Volume 107 — Texas Reports

The State sued the Waters-Pierce Oil Company and obtained judgments forfeiting its permit to do business in Texas as a foreign corporation, and subsequently appointing a receiver for its property. The defendant appealed and the judgments were affirmed. (Waters-Pierce Oil Co. v. State, 47 Texas Civ. App., 299, 105 S. W., 851. See, also, proceedings in same case, 47 Texas Civ. App., 162.) The oil company then applied to the Supreme Court for writ of error.

<p>Error to the Court of Civil Appeals for the Eighth District, in an appeal from Harris County.</p> <p>Geary sued the railway company and recovered judgment, which was affirmed on defendant’s appeal. The defendant applied for writ of error, and the defendant in error having filed answer to the application, the Supreme Court at the same time grant the writ and determine the case, reversing the judgment and remanding. Motion for rehearing was overruled May 26, 1915.</p>

Gilmore and others brought the suit against O’Neil. The Texas Oil Company and the heirs of Jones intervened. O’Neil had judgment in the trial court, which was reversed on appeal. Writ of error was granted on separate applications by plaintiffs below and by O’Neil.

Hanna sued the Cotton Oil Company and recovered judgment. Defendant obtained writ of error on affirmance by the appellate court.

Mitchum sued the railway company and recovered judgment. This was reversed and rendered in favor of defendant on its appeal, and Mitchum thereupon obtained writ of error.

<p>Error to the Court of Civil Appeals, Fourth District, in an appeal from LaSalle County.</p> <p>Cotulla sued Barlow and recovered. The latter obtained writ of error on affirmance of the judgment on his appeal.</p>

Hennessy and others sued Blair for the recovery of land and recovered.. On defendant’s appeal the judgment was reversed and rendered in his-favor and appellees obtained writ of error.

Schell sued Spencer and others for foreclosure and recovered. The judgment was affirmed on defendant’s appeal, whereupon the plaintiff obtained writ of error.

Sanders sued the telephone company and the Cameron Water, Light and Power Company but recovered only, against the former. It appealed, and on affirmance obtained writ of error.

Mchols sued Dunham and others for partition of land. Mrs. Schmittou was impleaded and appealed from the judgment of partition. On reversal and remand Mchols obtained writ of error.

<p>1.—Riparian Owner—Right to Water Power—Conveyance.</p> <p>Riparian rights exist only for riparian owners, and those who do not own the riparian land can not claim them. One who parted with the title to the land equally divested himself of all riparian rights in the waters of the river appurtenant to the land, and could predicate no cause of action upon their lawful exercise by a subsequent owner of the land, to whom they enured by virtue of its ownership, - though such grantor,' by bis conveyance attempted to reserve them in himself. (Pp. 62, 63.)</p> <p>3.—Same—Case Stated.-</p> <p>The owner of land bordering on the Colorado River sold and conveyed it to another, reserving to himself “an equal undivided one-half interest in and to the water power included within the above described tract of land and necessary ground to utilize the same.” Held that he could maintain no action against a company proceeding to utilize such water power'under rights acquired from his vendee. (Pp. 61-63.)</p> <p>3.—Riparian Owner—Deed—Reservation of Land to Utilize Water Power.</p> <p>The reservation by a vendor of riparian lands of an interest in the water power “and necessary ground to utilize the same” was too vague and indefinite to be capable of enforcement. As a reservation of an interest in the land itself, it was without limit, and void as repugnant to the grant. (P. 63.)</p>

Hanna sued Atchison and B. Armstrong. Defendants had judgment which, on plaintiff’s appeal, was reversed and rendered in his favor. Appellees thereupon -obtained writ of error.

Wiseman appealed from a judgment setting aside a former recovery by her against the heirs of Cottingham, and on its affirmance obtained writ of error from the Supreme Court.

<p>Application for writ of error to the Court of Civil Appeals, Fourth District, in an appeal from Bexar County.</p>

Action by Ed. Steves & Sons against R. S. Dilworth and others. From a judgment for plaintiff, defendants appealed to the Court of Appeals, and, on judgment of af-firmance there (169 S. W. 630), apply for writ of error.

