Volume 145 — South Western Reporter

<p>Appeal _ from District Court, McLennan County; Marshall Surratt, Judge.</p> <p>Action by Abe Tobias against the Teutonia Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

J. Ford, Judge. Action by the Farmers’ & Merchants’ State Bank & Trust Company against F. B. Perry as' defendant and E.- W. and N. W. Sliger, garnishees, in which Alice Perry appeared and claimed the fund paid into court by the garnishees. From a judgment in favor of Alice Perry, plaintiff appeals.

<p>Appeal from District Court, Fayette County; B. G. Neighbors, Special Judge.</p> <p>Trespass to try title by Clarence Goseb and others against I. Yrana. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Mitchell County.</p> <p>Action by A. X Herrington against Mrs. C. H. Marrett to determine right of property. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Highways (§ 155*) — Obstruction — Injunction— Special Injuries.</p> <p>To entitle a private person to restrain the obstruction of a public road, he must show special injuries, peculiar to himself, from the obstruction, differing from the injury to the public generally, since otherwise suit must be brought by the proper public officers.</p> <p>[Ed. Note. — -For other cases, see Highways, Cent. Dig. §§ 432-436; Dec. Dig. § 155.*]</p> <p>2. Highways" [§ 159*) — Public Nuisance-Action to Restrain — Sufficiency oe Evidence.</p> <p>Evidence in a suit to restrain an obstruction to a public road held not to show any special injury to plaintiff different from that suffered by the public generally.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 430, 431, 435; Dec. Dig. § 159.*]</p>

<p>1. Evidence (§ 398*)— Parol Evidence — Modification of Written Contract.</p> <p>A written contract employing a firm to procure a purchaser of real estate does not prevent the partners from dividing the work of procuring a purchaser, and parol evidence that one partner was to do the outside work, and that the copartner was to do the office work, was not objectionable as varying the written contract.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1766-1771; Dec. Dig. § 398.*]</p> <p>2. Appeal and Error (§ 690*) — Rulings on. Evidence — Bill of Exceptions.</p> <p>A bill of exceptions complaining of the admission or exclusion of evidence must set out the evidence objected to and the objections and thus show that the party complaining was damaged by the ruling complained of.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2908; Dec. Dig. § 690.*]</p> <p>3. Brokers (§ 85*) — Actions for Commissions — Evidence—Admissibilitv.</p> <p>In a suit by a broker for commissions for procuring a purchaser of real estate, evidence that a sale was not made on a designated date because the property was not then properly indicated and shown on the ground was admissible to show that the broker could not make the sale which had to be postponed but not to show that the owner by his conduct prevented the sale.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 85.*]</p> <p>4. Brokers (§ 85*) — Action for Commissions —Evidence—Admissibility.</p> <p>A broker, who bases an action for commissions on the cancellation of the contract of employment so as to deprive him of commissions which would have been earned if the contract had not been canceled, may show facts proving that the land was sold after the cancellation and the facts relating to such sales.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 85.*]</p> <p>5. Appeal and Error (§ 1052*) — Harmless Error — Erroneous Admission op Evidence.</p> <p>Where a broker based his action for commissions on the wrongful cancellation of the contract of employment and calculated his commissions on the basis of prices for which the property.was subsequently sold which were higher than those specified in the canceled contract, but the jury based a finding on the terms of the canceled contract only, the error, if any, in permitting evidence of the prices for which the property was subsequently sold was not prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.*]</p> <p>6. Brokers (§ 85*) — Actions por Commissions — Evidence—Admissibility.</p> <p>Where in an action by a broker for commissions the issue was whether the right of the owner to cancel the contract of employment was properly exercised, evidence of the money the owner expended in selling the land after the cancellation was properly excluded.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 85.*]</p> <p>7. Evidence (§ 253*) — Admissibility—Declarations op Conspirators.</p> <p>Where an owner employing a firm to procure a purchaser of real estate and a partner conspired to cancel the contract and deprive the copartner of the benefit of the contract, declarations of the owner or the partner made before the consummation of the conspiracy and in contemplation thereof, were admissible against both.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 994r-1002; Dec. Dig. § 253.*]</p> <p>8. Brokers (§ 82*) — Action por Commissions —Issues.</p> <p>Where a partner in a firm employed by an owner to procure a purchaser based his action for commissions on a cancellation of the contract of employment by the owner pursuant to conspiracy between him and the copartner to deprive the partner of the benefit of the contract, questions whether the copartner carried out his contract with the partner, and whether the firm was dissolved before or after the cancellation, were immaterial.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 82.*] .</p> <p>9. Brokers (§ 63*) — Employment—Cancellation op Contract.</p> <p>An owner, employing a firm to procure a purchaser subject to the right to cancel the contract on specified conditions, may not cancel the contract pursuant to conspiracy with a partner to deprive the copartner of the benefit thereof and then rely on circumstances authorizing a cancellation.</p> <p>[Ed. Note. — For other cases, see Brokers, Dec. Dig. § 63.*]</p> <p>10. Trial (§ 352*) — Special Issues —Requests.</p> <p>Where special issues requested by a party were written on the same paper, one immediately following the other, and some were palpably wrong, the court was justified in refusing to submit any of the issues.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-845; Dec. Dig. § 352.*]</p> <p>11. Brokers (§ 88*)— Contract op Employment— Cancellation — Fraud.</p> <p>Whether a contract employing a firm to procure a purchaser was canceled by the owner pursuant to a conspiracy with a partner to deprive the copartner of the benefit of the contract held under the evidence for the jury.</p> <p>[Ed. Note. — For other cases, • see Brokers, Dec. Dig. § 88.*]</p> <p>12. Appeal and Error (§ 1033*) — Harmless Error.</p> <p>Where a partner in a brokerage firm based his .action for commissions on a cancellation of the contract of employment by the owner pursuant to a conspiracy between himself and plaintiff’s copartner to deprive the partner of the benefit of the contract, and the facts established the conspiracy and showed the damage to the firm from the cancellation, the owner could not complain of a judgment for the partner for one-half of the loss sustained instead of a judgment for the whole amount of the loss in favor of the firm.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]</p> <p>13. Contribution (§ 5*) — Joint Wrongdoers.</p> <p>Where two persons fraudulently conspire to deprive another of the benefit of a contract causing damage to the latter, an action for the wrong could be prosecuted against one or both of the wrongdoers, and the court would not adjust the difference between the wrongdoers, since there can be no contribution between intentional joint wrongdoers.</p> <p>[Ed. Note. — For other cases, see Contribution, Cent. Dig. §§ 6^9; Dec. Dig. § 5.*]</p>

<p>1. Brokers (§§ 45, 54*) — Commissions — When Earned.</p> <p>A broker employed to procure a purchaser of real estate on terms specified, subject to the right of the owner to sell the property, must, to recover commissions, show that he procured a purchaser ready, willing, and able to buy on the terms specified, and the owner may in good faith withdraw the land from sale by the broker at any time and sell the land to a purchaser found by himself before the broker produces a purchaser accepting the terms of sale.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 46, 75-8Í; Dec. Dig. §§ 45, 54.*]</p> <p>2. Brokers (§.88*) — Instructions—Verdict.'</p> <p>Where, in an action by a broker for commissions, the court charged that if the owner promised the purchaser procured by the broker to give him until a subsequent date to decide whether he would accept the terms specified, and so informed the broker, and if in so doing the broker and owner contemplated that the purchaser should have the exclusive right until such date to purchase the land, the broker was entitled to recover, a verdict for the owner established that the two things specified in the instruction did not concur.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121-130; Dec. Dig.-§ 88.*]</p> <p>3. Frauds, Statute ox (§ 74*) — “Contract for Sale of Real Estate.”</p> <p>A parol agreement by an owner employing a broker to procure a purchaser, made with the purchaser procured by. the broker, to give the purchaser a specified time to decide whether he will accept the terms specified, is a “contract for the sale of real estate” within the statute of frauds (Rev. St. 1895, art. 2543, §4.)</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 122-131; Dec. Dig. § 74.*</p> <p>For other definitions, see Words and Phrases, vol. 2, p. 1530.]</p> <p>4. Vendor and Purchaser (§ 18*) — Contracts— Consideration.</p> <p>An agreement by an owner employing a broker to procure a purchaser, made with the purchaser procured by the broker, to give the purchaser time within which to decide whether he will purchase on specified terms, is merely an option contract, and is not supported by any consideration, and the owner mdy withdraw the promise at any time before acceptance by the purchaser of the terms proposed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 23; Dec. Dig. § 18.*]</p>

<p>Appeal from McCulloch County Court; Harvey Walker, Judge.</p> <p>Action by J. A. Adkins and others against J. S. Neal and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Railroads (§ 113*) — Construction — Tracks in Street — Rights of Adjoining Property Oivner.</p> <p>Where a railroad spur track was constructed in a public street, an owner of property fronting on the street could not recover damages therefor unless he showed an actual injury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 230, 351-364; Dec. Dig. § 113.*]</p> <p>2. Railroads (§ 114*) — Spur Track — Construction in Street — Adjoining Property Owner — Injuries—'Verdict.</p> <p>Where the evidence as to whether plaintiff’s property was injured or benefited by the construction of a railroad spur track in a street was conflicting, and that issue was the only one submitted to the jury which found for defendant, such verdict was in effect a special finding that plaintiff was not injured.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 365-371; Dec. Dig. § 114.*]</p>

<p>Appeal from District Court, Winkler County; S. J. Isaacs, Judge.</p> <p>Action by tbe Texas Moline Plow Company and another against Henry Clark and wife. Prom a judgment granting insufficient relief, plaintiffs appeal.</p>

Denton, Judge. Action by I. Rudman against the Pacific Express Company. Judgment for plaintiff, .and defendant appeals. ■ The appellee sued to recover damages for injury by fire to a collection of mink furs, alleged to have been caused through the negligence of the appellant company while being transported by it from St. Louis, Mo., to Bonham, Tex.

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>Action by Alfred Warren and others against Dan Warren. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Appeal and Error (§ 604*) — Record— Aoreement oe Parties.</p> <p>Where there was attached to a motion for certiorari, requiring the clerk of the trial court to certify to the court, on appeal, copies of instruments as part of the record, an agreement, signed by the attorneys, stipulating that the copies might be filed as a part of the transcript and considered on appeal as if originally included in the transcript, and copies were filed by the clerk, the copies will be considered as a part of the transcript.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2655-2659; Dec. Dig. § 604.*]</p> <p>2. Appeal and Error (§ 770*) — Motion eor Submission on Brief — Rules op Court.</p> <p>A motion by a defendant in error for submission on his brief, on the ground of the failure of plaintiff in error to file his brief, as required by the rules and law, cannot be considered, where it was not entered on the motion docket of the court on appeal, and notice thereof given, as required by the rules.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.*]</p> <p>3. Appeal and Error (§ 773*) — Submission on Brief of Defendant in Error — Af-firmance.</p> <p>Where defendant in error filed his brief and prayed for the submission of the cause on his brief, as authorized by court rule 42 (67 S. W. xvii), because of the failure of plaintiff in error to prepare the case for submission, except to file the transcript, and the brief and the record showed no reversible error, the judgment must be affirmed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]</p>

<p>Error to Uvalde County Court; T. M. Milam, Judge.</p> <p>Action by F. G. Bourland against G. N. Gibbens and another. There was a judgment for plaintiff, and defendant Gibbens brings error.</p>

<p>Appeal from Uvalde County Court; T. M. Milam, Judge.</p> <p>Action by F. 6. Bourland against G. B. Ketebum and another. From an order denying a motion of G. B. Ketebum for a new trial, on tbe ground that tbe service of process was void as to bim, be appeals.</p>

<p>Raileoads (§ 376*) — Injuries to Person on Track — Discovered Peril — Negligence.</p> <p>Trainmen, who discover the peril of a person lying on the track, must use the means at hand to prevent injury to him, and where they carelessly fail to do so, and the person is killed by the train, the company is liable.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dec. Dig. § 376.*]</p>

