Volume 148 — South Western Reporter

<p>Criminal Law (§§ 1066, 1097*) — Appeal-Statement oi? Facts —Rulings on Evidence.</p> <p>Where the record contains no statement of facts, and no exception was reserved to the ruling of the court as to the testimony mentioned in a motion for a new trial, alleged error in such ruling will not be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2686, 2862, 2864, 2926,2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. §§ 1066, 1097.*]</p>

<p>1. Homicide (§ 169*) —Evidence — Knowledge of Deceased’s Purpose.</p> <p>Evidence as to the purpose of deceased in going to defendant’s house or premises, not known to defendant, was inadmissible.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.*]</p> <p>2. Homicide (§ 338*) —Appeal—Harmless Error — Admission of Evidence — Defendant’s Knowledge of Deceased’s Purpose.</p> <p>In a prosecution for murder, where manslaughter and self-defense were issues, and where it appeared that on a prior occasion deceased had gone to defendant’s house to collect a bill, that trouble arose between them, that deceased was ordered not to return and left, making serious threats against defendant, and that defendant did not know for what purpose deceased came to his premises at the time of the homicide, the admission of evidence that deceased had gone to defendant’s premises to collect a bill, after such statement in a dying declaration had been withdrawn, was reversible error.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.*)</p> <p>3. Homicide (§ 190*) — Admission of Evidence — Threats — Subsequent Declaration of Pacific Intent.</p> <p>Where the deceased has made threats against the accused, his subsequent declarations of pacific intent, not communicated to the accused, are not admissible.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.*]</p> <p>4. Witnesses (§ 54*) — Competency — Husband and Wife.</p> <p>The evidence of a wife cannot be used against her husband, unless the offense is that of personal violence against the wife.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 142-146, 152; Dec. Dig. § 54.*]</p> <p>5. Witnesses (§ 76*)— Competency of Wife as Witness — Objection.</p> <p>A wife cannot be used as a witness against her husband, even though no objection is urged at the time.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 190-192; Dec. Dig. § 76.*]</p> <p>6. Witnesses (§ 54*) — Impeachment—Competency of Impeaching Testimony.</p> <p>Testimony of defendant’s wife, given before the grand jury under process and without defendant’s knowledge, not competent against defendant as original testimony, cannot be used against him indirectly as testimony tending to impeach the wife by a contradiction between her testimony before the grand jury and at the trial.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 142-146, 152; Dec. Dig. § 54.*]</p> <p>7. Criminal Law (§ 719*) — Trial — Argument of Prosecuting Attorney.</p> <p>In a prosecution for murder, where a statement in a dying declaration, that deceased had gone to defendant’s house or premises to collect a bill was excluded, the county attorney’s statement to the jury: “He shot an unarmed man; shot him in the back, because he ■went there to collect a bill. ‘He ordered me out, and before I got out he shot me — ’ ” was reversible error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. § 719.*]</p>

<p>Appeal from District Court, Huút County ; T. D. Montrose, Judge.</p> <p>Action by the Celeste State Bank against H. D. Puckett and others. From a judgment granting insufficient relief, plaintiff appeals.</p>

<p>Appeal from Clay County Court; W. T. Allen, Judge.</p> <p>Action by T. J. McDaniel against W. A. Henderson. From a judgment sustaining a general demurrer to the petition, plaintiff appeals.</p>

<p>1. Mortgages (§ 608%*) — Absolute Deed as Mortgage — Pleadings—Jurisdiction.</p> <p>Where a petition alleged that plaintiff was indebted to defendant in the sum of $300, and that, to secure the payment thereof, he conveyed by an instrument in form a deed, but in fact a mortgage, land described forming a part of his homestead, and prayed for a recovery of the land, and asked that on the refusal to cancel the deed and render judgment for the land, the court should find that the deed was given to secure the payment of $300, and averred that defendant subsequently sold the land to codefendant for $450, and that plaintiff should have judgment against defendant for the difference, the court, on finding that the deed was a mortgage, had jurisdiction to render a money judgment for plaintiff against defendant based on the difference between the indebtedness and the proceeds of the sale to codefendant.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1815; Dec. Dig. § 608%.*]</p> <p>2. Courts (§ 27*) — Incidental Jurisdiction.</p> <p>A decree incidental to the cause of action which originally gave the court jurisdiction, or so closely connected with it as to render its determination necessary to a final decision of the controversy between the parties, is within the jurisdiction of the court under the theory that a multiplicity of suits growing out of the same subject-matter must be avoided, and all controversies settled in one suit.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. ■§§ 84L87; Dec. Dig. § 27.*] .</p> <p>3. Courts (§ 2*) —Jurisdiction — Allegations oe Petition.</p> <p>The allegations of the petition control in determining the question of the jurisdiction of the court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1; Dec. Dig. § 2.*]</p>