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

The appeal of Beversdorff from a judgment of the County Court admitting to probate the will of John TJlle on application of Dienger, the executor, was dismissed in the District Court because no notice of appeal was given. This ruling was affirmed by the Court of Civil Appeals on appeal by Beversdorff, and she obtained writ of error.

<p>Error to the Court of Civil Appeals for the Fourth District, in an ■appeal from Bexar County.</p> <p>Watters sued Wiseman and others and had judgment. Wiseman appealed and on affirmance obtained writ of error.</p>

Blackstone having sued and obtained judgment against the insurance compan)1, which appealed, obtained writ of error upon the case having been reversed and rendered for appellant.

<p>1.—Insurance—Forfeiture—Construction.</p> <p>Conditions of forfeiture contained in an insurance policy must be strictly construed against the insurer. (P. 111.)</p> <p>3.—Saíne—Sale of Property—Assignment of Policy—Case Stated.</p> <p>Insured, having sold the property reserving a vendor’s lien for purchase money, assigned the policy to the vendee by consent of the insurer, who attached a rider making loss payable to the assignor as her interest might appear. A printed clause of the policy avoided it in case “the insured” procured other insurance, and the assignee (the vendee) did so' without the knowledge of the vendor. Another clause of the policy provided that in case any interest in the policy as mortgagee or otherwise was acquired by another with insurer’s consent “the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto.” Held that:</p> <p>(1) The forfeiture clause contained in the policy did not apply to the rights of the lien holding assignor, because not written upon, attached, or appended to it.</p> <p>(2) The act of the vendee in procuring additional insurance could not avoid the rights secured by the rider to the vendor who had no knowledge of its procurement. (Pp. 110, 111.)</p>

<p>Error to the Court of" Civil Appeals, Fifth District, in an appeal from Johnson County.</p> <p>Burgher & Company sued Floore and recovered judgment. They obtained writ of- error from a judgment of the Court of Civil Appeals reversing and remanding the cause for retrial, a dissenting opinion having been filed.</p>

<p>1. —Deed—Delivery.</p> <p>A deed does not become effective as a conveyance of land until delivered, that is, placed within control of the grantee by the grantor with the intention that it should operate as a conveyance. (P. 118.)</p> <p>2. —Same—Unauthorized Delivery—School Land—Forfeiture.</p> <p>A purchaser of school land who had completed the required residence thereon but not yet acquired authority to convey by making return of his affidavit of settlement, executed a deed in pursuance of an agreement to sell to another which he acknowledged and left in the hands of the notary, to be delivered to the vendee only after he should ¡have sent in to the Land Office such affidavit. The notary, without authority, had the deed placed on record. Thereafter, the affidavit having been sent in, such grantor received his purchaser’s notes for the purchase money and surrendered possession of the land. Held, that the deed did not take effect as of date of the unauthorized delivery, and the grantor did not forfeit 'his rights as a purchaser from the State by this operating as a conveyance before he had acquired the right to convey. (Pp. 117, 118.)</p>

Smith’ sued Cook for the recovery of land, and the latter vouched in his warrantor, ISTeif. Judgment for defendant was reversed and rendered in favor of Smith on his Appeal and the appellees obtained writ ■of error.

Matkin sued the railway company and had judgment, which was affirmed on defendant’s appeal. Appellee thereupon obtained writ of error.

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

McDonald sued Mabee, and appealed from a judgment for defendant. The judgment being reversed and rendered in appellant’s favor, Mabee obtained writ of error.

J. P. Nelson and the Nelson Paving Co. obtained writ of error on the affirmance, on their appeal, of the judgment of the trial court herein.

The city sued Bray and wife and appealed from a judgment for defendant. On affirmance, it obtained writ of error from the Supreme Court.