<p>Appeal from Washington County Court; Ed. R. Sinks, Judge.</p> <p>Action by S. S. King against the Brenham Autombile Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Garnishment (§ 248*) — 'Wrongful Issuance-Damages.</p> <p>Garnishment being a statutory remedy, where the grounds on which the writ is issued in fact exist, defendant cannot recover either actual or exemplary damages as for wrongful issuance thereof.</p> <p>[Ed. Note. — For other eases, see Garnishment, Cent. Dig. § 470; Dec. Dig. § 248.*]</p> <p>2. Malicious Prosecution (§ 13*) — Wrongful Issuance of Garnishment Writ.</p> <p>That garnishment writs were sued out maliciously and for the sole purpose of injuring defendant affords no cause of action where it is not claimed that the writs were wrongfully or unlawfully issued without probable cause, and the truth of the affidavit on which they were based is not impeached.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 13-15; Dee. Dig. § 13.*]</p> <p>3. Garnishment (§ 251*) — Wrongful Issuance-Exemplary Damages.</p> <p>Exemplary damages are not allowable for wrongful garnishment unless the writ was issued without probable cause and maliciously.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 471-475; Dec. Dig. § 251.*]</p> <p>4. Trial (§ 253*) — Instructions—Ignoring Issues.</p> <p>Where defendant pleaded improper issuance of garnishment writs by a cross-complaint, an instruction that if plaintiff sued out the writs for the purpose of collecting its debt, then the jury should find for plaintiff, was properly refused as ignoring defendant’s right to recover on its cross-action if the writs had been wrongfully issued without probable cause and maliciously.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>5. Garnishment (§ 248*) — Wrongful Issuance — Effect of Agreement.</p> <p>Where plaintiff in an action of debt sued out writs of garnishment, and defendant, by cross-action, claimed damages for the improper issuance of the writs, an alleged agreement by plaintiff to extend the time for payment of the claim, which defendant alleged had been violated, had no bearing on defendant’s right to recover damages for the unlawful suing out of the garnishment, if any.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 470; Dec. Dig. § 248.*]</p> <p>6. Evidence (§ 471*) — Conclusion of Witness.</p> <p>Where defendant, by cross-action, sought to recover damages for the alleged unlawful suing out of. garnishment writs, evidence that the suit had damaged defendant several times the amount involved therein was inadmissible as a conclusion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>7. Garnishment (§ 251*) — Wrongful Issuance-Evidence.</p> <p>Where defendant claimed garnishment writs were unlawfully sued out and demanded damages therefor, the court did not err in admitting in evidence the affidavits, bonds, writs, and answers in the garnishment cases.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 471-475; Dec. Dig. § 251.*]</p>

<p>1. Carriers (§ 373*) — Carriage oe Passengers — Ejection — Validity 03? Tickets — Agency.</p> <p>Where the agent of a terminal line refuses to validate a return ticket, and the passenger, by reason thereof, is ejected by the initial carrier who sold the ticket, the initial carrier is liable, the terminal agent being its agent for the purpose of validating tickets.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1461; Dec. Dig. § 373.*]</p> <p>2. Carriers (§ 356*) — Passengers — Ejection.</p> <p>The interstate commerce rules do not so peremptorily require validation of return tickets at the terminal point as to authorize the ejection of passengers because their tickets were not validated, where the want of validation was due to a refusal by the agent at the terminal point.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1409, 1410, 1423-1432; Dec. Dig. § 356.*] .</p> <p>3. Appeal and Error (§ 1062*) — Submission op Issues — Harmless Error.</p> <p>Where the right of passengers to recover for being ejected from a train because their tickets were not validated was established by proof that the agent at the terminal point had been given a reasonable opportunity to validate the tickets and had failed to do so, the action of the court in submitting to the jury the liability for refusal to validate at another point was not prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*]</p> <p>4. Appeal and Error (§ 1027*) — Assignments — Materiality.</p> <p>Assignments of error which, if sustained, could not change the result, were immaterial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4033; Dec. Dig. § 1027.*]</p> <p>5. Carriers (§ 381*) — Ejection op Passenger — Action—Evidence—Variance.</p> <p>Where, in an action for being ejected from a train, the plaintiffs’ pleading, alleged that upon their return to the depot it was raining ■and the streets were sloppy, evidence that the depot leaked was not inadmissible because there was no further allegation of any imperfection in the depot.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1473-1482; Dec. Dig. § 381.*]</p> <p>'6. Appeal and Error (§ 1050*) — Ejection op Passenger — Action—Evidence—Admission — Harmless Error.</p> <p>The admission of such evidence, if error, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*]</p> <p>7. Carriers (§ 381*) — Ejection op Passenger-Evidence.</p> <p>In an action by a female passenger for ejection, it being conceded that her ticket was good, but the defense being that she was not ejected, but got off voluntarily when her two companions were compelled to leave the train, their tickets being, on their face, invalid, a •question to plaintiff whether, if she could have remained on the train, she would have preferred to get off with her companions rather than pursue her journey, was properly excluded, her preference being wholly immaterial if she was in fact ejected.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1473-1482; Dec. Dig. § 381.*]</p> <p>8. Carriers (§ 382*) — Ejection prom Trains — Excessive Recovery.</p> <p>Where three ladies traveling without escorts were ejected from a train as interlopers, a recovery of $750 in each case was not excessive, though the actual delay and inconvenience was of short duration.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 382.*]</p>

<p>1. Justices oe the Peace (§ 174*) — Appeal-New Cause oe Action.</p> <p>Under Rev. St. 1895, art. 858, providing that on appeal from a justice’s court no new cause of action shall be set up by plaintiff, a plaintiff suing in justice’s court two defendants for negligence may not on appeal ask judgment against a third person negligently causing the injury.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]</p> <p>2. Justices oe the Peace (§ 174*) — Appeal —New Matter — Pleadin a.</p> <p>A plaintiff in justice’s court sued two defendants for the death of an animal by electric shock. At their request, a third person was made a party, on the ground that his negligence caused the injury. Judgment was rendered for plaintiff against defendants and in their favor against the third person. On appeal to the county court, plaintiff orally alleged that defendants were asking judgment over against the third person, and that, in the event he was guilty of negligence, plaintiff asked judgment against him. Held that, under Rev. St. 1895, art. 358, requiring that pleadings of new matter on appeal must be in writing, plaintiff could not recover against the third person, though the oral pleading sufficiently pleaded negligence.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]</p>

S. Arnold, Judge. Action between the Simmons Hardware Gompany and G. A. Adams. From the judgment, said company appealed, and said Adams moves to strike out its brief.

<p>1. Carriers (§ 227*) — Transportation of Cattle — Contributory Negligence — Special Plea.</p> <p>Since the duty of earing for cattle in transit is imposed on the shipper only by special contract, a carrier, when sued for damages to cattle in transit, was not entitled to claim immunity, because the shipper was negligent in failing to take care of the cattle while_ on the cars, and to feed and water them during rest periods, in the absence of a special plea raising such defense.</p> <p>[Ed. Note. — For other cases, see Carriers, Dec. Dig. § 227.*]</p> <p>2. Carriers (§ 230*) — Instructions—Pleading to Sustain.</p> <p>Where, in an action against a carrier for injuries to cattle in transit, it was agreed between counsel that defendant should be permitted to withdraw from its answer a paragraph, alleging that the cattle were shipped under a written contract requiring the shipper to load, unload, and reload the stock at his own risk, and to feed and care for them in transit, but that he failed to do so, and that any injury was caused by such failure, such allegation having been eliminated, the court erred in charging that, if plaintiff was negligent in failing to remain with his cattle, and such negligence caused injury to them, the jury should find for defendant.</p> <p>[Ed. Note. — For other eases, see Carriers, Dec. Dig. § 230.*]</p>

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>Action by Sam Levy against W. C. Persons and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1.Appeal and Error (§ 742*) — Assignments op Error — Statement.</p> <p>An assignment of error, complaining of the admission of evidence, but not supported by a statement enabling the court to understand its pertinency, need not be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Judgment (§ 686*) — Sales by Probate Court — Validity—Estoppel.</p> <p>Where the heirs of a decedent applied for an order for the sale of the real estate for partition, and receipted for their respective shares of the price, persons suing as heirs of such heirs to set aside the sale after a lapse of more than 50 years were estopped from asserting that no title passed by the sale, on the ground that the property was community estate.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1209; Dec. Dig. § 686.*]</p> <p>3. Executors and Administrators (§ 29*)— Sale por Partition — Collateral Attack.</p> <p>Where the administration of the estate of a decedent was opened in Jasper county, and Newton county was subsequently created, and the records of the administration were required by statute to be transferred to Newton county, it will be presumed, as against a collateral attack, that the administration was open when an administrator de bonis non was appointed by the probate court of Newton county, and when such probate court, on the petition of the administrator de bonis non and heirs, ordered a sale of the real estate of the decedent.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 177-182, 1411; Dec. Dig. § 29.*]</p> <p>4. Judgment (§ 475*) — Sale por Partition-Collateral Attack.</p> <p>A judgment of the probate court having authority, under the statute, to make partition, which orders a sale of land for partition, without the appointment of commissioners to first ascertain the fact that the land is incapable of division in kind, is not void and open to collateral attack, though probably erroneous; the court .being one of general jurisdiction in all matters pertaining to the administration of estates.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 910; Dec. Dig. § 475.*]</p>

<p>Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.</p> <p>Action by the First National Bank of Wellington, Tex., against Mrs. C. E. Bray and another. Judgment for plaintiff, and defendants , appeal.</p>

<p>Set-Oxf and Counterclaim (§ 29*) — Building Contracts — Actions—Counterclaim.</p> <p>Where a contractor to construct shelving and counters in a'store sued for the contract price, the owner could not set up a counterclaim for unliquidated damages for breach of contract for the building, made between him and a third person, and prior to the contract sued on as the damages were not founded on a cause of action arising out of, or incident to, or connected with, the cause of action sued on.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 49-51; Dec. Dig. § 29.*]</p>

<p>1. Judges (§ 45*) — Disqualification—-Relationship to Parties.</p> <p>That a county judge’s grandfather and plaintiff’s grandmother were brother and sister shows that the judge and plaintiff were connected by consanguinity within .the third degree, disqualifying the former to try the case.</p> <p>[Ed. Note. — Eor other cases, see Judges, Cent. Dig. §§ 20S-212; Dec. Dig. § 45.*]</p> <p>2. Appeal and Error (§ 1078*) — Assignments op Error — Abandonment—Failure to Copy in Brief.</p> <p>Under Court of Civil Appeals rule 29 (67 S. W. xv) assignments of error not copied in appellant’s brief are deemed abandoned.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*]</p> <p>3. Trial (§ 395*) — Findings — Refusal to Make.</p> <p>A trial court, in filing its findings of fact, need not set out the evidence upon which they are based; and it was not error to refuse to attach the entire statement of facts tendered by defendant as the court’s fact findings.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 927-934, 939; Dec. Dig. § 395.*]</p>

<p>Appeal from Calhoun County Court; Wil-lett Wilson, Judge.</p> <p>Action' by C. H. McCoy against Thomas Demetri. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Deaf Smith County Court; C. D. Wright, Judge.</p> <p>Action by Bert Applegate against the Northern Assurance Company of London. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error (§ 536*) — Requisites.</p> <p>A bill of exceptions is not sufficient, where it contains no order that it be filed or become part of the record, and where it does not clearly appear that it was presented or requested to be approved by the appellant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2402, 2403; Dec. Dig. § 536.*]</p> <p>2. Appeal and Error (§ 728*) — Contents.</p> <p>Where a bill of exceptions alleged error in the exclusion of evidence, some of which was admissible and some not, the good not having been separated from the bad by separate bills of exception, an entire assignment, based thereon, would be overruled.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3010-3012; Dec. Dig. § 728.*]</p> <p>3. Appeal and Error (§ 1056*) — Exclusion of Evidence — Prejudice.</p> <p>The erroneous exclusion of evidence was not prejudicial, where its admission could not have changed the legal conclusion reached on consideration of the entire case.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1056.*]</p> <p>4. Principal and Surety (§ 128*) — Discharge of Principal — Effect as to surety.</p> <p>Where defendant, who was the principal stockholder in a corporation, indorsed a note as the corporation’s surety for its benefit, and thereafter defendant participated in the making of a contract, by which a large part of the corporation’s indebtedness was compromised by a payment of 50 per cent., and knew that the holder of the note intended to retain its claim against him as surety for the balance due thereon, the discharge of the corporation did not relieve defendant from his liability as surety.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 356-365; Dec. Dig. § 128.*]</p>

Winfree, Judge. Action by Monroe Mask against the Louisiana & Texas Lumber Company. From a judgment of the county court, dismissing an appeal from a judgment for defendant, rehdered in justice’s court, plaintiff appeals.

