appeal from Dallas County.</p> <p>The company sued the city of Dallas and appealed from a judgment for defendant, obtaining writ of error on its affirmance.</p>

Lamar County sued Talley and others for the recovery of land. Defendants had judgment, which on plaintiff’s- appeal was reversed and rendered in its favor. Appellees thereupon obtained writ of error.

<p>Question certified from the Court of Civil Appeals, Third District, in an appeal from McLennan County.</p>

Mrs. Winslow sued Giraud, city engineer, and obtained* writ of mandamus requiring him to make survey. Defendant appealed and on affirmance, obtained writ of error.

Hanks and wife 'brought' suit against the F. & M. National Bank to recover damages for the death of their son, and recovered judgment. Defendant appealed, and on affirmance, obtained writ of error. The opinion of the Appellate Court is reported in 61 Texas Civ. App., 379.

The city of Sweetwater sued the railway company and had judgment which was affirmed on defendant’s appeal. Appellant thereupon obtained writ of error.

<p>Jurisdiction of Supreme Court—Pinal Judgment.</p> <p>An order of the Court of Civil Appeals refusing an appellant leave to file the transcript after expiration of the time fixed by statute therefor is not a final judgment; no writ of error lies; appellant’s remedy was by mandamus if the order was erroneous. Wandelohr v. Rainey, 100 Texas, 471, followed. (Pp. 238, 239.)</p>

<p>Error to the Court of Civil Appeals, Sixth District, in an appeal from Titus County.</p> <p>Anderson sued the railway company and obtained judgment. It was reversed on defendant’s appeal and judgment rendered in its favor. Plaintiff then obtained writ of error. The case on appeal is reported in 61 Texas Civ. App., 374.</p>

<p>Original application by Bell County to the Supreme Court for writ of mandamus to require the Attorney-General to approve an issue of bonds.</p>

Huntington sued the telephone company and others and had judgment. Defendants appealed, and on affirmance obtained writ of error.

<p>Questions certified from the Court of Civil Appeals, Fifth District, in an appeal from Dallas County.</p>

Galveston County. The United States Fidelity & Guaranty Co. of Baltimore, Md., brought the suit against Adoue & Lobit. Defendants had judgment. Plaintiff appealed and on affirmance obtained writ of error.

<p>On motion for rehearing.</p>

Jayne sued the Irrigation Company for the recovery of land, and appealed from a judgment for defendant. This being reversed and judgment rendered fpr plaintiff, the Irrigation Company obtained writ of error.

<p>1. —Elections—Local Option Law—Commissioners Court—Canvassing Returns.</p> <p>The Commissioners Court is not authorized by articles 3389 and 3390, Revised Statutes, in determining and announcing the result of an election for prohibiting ■the sale of intoxicating liquors under the Local Option Law. to open the ballot boxes and count the votes for and against prohibition; they are to determine the result from the returns made by the election officers, as in cases arising under the General Election Law (Rev. Stats., arts. 1743, 1747, 1753). The boxes are to be opened and the ballots counted only when the election is contested in the courts. (Pp. 423-431.)</p> <p>2. —Same—Words and Phrases Defined.</p> <p>The meaning of the phrase “opening the polls and counting the votes” as used in art. 3390, Rev. Stats., and of the words “poll,” “ballot,” “vote,” “ballot boxes,” “count,” “consent,” etc., considered and defined. (Pp. 428-431.)</p> <p>3. —Same—Statutory Construction.</p> <p>Various conflicting provisions of the election laws, the nature of the tribunal and of the proceedings in the canvassing of election returns by the Commissioners Court, the provisions for contesting the result, for the custody of the ballot boxes and their production, etc., considered in determining the construction of art. 3390, with reference to the powers conferred upon that court. (Pp. 426-431.)</p>

<p>Error to the Court of Civil Appeals, Fifth District, in an appeal from Dallas County"</p> <p>The actions were brought by Bonner and by Lefevre against Belsterling and others, and writ of error was obtained on affirmance by the Court of Civil Appeals of judgments rendered for defendants by the trial court. The opinion here rendered disposes of both cases, which involved the same questions.</p>