William, Ernest, and John S. Hix sued Armstrong for recovery of an undivided interest in land. Defendant’s plea of limitation was sustained as against William and Ernest, and disallowed as to John S. His plea of innocent purchaser was sustained as to all the plaintiffs by the verdict, which was by special findings.

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

Blakeley sued Kanaman and wife, and procured writ of error on the affirmance, on his appeal, of a judgment of the trial court denying him recovery.

<p>Error to the Court-of Civil Appeals, Sixth District, in an appeal from Cooke County.</p> <p>Boles sued Aldridge and wife and appealed from a judgment for defendant. On its affirmance he obtained writ of error.</p>

Maddox obtained a writ of error when a judgment against him in the trial court was reformed and affirmed on his appeal. -

The Waples-Painter Co. obtained writ of error on the affirmance, on its appeal, of a judgment of the trial court enjoining it from enforcing a Justice Court judgment in its favor against Ross et al.

The Oil Company sued MeGrew in trespass to try title. Defendant recovered a part of the land on title by limitation. The judgment being being affirmed on plaintiffs appeal, it obtained writ of error.

Action was brought by the Texas Company against Daugherty and others, and judgment for defendant affirmed on its appeal, whereupon it obtained writ of error.

<p>Appeal and Eebob <§=1092 — Review—Taxation of Costs on Appeal — Discbetion of Couet.</p> <p>Taxation of costs of an appeal to the Court of Civil Appeals is within the discretion of the court, and the Supreme Court will not reverse it where not inequitable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4312-4321; Dec. Dig. <§=> 1092; Costs, Cent. Dig. §§ 327, 820, 821.]</p>

Action by T. B. Walker and others against the Houston & Texas Central Railroad Company. A judgment for the plaintiff was affirmed by the Court of Civil Appeals (167 S. W. 199), and defendants bring error.

Tweed; plaintiff in'the trial court, obtained writ of error on a judgment reversing and remanding the case on defendant’s appeal.

Action by E. A. Tweed against the Western Union Telegraph Company. A judgment for plaintiff was reversed by the Court of Civil Appeals (138 S. W. 1155), and plaintiff brings error.

<p>1. —Agency—Insurance Broker—Failure to Reinsure.</p> <p>An insurance broker who has undertaken to keep the property of another insured for the latter’s protection is liable for loss incurred through his failure to reinsure when it becomes unprotected by reason either of expiration of the term of the policy or of the insolvency of the company insuring, in case the fact of expiration or insolvency was known to him and unknown to his principal who relied on him to keep it insured. (Pp. 259, 260.)</p> <p>2. —Same—Damages—Cost of Reinsurance—Pleading.</p> <p>An insurance broker held liable for damages from his failure to perform his undertaking to keep insurance in force upon the property of another destroyed by fire, must plead as offset to such claim the cost of effecting such insurance in order to be entitled to credit therefor. (Mr. Justice Hawkins dissenting.) (P. 260-263.)</p> <p>3. —Same—Burden of Proof.</p> <p>Even if the insurance broker was entitled, without pleading such defense, to offset the cost of reinsurance against the damages recoverable against him for failure to effect it, the burden was upon him to prove such cost, especially as it was peculiarly within his knowledge, he issuing the policies as agent of the insurance companies. (Mr. Justice Hawkins dissenting.) (Pp. 261-263.)</p>

Original application to the Supreme Court for writ of mandamus requiring Mr. B. F. Loone}*, as Attorney-General, to approve certain bonds of a road district in Brazoria County proposed to be issued by the relators. The action was brought by Munson, County Judge, joined by the county commissioners of Brazoria County and by the road commissioners of Boad District Ho. 5, issuing the proposed bonds.