<p>Appeal from Deaf Smith County Court; C. D. Wright, Judge.</p> <p>Action by the First National Bank of Hereford against G. W. McMillion. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Jasper County; W. B. Powell, Judge.</p> <p>Action by Wilson D. Wing against Button Red and others. From a judgment granting insufficient relief, plaintiff appeals.</p>

<p>Appeal and Error (§§ 680, 682*) — Questions Re viewable — Record .</p> <p>Where a petition, not amended, after the sustaining of a demurrer thereto, so as to meet the objections raised thereby, is not in the record, and the supplemental petition in the record does not state any cause of action, but merely replies to facts alleged in the answer, the court, on appeal from a judgment for defendant, may not review assignments of error complaining of the striking out of the supplemental petition, the sustaining of the demurrer to the petition, and the rendering of judgment for defendant, on the ground that the same was not based on any pleadings and not justified by the prayer of the defendant in his pleadings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2880-2882, 2885, 2886; Dec. Dig. §§ 680, 682.*]</p>

<p>1. Intoxicating Liquobs (§ 88*) — Civil Damages — Actions — Evidence — Admissibility.</p> <p>Under Acts 31st Leg. c. 17, § 15, requiring a liquor dealer to give a bond conditioned not to sell liquor to any habitual drunkard after notice in writing through a peace officer by the wife of the drunkard not to sell to him, a wife suing on the bond may prove ' that the dealer was notified not to sell by the direct testimony of the officer giving the notice.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 91-95; Dec. Dig. § 88.*] •</p> <p>2. Appeal and Eebob (§ 1052*) — Haemless Eeeoe — Ebboneous Admission oe Evidence.</p> <p>The error in admitting evidence on a trial before the court is harmless, where the court disregards it in finding the facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.*]</p> <p>3. Intoxicating Liquobs (§ 86*) — Civil Damages — Sale oe Liquoe to Habitual Dbunkabd — Notice—Time oe Sebvice.</p> <p>A bond of a liquor dealer conditioned, as required by Acts 31st Leg. e. 17, § 15, that he will not sell liquor to any habitual' drunkard after having been notified in writing by the wife of the drunkard not to sell to him, is breached by a sale made at any time, however short, after notice has been given in the statutory manner.</p> <p>[Ecf. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 89.; Dec. Dig. § 86.*]</p> <p>4. Intoxicating Liquors (§ 88*) — Civil Damages — Actions—Evidence.</p> <p>In an action on a liquor dealer’s bond for the selling by the dealer of liquor to an habitual drunkard after a written notice by his wife through a peace officer not to sell, the evidence. held- to sufficiently show that written notice had been given by the wife to the dealer through an officer, justifying a recovery.</p> <p>[Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. §§ 91-95; Dee. Dig. § 88.*]</p>

<p>Appeal from Nolan County Court; John J. Ford, Judge.</p> <p>Action by E. A. Linn against B. A. Tram-mell and another. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Jefferson County; W. H. Pope, Judge.</p> <p>Habeas corpus by Phil V. Hall against Mrs. E. D. Whipple. Prom a judgment denying petitioner the custody of his minor child, he appeals.</p>

<p>Appeal from Uvalde County Court; T. M. Milam, Judge.</p> <p>Action by Mat Burney against the City of Uvalde. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by Henry Maibaum against the Bee Candy Manufacturing Company. Judgment for defendant. Plaintiff appeals.</p>

<p>1. Telegraphs and Telephones (§ 37*) — Message — Nondelivery — Notice op Importance.</p> <p>A telegram reading: “Cannot sell to trade over ninety cents to one dollar. If satisfactory ship minimum car quick this basis” — gave notice on its face that it concerned the shipment of some article which might require immediate attention.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. § 37.*]</p> <p>2. Telegraphs and Telephones (§ 70*)— Nondelivery op Message — Damages — Measure — Loss op Perishable Articles.</p> <p>The measure of damages for failure to deliver a telegram, whereby a party lost an opportunity to sell a car of sweet potatoes, which rotted on hand as a result, was their value at the time and place of delivery, with interest, less the proper charges for transportation.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 71; Dec. Dig. § 70.*]</p> <p>3. Telegraphs and Telephones (§ 66*)— Nondelivery op Message — Actions—Evidence — Suppiciency.</p> <p>In an action to recover for loss of a sale of sweet potatoes from failure to deliver a telegram, evidence held sufficient to sustain a finding that the plaintiff used due diligence to otherwise dispose of them before they rotted.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]</p> <p>4. Telegraphs and Telephones (§ 67*)— Message — Failure to Deliver — Contemplated Damages.</p> <p>Where a telegram which was not delivered gave notice on its face that it related to the disposition to be made of some article needing immediate attention, the loss of a car of sweet potatoes from decay was a direct consequence reasonably to be contemplated by the telegraph company from its failure to deliver the telegram.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. § 67.*]</p> <p>5. Damages (§' 62*) — Nondelivery op Telegram — Mitigation—Duty.</p> <p>Where a party lost the sale of a car of sweet potatoes by a telegraph company’s failure to deliver a telegram, the rule, requiring one to make a reasonable effort to avoid and mitigate a loss, did not require him to ship the potatoes to be handled on commission, or to dispose of them otherwise than to actual purchasers.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §| 119-132; Dec. Dig. § 62.*]</p> <p>6. Damages (§ 62*) — Nondelivery op Telegram — Mitigation—Duty.</p> <p>Where the potatoes spoiled before he learned that the telegram had not been delivered, such rule was inapplicable.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 119-132; Dec. Dig. § 62.*]</p> <p>7. Telegraphs and Telephones (§ 66*)— Nondelivery op Message — Damages—Expenses — Presumption.</p> <p>In determining the amount of recovery for loss of perishable produce from failure to deliver a telegram, there was no presumption that the plaintiff would have been to any expense in getting the produce from his farm and loading it for shipment.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]</p>

W. Dean, Judge. Trespass to try title by B. S. Mangum and others against R. O. Kenley and others. From a judgment for defendants on a directed verdict, plaintiffs appeal.

<p>Appeal from Collingsworth County Court;. L. D. Miller, Judge.</p> <p>Action by the Panhandle Land Company against T. E. Benge. Judgment for plaintiff, and defendant appeals. On motion to-affirm on certificate.</p>

<p>Appeal from District Court, Potter County; J. N. Browning, Judge.</p> <p>Action by W. D. Twichell against the Pecos & Northern Texas Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Archer County ; A. H. Carrigan, Judge.</p> <p>Action by Rial Creason and others against J. E. Clifton and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Action by A. Baldacchi and others against J. W. Goodlet, Notary Public, arid another. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Intoxicating Liquobs (§ 108*)—License ' — Cancellation — Affidavit — Sufficiency-Notice.</p> <p>An affidavit, stating that a certain person had a retail license to sell liquor at a certain place on a certain date, and that on such date, at a prohibited time, he sold liquor, in violation of Acts 31st Leg. c. 17, § 14, which prohibits the sale of intoxicating liquors between midnight Saturday and 5 a. m. Monday, was sufficient to authorize the county court to issue the notice provided for in section 8, informing him, in effect, that the matter of canceling Ms license would be heard at a certain time.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 116-118; Dec. Dig. § 108.*]</p> <p>2. Certiorari (§ 12*) — Where Lies — Proceedings to Cancel Liquor License.</p> <p>Under.Const, art. 5, § 8, providing that a writ of certiorari may issue from a superior court to an inferior court of record, but not authorizing the issuance of the writ to other than a court exercising judicial functions, »a district court has no jurisdiction to remove before it, by certiorari, proceedings by a county judge to cancel a liquor license; such proceedings being administrative or ministerial, and not judicial.</p> <p>[Ed. Note. — For other cases, see Certiorari, Cent. Dig. § 18; Dec. Dig. § 12.*]</p> <p>8. Intoxicating Liquors (§ 106*) — License —Nature.</p> <p>A liquor license is a revocable privilege, and not a property right.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 113, 115; Dec. Dig. § 106.*]</p>

<p>Appeal from District Court, El Paso County; James R. Harper, Judge.</p> <p>Joe Elva was "convicted of horse theft, and he appeals.</p>

<p>Appeal from Nueces County Court; Walter F. Timón, Judge.</p> <p>Jose Gavinia was convicted of crime, and he appeals.</p>

<p>Appeal from Nueces County Court; Walter F. Timón, Judge.</p> <p>Jose Hernandez was convicted of crime, and he appeals.</p>

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Application by John Teague for admission to bail. Prom a judgment fixing the bond in the sum of $5,000, he appeals.</p>

<p>Criminal Law (§ 1090*) — Appeal — Motion por New Trial — Review—Absence of Evidence.</p> <p>Grounds of a motion for a new trial cannot be considered on appeal, in the absence of a statement of facts or bill of exceptions.</p> <p>TEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803-2861, 2919, 3201; Dec. Dig. § 1090.*]</p>

<p>1. Corporations (§ 642*) — Foreign Corporations — Service op Process — Agents.</p> <p>A foreign railroad corporation which sends its trains over a line of road into the state without any change of crew, and which employs such crew to take the train out of the state, and which has an agent in the state to make contracts to transport freight over its line, does business in the state, within Mcllwaine’s Dig. art'. 1223a (Acts 29th Leg. c. 25), providing for the service of process on foreign corporations.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. § 642.*]</p> <p>2. Continuance (§ 7*) — Appeal and Error (§ 966*) — Application por Continuance— Discretion op Trial Court.</p> <p>The overruling of a motion for a continuance, which is not a statutory one, is within the discretion of the trial court, and will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 17, 18; Dec. Dig. §. 7;* Appeal and Error, Cent. Dig. § 3837; Dec. Dig. § 966.*]</p> <p>3. Carriers (§ 230*) — Carriage op Freight —Liability op Connecting Carrier.</p> <p>In an action against the initial and connecting carriers for injuries to a shipment of live stock, evidence held to justify submission to the jury of the issue of the negligence of the connecting carrier causing the injuries complained of.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. p 961, 962; Dec. Dig. § 230.*]</p> <p>4. Carriers (§ 177*) — Interstate Shipment —Actions under Hepburn Act — Parties.</p> <p>A shipper of an interstate shipment may sue, under the Hepburn Act (Act June 29, 1906, c'. 3591, 34 Stat. 584 [ü. S. Comp. St. Supp. 1909, p. 1149]), the initial carrier receiving the shipment and executing the bill of lading; and the fact that he joins the connecting carriers does not affect his right to recover the whole damages from the initial carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.*]</p> <p>5. Appeal and Error (§ 719*) — Fundamental Error — Assignment op Error.</p> <p>Where, in an action against the initial and connecting carriers for damages to a shipment of live stock, judgment as authorised by the evidence was rendered against the initial carrier in favor of the shipper, and against the connecting carrier in favor of the initial carrier for the damages incurred on the connecting carrier’s line, an error in the judgment as to liability for costs was not fundamental, and will not be considered, in the absence of any assignment of error. «</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.*]</p> <p>On Motion for Rehearing.</p> <p>6. Corporations (§ 668*) — Foreign Corporations — Service of Process — “Agent.”</p> <p>A resident who makes contracts for the transportation of freight over the lines of a foreign corporation doing business in the state is an “agent” of the corporation, within Mc-Ilwaine’s Dig. art 1223a (Acts 29th Leg. c. 25), authorizing service of process on any agent contracting for the transportation of freight over the line of any foreign railroad corporation doing business in the state.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. § 668.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 262-270; vol. 8, p. 7569.]</p> <p>7. Corporations (§ 668*) — Foreign Corporations — Service op Process — ‘ ‘Any Agent.”</p> <p>The words “any agent” in Mcllwaine’s Dig. art. 1223a (Acts 29th Leg. c. 25), authorizing service of process on any agent making contracts for the transportation of passengers or freight over the line of railway of any foreign corporation doing business in the state, mean any agent who sells tickets or makes contracts of transportation over the line of a foreign railroad; and the section, so construed, provides for service in addition to the means provided by article 1223, providing for the service on enumerated officers of foreign corporations.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. § 668.*</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 412-433; vol. 8, pp. 7575-7577.]</p>