<p>1. Warehousemen (§ 15*) — Receipts — As-signheno>-N otice — Necessity.</p> <p>An assignee of a nonnegotiable warehouse receipt cannot recover against the issuing warehouseman for conversion of the stored goods, in the absence of notice to the warehouseman of the assignment.</p> <p>[Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 31-34, 37; Dec. Dig. § 15.*]</p> <p>2. Warehousemen (§ 16*) — Receipts — Assignment — Rights oe Assignee.</p> <p>A bank, which holds warehouse receipts to secure loans to the bailor, is not estopped to sue the warehouseman for delivery of the goods to the bailor, through receiving money from the bailor without knowing that it constituted the proceeds of the goods.</p> <p>[Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. § 35; Dec. Dig. § 16.*]</p> <p>3. Warehousemen (§ 16*) — Action by As-signee — Proop Required.</p> <p>An assignee of warehouse receipts to secure loans to the bailor, in suing the warehouseman for conversion by delivering the goods to the bailor, was not bound to show the exact amount of the loans; it being sufficient that they exceed the amount for which judgment is claimed.</p> <p>[Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. § 35; Dec. Dig. § 16.*]</p>

<p>Appeal from District Court, Orange County; W. B. Powell, Judge.</p> <p>Action by the Llano Granite & Marble Company against Job Hollinger and another. From a judgment for defendants on demurrer, plaintiff appeals-.</p>

<p>Appeal from District Court, Menard County; Clarence Martin, Judge.</p> <p>Action by E. B. Hollinger against R. H. Spiller and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Error from District Court, Archer County; P. A. Martin, Judge.</p> <p>Action by the Power State Bank against E. B. Carver and others. Judgment for plaintiff against defendant named and in favor of the other defendants, and plaintiff brings error.</p>

<p>Judgment (§ 585*) — Res Judicata.</p> <p>Where, in an action on the bond of the district clerk for failure to issue an execution on a judgment, the evidence showed that in several proceedings judgments had been rendered refusing to reguire the clerk to issue such execution because the judgment debtors had been discharged in bankruptcy, the court properly directed a verdict for the defendants.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1062-1064, 1067, 1073, 1084, 1085, 1092-1095, 1097, 1132; Dec. Dig. § 585.*]</p>

Harper, Judge. Suit by Homer B. Martin against Grace Martin, in which defendant filed a cross-bill. From a judgment for defendant on her cross-bill, plaintiff appeals.

<p>Appeal from District Court, Ector County; S. J. Isaacs, Judge.</p> <p>Trespass to try title between Herbert & Wight and Frances Coffee. ‘Judgment for Coffee, and Herbert & Wight appeal.</p>

<p>Appeal from District Court, Haskell County; Jno. B. Thomas, Judge.</p> <p>Action by Joe Walsh, by his next friend, .against the Kansas City, Mexico & Orient Bailway Company of Texas. From .a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.</p> <p>Action by L. E. Brannin and others, as executors of the last will and testament of L. B. Rivers, deceased, against Barton M. Richardson and others. From, the judgment, plaintiffs appeal.</p>

<p>1. Mortgages (§ 292*) — Transfer of Land-Assumption of Mortgage — Admissibility of Evidence.</p> <p>Where recovery on a note was sought against defendant, alleged to have assumed its payment as part of the purchase price of land bought by him from the makers, and he defended on the ground that the makers had fraudulently represented to him that the land was incumbered only by the- deed of trust securing the note, when in fact it was also covered by two vendors’ lien notes, the two vendors’ lien' notes were admissible in evidence, though they described the land as “200 acres out of the N. W. one-fourth of a 3,200-tract conveyed to P. E. G., and the same land conveyed by P. E. G. to J. S. R. by his deed of February 2, 1910,” while the land was described in the trust deed and in the deed from makers to defendant as the “south one-half of the north one-half of eight hundred acres of land off of the northwest one-fourth of three thousand two hundred acres of laDd conveyed to P. E. G., and being the same land conveyed by P. E. G. to J. S. R. by his deed dated the 2nd day of Feb. 1910;” the two descriptions substantially identifying the, same land.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 762-771, 790; Dec. Dig. § 292.*]</p> <p>2. Mortgages (§ 292*) — Defenses—Equitable Relief.</p> <p>Where the makers of a note falsely represent the incumbrances upon the land sold by them, and induce the purchaser to assume the payment of the note as part of the consideration, he may have an appropriate equitable relief in an action by the holder of the note against him and the makers, especially where he offers in his answer to rescind and alleges that a suit for rescission is pending.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 762-771, 790; Dec. Dig. § 292.*]</p>