<p>Counties (§ 150*) — Power to Incur Debt-Constitutional Limitations — Drainage and Roads.</p> <p>Under Const, art. 3, § 52, limiting the bonded indebtedness of any county or district thereof for drainage and road building to 25 per cent, of the assessed valuation of real estate in the territory affected, and under Rev. St. 1911, art. 2595, passed in accordance with such constitutional provision, while two districts may be formed of the same territory for the two purposes of drainage and road building, or two districts may have part of their territory in common, nevertheless the aggregate indebtedness incurred for drainage and road building in- such common territory must not exceed 25 per cent, of the total assessed valuation of its real property.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 165, 166, 215-217; Dec. Dig. § 150.*]</p>

Bogue sued the Texas Traction Company and recovered judgment. On defendant’s appeal this was reversed and judgment rendered in its favor, and Bogue obtained writ of error.

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

Mrs. Rosenbloom, for herself and as next friend for her minor children, sued the railway company for negligence causing the death of her husband. The Court of Civil Appeals affirmed a judgment in favor of the plaintiffs and defendant, the appellant, obtained writ of error.

<p>Commerce cg^27— Interstate Commerce — “Engaged in Interstate Commerce.”</p> <p>A railroad yard clerk required to check up cars in trains and take their numbers to make a proper report thereof is not, while walking through the yard, engaged in interstate commerce within the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8605J), in the absence of anything to show his connection with an interstate freight train in the yard or anything to show his purpose in ' walking-through the yard, or character of work done by him.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <S=27.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p>

<p>Damages—Carrier of Passengers—Humiliation.</p> <p>Plaintiff, in an action against a railway for damages for furnishing- accommodations and service for passengers insufficient and other than promised by the company’s passenger agent, could not recover for humiliation of mind which he suffered because others, his companions whom on the faith of such promise he' had induced to select that route, received the same inadequate service. (Pp. 304, 305.)</p>

<p>Conclusions of Law and Fact—Failure to File—Harmless Error.</p> <p>The failure of the trial judge to file his findings of fact and conclusions of law will not be ground for reversal where a statement of facts was duly prepared and filed and it does not appear that such failure prevented a proper presentation of the questions involved in the appeal. (P. 306.)</p>

The Owosso Carriage & Sleigh Company brought suit against one Sweet and issued garnishment against McIntosh & Warren, on which they recovered judgment. This was on appeal reversed and remanded with instructions to render judgment for the garnishees. The company thereupon obtained writ of error.

Original application to the Supreme Court for writ of mandamus against the Land Commissioner requiring reinstatement of relators as purchasers of school land.

Luttrell sued Stephenson with others, and obtained judgment. This was affirmed on error by Stephenson, who then procured writ of error from the Supreme Court.

Flanders sued the railway company and obtained judgment. This was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>Error to the Court of Civil Appeals for the Sixth District, in an appeal from Harrison County.</p> <p>Benjamin sued the Express Co. and recovered judgment. Defendant appealed, and on affirmance obtained writ of 'error.</p>

■ Johansen sued the Railway Company and recovered judgment which was affirmed on appeal by defendant, who thereupon obtained writ of error from the Supreme Court.

Caples and others sued Ward and others, obtaining injunction against sale of land under execution. Upon reversal of this judgment on defendants’ appeal, appellees obtained writ of error.

The State sued the railway company for penalties for violation of the statute. A demurrer was sustained to its petition, and the ruling affirmed on its appeal, whereupon it obtained writ of error.

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

Arey sued the Railway Company and appealed from a judgment for defendant. This being reversed and the cause remanded, expressly overruling a former decision, the Railway Company obtained writ of error.

The railway company applies for writ of error to.the appellate court on its affirmance of a judgment recovered against it bjr Walters in his suit. The latter having answered the application, the Supreme Court at the same time grant the writ of error and affirm the judgment.