<p>Appeal from District Court, Harris County.</p> <p>Trespass to try title by H. Masterson against Sarah Harrington and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Judgment (§ 17*) — :Process—Identity of Names.</p> <p>A default judgment against the “Mecca Fire Insurance Company (Mutual) _ of Waco, Tex.,” cannot be sustained on citation to the “Mecca Fire Insurance Company of Waco, Tex.,” in the absence of allegation that the corporation used the two names indifferently.</p> <p>[Ed.' Note. — For other cases, see Judgment, Cent. Dig. §§ 25-33, 157, 422; Dee. Dig. § 17.*J</p> <p>2. Pleading (§ 310*) — Action on Policy-Exhibits.</p> <p>A fire policy attached as an exhibit to the petition in a suit thereon cannot be looked to, to supply by inference the fact that the insurance company used two names indifferently to designate itself.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 944, 946, 947; Dec. Dig. § 310.*)</p>

<p>1. Contracts (§ 95*) — “Duress.”</p> <p>“Duress” of property which will constitute a defense to a contract induced thereby must be such pressure or constraint upon the property as to take away the free agency of the person contracting; and where one threatens nothing that he has not a legal right to perform there is no duress.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 431-440; Dec. Dig. § 95.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2268-2278; vol. 8, p. 7645.]</p> <p>2. Carriers (§ 218*) — Shipment op Live Stock — Limitation of Liability — Duress.</p> <p>Though a written release, signed by the agents of shippers of cattle and extending the time for unloading, fixed by acts of Congress at 28 hours, to 36 hours, was induced by statements of a conductor that there were no adequate pens for unloading, but that, unless the release was signed, the cattle would be unloaded anyway, there was no such duress of the property as will avoid the effect of the release given.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674^696, 927, 928, 933-949; Dec. Dig. § 218.*]</p> <p>3. Contracts (§ 100*)— Instructions — Province of Court and Jury — Duress.</p> <p>What constitutes duress, invalidating a contract, is a question of law for the court; and whether facts sufficient to constitute it exist is for the jury.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 454; Dec. Dig. § 100.*]</p>

<p>Appeal from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Action by W. H. Gibson against the Singer Sewing Machine Company, in which, plaintiff appealed from an adverse judgment. On motion to dismiss appeal.</p>

<p>Appeal from El Paso County Court; Albert S. Eylar, Judge.</p> <p>Action by Galles & Bowie against P. T. Alarcon. From a judgment for defendant, plaintiff appeals.</p>

<p>Insurance (S 455*) — Accident Insurance— Death by Sunstroke — “Externad, Violent, and Accidental Means.”</p> <p>The death of a person by sunstroke, caused by his exposure to the sun and humid atmosphere on a hot day while pursuing his usual avocation in his ordinary way, is not caused by sunstroke due to “external, violent, and accidental means,” within an accident policy insuring against death by sunstroke due to external, violent, and accidental means.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1166-1169; Dec. Dig. § 455.* For other definitions, see Words and Phrases, vol. 3, pp. 2619, 2620.]</p>

<p>Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.</p> <p>Action by N. E. Campbell against E. J. Campbell. From the judgment, plaintiff appeals.</p>

<p>1. Schools ano School Districts (§ 24*)— Creation of Districts — Collateral Attack.</p> <p>Where creation of a school district is authorized by statute, and it has been organized under color of such authority, its corporate existence and rights of its trustees to exercise their functions cannot be collaterally attacked, on allegations of mere irregularity in its or-jganizaticm; but in sucb case the incorporation must be questioned by suit in the name of the ■state, or, under authority of the state, by some individual having a special interest affected by •existence of the corporation.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 42, 45, 47-49; Dec. Dig. § 24.*]</p> <p>2. Schools and School Districts (§ 27*)— ORGANIZATION — 1TOWN OF 200 INHABITANTS —CONCLUSIVENESS OF FINDING.</p> <p>Under a statute requiring that, before the ■county judge may order an election on the question of incorporation of territory as an independent school district, satisfactory proof must be made to him of there being a town of 200 inhabitants, and making no provisions for revision of his finding thereon, such finding is ■conclusive, especially in the absence of allegation of fraud on his part, which is not made by allegation that there was no town of such population in such territory, and that no evidence was introduced that there was one.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 45; Dec. Dig. § 27*1</p> <p>3. Appeal and Error (§ 1029*) — Harmless Error.</p> <p>Plaintiffs, not being entitled to maintain the suit, may not complain of any error in answers to question of law.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4035, 4038; Dec. Dig. § 1029.*] '</p> <p>4. Schools and School Districts (§ 27*)— Creation of District — Inaccuracies in Field Notes and Map of Survey.</p> <p>Inaccuracy in the field notes of a survey for creation of a school district, and a corresponding inaccuracy in the map made by the surveyor, arising from his understanding the statement that the point to which he had surveyed was R.’s corner, as one that he was at the corner of R.’s survey, and which may be cured by rejecting as surplusage the words, .after a call for course and distance, “to the :S. E. corner of R.’s survey” does not render void the incorporation of the school district.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 45; Dec. Dig. § 27.*]</p> <p>5. Appeal and Error (§ 747*).</p> <p>A cross-assignment error contained in ap-pellees’ brief may not be considered; the record not showing the assignment was filed in the trial court, and neither brief appearing to.have been filed there.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3057; Dec. Dig. § 747.*]</p>

<p>1. Appeal and Eeeoe (§ 512*) — Recoed—Suf-ficiency-Jurisdiction.</p> <p>The Court of Civil Appeals has no jurisdiction of a case originating in the justice court and- coming from the county court, where the record does not show how it reached the county court, and the amount involved is -insufficient to confer original jurisdiction upon that court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2326; Dec. Dig. § 512 ;* Justices of the Peace, Cent. Dig. § 753.]</p> <p>2. Appeal and Ebkor (§ 80*) — Decisions Reviewable — Finality op Judgment.</p> <p>Where the record shows that defendant filed a plea in reeonvention in the trial conrt to recover damages against the plaintiff, but fails to show that the issue presented thereby was disposed of, the appeal null be dismissed, since the judgment appealed from was not final.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 450, 456, 457, 494-509; Dec. Dig. § 80.*]</p>

<p>Appeal from Archer County Court; C. H. Henley, Judge. '</p> <p>Action by W. E. Burgess against the Young County Abstract & Title Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>■ Action by Ed Osteen against the Dallas Consolidated Electric Street Railway Com: pany. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and Error (§ 1050*) — Haemless Error — Erroneous Admission op Evidence.</p> <p>When a carrier did not complain of the: verdict against it for damages for delay in transporting live stock, the error, if any, in admitting evidence as to time, is not prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*]</p> <p>2. Evidence (§ 317*) — Hearsay Evidence.</p> <p>Where the evidence showed that cattle arrived at the point of destination at 6:50 a. m., and the person accompanying the stock testified that he turned the same over to a commission merchant about 8 o’clock a. m., and saw the stock in the pens of the commission merchant at about noon, the testimony of a salesman of the commission merchant as to the condition of the stock at the time of its arrival, accompanied by his statement that he first saw the stock about 8 o’clock at th'e sale pens of the commission merchant, was not objectionable as hearsay, it being probable that the stock remained on the car when the salesman first saw it.</p> <p>[Ed. Note. — F'or other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]</p> <p>3. Evidence (§ 317*) — Hearsay Evidence.</p> <p>Where the testimony of a witness testifying to the condition of live stock at the point of destination might have been based on information binding the carrier charged with negligence in transporting the stock, the testimony was not objectionable as hearsay though the witness could not testify from his own personal observation.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dee. Dig. § 317.*]</p> <p>4. Depositions (§ 110*) — Evidence—Objections.</p> <p>Where a witness testified by deposition and a written objection to an entire interrogatory, and the answer thereto did not point out what part was objected to, and the greater part of the answer was admissible as a statement of facts within the personal knowledge of the witness, the objection was properly overruled.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 323-328y2; Dec. Dig. § 110.*]</p> <p>5. Evidence (§ 537*) — Expert Testimony— Competency oe Witnesses.</p> <p>A person ivitli 10 years’ experience in selling stock at a market, and with 15 years’ experience in handling and dealing with cattle generally in different capacities at the market, is competent to testify that a shipment of cattle was not in good condition when he saw them, and that the cattle were jaded and looked as if they had been on cars an excessive length of time.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2345, 2346; Dec. Dig. § 537.*]</p> <p>6. CARRIERS (§ 21S*) — CONTBAOT OE CARRIAGE —Validity.</p> <p>A stipulation in a contract for the transportation of live stock that the shipper will load, feed, and water the stock and unload and reload at feeding and transfer points, and will care for the stock while in cars and will relieve the carrier from liability for any loss while in his charge, is void as against public policy because limiting the carrier’s common-law liability.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent.'Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.*]</p> <p>7. GaBEIEBS (§ 228*) — TRANSPORTATION OE Live Stock — Actions eoe Injuries — Burden op Pbooe.</p> <p>A carrier of cattle has the burden of proving that a loss of cattle was not caused by its .negligence, though the shipper accompanied the cattle.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.*]</p>

<p>1. Carriers (§ 356*) — Passengers—Ejection.</p> <p>Trainmen have no right to eject, or threaten to eject, a passenger who has been advised by the carrier’s agent that her ticket is good on that train, though the ticket be stamped otherwise.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1400, 1410, 1423-1432; Dec. Dig. § 356.*]</p> <p>2. Evidence (§ 471*) — Admissibility— Opinions.</p> <p>In- an action against a railroad company for threatening to eject a passenger, it was proper to ask the conductor what he would have done if plaintiff’s fare had not been paid.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>.3. Appeal and Error (§ 1048*) — Habmless Ebrok — Admission of Evidence.</p> <p>In an action against a railroad company for threatening to eject a passenger, any error in permitting counsel to ask the conductor what he would have done if plaintiff’s fare had not been paid was harmless, where he answered -that he did not know.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dee. Dig. § 1048.*]</p>

<p>Error to Bexar County Court; Phil H. Shook, Judge.</p> <p>Action between Refugia Rodriguez and the American National Insurance Company. There was a judgment for the former, and the latter brings error.</p>

<p>Appeal from District Court, Coleman County; J'. P. Ledbetter, Special Judge.</p> <p>Action by Mrs. Adelle Wilson against H. Gr. Wall. From a judgment for plaintiff, defendant appeals.</p>

Error from District Court, Stonewall County; Cullen C. Higgins, Judge. Trespass to try title by Della Oliver and others against Charles Bordner. Judgment for defendant, and plaintiffs bring error.