<p>Error to District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Suit by J. C. Parker and others against the Harris County Drainage District No. 2 and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>1.Venue (§ 32*) — Plea of Privilege — Demurrer.</p> <p>Where a plea of privilege to be sued in the county of. the pleader’s residence, instead of that of a eodefendant’s residence, did not allege that the codefendant was fraudulently joined for the purpose of conferring jurisdiction in the county of the codefendant’s residence, the court’s failure to submit the plea; was equivalent to sustaining a general demurrer thereto.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. § 32.*]</p> <p>2.Principal and Agent (§ 188*) — Actions —Joinder.</p> <p>One injured 'by the negligence of the agent of a third person may join the agent and his principal in one action to recover all resulting damages.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 711, 712; Dec. Dig. § 188.*]</p> <p>3.Banks and Banking (§ 102*) — Negligence of Correspondent Bank.</p> <p>Where school bonds were delivered by a school city to the S. bank, which delivered them to the A. bank for examination, by the Attorney General, the latter bank was the agent of the former; and either or both of the banks were liable for the negligent loss of a bond while in the possession of the A. bank.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 274r-277, 347; Dec. Dig. §102.*] -</p> <p>4.Bailment (§§ 29, 21*) — Rights of Third Persons.</p> <p>One entitled to receive the subject-matter of a bailment from the bailee has a right of action against him for the conversion of the bailed property, though not a party to the bailment contract, and may maintain a suit against the bailee and bailor, jointly and severally, for the value of the property.</p> <p>[Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 122, 91-102; Dee. Dig. §§ 29, 21.*]</p> <p>5.Trover and Conversion (§ 35*) — Damages — Burden of Proof.</p> <p>The ordinary measure of damages in an action for the conversion of a chose in action, such as a negotiable bond, is the amount prima facie due on the face of the bond; it being for defendant to prove that the bond is of less value than its face value.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 215, 216; Dec. Dig. § 35.*]</p> <p>6. Banes and Banking (§ 227*)— Negligence — Damages—Proof.</p> <p>The approval and registration by the Attorney General of bonds issued by a school city was equivalent to a finding of the solvency of the city, importing that the bonds were worth prima facie at least their face value, so that, in an action by the city against a bank assisting in floating bonds, for damages for the negligent loss of one of them, evidence of the value of the bond was unnecessary, in absence of. a showing by defendant that it was not worth its face value.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. §§ 871-873; Dec. Dig. § 227.*]</p> <p>7. Appeal and Error (§ 999*) — Findings— Conclusiveness.</p> <p>The appellate court cannot disturb the finding of the jury on a question of fact which was properly submitted to it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3912-3924; Dec. Dig. § 999.*]</p> <p>8. Banks and Banking (§ 229*) — Negligent Loss of Bond — Decree—Provisions for Indemnity.</p> <p>While ordinarily the proper manner of protecting one sued on a lost bond is to require plaintiff to indemnify defendant, where the agents of a city for floating school bonds sued a bank, to which the bonds were delivered for examination by the Attorney General, for the value of a bond, payable in 40 years, lost while in its possession, it was sufficient, on rendering judgment against the bank for the value of the lost bond, to render judgment against the city in favor of the bank for a similar amount, with stay of execution until ma-' turity of the principal of the bond, and on the coupons attached thereto until four years after the maturity of any of them.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 875, 876; Dec. Dig. § 229.*]</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by J. J. Murphy against the Boren-Stewart Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Jim Wells County; W. B. Hopkins, Judge.</p> <p>Action by Rufino Saenz against M. D. Cohn and another. Judgment in favor of defendant Cohn alone, and plaintiff appeals.</p>

<p>Criminal Law (§ 1144*) — Record — Statement op Facts — Bill op Exceptions.</p> <p>Where there is no statement of facts nor bill of exceptions, and the question raised by motion for new trial cannot be considered in the absence of the statement of facts, the court on appeal must presume that the action of the trial court was valid.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2736-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]</p>

<p>Ceiminal Law (§ 1144*) — Appeal—Review— Presumptions.</p> <p>On a criminal appeal, the trial court will be presumed to have correctly presented the law to the jury, in the absence of a statement of facts.</p> <p>• [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>Enreiquo Queto was convicted of theft from the person, and he appeals.</p>