<p>Original application to the Supreme Court by Wright and others for writ of mandamus against Swayne as district judge.</p>

<p>1. —Mandamus—Comptroller—Treasury Warrant—Salary of State Officer.</p> <p>The Comptroller is authorized and required by article 4854, Revised Statutes, to issue his warrant upon the Treasurer for the monthly payment fixed by law of the salary of a state officer .(Attorney-General) upon the filing of proper voucher for same, and may be required to do so by mandamus. He is not concerned with the payment; nor is his duty or the officer’s right to the warrant affected by article 8, section 6, of the Constitution which forbids money being drawn from the Treasury except in pursuance .of specific appropriations. Pickle v. Finley, 91 Texas, 484, distinguished. (Pp. 447-450.)</p> <p>2. —Same.</p> <p>Section 14, of chapter 17, Acts, 3d Called Session, 31st Leg., p. 37 (General Appropriation) does not apply to the issuance of a warrant for the monthly salary of a state officer (Attorney-General) whose office is created and salary fixed by the State Constitution, and the Comptroller is not authorized thereby to refuse to issue the warrant because no appropriation has been made for its payment. (P. 449.)</p>

<p>1. —School Land—Sale—Segregating Excess.</p> <p>In the absence of any provision in the Act of March 22, 1889, (Rev. Stats., arts. 4274, 4275, 4276) directing the Commissioner of the General Land Office how to proceed in making the segregation for the benefit of the State of the excess in a tract of school land sold by it, the Commissioner is to be controlled by those rules of justice and equity governing the acts of individuals dealing with one another in ordinary transactions. He is not clothed with arbitrary discretion. (Pp. 453, 454.)</p> <p>2. —Same—Case Limited.</p> <p>The case of Willoughby v. Long, 96 Texas, 196, did not involve any question as to how tiie Commissioner should proceed in segregating the excess in a sale of school land, and remarks therein touching on that subject are obiter dicta. (Pp. 453, 454.)</p> <p>3. —School Land—Excess—Resale.</p> <p>The Land Commissioner, having ascertained the amount of excess in a section of school land sold by the State, may sell the same to the purchaser or his vendee, if they desire to purchase, at the same rate per acre as in the original sale, and without segregating it. (P. 455.)</p> <p>4. —Same—Segregation of Excess.</p> <p>If the Land Commissioner desires to segregate the excess in a school land section previously sold, the resurvey should commence at the beginning corner and lay off to the purchaser his quantum of acreage as nearly in a square as possible, leaving the rest to the State. (P. 455.)</p> <p>5. —Same—Irregular Survey.</p> <p>If the section, on account of irregularity of form, is incapable of being equitably divided between the purchaser and the State as owner of the excess, resort may be had to partition by judgment of court in a suit between the State and the purchaser, as in case of other owners in common. If by such division the excess lopped off should take the best land or the purchaser’s improvements, he is protected against injustice by his preference right to purchase the excess at the original sale price. (P. 455.)</p> <p>6. —Vendor and Purchaser—Warranty—School Land—Excess.</p> <p>The vendee of a purchaser of school land part of which belonged to the Stale by reason of excess in the survey has no right to recover on his warranty, before eviction, the price he paid for the excess to which he acquired no title. But he may call upon his vender to buy in the excess from the State, or in default of his so doing may himself claim the right to purchase from the State at the price per acre of the original sale, and may then maintain suit on the warranty for the cost of so perfecting his title. (Pp. 455, 456.)</p> <p>ON MOTION FOR REHEARING.</p> <p>7. —Segregation of Excess—Manner of Survey.</p> <p>In directing that the survey for segregating the excess in a survey should set off to the purchaser his proper number of acres, starting from the beginning corner, and as near as may be in a square form, it is not meant that this should be done irrespective of the shape in which it would leave the excess cut off for the State. This also should be left as near as possible in a square. (Pp. 456, 457.)</p>

<p>On motion for rehearing.</p>

The bank, intervener in a receivership case, obtained writ of error on the affirmance by the Appellate Court of a judgment denying its right to participate, on final distribution, in the net earnings of the receivership.