<p>1. Homestead (§ 31*)— Separation of Husband and Wins — Effect.</p> <p>A husband abandoned his wife in another state, and, with his children, removed to this state, where he purchased land upon which he lived with the children for about 15 months. The wife did not know where the husband was, and did not learn of the purchase of the land until after it had been sold to a third party. Held, that the acts of the husband showed an intention to impress the land with the character of a homestead, and that the wife had a homestead right therein.</p> <p>[Ed. Note. — For other eases, see Homestead, Cent. Dig. § 39; Dec. Dig. § 31.*]</p> <p>2. Homestead (§ 117*) — 1Transfer by Husband — Effect.</p> <p>The conveyance of land by a husband without the concurrence of the wife is absolutely void, and passes no title.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 191-202; Dec. Dig. § 117.*]</p>

<p>Appeal from District Court, De Witt County; John M. Green, Judge.</p> <p>Action for an injunction by Charles A. Sehlinke against De Witt County and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Ciiattel Mortgages (§ 217*) — Effect of Removal.</p> <p>Where a chattel mortgage is recorded as required by statute in the county where the chattels are situated, their subsequent removal from that county without the consent of the mortgagee does not invalidate the mortgage.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 221, 466; Dec. Dig. § 217.*]</p>

<p>1. Master and Servant (§ 129*) — Injury to Servant — Negligence—Proximate Cause.</p> <p>The foreman of a switching crew was injured by collision of an engine on which he was riding with a horse on the track. The railroad allowed bushes to grow up on its right of way. The horse on leaving the bushes and approaching- the track and climbing up the embankment to the track was in view of the trainmen. The foreman saw the horse in time to avoid a collision, and signaled the engineer to stop, but he misunderstood the signal, and increased the speed of the engine, until it collided with the horse. Held,, that the proximate cause of the accident was not the existence of the bushes, which were but a mere condition.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]</p> <p>2. Master and Servant (§ 129*) — Injury to Servant — Proximate Cause.</p> <p>An employe suing for a personal injury must prove negligence proximately causing the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]</p> <p>3.Appeal and Error (§ 1031*) — Erroneous Instructions — Emtect.</p> <p>Where the court on appeal cannot say that the jury did not base its verdict on an erroneous paragraph of the charge, the error is reversible.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4038-4046; Dec. Dig. § 1031.*]</p> <p>4.Master and Servant (§ 228*) — Injury to Servant — Contributory Negligence — Statutes.</p> <p>Act April 13, 1909 (Acts 31st Leg. [1st Ex. Sess.] c. 10), relating to contributory negligence, in force at the time of an injury to an employé and at the time of the trial, controls the defense of contributory negligence.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.*]</p>

<p>Appeal from District Court, Wichita County; P. A. Martin, Judge.</p> <p>Action by J. A. Presley against the Ft. Worth & Denver City Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Action by Wesley Peacock against C. S. Vidor. From judgment for plaintiff, defendant appeals.</p>

C. Scott, Judge. Certiorari by Mary Wade and another against J. W. Scott and others to vacate orders of the county court in the settlement of the estate of W. H. Scott, deceased. From a judgment granting insufficient relief, plaintiffs appeal.

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by B. F. Rose against the Stag Canon Fuel Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.</p> <p>Action by J. R. Jameson against W. E. O’Neall, W. H. Boykin, and others. From a judgment for defendant Boykin, plaintiff appeals.</p>

Daviss, Judge. Action for divorce by Carrie B: Shook against J. O. Shook. From a judgment modifying the report of commissioners appointed to partition the community property, plaintiff appeals.

Denton, Judge. Action by the Bank of Garvin against P. B. Freeman and others, in which defendant E. D. Steger filed a cross-action. From a judgment for plaintiff against defendants, and in favor of E. D. Steger against defendant P. R. Freeman, the latter appeals.

<p>1. Appeal and Error (§ 719*) — Assignments of Error — Necessity.</p> <p>Admission of secondary evidence of the execution and contents of deeds without preliminary proof of the loss of the originals is not fundamental error apparent of record reviewable without an assignment of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982; Dec. Dig. § 719.*]</p> <p>2. Evidence (§ 183*) — Secondary Evidence —Lost Deeds.</p> <p>Where the evidence showed that deeds were lost, failure to prove by a recorder who had them in his official custody many years before, or what he did with them after recording them, did not preclude secondary evidence as to their execution and contents.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 605-637; Dec. Dig. § 183.*]</p> <p>3. Evidence (§ 186*) — Secondary Evidence —Copies of Copies.</p> <p>■Generally, copies of copies are not admissible as secondary evidence of the contents of the original instruments.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 64, 661-673; Dec. Dig. § 186.*]</p> <p>4. Evidence (§ 347*) — Records — Copies— Other States.</p> <p>The Texas statute, which authorizes the introduction in evidence of a certified copy of a deed, applies only to deeds properly recorded in Texas, and not to copies of deeds recorded in other states conveying land in Texas.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1361-1383; Dec. Dig. § 347.*]</p> <p>5. Evidence (§ 347*) — Copies of Records— Other States.</p> <p>Examined copies of deeds as recorded in another state were admissible to show that the records contained purported copies of the deeds now lost.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1361-1383; Dec. Dig. § 347.*]</p> <p>6. Trespass (§ 46*) — Damages—Willfulness — Evidence—Sufficiency.</p> <p>Evidence, in an action for taking timber, held, to warrant a finding that the taking was willful, as affecting plaintiff’s right to recover the value of the timber in its manufactured state.</p> <p>[Ed. Note. — For other cases, see Trespass, Cent. Dig. §§ 123-127; Dec. Dig. § 46.*]</p> <p>7. Trespass (§ 52*) — Taking of Timber-Damages.</p> <p>One recovering for a willful and wrongful taking of timber is entitled to recover its value in its manufactured state, e. g., where the timber is manufactured into staves.</p> <p>[Ed. Note — For other cases, see Trespass, Cent. Dig. §§ 137, 138; Dec. Dig. § 52.*]</p> <p>8. Trial (§ 328*) — 'Verdict—Sufficiency.</p> <p>A verdict awarding land to plaintiff and giving him specified damages, in a suit against five defendants, was good as a verdict against two only, where the pleadings and instruction clearly showed that recovery for the timber was sought only against theta.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 771-773; Dec. Dig. § 328.*]</p> <p>9. Damages (§ 228*) — Remittitur—Time for Filing.</p> <p>Remittitur by a successful plaintiff can be filed and acted upon before as well as after entry of the judgment.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 576-579; Dec. Dig. § 228.*]</p> <p>10. Appeal and Error (§ 877*) — Parties.</p> <p>An appellant is not entitled to review of a judgment over against a codefendant not made a party to the appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.*]</p>

Action by the First National Bank of Nav-asota against the First State Bank of Montgomery and another. From a judgment for plaintiff, defendant named appeals.

<p>Appeal ■ from District Court, Bexar County; Edward Dwyer, Judge.</p> <p>. Action by Frank Grasbel against T. J. Freeman, as receiver of the International & Great Northern Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Navarro County; H. B. Davis, Judge.</p> <p>Action by J. O. Shook against Carrie B. Shook. From a judgment for defendant on a demurrer to the petition, plaintiff appeals.</p>

L. Shepherd, Judge. Action by the State Savings Bank of Manchester, Iowa, against E. K. Bolt, O. Yoss, and others. From a judgment against all of the defendants except C. Voss on a directed verdict, they appeal.

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Trespass to try title by Josephine Crosby against Theo. W. Ardoin and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Fkaud, Statute of (§ 33*) — Promise to Answer for Debt of Another.</p> <p>Where, as a part of the consideration for the purchase of property, the purchaser assumed and agreed to pay certain notes,_ he cannot assert that his agreement was within the statute of frauds, as a parting with title to-property, in reliance on the promise, rendered the debt the original obligation of the purchaser.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. § 33.*]</p> <p>2. Pleading (§ 149*) — Cross-Complaint— Adoption of Complaint.</p> <p>Certain defendants, in an action on a note, properly adopted the allegations of the plaintiff’s complaint as a cross-action against another defendant, who assumed payment of the note.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. § 301; Dec. Dig. § 149.*]</p> <p>3. Principal and Surety (§ 14*) — Novation (§ 7*) — Substitution of New Debtor — Effect on Former Principals. .</p> <p>A contract to assume a balance due on a note upon the purchase of á business, without consent of the holder of the note, would not release the original obligors, though, as between them and the person assuming the debt, they became sureties only.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. § 33; Dec. Dig. § 14;* Novation, Cent. Dig. § 7; Dec. Dig. § 7.*]</p> <p>4. Novation (§ 12*) —Substitution of Debtor — Evidence.</p> <p>Where, in an action on a note, there was a conflict of evidence as to which of a number of notes one made a defendant had assumed to pay under a contract by which he purchased a certain business, testimony of the value and kind of the property purchased was admissible to show what was actually paid or agreed to be paid therefor.</p> <p>[Ed. Note. — For other cases, see Novation, Cent. Dig. § 12; Dee. Dig. § 12.*]</p> <p>5. Bills and Notes (§ 489*) — Actions—Variance — Materiality.</p> <p>Where the complaint on a note described the note as payable to H. and A., and alleged that H. and A. indorsed it to plaintiff, while the indorsement on the note was “H. & A.,” evidence showing that the note was sold to plaintiff by H., and by bim indorsed in the firm name, was not a material variance.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1587-1642; Dec. Dig'. § 489.*]</p> <p>6. Appeal and Error (§ 714*) — Reservation of Grounds — Statement of Facts.</p> <p>Where there is a statement of facts in the record which was agreed to by counsel and approved by the trial jud^e, it may be looked to to determine whether, in the light of facts there shown, error assigned and shown by bill of exceptions was reversible.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2958-2963; Dec. Dig. § 714.*]</p> <p>7. Appeal and Error (§ 1051*) — Harmless Error.</p> <p>In an action on a note, payment of which a defendant was alleged to have assumed, the refusal to admit as res geste testimony of such defendant’s declarations, made at the time the agreement of assumption was claimed to have been entered into, showing that he did not intend to assume the particular note, was harmless, where other witnesses were allowed to testify as to such facts, and no issue was raised by the evidence as to such question.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>8. Evidence (§ 123*) —Declarations—Res Gestae.</p> <p>Declarations of a defendant, alleged to have assumed payment of the note sued on, made immediately after the making of the alleged contract of assumption, and expressing an intention not to assume the note, are inadmissible as res geste, where made a't a different place than that at which the contract was made, and after a difference of opinion as to whether the note had’ been assumed had arisen.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. §§ 351-368; Dec. Dig. § 123.*]</p> <p>9. Appeal and Error. (§ 1039*) — Harmless Error — .Variance.</p> <p>Though a complaint in an action on a note alleged that a defendant was liable thereon under a contract of assumption made with two persons, and the evidence showed that the contract was made with only one of them, the variance could have been removed on the trial by amendment, and could not have misled the defendant, it was not ground for reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. § 1039.*]</p>

<p>Appeal from Wharton County Court; J. R. Bowen, Judge.</p> <p>Suit by H. A. Cline and others against J. C. Hillsman and others. Decree perpetuating an injunction and defendants appeal.</p>

<p>Appeal from Swisher County Court; W. F. Hendrix, Judge.</p> <p>Action by T. A. Gray and another against the Pecos & Northern Texas Railway Company and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Kaufmau County Court; Thos. R. Bond, Judge.</p> <p>Action by H. Rackusin against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Account, Action on (§ 12*) — Verified Account — Effect.</p> <p>Where a verified account is denied by defendant under oath, plaintiff must establish his cause of action as in ordinary cases.</p> <p>[Ed. Note. — For other cases, see Account, Action on, Cent. Dig. § 37; Dec. Dig. § 12.*]</p> <p>2. Sales (§ 179*) — Actions — Remedies oe Buyer.</p> <p>While purchaser of lumber may, upon discovering that the lumber tendered for delivery does not comply with the terms of the contract, rescind the contract, he may also waive the breach, retain the goods, and hold the seller for the defect; but he cannot retain the property and refuse any compensation therefor, though not intending to receive the lumber delivered as in full compliance with the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 456-468; Dec. Dig. § 179.*]</p>

T. Simmons, Judge. Action by John Scott against the City of Ft. Worth and another. From judgment for plaintiff against both defendants, the City of Ft. Worth appeals.

Supreme Judicial District. Action by Mrs. Cora Camp against the Commerce Cotton Oil Company. From a judgment of the Court of Civil Appeals for the Fifth District (129 S. W. 852), affirming judgment for plaintiff, defendant brings error.