<p>Cbiminal Law (§ 1097*) —Appeal — Statement of Facts — Necessity.</p> <p>Neither an order denying a new trial nor an order refusing a postponement is reviewable, in the absence of a statement of facts.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934/ 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]</p>

<p>Criminal Law (§§ 1063, 1094, 1101*) — Appeal — Disposition.</p> <p>An appeal from a conviction must be affirmed, where there is no motion for new trial, no statement of facts, and no bill of exceptions, and where the indictment charges an offense, and the trial court ’Submitted that offense.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2673, 2676-2684, 2807, 3204; Dec. Dig. §§ 1063, 1094, 1101.*]</p>

<p>Error from District Court, Harris County; Norman G. Kittrell, Judge.</p> <p>Action by IT. Waldo Belding and others against unknown heirs of William Steele. Judgment for plaintiffs. Defendants bring error.</p>

<p>1. Exceptions, Bill op (§ 40*) — Appeal and Ereoe (§ 564*) —Statement op Facts —Time poe Filing.</p> <p>Under Acts 32d Leg. c. 119, § 7, providing that, when a term of court may by law continue more than 8 weeks, the statement of facts and bills of exception shall be filed within 20 days after final judgment, unless the court, by order entered of record, shall extend the time, an appellant’s time to file a statement of facts and bills of exception is not extended by a written agreement between counsel, approved by the trial judge, but not entered of record, that they may be filed after such time, nor by oral representations by appellee’s counsel that he had 90 days in which to file.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 44, 45, 57-64; Dec. Dig. § 40;* Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. § 564.*]</p> <p>2.' Appeal and Eeboe (§ 564*) — Statements op Faci> — Time .poe Filing.</p> <p>Acts 32d Leg. c. 119, § 7, providing that any statement of facts, filed before the time for filing the transcript in the appellate court expires, shall be considered as filed in time, authorizes the Court of Civil Appeals to consider a statement filed within 90 days; but it does not impose on the trial judge the duty of making or approving within 90 days a statement not filed within the time limited by other provisions of that statute.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. § 564.*]</p>

<p>Principal and Agent (§ 136*) — Fraud—-Personal Liability of Agent.</p> <p>Plaintiff, on rescinding a contract to trade land for fictitious vendor’s lien notes, is not entitled to hold the other party’s agent personally for money paid him as part consideration for the notes; the payment being made at the other party’s direction for services in negotiating the trade, and the agent not having participated in any fraud.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 447 — 450, 476-491; Dec. Dig. § 136.*]</p>

<p>Error from District Court, San Augustine County; W. B. Powell, Judge.</p> <p>Trespass to try title by I. R. Hanks and others against M. F. Holt and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>Appeal from El Paso County Court; Albert S. Eylar, Judge.</p> <p>Action by Edwin Mash, by his next friend, F. J. Bouton, against Max Posener. Judgment for plaintiff, and defendant appeals.</p>

<p>Venue (§ 21*) — Action on Contract — Place, ox Suit.</p> <p>Plaintiff sued in Culberson county to recover rent on a lease contract executed in El Paso county. Defendant, when the contract was made and when suit was brought, resided in Jeff Davis county. The contract was made at defendant’s headquarters ranch situated in territory then a part of El Paso county, but which, at the time suit was brought, was in Culberson county, in which county the leased land was situated. Held, that there was nothing in the contract or in the circumstances attending its execution to show that the rent was to be paid at any particular place, and hence defendant’s plea of privilege to be sued in the county of his residence should have been sustained.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 34; Dec. Dig. § 21.*]</p>

A. Turner, Judge. Trespass to try title by Tom Sanders against R. P. Sheffield and others. Erom a judgment for defendants, plaintiff appeals. This is an action of trespass to try title, and judgment was entered for the defendants. The appellant, plaintiff in the suit, claimed the land by virtue of heirship from his father, Jack Sanders, deceased. He proved heirship.

<p>Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.</p> <p>Action by Ed Dozier against N. L. Easton. From a judgment for plaintiff, defendant appeals.</p>

Error from District Court, McLennan County; Tom L. McCullough, Judge. Action by T. J. Freeman, receiver of the International & Great Northern Railroad Company, against V. Remendó. There was a judgment granting insufficient relief, and plaintiff brings error.