<p>Error to the Court of Civil Appeals for the .Seventh District, in an appeal from Clay County.</p> <p>Woods sued Davis, Pruner & Howell and recovered judgment. Defendants appealed, and on affirmance obtained writ of error.</p>

<p>1. —Res Adjudicata.</p> <p>Where the pleadings upon which trial was had put in issue a party’s right to recover upon two causes of action or defense, and the judgment awards him a recovery upon one but is silent upon the other, such judgment is prima facie an adjudication that he wasi not entitled to recover upon the other. Rackley v. Fowlkes, 89 Texas, 613, followed. (Pp. 384, 385.)</p> <p>2. —Same—Action for Land—Rents—Improvements—Case Stated.</p> <p>A plaintiff sued for recovery of land and for rents during dispossession. Defendant plead improvements made to the property. His plea was read to the jury, but no evidence was offered to support it. He recovered judgment as to the land itself; hut on appeal this was reversed and judgment rendered for the plaintiff for the land and for the rents, which had been determined by the findings on the trial. Both judgments were silent as to defendant’s claim for improvements. In a subsequent action the same plaintiff sought to recover from the same defendant rents for the period between the date of the former trial and that of the surrender of the premises,—nearly two years. To this defendant interposed a plea claiming for the same improvements pleaded in the former action and plaintiff replied by a plea of former adjudication thereon. Held:</p> <p>1. That the matter of defendant’s claim for improvements was adjudicated against him in the former suit.</p> <p>2. The action of the appellate court in the former trial in overruling a motion for rehearing by defendant (appellee) asking that the case be remanded to permit him to present his claim for improvements was not a refusal to pass upon that issue. Having failed to offer. proof on the trial he had no right to demand to be again heard thereon and his claim remained res adjudieata. (Pp. 382-385.)</p>

<p>Jurisdiction on Appeal—Consolidated Cases—-Amount in Controversy.</p> <p>The Court of Civil Appeals had jurisdiction of an appeal from the judgment of the County Court in a case involving an amount exceeding $200, though this amount was reached by consolidation of three separate suits, each originally brought in Justice Court and for the sum of $99.95 each. Being properly consolidated they thenceforth constituted one action and that for the total amount Castro v. Whitlock, 15 Texas, 437; and Security Co. v. Panhandle National Bank, 93 Texas, 575, followed. Brown v. Cates, 99 Texas, 133, distinguished. (Pp. 386, 387.)</p>

Petty sued j;he railway company and recovered judgment. This was affirmed on appeal by defendant, who thereupon obtained writ of error.

'Yndo prosecuted error from a judgment for defendants in his suit against Rivas and others, and on affirmance obtained writ of error from the Supreme Court.

<p>1.—Attachment—Replevy Bond—Appearance—Default.</p> <p>Where property of a non-resident is attached and replevied by him, but defendant is not cited to answer, the execution of the replevy bond does not constitute such an appearance in the suit as to authorize a judgment by default against defendant and the surety on his bond. (Pp. 417-421.)</p> <p>2. —Same.</p> <p>The execution of a replevy bond for attached property is distinguished from the procedure under former statutes by which giving of special bail for payment of the judgment was made to constitute an appearance, and from that by judicial, as distinguished from original attachment, which was made to take the place of citation. (Pp. 417, 418.)</p> <p>3. —Same.</p> <p>The replevy bond simply takes the place of the ^attached property. It invokes no action of the court and makes no move in relation to the cause of action, being unrelated to this or its determination, and acknowledging a liability distinct from it save as such liability is conditioned on the cause of action being established, the surety’s liability being only in that event. And while the replevin changes the action from one in rem against the property to one en-forcible personally against the surety, it seems that this would not be beyond the power of the court though only constructive service was had on the defendant himself. (Pp. 419-421.)</p>

' Hovencamp and others sued the Missouri, Kansas & Texas Bailway Company of Texas and the Uni,on- Stock Yards Company. They recovered against the latter only and it appealed, resulting in affirmance of the judgment in favor of the railway company, while that against the stock yards company was reversed and rendered in its favor. Hovencamp et al. then obtained writ of error.