Original action in the Supreme Court brought by E. B.-Minor and others, commissioners, to revise the statutes, ior writ of mandamus against McDonald as Secretary of State.

Meadors & Co. sued the Southern Pac. Co. and others, and obtained judgment. It was affirmed on appeal by defendants (61 Texas Civ. App., 35), who thereupon obtained writ of error.

<p>1.—Statutory Construction—Acts of Same legislature.</p> <p>Two Acts passed at the same session of a Legislature, each treating of the same subject, will be construed together and as if the provisions were contained in one Act, those of the latter Act prevailing where they are in conflict, as being the last expression of the legislative will. (Pp. 480, 481.)</p> <p>2.—Same—Courts of Civil Appeals Case Stated.</p> <p>The Act of April 3, 1911, Laws, 32d Leg., p. 269, created the Courts of Civil Appeals for the Seventh and Eighth Districts, naming the counties embraced in each district respectively. A subsequent Act of the same Legislature (passed March 11, 1911, not approved by the governor, but becoming a law because his veto thereof was more than twenty days after adjournment) created the Court of Civil Appeals for the Seventh District. Held, that the second Act did not repeal the first; both were to be given effect so far as possible; both districts were lawfully established; where in conflict, the latter Act prevailed. Hence, Q-aines and Borden counties placed in the Eighth District by the first Act and in the Seventh by the later one, constituted part of the Seventh District; counties which by the first Act had been left as before in the Second District, but by the last Act were placed in the Seventh now constitute also a part of the latter district. (Bp. 477-482.)</p>

Mrs. Bobinson and others sued the railway company and recovered judgment: Defendant appealed, and on affirmance obtained writ of error. The case on former appeal is reported in 53 Texas Civ. App., 12.

<p>Motion for rehearing of an application for writ of error to the Court of Civil Appeals, Third District, previously refused.</p>

<p>1. —Penalty—Pleading and Proof.</p> <p>In actions to recover penalties, strictness of pleading and proof is required. (P. 497.)</p> <p>2. —Public Weigher—Penalty—Warehouseman,</p> <p>In article 4314, Revised Statutes, imposing a penalty upon “any factor, com-' mission merchant, or any other person” employing other than a qualified public weigher to weigh cotton, the words “any other person” are to be limited to persons of a like class as factors and commission merchants, that is to bailees with power to sell the article. (Pp. 497, 498.)</p> <p>3.—Same.</p> <p>A mere warehouseman without power to sell is not subject to the penalty pronounced by article 4314, Revised Statutes, for having cotton in his hands weighed by other than the public weigher. A petition charging him with having the same weighed hy such other person for the purpose of ascertaining its weight for sale or for loaning money upon it was insufficient to support a recovery of the penalty, without allegation that he sold it or advanced money upon it. One merely storing cotton for customers was not subject to the penalties of the statute. The Act was for the protection of bailors placing property in the hands of factors, commission merchants, or other bailees authorized to sell. (Pp. 496-498.)</p>

<p>Original application by Fulmore to the Supreme Court for writ of mandamus against Lane as State Comptroller.</p>

Mrs. Gilbert sued Mrs. Finberg and others for the recovery of land, and had judgment. Defendants apnealed, and on affirmance procured writ of error.

Ellen B. Henry sued the administrator and appealed from a judgment for defendant. A reversal and remand by the Appellate Court settling the merits of the case, Lovenberg, the administrator, obtained writ of error.