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action by John W. Harris and others against C. J. Wagnon and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Landlord and Tenant (§ 128*) — Contracts — Obligation oe Tenant.</p> <p>Where a tenant, with knowledge of the refusal of a third person to vacate a part of the land, took possession of the remainder, without notifying the landlord of the facts, and cultivated the same, though the tenant was informed by the owner that he had never leased any part of the land to the third person, and knew that the landlord was ignorant of the facts, he took possession at his peril, and could not complain of a verdict for the owner for an amount which was such proportion of the sum agreed to be paid as the land cultivated by the tenant bore to the entire premises.</p> <p>[Ed. Note. — For other cases, see Landlord and: Tenant, Cent. Dig. §§ 448, 449; Dec. Dig. § 128.*]</p> <p>2. Appeal and Error (§ 1068*) — Harmless Error — Erroneous Instructions.</p> <p>Where the jury rendered its verdict pursuant to a correct part of the charge, the error, if any, of another portion thereof was harmless-</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p>

<p>Appeal from District Court, Wise County; J. W. Patterson, Judge.</p> <p>Roy Burnam was convicted of murder, and he appeals.</p>

<p>Appeal from District Court, Robertson County; J. C. Scott, Judge.</p> <p>Action by Clara Henderson against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from 'District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by W. B. Ammerman against Garnet B. Kane and others. From a personal judgment for plaintiff against Garnet B. Kane, she alone appeals.</p>

<p>1. Schools and School Districts (§ 103*)— Levying Special School Tax — Elections —Validity.</p> <p>The decision of the county judge, ordering an election in a school district to determine whether a special school tax shall be levied, as authorized by Acts 29th Leg. c. 124, §§ 57, 58, as amended by Acts 31st Leg. c. 12, § 1, that a majority of the legal voters of the district had signed the petition therefor is .conclusive; and the validity of the election cannot be contested on the ground that he erred in his decision.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 240-245; Dec. Dig. § 103.*]</p> <p>2. Schools and School Districts (§ 101*)— Special Tax — Levy—Statutes.</p> <p>Under Acts 29th Leg. c. 124, §§ 57, 58, 66, as amended by Acts 31st Leg. c. 12, § 1, authorizing a special tax, not exceeding 50 cents on the $100 valuation of the property in a school district, and authorizing the commissioners to levy a tax within the limit as determined by the trustees of the district and the county superintendent, a district may, at- an election, vote for a special tax, not exceeding 25 cents on the $100 valuation of the property; and the commissioners’ court may levy the tax within the limit of 25 cents on the $100 valuation, as fixed by the trustees and the county superintendent having discretion as to the amount of the tax.</p> <p>[Ed. 'Note. — For other cases, see Schools and School Districts, Cent. Dig. § 236; Dec. Dig. § 101.*]</p>

<p>1. Master and Servant (§ 234*) — Injury to Employé — 'Contributory Negligence.</p> <p>Where a railroad employé, while unloading ties in the ordinary manner, permitted one to slip from his hands by reason of it being wet with creosote on the bottom, which condition, he did not know until the tie slipped, and as a result creosote was spattered in his eye, he was not chargeable with contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 684-686, 706-709; Dec. Dig. § 234.*]</p> <p>2. Master and Servant (§ 97*) — Injury to Employé — Anticipated Result.</p> <p>Where a tie being unloaded by an employe under the directions of a vice principal had been soaked with creosote by the railroad company, injury to the employé’s eye from the tie slipping and spattering creosote was a result such as could reasonably have been anticipated by the company; creosote being known to be dangerous to the eyes, and it being natural for the wet tie to slip and for the creosote to spatter.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 163; Dee. Dig. § 97.*]</p> <p>3. Negligence (§ 59*) — Anticipated Results.</p> <p>The proximate and natural consequences of an act of negligence are always deemed foreseen, though the precise injury may not have been anticipated.</p> <p>[E'd. Note. — For other cases, see Negligence, Cent. Dig. § 72; Dec. Dig. § 59.*]</p>

<p>1. Death (§ 104*)—Action — Damages—Instructions.</p> <p>The instruction, in an action by a widow for death of her unmarried son, that the measure of damages is the present value of the pecuniary contributions she had a reasonable expectation he would have made to her, had he lived, does not authorize recovery for contributions he might have made other than for her sole benefit.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.*]</p> <p>2. Death (§ 104*)—Action—Damages — Instructions. .</p> <p>The instruction stating the measure of damages for death of plaintiff’s son as the present value of the pecuniary contributions she had a reasonable expectation he would have made to her, had he lived, by stating that the jury will not allow her anything for grief or sorrow on account of his death, or for loss of his society, affection, and companionship, excludes all improper elements of damage.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.*];</p> <p>3. Death (§ 99*) — Damages — Excessive Recovery.</p> <p>A verdict of $10,000 in an action by a widow of 43 for death of her unmarried son of 22, strong, healthy, sober, and industrious, who, as extra locomotive fireman, was earning over $40 a month, the larger part of which he devoted to her support, and who was in line for promotion to a regular fireman, whose average earnings are $90 a month, is not excessive.</p> <p>[Ed. Note. — For Other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*]</p>