<p>1. —Lunatic—Custody—Statutory Bond—Common Law Obligation.</p> <p>A bond, with sureties, executed by a relative of one adjudged a dangerous lunatic and to be confined as such, was conditioned that the principal “shall faithfully protect and cause to be protected all animal and human life and become responsible for all damages that may hereafter arise from the acts of said” lunatic. Action on such bond alleged that it was voluntarily executed and the release of the lunatic from confinement obtained thereby. The suit was for damages by one assaulted and injured by the lunatic while negligently permitted to be at large by such custodian. Held:</p> <p>(1) The obligation was not good as a statutory bond under article 140, Revised Statutes, 1895, because payable to the county judge instead of to the State; and because not conditioned as required in said statute, being more onerous.</p> <p>(2) Being alleged to have been voluntarily executed, the bond was good as a common law obligation; it was not contrary to public policy, being of the same nature as that prescribed by the statute; it was not exacted to obtain a right to which the maker was entitled without bond; and the release of the lunatic from official custody furnished a sufficient consideration; hence a demurrer to the petition was wrongly sustained. (Pp. 430-432.)</p> <p>2. —Bond—Action by Beneficiary.</p> <p>Action being maintainable by the payee for the benefit of one secured against injury by a bond, such injured person could also himself maintain suit thereon. (P. 433.)</p> <p>3. —Certified Question.</p> <p>The Supreme Court will not ordinarily look beyond the certificate itself to determine a certified question; but where it arose on a demurrer sustained to plaintiff’s petition and the pleading itself was sent up, the court may consider this in answering the question. (P. 432.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from Travis County.</p> <p>Pannell sued Boswell and others and recovered judgment, which was affirmed on appeal by defendants, who then obtained writ of error.</p>

<p>Error to the Court of Civil Appeals for the Eighth District, in an appeal from El Paso County.</p> <p>In an action by Spence and others against Fenchler and others the District Court refused a temporary injunction sought by plaintiffs, and they obtained writ of error upon the affirmance of this order on his appeal.</p>

<p>1.—Contract—Consideration—Delivery of Deed.</p> <p>A corporation, to secure the delivery of a conveyance of land contracted for by a promoter before the corporate organization, assumed performance of the undertaing of such promoter to protect from liability on his note to another one who controlled the delivery of the deed, he being the owner of an option right to purchase from the grantor in such deed, and the promoter’s undertaking so assumed being made in order to dispose of his option right. Held that the delivery of the deed was a sufficient consideration for the contract of the corporation assuming such undertaking of its promoter. (Pp. 478, 479.)</p> <p>2. —Corporation—Contract—President—Directors—Ratification.</p> <p>A contract by a corporation, made through its president who disclosed while so doing the fact that he was not authorized by the directors to make it, was nevertheless • binding on the company when it received and retained land, the proceeds, with knowledge that it obtained title through such unauthorized contract of its president. It could not accept the benefits and reject the burdens of his undertaking, nor ratify his contract only in part. (Pp. 479-481.)</p> <p>3. —Same—Ratification—Knowledge.</p> <p>Knowledge by a corporation of the terms of an unauthorized contract by its president whereby it 'obtained title to land on undertaking performance of various considerations, is shown by the fact that it spent large sums of money in complying with undertakings assumed in such unauthorized contract other than the one it now sought to repudiate. (Pp. 481, 482.)</p> <p>4. —Same—Corporation—Knowledge of President.</p> <p>When a corporation seeks to repudiate an unauthorized contract made in its name by its president, it is taxed with his knowledge of the terms of the agreement so made in acting for it, and ratifies his contract if it retains the proceeds acquired thereby. (P. 482.)</p>

<p>Error to the Court of Civil Appeals, First District, in an appeal from Waller County.</p> <p>Avery sued Cooper and others, school trustees, to enjoin the collection of taxes. He obtained injunction; but on defendants’ appeal the judgment was reversed and rendered in their favor", whereupon Avery obtained writ of error.</p>

Yance sued Miller and others to enjoin the collection of school taxes. The injunction was dissolved on trial and on plaintiff’s appeal this was reversed and remanded under ruling, affirming, however, Ms right to injunction, upon which appellees obtained writ of error.