<p>1. —Statement of Facts—Bill of Exceptions—Extension of Time.</p> <p>Under the Act of May 1, 1909, Laws, 31st Leg., p. 376, see. 7, where the term of court miay by law continue more than eight weeks, the district judge has no power to extend the time for filing statement of facts and bills of exception by an order entered in vacation. Such order must be made by the court and entered on record during the term. Hamill v. Samuels, 104 Texas, 46, followed. (Pp. 556-558.)</p> <p>2. —Same—Statutory Construction.</p> <p>The courts can not depart from the plain meaning of the words of a statute through a consideration of the reasons inducing its enactment or the inconvenience or mischief involved in adhering to such meaning. (P. 558.).</p>

<p>1. —Community Property—Descent and Distribution.</p> <p>On the death • of the husband, no child surviving, community property of himself and wife descended to the surviving wife though there were grandchildren living. The latter were not children within the meaning of article 1653, Revised Statutes, governing such descent. (Pp. 560, -562.)</p> <p>2. —Same—Homestead.</p> <p>Community property of the husband and wife which had passed to the latter on the death of the husband, leaving no child surviving, and had been occupied by her and her minor grandchildren as a homestead, became subject to administration and sale to satisfy debts against her estate upon her death. Such minor grandchildren were constituents of the family for whom the homestead exemption was preserved during her life; but they were not "minor children ’ within the meaning of article 2046. Revised Statutes, and article^ 16, section 52, of the.Constitution; the homestead could not be set aside for their use on death of their grandmother. (Pp. 562, 563.)</p> <p>ON MOTION FOR REHEARING.</p> <p>3.—Same—Administrator's Sale—Innocent Purchaser.</p> <p>Property purchased, paid for and occupied by the husband and wife, the conveyance reciting a cash consideration being made to the wife after the husband’s death, was community estate and became the property of the wife if no child survived at the husband’s death; but if there was a then surviving son, one-half descended to him; and in that event, a purchaser at probate sale by the administrator of the estate of the wife on her decease would acquire only her half interest, unless protected as an innocent purchaser against the title of the son or his heirs. (P. 563.)</p>

<p>Error to the Court of Civil Appeals, Fourth District, in an appeal from Bexar County.</p> <p>Hugo, Schmeltzer & Co. obtained writ of error upon the affirmance, on their appeal, of a judgment recovered against them by Paiz and others in the District Court.</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Harris County.</p> <p>The San Antonio Brewing Association sued the J. M. Abbott Oil Company on a contract to furnish fuel oil, and the United States Fidelity & Guaranty Company on a bond guaranteeing the performance of such contract. The latter company claimed that the bond had been altered without its authority so as to make it apply to the contract in question, it having been given to cover another. The bond was not received in evidence, and plaintiff, who consequently recovered against the oil company but not against the guaranty company, appealed. Judgment against the oil company was affirmed; 'that against plaintiff and in favor of the guaranty company was reversed and rendered in plaintiff’s favor. The guaranty company then obtained writ of error.</p>

Gaston & Ayres intervened in the receivership of the property of-the J. I. Campbell Co., and had judgment for a part of their claim only, which was affirmed on their appeal. Thereupon they obtained writ of error.

The lumber company sued Hampton Bros., and defendants, who asserted a counterclaim, had judgment against them. Plaintiffs appealed, and on affirmance obtained writ of error.

Error from the Court of Civil Appeals, Fifth District, in an appeal from Dallas County. Morrison sued Mrs. Hazzard for specific performance of a contract for sale of land, and had judgment. Defendant appealed, and on affirmance obtained writ of error.