<p>Error to District Court, Hunt County; T. D. Montrose, Judge.</p> <p>Action by W. P. Wright & Co. against the Royal Insurance Company. From a judgment for plaintiffs, defendant brings error.</p>

<p>1.Trial (§ 143*) — Questions oe Law ob Fact — Conflicting Testimony.</p> <p>Where plaintiff’s direct testimony tended to show a right to recover, if there was a conflict between it and his cross-examination, it was for the jury to determine which was correct, and a verdict for defendant was improperly directed.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]</p> <p>2. ATTORNEY AND CLIENT (§ 166*) — ACTIONS eob Compensation — Evidence — Performance.</p> <p>In an action by an attorney to recover compensation for services, which was contingent upon his establishing his client’s superior right to land as against the one who had procured an award from the Commissioner of the General Land Office, a deed from the client to-such person was admissible to show that his own act had made it impossible for him to procure the land from the state.</p> <p>[Ed.__Note. — For other, cases, see Attorney and" Client, Cent. Dig. §§ 368-372; Dec. Dig. §■ 166.*]</p> <p>3. Appeal and Error (§ 1175*) — Disposition — Rendering- Judgment.</p> <p>A motion by defendant for a directed verdict is not equivalent to a demurrer to the evidence; and hence, on an appeal by plaintiff from a judgment on such a verdict, the Court of Civil Appeals will not render judgment for plaintiff, but will remand the case.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]</p>

<p>1. Telegraphs and Telephones (§ 15*)— Wikes — Negligent Maintenance — Responsibility.</p> <p>Whether a telephone company is liable for injury to a railway brakeman, struck while standing on a freight car by a wire suspended by the company over railway tracks, depends upon whether the railway company authorized the wire to he so suspended.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. § 15.*]</p> <p>2. TELEGRAPHS AND TELEPHONES (§ 15*)— Wires — Negligent Maintenance — Responsibility.</p> <p>A telephone company which has suspended a wire over a railway track so low as to strike a brakeman on a passing freight car cannot escape liability for the injury because it acted for a patron whose line, was connected with the company’s exchange.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. § 15.*]</p> <p>3. Telegraphs and Telephones (§ 15*)— Wires — Negligent Maintenance — Responsibility.</p> <p>A telephone company is not liable for injury to a railway employé caused by a wire being suspended too low over a railway track, if it did not construct the line or control it, though it was connected with the company’s lines as a convenience to the individual owner of the line.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. § 15.*]</p>

<p>Error from District Court, Eastland County; Thos. L. Blanton, Judge.</p> <p>Action by J. A. Haak against A. C. Ratliff and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Appeal and Error (§ 742*) — Briefs — Form.</p> <p>Court of Civil Appeals Rule 31 (102 Tex. xxx, 142 S. W. xiii) provides that assignments of error shall not only point out the part of the proceedings complained of, but that each point thereunder shall be stated as a distinct proposition, and to each proposition shall be subjoined such brief statement of the proceedings, or part thereof, as shall be necessary to explain and support the proposition. Eeld, where the formal propositions submitted under assignments of error were but abstract rules of law and were without appropriate statements of the evidence, and the assignments contained varied propositions supported by a statement embodying more than 100 pages of the statement of facts in the record, without incorporating any evidence, it was improper and would not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Acknowledgment (§ 41*) — Defective Acknowledgment.</p> <p>Where it was undisputed that plaintiff claimed through a regular chain of mesne conveyance under the patentee of the survey, of which the land in controversy was a part, and that defendants were hut trespassers claiming possession under a tenant of one of the intermediate vendors in plaintiff’s chain of title, it was immaterial that the acknowledgment of a feme covert heir of the patentee was defective, since the appellee at least was a tenant in common and as such was entitled to recover from defendants.</p> <p>[Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §| 224, 225; Dec. Dig. § 41.*]</p>