<p>1. —¡Practice in Supreme Court—Certified Question.</p> <p>The answer of the Supreme Court to certified questions will ordinarily be made with reference to the facts as stated in the certificate only. (P. 493.)</p> <p>2. —Bawdy House—Agent—Renting Property—Injunction.</p> <p>Under article 500 of the Penal Code, an agent of the owner who knowingly permits the keeping of a bawdy house upon premises rented by him as such agent is guilty of a criminal offense,—knowingly permitting the keeping of such house being simply a method of committing the offense of “keeping.” Willis v. State, 34 Texas Cr., 148; Schulze v. State, 46 S. W., 918. Such agent may be enjoined from permitting such use of the premises by action brought under articles 4689, 4690, Rev. Stats., 1911. (Mr. Justice Hawkins dissents.) (Pp. 492-494.)</p> <p>3. —Bawdy House—Owner of Premises—'Renting by Agent—Absence of Knowledge.</p> <p>The owner of premises used as a bawdy house by tenants to whom they were rented by an agent and without knowledge by the owner of such unlawful use, may be enjoined-from permitting the premises to be so used by action brought under articles 4689, 4690, Eev. Stats., 1911, though, being ignorant of such unlawful use, the owner would not be guilty of a criminal offense under article 500, Penal Code. (Mr. Justice Hawkins dissenting.) (Pp. 494-498.)</p> <p>4. —Same—Parties—Statute.</p> <p>The enumeration in article 4689, Eev. Stats., of certain classes who may be made defendants in an action to abate by injunction the keeping of a bawdy house, is not exclusive, and does not prevent the joining as defendant of any other proper party to such proceeding, such as the person owning or controlling the use of property. (Mr. Justice Hawkins dissents, holding the action to be statutory and given only against the classes of defendants named.) (Pp. 494, 495.)</p> <p>5. —Same—STuisance—Liability of Owner of Property.</p> <p>The owner of premises is under obligation, at common law, to keep them from becoming a public nuisance. Though sometimes held exempt from liability for damages by a private nuisance thereon of which he had no knowledge, this rule is not applied to a public nuisance, nor, it seems, in all cases to a private one. But injunction against future continuance of a nuisance is not dependent on the . owner’s past knowledge and liability, or defeated by his want of it. He is not relieved by past ignorance from future 'duty to see that his premises do not continue to be applied to an unlawful use, and is a proper party to an injunction against continuance of what the judgment finds to -have been a bawdy house and public nuisance thereon. The object of articles 4689, 4690 was to enlarge, not to restrict the remedy. (Mr. justice Hawkins dissenting.) (Pp. 495-498.)</p>

The Bank of Garvin sued Freeman, Steger, and the Freeman-Steger Lumber Co. and had judgment against them. Steger had judgment on his cross-action over against his co-defendant Freeman. Freeman appealed, and the judgment was reversed and rendered in his favor as against the bank, but reversed and remanded, as between Freeman and Steger, with instructions to sustain Freeman’s plea to the venue and transfer to the county of his residence.

Browder and others sued the Memphis Independent School District, and obtained writ of error on the affirmance, on their appeal, of a judgment for defendant.

Motion to dismiss for want of jurisdiction an application for writ of error to the Court of Civil Appeals for the Second District, in an appeal from Wise County.

The State sued the Railway Company and had judgment recovering penalties. Upon the affirmance on the company’s appeal, it applied for writ of error. '

The State sued the Gulf, Colorado & Santa Fe Eailway Company and recovered judgment for penalties for its failure to comply with an order of the Eailroad Commission requiring it to stop certain of- its passenger trains at Meridian, the county seat of Bosque County, and also obtained a mandatory injunction compelling its observance of such order.

On defendant’s appeal a judgment recovered by Manning against the Railway Company was reversed and rendered -in favor of appellant. Manning then obtained writ of error.

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

The railway company sued Baker to enjoin the levy of execution, and obtained judgment, which was affirmed on Baker’s appeal. He then obtained writ of error.

Having ordered the submission of this case advanced on the filing of confession of error by the defendant in error, the court, on its own motion, set aside such order, giving its reasons therefor in the following opinion. Writ of error herein was afterwards, April 12, 1916, dismissed by agreement.