<p>1.—Sale—Rescission—Vendor’s Lien—Fraud.</p> <p>A vendee who had subsequently reconveyed the land to his vendor in pursuance of an agreement rescinding the sale, was sought to be held personally liable to the holder of a vendor’s lien note given by a previous purchaser of which he had assumed payment in his purchase. A plea by him of fraud in the sale, in that another outstanding lien had been represented by his vendor as discharged, was not available in defense where his vendor had already acquired and cancelled that note and he had thereafter agreed with his vendor on the rescission in ignorance of the falsity of the representation that it had been paid when he bought. The alleged fraud was immaterial to the issue, not having affected his conduct in the rescission of the sale. (Pp. 598-600.)</p> <p>2. —Assumption of Vendor’s lien—Statute of Frauds.</p> <p>A promise to pay one’s own debt to a creditor of the promissee, instead of the promissee himself, as in ease of the assumption, as part of the purchase price of land, of payment of an outstanding vendor’s lien note on which the seller was liable to another, is not within the Statute of Frauds. (P. 600.)</p> <p>3. —Assumption of Incumbrance—Personal liability—Acceptance—Rescission.</p> <p>Where the purchaser of land assumes payment of an outstanding incumbrance and the holder thereof accepts such promise, the purchaser, though not notified of such acceptance, can not terminate his liability by a contract between himself and his vendor rescinding the sale, to which the holder of the incumbrance was not a party. (Pp. 600-603.)</p> <p>4.—Same.</p> <p>By acceptance on the part of the holder of an incumbrance of the promise of the purchaser of the land to assume its payment, the latter became the principal debtor to the holder, the obligation of his vendor being in the nature of a surety. It was not necessary for the holder to notify the party assuming payment of his acceptance of such undertaking, and the agreement to assume payment could not be revoked by contract for rescission and reconveyance between the vendor and vendee. Spann v. Cochran & Ewing, 63 Texas, 240, followed. (Pp. 600-603.)</p>

Hannay-Frerichs & Co. sued the railway company and recovered judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>Building Contract—Compliance—Minor Defects.</p> <p>Where a contractor for building has carried out his undertaking in good faith, though minor defects exist through his inadvertence, not complying with specifications, but capable of repair, he may recover the contract price less such sum as would place the building in the condition called for by the contract. Such deduction would represent the sum to which the owner would he entitled as damages for the contractor’s failure to perform in accordance with the strict terms of the contract. (Pp. 615-618.)</p>

<p>Application for writ of error to the Court' of Civil Appeals, Third District, in an appeal from Hava-rro County.</p>

<p>Error to the Court of Civil Appeals, First District, in an appeal from Jefferson County.</p> <p>Hampshire brought suit against Greeves and others for debt .and foreclosure. From a judgment denying his foreclosure against defendant Landry he appealed, and on affirmance he obtained writ of error.</p>

<p>Questions certified from the Court of Civil Appeals for the Seventh District, in an appeal from Donley County.</p>

<p>Error to the Court of Civil Appeals, Third District, in an appeal from Williamson County.</p> <p>The railway company obtained writ of error on the affirmance on appeal of a judgment recovered by Maxwell against it.</p>

<p>1. —Homestead—Conversion—Protection of Proceeds.</p> <p>The homestead of the husband and wife is not subject to partition after his death while she survives and claims its exemption, and the same rule applies to its proceeds when converted into money. (Pp. 638-641.)</p> <p>2. —Same.</p> <p>Exemption attaches to the proceeds of the homestead when converted into cash, by proceedings involuntary on the part of the homestead beneficiary (as an its condemnation for public purposes, if such condemnation may lawfully be had) as well as to the proceeds of voluntary sale, or of insurance on the property when burned, and for like reasons. (P. 639.)</p> <p>3. —Same—Condemnation—Proceeds—Partition or Reinvestment.</p> <p>The homestead, community property occupied by the surviving widow, having been condemned under the right of eminent domain, with payment of the proceeds awarded by the judgment into the registry of the court for the benefit of tire parties entitled, such proceeds were not subject to partition between the widow and the heirs of her deceased husband. Her homestead rights therein should be protected by reinvestment of the entire sum in a new home, to be held under the same title as the one taken under the judgment of condemnation. (Pp. 638-642.)</p> <p>4. —Same—Powers of County Court.</p> <p>Though the judge of the County Court was not a trustee for purpose of reinvestment of money paid into the registry of his court on condemnation of a homestead, his duty to see that the money so in the registry be properly applied for the benefit of the parties entitled and the necessity of protecting homestead rights in such fund would confer power to have the same reinvested in a new homestead under order of the court. (P. 642.)</p>