<p>1. Negligence (§ 136*) — Jtjbt Question.</p> <p>As a rule, negligence is a question of fact and not of law, though in some cases the court may instruct that certain facts constitute negligence and take the case from the jury.</p> <p>[Ed! Note. — For other cases, see Negligence, Cent Dig. §§ 277-353; Dec. Dig. § 136.*]</p> <p>2. Negligence (§ 136*) — Juey Question.</p> <p>An act is not negligence per se, unless contrary to a statutory duty, or so utterly opposed to ordinary prudence that reasonable minds would not differ as to its negligent character.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dee. Dig. § 136.*]</p> <p>3. Carriers (§ 347*) — Passengees—Injubies —Juey Question — Contbibutoby Negligence.</p> <p>Evidence, in a street car passenger’s action for injury to his arm, while it was resting on the sill of the car window, by another car striking it while going around a curve, held to make it a jury question whether plaintiff was guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346-1397, 1402; Dec. Dig. § 347.*]</p> <p>4. Carriers (§ 320*) — Passengees —Juey Question — Negligence.</p> <p>Evidence, in a street car passenger’s action for injuries to his arm, which was broken by being struck by another car which his car passed on a curve, held to make it a jury question whether the passing of the two cars on a curve was negligence proximately causing the injury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1337, 1343; Dec. Dig. § 320.*]</p> <p>5. Cabbiebs (§ 317*) — Passengees—Injuries —Admission oe Evidence — Rules oe Companies.</p> <p>In a street car passenger’s action for injuries to his arm, when it was partly out of the window, by being struck by another car going around a curve, the company’s rule prohibiting cars from passing on curves was admissible as tending to show negligence, irrespective of whether plaintiff knew of the rule.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1295-1306; Dec. Dig. § 317.*]</p>

<p>1. Carriers (§ 345*) — Carriage of Passengers — Injuries — Actions — Evidence — Admissibility.</p> <p>In an action for injuries to a woman from being thrown while alighting from a street car, the testimony of a medical expert, that a pregnant woman is by nature and instinct much more cautious in undertaking any risk of personal injury than a woman not in such condition, was inadmissible upon an issue whether the car was yet moving when she attempted to alight, though she testified that she then knew herself to be pregnant.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1400; Dec. Dig. § 345.*]</p> <p>2. Carriers (§ 345*) — Carriage of Passengers — Injuries — Actions — Evidence-Admissibility.</p> <p>Where the issue is whether a street car passenger was careful in alighting at the time of her injury and waited until the car had stopped, evidence that she is ' habitually very cautious in anything involving the risk of any injury to her person is inadmissible.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1400; Dee. Dig. § 345.*]</p> <p>3. Appeal and Error (§ 1058*) — Review-Harmless Error — Exclusion of Evidence.</p> <p>The exclusion of the testimony of a medical expert bearing upon the question of the injured passenger’s want of negligence in alighting from the car, and whether the car was moving when she attempted to alight, if error, was harmless, where she testified that she was always exceedingly careful in getting on and off cars, and the great preponderance of the evidence showed the car to have been moving at the time she attempted to alight and was injured.</p> <p>[Ed. Note. — For other cases, see’Appeal and Error, Cent. Dig. §§ 4195, 4200-4206; Dec. Dig. § 1058.*]</p> <p>4. Carriers (§ 347*) — Carriage of Passengers — Injuries—Actions — Submission of Issues.</p> <p>Plaintiff’s allegation and evidence that the street car had stopped when she attempted to alight, and that she was thrown and injured by its being suddenly jerked or moved after being so stopped, did not authorize or require the court to submit an issue as to whether the car was jerked while yet moving.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1346-1397, 1402; Dec. Dig. § 347.*]</p> <p>5. Carriers (§ 348*) — Carriage of Passengers — Injury—Actions—Instructions.</p> <p>Where the sole negligence relied on was the sudden moving of a street car claimed by plaintiff to have stopped before she attempted to alight and was thrown and injured, it is not error to instruct that there could be no recovery if the car was moving when she attempted to alight.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1407; Dec. Dig. § 348.*]</p> <p>6. Carriers (§ 34S*) — Carriage of Passengers — Injuries—Actions—Instructions.</p> <p>In an action for injuries to an alighting passenger from being thrown by the sudden motion of the ear after it had come to a stop, an instruction, that there could be no recovery if the passenger attempted to alight while the car was yet in motion, was not .misleading; it not being possible for the jury to fail to understand that the motion referred to was that of the car while slowing down, and not a sudden motion of the car after it had stopped.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1407; Dec. Dig. § 348.*]</p> <p>7. Trial (§ 244*) — Instructions.</p> <p>•In an action for injuries to an alighting passenger, an instruction that the jury should return a verdict for the defendant if they did not find from a preponderance of the evidence that the car stopped and was started up while the passenger was alighting, but believed from the evidence that she stepped off the car while it was yet in motion, did not unduly emphasize the burden of proof and the preponderance of the evidence.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]</p>