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

<p>Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.</p> <p>Stennit Hamil was convicted of crime, and appeals.</p>

<p>1. Criminal Law (§ 598*) — Continuance-Diligence.</p> <p>Where'accused at a former trial did not issue process for witnesses for whose absence he claimed a continuance on the second trial,' and, there having been a mistrial, he issued process for the witnesses two or three days after the first jury was discharged, the diligence was insufficient to require the granting of the motion.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dee. Dig. § 598.*]</p> <p>2. Criminal Law (§ 596*)— Continuance— Absent Witnesses — Cumulative Evidence.</p> <p>On a first application for a continuance because of the absence of material witnesses, the fact that their testimony was cumulative would not authorize the denial of the motion.</p> <p>[Ed. Note. — For other cases, 'see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.*]</p> <p>3. Criminal Law (§ 595*) —Appeal—Continuance — Denial.</p> <p>It was not error to deny a continuance for the absence of witnesses by whom accused expected to prove threats against his life, where accused, as a witness in his own behalf, did not testify that such threats had been communicated to him.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1323-1327; Dec. Dig. § 595.*]</p> <p>4. Witnesses (§ 240*) — Examination — Leading Questions.</p> <p>A witness was asked, “Now tell the jury whether or not either [oi; two persons named] attempted or - did anything toward him [decedent],” and “Did they have anything in their hands?” “Did you have anything?” “Did you attempt to do anything?” which were each answered in the negative. Held, that the questions wore not objectionable .as leading.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240.*]</p> <p>5. Criminal Law (§ 723*) — Trial—Argument oe County Attorney.</p> <p>In a prosecution for homicide, a remark of the county attorney in argument that “it is time that murders were stopped in Dallas county” was improper.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1676; Dee. Dig. § 723.*]</p> <p>6. Criminal Law (§ 728*) — Appeal—Misconduct oe County Attorney.</p> <p>An improper remark by the county attorney standing alone will not justify a reversal where no special charged was asked with reference thereto.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 10S9-1691; Dec. Dig. § 728.*]</p> <p>7. Homicide (§ 250*) — Evidence.</p> <p>Evidence held to sustain a conviction of manslaughter.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.*]</p> <p>8. Criminal Law (§ 1059*) — Trial—Exceptions — Sueeiciency.</p> <p>Exceptions to a charge on manslaughter “because the court erred in his definition of manslaughter, because he erred in his definition of self-defense, and because he erred in his definition of imperfect self-defense,’-1 were too general.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.*]</p>

<p>Appeal from District Court, Tarrant County ; R. H. Buck, Judge.</p> <p>Action by L. C. Sears against Cluett, Peabody & Co. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Tarrant County ; Jas. W. Swayne, Judge.</p> <p>Action by J. W. Brantley against Tillie Brantley, who filed a cross-bill for divorce. From a judgment granting a divorce on the cross-bill and partitioning the property of the parties, defendant appeals.</p>

H. Buck, Judge. Action by the North Texas State Bank against the Crowley-Southerland Commission Company and others. Erom a judgment sustaining a demurrer to the petition as to the commission company, plaintiff appeals.

<p>1. Jud&ment (§ 256*) — Conformity to Verdict — Intebest.</p> <p>In a suit for damages and interest thereon, where the jury returns a general verdict for a specified sum, it is improper in entering judgment to add interest thereto.</p> <p>[Ed. Note. — For other cases, see Judgment, Gent. Dig. §§ 446-454; Dec. Dig. § 256.*]</p> <p>2. Appeal and Error (§ 1151*) — Determination — Modification.</p> <p>In a suit for damages and interest thereon, where the jury returned a general verdict for a specified sum, and the court in entering judgment erroneously added interest thereto, the judgment will be reformed on appeal so as to eliminate the interest erroneously adjudged.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4498-4506; Dec. Dig. § 1151.*]</p>

<p>Brokers (§ 60*) — Compensation — Persons Liable.</p> <p>A broker listed land for sale at a price to net the owner $80 per acre, the amount above that to be retained as his commission, and found a purchaser at $82.50 per acre, who, in the presence of the owner and himself, entered into a written contract of sale for the stated consideration of $80 per acre, at which time the owner stated that he was to pay no commission; and thereafter the contract of sale was canceled by mutual consent of the owner and purchaser. Held, that the owner was not liable for any commission.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 91; Dee. Dig. § 60.*]</p>

<p>1. Charities (§ 45*) — Religious Societies— • Torts — Liability.</p> <p>. A religious corporation organized to operate a hospital is not exempted from liability for injury sustained by an employé through negligence chargeable to it, though money received in payment for services ivas expended in maintaining. the institution for the. benefit of the poor to pay off a mortgage on its property, and to support its mother institution located in another state.</p> <p>[Ed. Note. — For other cases, see Charities, Cent. Dig. §§ 80, 81, 102-104; Dec. Dig. § 45.*]</p> <p>2. Exemptions (§ 83*) — Hospitals of Religious Societies.</p> <p>The property of a religious corporation organized to maintain a hospital is not exempt from execution, though the services of the hospital are given free to those who cannot pay, and all sums received for services are expended in the maintenance of the establishment, the payment of a mortgage debt and of an annual sum. for the maintenance of the mother organization located in another state.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 35; Dec. Dig. § 33.*]</p>

<p>Appeal from District Court, Hunt County; R. L. Porter, Judge.</p> <p>Action by E. G. King against R. B. Mc-Adams. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Damages (§ 78*) — Liquidated Damages or Penalty — Municipal Corporations.</p> <p>Under a municipal franchise to operate gas «works in a city, which required grantee to give a bond for $5,000 to secure that the plant -should be in operation within one year after granting of the franchise, providing that such sum should be considered liquidated damages, in a suit after abandonment of the franchise, 'brought on the bond given under such provi■sion, that sum must be treated as liquidated ■damages, and not merely as a penalty.</p> <p>[Ed. Note. — For other cases, see Damages, -Cent. Dig. §§ 157-163; Dee. Dig. § 78.*]</p> <p>2. Gas (§ 6*) — Municipal Franchises — Performance by Grantee.</p> <p>Commencement of work on a gas plant in a city under a franchise cannot be treated as part performance of the grantee’s obligation secured by bond to commence operation of plant within one year, where the work was abandoned before any part of the real object of the enterprise was accomplished.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. § 1; Dec. Dig. § 6.*]</p> <p>3. Gas (§ 6*) — Municipal Franchises — Abandonment — Grounds.</p> <p>Since, under the Texas Constitution, an exclusive privilege to furnish public utilities to a city cannot be granted, the grantee of a franchise for a gas plant is not relieved from liability on his bond given to secure commencement of operation of the plant within a year because of any action of the city in reinstating the franchise of competitors, thereby enabling them to commence supplying gas before expiration of the time allowed him.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. § 1; Dec. Dig. § 6.*]</p> <p>4. Gas (§ 6*) — Street Lighting — Contracts —Construction.</p> <p>A provision in a municipal gas franchise that the grantee should, if directed by the city, install and maintain street lamps at such points as should be selected by the authorities at a specified rate, did not obligate the city to allow the grantee to furnish any number of lights; the matter of establishing and locating the lights being optional with the city.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. § 1; Dec. Dig. § 6.*]</p> <p>5. Gas (§ 6*) — Municipal Franchises — Breach by Grantee — Damages.</p> <p>Liability of the grantee of a municipal gas franchise on a bond given to secure commencement of operation of the plant within one year is not affected on his abandoning the franchise because gas is being supplied through a competitor, since the city and its inhabitants were entitled to the benefit of the competition between the two plants.</p> <p>[Ed. Note. — For other cases, see Gas, Cent. Dig. § 1; Dec. Dig. § 6.*]</p> <p>6. Interest (§ 45*) — Right to Allowance-Bonds.</p> <p>On breach of the bond of the grantee of a municipal franchise given for a fixed sum, and to.secure operation of the plant within one year from the date of the franchise, interest was properly allowed from the expiration of the time limit.</p> <p>[Ed. Note. — For other eases, see Interest, Cent. Dig. § 94; Dec. Dig. § 45.*]</p>

<p>1. Pleading' (§ 104*)—Jurisdiction—Amount in Controversy.</p> <p>A plea to the jurisdiction because certain items of expense sued for and necessary to establish a claim within the jurisdiction of the court could not be recovered as a matter of law was insufficient, where it was not alleged that such items were sued for and claimed as a part of the damages, in order to fraudulently confer jurisdiction on the court.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 213-217; Dec. Dig. § 104.*]</p> <p>2. Sales (§ 418*) — Deficient Quality — Measure of Damages—Lessening Loss.</p> <p>While ordinarily the buyer’s measure of damages for inferior quality of oats purchased is the difference in the market value of the oats contracted for and the market value of the oats actually delivered, he may nevertheless recover the reasonable expense incurred in blending the poor oats with better ones and for resack’ ing, storage, insurance, demurrage, and expenses necessary to increase the price of the oats and lessen the ultimate loss.</p> <p>[Ed. Note. — Por other cases, see Sales, Gent. Dig. §§ 1174-1201; Dec. Dig. § 418.*]</p>

<p>Appeal and Errob (§ 907*) — Review—Plea in Abatement.</p> <p>Where the trial court sustained defendant’s plea in abatement generally and dismissed tile-plaintiff’s action, the Court of Appeals, in the absence of a statement of facts, would presume that the evidence offered supported the judgment, and the same would be affirmed.</p> <p>[Ed. Note. — For other cases, see Appeal and. Error, Cent. Dig. §§ 2911-2915, 2916, 3673,. 3674, 3076, 3678; Dec. Dig. § 907.*]</p>

<p>1. Execution (§ 172*) — Injunction — Complaint.</p> <p>In a suit for an injunction restraining the sale of certain land under execution levy, a complaint, alleging that complainant pointed out to the sheriff certain other lands, on which the levy could be made, of the value of $3,500, sufficient to satisfy defendant’s demand, which was less than $1,000, hut failed to specifically allege that the property so pointed out was clear of incumbrances, or otherwise negative similar defenses, as that the property was homestead, etc., was insufficient.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dee. Dig. § 172.*]</p> <p>2. Injunction (§ 148*) — Issuance — Bond-Necessity.</p> <p>It is improper for the court to direct the issuance of a preliminary injunction without requiring a bond, in the absence of facts in the record justifying the exercise of such discretion.</p> <p>[Ed. Note. — For other eases, see Injunction, Cent.-Dig. §§ 323-334; Dec. Dig. § 148.*]</p>

<p>Appeal from District Court, Bexar County; J. L. Camp, Judge.</p> <p>Action by W. R. Mouton against the San Antonio Gas & Electric Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Tom Green County; J. W. Timmins, .Judge.</p> <p>Action by J. H. Altizer and another against W. G. Clark and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Principal and Agent (§ 183*) — Action by Agent.</p> <p>One who contracts as agent cannot maintain an action in his own'name and right upon the contract, unless he contracts in his own name, does not disclose his principal, who is unknown, is authorized to act as owner of the property by the usages of trade, or has an interest in the subject-matter.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 691-700; Dec. Dig. § 183.*]</p> <p>2. Brokers (§ 106*) — Action by Agent.</p> <p>Where brokers merely submitted a price for certain machinery, and in consequence a contract of purchase was made with the manufacturers, there was no contract with the brokers or liability to them from the purchasers, which will permit them to sue for a balance due on the contract made.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 149-153; Dec. Dig. § 106..*]</p> <p>3. Pleading (§ 8*) — Conclusions.</p> <p>Where a petition by brokers to recover a balance due on a contract of sale of machinery charged that the defendant agreed and undertook to buy and accept said machinery from plaintiff when the same might be delivered by manufactufe'r's to common carriers consigned to defendant, and agreed to pay plaintiff a sum stated therefor, the allegations are merely conclusions, and will not support the action, where the contract shows that the 'plaintiff was really only an agent.</p> <p>■' [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%; Dec. Dig. § 8.*]</p> <p>4. Evidence (§ 442*) — Parol to Vary Written Instrument.</p> <p>Where a contract for the purchase of machinery provided that certain information be furnished by the defendant to the manufacturers, after which the manufacturers promised shipment in 90 days, parol evidence is admissible to supplement the incomplete contract, so as to determine the actual contract of the parties.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1897; Dec. Dig. § 442.*]</p>

<p>1. Appeal and Ebeoe (§ 569*) — Reooed — Statement oe Facts.</p> <p>A writing, not approved by the trial judge- or accompanied by an agreement of the parties that it is correct, but merely by a certificate of' the official stenographer that it contains a. true transcript of the testimony on the trial,, cannot be considered on appeal as a statement of facts.</p> <p>[Ed. Note. — For other cases, see Appeal and. Error, Cent. Dig. §§ 2530-2545; Dec. Dig. §-. 569.*]</p> <p>2. Appeal and Ekrob (§ 1138*) — Dissolution op Temporary Injunction — Review.</p> <p>Where, on appeal from an order dissolving-a temporary injunction, it was admitted during the argument that all the acts which appellant sought to restrain appellee from doing-had been done, and there was no statement of' facts in the record, the order will be affirmed.</p> <p>[Ed.-Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4456-4461; Dec. Dig. § 1138.*]</p>

<p>Appeal from District Court, Nolan County; Jas. L. Shepherd, Judge.</p> <p>Action by David Barnhart against the Kansas City, Mexico & Orient Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

W. Goodwin, Judge. Action by R. D. Dyer against John Martin. Erom a judgment for plaintiff, defendant appeals. Appellee brought this Suit against appellant, seeking to recover commissions as a real estate broker for the sale of certain lands, horses, cattle, and sheep belonging to appellant; his claim aggregating $3,100.19.