<p>1.—Contractor’s Bond—Action by Sub-contractor—Failure to Fix Lien.</p> <p>A bond executed to church trustees by one contracting to erect a church building and his sureties was conditioned that the contractor should discharge all indebtedness incurred in such work and complete the same free from mechanics’ liens. It is also provided that it was “made for the use and benefit of all persons who may become entitled to liens under the said contract, according to the provisions of law in such cases made and provided, and may be sued upon by them in proper person.” A sub-contractor installing in the building a heating plant required by the contract, and entitled to fix a lien for the price, failed to give the trustees the notice necessary to fix same. He -sued the contractor and his bondsmen for an unpaid balance of his claim. Held, that the clause giving such right of suit, in connection with that requiring the contractor to discharge all indebtedness incurred, evidenced an intention to secure all creditors who became entitled to fix liens; that plaintiff, as ,such creditor became entitled to look to. the bond for payment; and that he did not lose his right to do so by failing to fix his lien by giving notice. (Pp. 577, 578.) .</p> <p>2. —Bond—Action by Beneficiary.</p> <p>One not a party to a bond, but given by its terms a. right of action thereon, has no greater right against the sureties than the payee of the bond himself; and any alteration of the contract which releases the rights of the payee against the sureties releases the right of such beneficiary against them. (P. 581.)</p> <p>3. —Principal and Surety—Alteration of Contract—Release of Sureties.</p> <p>A building contract, for due performance of which the contractor gave bond with sureties, provided for the retention by the owner of twenty per cent of the contract price in order to secure faithful performance of .the work and release of all liens. By agreement of the principals, this was disregarded and the full amount then earned under the contract paid over to the contractor. Held, that this was such alteration of the contract as discharged the sureties from liability to the owner of the building, and equally from liability to a sub-contractor, not a party to the bond, but entitled by its terms to sue upon it. (Pp. 578-581.)</p>

Mrs. Bryant sued the Continental Casualty Company, and appealed from a judgment for defendant. On its affirmance she obtained writ of error.

Stewart recovered judgment against the railway company, and the latter obtained writ of error upon its affirmance on defendant’s appeal.

Moody and others sued Peugh and the Peugh Mercantile Co., recovering only against the former, who appealed. On affirmance Peugh obtained writ of error.

Crews sued the Gulf Grocery Co. and had judgment. This was reversed and rendered in favor of defendant on its appeal, and Crews obtained writ of error.

Adams sued the traction company and recovered judgment. This was affirmed on appeal by defendant, who then obtained writ of error.

Miller and wife sued Nations and Paschal, who obtained writ of error on the affirmance, on their appeal, of a judgment for plaintiff.

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

Jones sued the hank and others and recovered judgment. Defendant hank appealed, and on affirmance obtained writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Solan Qounty.</p> <p>Barnhart sued the railway company and obtained judgment. On defendant’s appeal this was reversed and the cause remanded. Barnhart obtained writ of error on the conflict of the rulings with decisions of other Courts of Civil Appeals.</p>

The appellate court reversed and rendered a judgment for defendants in an action by the Gale Manufacturing Company against Dupree and others on the plaintiff’s appeal. Defendants then obtained writ of error. Upon other issues, the application of the Gale Manufacturing Company for writ of error was refused.

<p>1. —Power of Sale—Trust Deed—Notice—Evidence.</p> <p>A deed of trust having provided that a conveyance by the trustee to the purchaser at a sale made by him should be evidence “that said trustee has in all things duly and legally executed his trust,” his conveyance under the power afforded prima facie evidence that the required notices of sale were duly posted. This sufficed to sustain his deed when he testified that he personally posted one notice at the courthouse door and mailed those required to be posted at two other public places in the county to persons instructed to so post them, though there was no other proof as to whether or not they were posted. (Pp. 654, 655.)</p> <p>2. —Case Explained.</p> <p>The grounds of the ruling in Rose v. Davis, 106 Texas, 537, explained. (P. 655.)</p>