<p>1. Partnership (§ 9*) — Existence of Relation.</p> <p>One employed to assist a piano dealer during a special sale was not a partner with, the dealer, where he was to receive' a specified part of the profits during the sale, and where he had no interest in the stock, and was to bear no part of the expenses incidental to the sale, and his act in taking a piano of the stock and selling it to pay for services without the consent of the dealer was unauthorized.</p> <p>[E'd. Note. — For other cases, see Partnership, Cent. Dig. §§ 26-32; Dec. Dig. § 9.*]</p> <p>2. Principal ■ and Agent (§ 103*) — Acts op Agent — Transactions with Third Persons.</p> <p>Where an employé to assist a dealer in a piano sale for a part of the profits took possession of a piano of the dealer, and placed it with his own stock, and sold it to a buyer, who did not rely on the agency of the employé to sell, the buyer could not claim title as against the dealer on the theory that the employé acted as agent in making the sale.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 339; Dec. Dig. § 103.*]</p>

<p>Error from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by B.- Degetau and others against Sara Mayer and others, in which defendants filed a cross-action. Judgment for defendants on their cross-action, and plaintiffs bring error.</p>

<p>Appeal from District Court, Bexar County; Edward Dwyer, Judge.</p> <p>Action by Grover C. Sample against the Galveston, Houston & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Action by H. L. Thomas against Mrs. L. A. Taylor and 'another. From a judgment against both defendants jointly and severally, defendant named brings error.

<p>1. Venue (§ 14*) — Action for Fraud.</p> <p>Action for fraud is properly brought in the county where it was perpetrated, though defendants reside in another county.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §• 21; Dec. Dig. § 14.*]</p> <p>2. Vendor and Purchaser (§ 343*) — Fraud —Remedies oe Purchaser — Rescission.</p> <p>A purchaser of land defrauded by the vendor’s misrepresentations as to the quality of the land can rescind upon reconveying the title or can retain the title and recover his damages.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1023-1029; Dec. Dig. § 343.*]</p> <p>3. Vendor and Purchaser (§ 351*) — Fraud —Remedies of Vendee — Damages—Measure.</p> <p>The measure of a purchaser’s damages for fraudulent misrepresentations by the vendor as to the quality of the land is the difference between the price and the value of the land.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1047-1058; Dec. Dig. § 351.*]</p> <p>4. Vendor and Purchaser (§ 351*) — Fraud of Vendor — Damages.</p> <p>Since any land has some value, a finding in an action by a purchaser of land for fraudulent misrepresentations by the vendor as to the quality of the land that the land was worthless was erroneous.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1047-1058; Dec. Dig. § 351.*]</p>

<p>Appeal from. District Court, Dallas County; Kenneth Force, Judge.</p> <p>Suit by E. G. Patton against H. H. Pearce and others, in which defendant A. S. Laird claimed the right to recover over against the Texas Baptist University in case of a judgment recovered by plaintiff against him. Judgment for plaintiff against defendants Pearce and 'Laird, and that Laird alone recover over against the University, from which the latter appealed, and defendant Laird prosecuted a writ of error.</p>

<p>1. Appeal and Error (§ 1050*) — Harmless Error — Erroneous Admission of Evidence.</p> <p>Where, in an action for injuries to a servant while winding up doors on ballast cars caused by the breaking of a chain, the evidence showed that the master rented the cars from January to October, that the accident occurred in February, and that no witnesses saw the breaking of the chain except the servant, and no one could identify the car on which the chain broke, the admission of evidence of the inspection of the cars from January to October was not prejudicial, especially where the master laid a predicate for its introduction.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*]</p> <p>2. Master and Servant (§ 270*) — Injury to Servant — Evidence—Admissibility.</p> <p>In an action for injuries to a servant occurring in February while winding up doors of ballast cars rented by the master from January to October, the evidence of the condition of the cars in October, when they were turned over to the owner, was properly excluded.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*]</p> <p>3. Appeal and Error (§ 1052*) — Harmless Error — Erroneous Exclusion of Evidence.</p> <p>The error, if any, in excluding evidence, is harmless, where the facts are subsequently testified to.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dee. Dig. § 1052.*]</p> <p>4. Master and Servant (§ 270*) — Injury to Servant — Actions — Evidence — Admissibility.</p> <p>In an action for injuries to a servant while winding up doors of ballast cars caused by the breaking of a chain, the testimony of a person, who had been engaged at another time in winding up the cars, that he had not seen any chains break, was properly excluded.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*]</p> <p>5. Witnesses (§ 387*) — Cross-Examination —Scope.</p> <p>Where, in an action for injuries to a servant, the master claimed that the servant had been injured in a wrestle with a third person, who, on direct examination, testified that he had wrestled with the servant and that the servant was injured, questions on cross-examination as to statements made by the third person in' relation to the wrestle to the master’s agents, and as to statements made in a former trial in relation thereto, were properly received in evidence.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 122S-1232; Dec. Dig. § 387.*],</p> <p>6. Evidence (§ 317*) — Hearsay Evidence.</p> <p>Where, in an action for injuries to a servant, the _ master claimed that the servant was injured in a wrestle with a third person, the testimony of a timekeeper that he had made statements to a roadmaster of the master about the wrestle and the result was properly excluded as hearsay.</p> <p>[Ed.. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]</p> <p>7. Evidence (§ 539*) — Opinion Evidence — Competency of Witnesses.</p> <p>A person who had worked as car repairer, and who was familiar with the winding devices on ballast cars, was not competent to give his opinion as to the number of chains that would have to break before anything would happen tb cause the wrench used to wind up the chain to wind up the doors of the car to slip.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2349-2352; Dec. Dig. § 539.*]</p> <p>8. Witnesses (§ 35*) — Evidence — Admissibility.</p> <p>Testimony of a witness cannot be excluded merely because he made contradictory statements; the latter only going to the weight of his testimony.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 77, 78; Dec. Dig. § 35.*]</p> <p>9. Evidence (§ 127*) — Declarations — Expressions of Pain.</p> <p>In an action for personal injuries, evidence of expressions of pain made by the person injured is admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 377, 3S2; Dec. Dig. § 127.*]</p> <p>10. Appeal and Error (§ 500*) — Questions Reviewable — Exceptions.</p> <p>Where the brief of appellant does not show that the court passed on exceptions to the petition, or that the court’s attention was called to them, and the record does not show the action of the court on the exceptions except in the motion for new trial, which states as a ground that the court erred in overruling the exceptions, the exceptions are not reviewable on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 500.*]</p> <p>11. Master and Servant (§ 226*) — Injury to Servant — Assumption of Rjsk.</p> <p>A servant may assume that the appliances with which he is called on to work are reasonably safe, and that the business is conducted in a reasonably safe way, and he does not assume risks arising from a failure of the master to do his duty unless he knows of the failure and the attendant risks, or in the ordinary discharge of his duty must have acquired such knowledge.</p> <p>[Ed. 'Note. — For other cases, see Master and Servant, Cent. Dig. §§ 659-667; Dec. Dig. § 226.*]</p> <p>12. Master and Servant (§ 106*) — Obligation of Master — Safe Appliances.</p> <p>A master who rents ballast cars for use in Ms own business must use ordinary care to have the machinery in proper condition for use and must use reasonable care to continue such condition, and such duty is nondelegable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Oent. Dig. §§ 198-198; Dec. Dig. 106.*]</p> <p>13. Mastek and Servant (§ 209*) — Injury to Servant — Assumption of Risk.</p> <p>A servant engaged in winding up doors of ballast cars rented by his master for use in his business does not assume a risk of injury caused by the breaking of a chain.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 552, 553; Dec. Dig. § 209.*]</p> <p>14. Trial (§ 260*) — Instructions—Refusal to Give Instructions Covered by the Charge Given.</p> <p>It is not error to refuse requested instructions covered by other charges given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p>

<p>1. Action (§ 57*) — Consolidation.</p> <p>Plaintiff sued H. L. and two others, who were partners in an automobile repair business under the name of H. L., to recover two automobiles left with defendants for repair, and for damages caused by refusal to redeliver them. H. L. afterwards sued plaintiff for a balance due on an open account and for the charges for repairing and storing the automobiles and to foreclose a lien thereon for payment of such balance due. Sayles’ Ann. Civ. St. 1897, art. 3319, gives proprietors of stables a special lien on vehicles placed with them for their charges, and article 3320 gives a mechanic a possessory lien for repairing any vehicle. Held, that the two actions were properly consolidated; the question of whether plaintiff was entitled to recover the automobiles depending on whether he owed L. for the charges claimed and refused to pay them, and the parties in effect being the same to each action. '</p> <p>[Ed. Note. — Por other cases, see Action, Cent. Dig. §§ 632-675; Dec. Dig. § 57.*]</p> <p>2. Trial (§ 192*) — Instructions — Assumption of Pacts — Undisputed Pacts.</p> <p>An instruction may assume an undisputed fact.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.*]</p> <p>3. Appeal and Error (§ 1033*) — Harmless Error — Instructions—Damages.</p> <p>Error in an instruction in charging that interest on the sum due appellants from appel-lee began to run sooner than it in fact did was favorable to appellants so that they could not complain thereof.’</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]</p>

Action by one Stith against J. H. McLean, who impleaded T. J. Moore and. another. From the judgment, McLean appeals. Findings of Fact. The Iron City Nationel Bank executed a warranty deed to appellant for a one-third undivided interest in a tract of land. Stith et al. brought suit of trespass to try title against appellant, and also for partition, alleging that appellant was the owner of the other two-thirds interest.

<p>Fraudulent Conveyances (§ 182*) — Bulk Sale — Liability op Purchaser to Creditor.</p> <p>Where one purchases a> stock of merchandise from an insolvent debtor, without complying with Bulk Sales Law (Gen. Laws, 1909, c. 27) § 1, providing that the sale of an entire stock in bulk shall be void as against creditors of the seller, unless there be certain inquiries, sworn answers, and notices, he is not liable at the suit of a creditor who has not acquired a lien on the merchandise sold; no personal liability being created by such section or implied from section 2, which provides that a purchaser who shall comply with the statute shall not be held accountable to any creditor of the seller.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 568-577; Dec. Dig. § 182.*]</p>

<p>1. Evidence (§ 442*) — Parol Evidence.</p> <p>An oral contract of partnership was admissible in evidence, where it was but part of a more comprehensive, unconflicting whole consisting, also, of a written contract; the rule that parol evidence is inadmissible to contradict the terms of a written contract not applying in such cases.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874^-1899; Dec. Dig. § 442.*]</p> <p>2.. Contracts (§ 273*) — Action to Rescind —When Lies.</p> <p>Where an oral partnership contract and a written agency contract were entered into at the same time and supported by one consideration, and there was a breach of the partnership contract by the party receiving the consideration, the other party could not maintain an action to rescind it and recover the whole consideration, and yet retain the rights acquired by him under the agency contract; but his remedy in such case, if any, was by an action for damages.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1194; Dec. Dig. § 273.*]</p> <p>3. Trover and Conversion (§ 11*) — Right oe Action.</p> <p>Where the title and possession of a horse passed as consideration for a contract, a party, subsequently seeking to rescind the contract on account of its breach and to recover the consideration, could not hold subsequent pur chasers of the horse personally liable as for conversion, even though the horse was fraudulently sold to them.</p> <p>[Ed. Note. — Eor other cases, see Trover and Conversion, Cent. Dig. §§ 95-98; Dec. Dig. § 11.*]</p>

Error from District Court, Jefferson County; W. H. Pope, Judge. Action by the Beaumont Brick Company and others against the City of Beaumont and H. Masterson and others. From a judgment for defendant Masterson against defendant City of Beaumont, it brings error.

<p>Appeal from District Court, Taylor County; T. L. Blanton, Judge.</p> <p>Action by H. K. Bickford against G. W. Boyce and another. Judgment for plaintiff, and defendant Boyce appeals.</p>

Ao^on by the West Texas Lumber Company against the Gulf, Colorado & Santa Fé Railway Company and others. There was a judgment for plaintiff, and defendants bring error.

<p>Appeal from Bexar County Court; Geo. W. Huntress, Judge.</p> <p>Action by George Passmore against F. De J. Villareal and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Fraud (§ 1*)—Nature of “Fraud.”</p> <p>“Fraud,” generally speaking, is any act or concealment which involves a breach of legal duty, trust, or confidence justly reposed and is injurious to another, or by which an undue and unconscientious advantage is taken of another.</p> <p>[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 1-7; Dec. Dig. § 1*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2943-2954; vol. 8, p. 7666.]</p> <p>2. Religious Societies (§ 34*)—Ecclesias-tical TRIBUNALS — FRAUDULENT CONDUCT.</p> <p>The action of the General Assembly of the Cumberland Presbyterian Church in voting on the question of union with the Presbyterian Church of the United States at its evening session of a day after the adoption of a resolution fixing the following day as the time to vote thereon is not such legal fraud as will vitiate the vote for union, though a sufficient number of members of the assembly' were' misled and absented themselves from the evening session to have defeated union.</p> <p>[Ed. Note.—For other cases, see Religious Societies, Cent. Dig. §§ 209-211; Dec. Dig. § 34.*}</p> <p>3. Religious Societies (§ 34*)—Ecclesias-tical Tribunals—Fraudulent Conduct.</p> <p>Where a resolution for union with the Presbyterian Church of the United States had been pending for several days before the General Assembly of the Cumberland Presbyterian Church, and a campaign of the question of union had' been waged for a year, the fact that some of the members of the assembly were misled into voting for the union in consequence of an opinion of the moderator, given in response to a request therefor, did not vitiate the vote for union, since such members voted at their peril, and they could not be heard to say that the result of their votes was fraudulent.</p> <p>[Ed. Note.—For other cases, see Religious Societies, Cent. Dig. §§ 209-211; Dee. Dig. § 34.*]</p>

L. Shepherd, Judge. Suit by S. A. Cole and others against the Kansas City, Mexico & Orient Kailway Company of 'Texas. From an order granting a temporary injunction against defendant’s removal of its general offices, machine shops, roundhouse, etc., from the town of Sweet-water, defendant appeals.

L. Shepherd, Judge. Suit by S. A. Cole and others against the Kansas City, Mexico & Orient Railway Company of Texas. From an order granting an injunction, defendant appeals. On application to punish appellant railway company and certain of its officers for contempt.

<p>1. Libel and Slandeb (§ 100*) — Actions— Actual Damage.</p> <p>Unless libelous per se, there can be no recovery for the publication of a libel without allegation and proof of special damages.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 246-272; Dec. Dig. § 100.*]</p> <p>2. Libel and Slandeb (§ 16*) — Wobds “Libelous Peb Se.”</p> <p>In view of Acts 27th Leg. c. 26, defining libel, words libelous per se and from the publication of which damages are implied as a matter of law are such words as tend to expose one to public hatred or disgrace or vilify him or injure his character.</p> <p>[Ed., Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 1-9; Dec. Dig. § 16.*</p> <p>For other definitions, see Words and Phrases, vol. 8, p. 7705.]</p> <p>3. Libel and Slandeb (§§ 38, 46*) — '“PRIVILEGED Communication” — “Absolutely Privileged Communication” — “Qualifi-edly Privileged Communication.”</p> <p>Privileged communications fall into two classes, those absolutely privileged, such as the opinions of judges, and others qualifiedly privileged, such as publications made to protect the rights of the one publishing.</p> <p>[Ed. Note. — For other cases, see Libel and Slander. Cent. Dig. §§ 117-123, 131, 141-143; Dec. Dig. §§ 38, 46.*</p> <p>For other definitions, see Words and Phrases, vol. 1, p. 45; vol. 6, pp. 5591-5598; vol. 8, p. 7764.]</p> <p>4. Liens (§ 9*) — Words Actionable Peb Se —“Reliable”—“Good.”</p> <p>Defendant in complaining of plaintiff, a general freight agent, wrote to the general manager of the railroad that plaintiff told him one thing and wired the agent another, and concluded with a separate paragraph, saying that the plaintiff was not a reliable man in any respect, and that his word was not good with people who knew him. Held that, in view of the arrangement of the letter which showed that the last paragraph related to plaintiff’s personal character, the communication was libelous per se, as tending to injure him in his business; the letter charging him with not being “reliable” in any respect, which means untrustworthy, and that his word was not “good,” the word “good” as applied to one’s word meaning untarnished, honorable; and so action might be maintained without allegation of special damage.</p> <p>[Ed. Note. — For other cases, see Liens, Cent. Dig. § 29; Dec. Dig. § 9.*</p> <p>For other definitions, see Words and Phrases, vol. 4, pp. 3105-3107.]</p>

<p>Appeal from District Court, Cooke County; Clem B. Potter, Judge.</p> <p>Action by the Bomar Cotton Cil Company against Max Schubert. From a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from District Court, Nolan County; Jas. L. Shepherd, Judge.</p> <p>Action by John W. Lovelady against N. B. Birge and another, composing the copartnership of Birge, Forbes & Co. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Depositions (§ 107*) — Objection to Form — Time op Taking.</p> <p>Sayles’ Ann. Civ. St. 1897, art. 2289, provides that, when a deposition shall have been filed in the court at least one entire day before that on which the case is called for trial, no objection to the form thereof shall be heard, unless notice thereof is given to the opposite counsel before trial commences, providing the objection shall be made and determined only at the first term after it is filed. Held, that a motion to suppress depositions for defects in form, made after the parties had announced ready' for trial and after the jury was impaneled, but before trial, was too late.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 309-319; Dec. Dig. § 107;* Trial, Cent. Dig. § 189.]</p> <p>2. Depositions (§ 83*) — Objection to Admission.</p> <p>A motion to suppress a deposition, if considered as an objection to its admission as evidence, was premature where made before trial, as objection to its admission should only be made when offered in evidence at the trial.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. § 83.*]</p> <p>3. Railroads (§ 350*) — Injuries on Right op Way — Jury Question — Contributory Negligence.</p> <p>In an action against a railroad company for injuries by striking timbers of a railroad bridge while riding under it on a public highway, whether plaintiff was himself negligent held a jury question.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p> <p>4. Negligence (§ 68*) — “Contributory Negligence” — Test.</p> <p>The test of contributory negligence is whether a person of ordinary prudence would have so acted in the same situation; it being “contributory negligence” if one of ordinary prudence would not have so acted. ■</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 92; Dec. Dig. § 68.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617; vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.]</p>

<p>1. Appeal and Eebob (§§ 742, 743*) — Assignment of Ebbob — Statement.</p> <p>An assignment of error, complaining of the Tefusal to allow a witness to testify to a fact, will not be considered on appeal, where the statement does not show what the witness would have sworn to if allowed to testify, and a reference to the bill of exceptions is insufficient.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3000,. 3011; Dee. Dig. §§ 742, 743.*] |</p> <p>2. Appeal and Eebob (§ 499*) — Questions Review able — Rulings on Evidence.</p> <p>An assignment of error, complaining of the refusal to allow a party to testify to a fact, will not be considered on appeal, where the bill of exceptions, referred to in the statement, does not contain the objection made to the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2299; Dec. Dig. § 499.*]</p> <p>3. Evidence (§ 471*) — Conclusion of Witness.</p> <p>The testimony of a plaintiff suing for slander, based on defendant charging her with the larceny of jewelry, that defendant became angry because plaintiff did not purchase jewelry after looking over defendant’s stock, made in response to a question to what plaintiff attributed the accusation, was properly stricken out as a conclusion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>4. Libel and Slander (§ 104*) — Evidence-Admissibility.</p> <p>AVhere plaintiff suing defendant, a merchant, for slander, based on defendant charging plaintiff with larceny of jewelry, testified that defendant was angry and talked loud, the exclusion of evidence of the appearance of defendant was proper because immaterial, as not proving malice which must be implied from the charge itself.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 284-291; Dec. Dig. § 104.*]</p> <p>5. Appeal and Eebob (§ 742*) — Assignment of Eebob — Statement — Rulings on Evidence.</p> <p>An assignment of error, complaining of the ruling on the testimony of a witness, will not be considered, when it is not followed by any concrete proposition or statement, but refers to another assignment referring to the testimony of another witness.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>6. Appeal and Ebbob (§ 1064*) — Harmless Ebbob — Instructions.</p> <p>Where, in an action for slander based on defendant, a merchant, charging plaintiff with the larceny of jewelry, plaintiff testified that she entered the store of defendant to purchase jewelry, and her statement was uncontradicted, a charge that, if she went in to purchase jewelry and the slanderous words were spoken, the jury must find for her, was not prejudicial to plaintiff, though the jury might have found that plaintiff went into the store for some other purpose.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p> <p>7. Appeal and Eebob (§ 1068*) — Harmless Error — Erroneous Instructions.</p> <p>Where, in an action for slander, the jury found for defendant, a charge restricting a recovery to compensatory damages was not prejudicial, because there could be no exemplary damages unless actual damages were found.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p> <p>8. Libel and Slander (§ 100*) — “Divers”— “Several” — Issues, Proof, and Vabiance.</p> <p>A plaintiff, in an action for slander, who alleges that the words were spoken by defendant in the presence and hearing of “divers” persons, must prove that the words were spoken in the presence of at least three persons; the word divers meaning “several,” which means any number more than two.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 246-272; Dec. Dig. § 100.*</p> <p>For other definitions, see Words and Phrases, vol. 3, p. 2142; vol. 7, pp. 6454-6456.]</p> <p>9. Trial (§ 255*) — Instructions— Requests —Necessity.</p> <p>A plaintiff, in an action for slander, who attempted to prove the allegation that defendant uttered the slanderous words in the presence of divers persons, may not complain of the failure of the court to define the word “divers” as used in the charge, submitting the issue of the uttering of the slanderous words in the presence of divers persons, in the absence of any requested charge defining the word.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 627-641; Dec. Dig. § 255.*]</p> <p>On Motion for Rehearing.</p> <p>10. Libel and Slander (§ 125*) — Instructions — Verdict—Damages.</p> <p>A verdict for defendant, in an action for slander, rendered pursuant to an instruction authorizing a verdict for defendant only on his proving that he did not in the presence and hearing of divers other persons use the language complained of in the petition, is a finding that defendant did not use the language imputed to him, and there may be no recovery' of actual damages, nominal or otherwise.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 374; Dec. Dig. § 125.*]</p> <p>11. Libel and Slander (§ 120*) — Exemplary Damages — When Authorized.</p> <p>Exemplary damages for slander are not re; eoverable unless the defamatory words were spoken maliciously or' wantonly.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 350, 351; Dec. Dig. § 120.*]</p>