<p>1. Waters and Water Courses (§ 178*)— Injuries bt Flowage of Lands — Damages.</p> <p>Where a construction interfering with the flow of water is permanent, and is at once productive of all the damages which can result from it, a cause of action accrues at once on completion of the work, and the measure of damages is the difference in the market value of the land just before and just after the completion of the construction; but, where the injury occurs from successive overflows, the occurrence and frequency of which cannot be foretold, nor the extent of the damages foreseen, each overflow gives rise to a separate cause of action, and the measure of damages for such overflows, causing permanent injury to land, is the difference between the value of the land just before and just after an overflow.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 251-255; Dec. Dig. § 178.*]</p> <p>2. Waters and Water Courses (§ 179*) — Injuries by Flowage of Lands — Evidence —Value of Land.</p> <p>Where, in an action against a railroad company for damages caused by an overflow of a stream, due to the construction of a roadway across the valley,' the evidence showed that the roadway was not completed at the time of the overflow complained of, and that the overflow was caused by failing- to leave sufficient openings for the escape of the waters of ordinary overflows of the river, the admission of testimony of the value of the land just before and just after the overflow was not erroneous.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 244-250, 256-259, 263, 264; Dec. Dig. § 179.*]</p> <p>3. Waters and Water Courses (§ 178*)— Flowage of Land from Obstructing Water Course — Damages.</p> <p>Where a railroad company constructed its roadbed across the valley with insufficient openings for the escape of the waters of ordinary overflows of the river, and thereby diverted the overflow onto the laijd of plaintiff, the latter could recover the damages caused by the overflow, whether permanent or temporary, and for the permanent injury to the land by reason of anticipated overflows, taking into consideration the history of the stream.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 251-255; Dec. Dig. § 178.*]</p>

H. Arnold, Judge. Application by B. C. Cage, for the probate of the will of M. J. Crow, contested by Rebecca Allday and others. Probate granted, and contestants appeal.

<p>1.Judgment (§ 829*) — Foreign Judgment-Collateral Attack.</p> <p>The rule that a judgment reciting service of process on defendant cannot be collaterally attacked does not apply to a foreign judgment, which may be collaterally attacked for any defect showing lack of jurisdiction, and a federal court judgment is in such a sense a foreign judgment.</p> <p>[EM. Note. — For other cases, see Judgment, Cent. Dig. §§ 1510-1515; Dec. Dig. § 829.*]</p> <p>2. Judgment (§ 490*) — Collateral Attack.</p> <p>Where the defect in the service of process does not derpive the court of jurisdiction and its judgment is voidable only, the judgment cannot be collaterally attacked.</p> <p>[Ed. Note — For other cases, see Judgment, Cent. Dig. §§ 926-928; Dec. Dig. § 490.*]</p> <p>3. Courts (§ 21*) — Jurisdiction—Manner oe Acquiring.</p> <p>Courts acquire jurisdiction in suits in per-sonam by personal service of process, but in suits in rem such process may be constructive, and the court may acquire jurisdiction to determine a suit in rem, though defendant has been served only by publication.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 69-74, 129-133; Dec. Dig. § 21.*]</p> <p>4. Mortgages (§ 383*) — Foreclosure — Suit in Rem.</p> <p>A suit to foreclose a mortgage is a suit in rem.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 1148; Dec. Dig. § 383.*]</p> <p>5. Judgment (§ 829*) — Foreign Judgments— Collateral Attack.</p> <p>Process in a suit in a federal court to foreclose a mortgage was not served on defendant until after the return day. A motion for decree pro confesso based on the failure of defendant to appear or file any demurrer or answer was heard several months after the date of the service. Subsequently final judgment of foreclosure was. entered. Held, that the judgment was not subject to collateral attack because defendant could have answered long before the taking of the judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1510-1515; Dec. Dig. § 829.*]</p>

<p>1. Witnesses (§ 202*) — Privileged Communications — Attohney Acting as Scrivener.</p> <p>Where an attorney acts merely as a scrivener in writing a deed, and is not asked for advice as to any legal question relating thereto, communications between the parties at the time, or mere silence, are not privileged, so as to exclude the attorney’s testimony thereto.</p> <p>[Ed. Note. — For other cases, see Witnesses, ■Cent. Dig. §§ 756, 757; Dec. Dig. § 202.*]</p> <p>2. Evidence (§ 220*) — Admissions—Silence.</p> <p>In an action to recover an undivided one-.sixth of a tract of land, claimed to have been given as compensation for defendant’s sale of a contract in exchange for the tract, where defendant admitted the execution of a written statement that plaintiff was entitled to the interest sued for, not purporting to be a conveyance, but recitative merely and capable of explanation, the fact that plaintiff, when employing an attorney to write a deed to the interest ■claimed, said said nothing about his having such written statement was immaterial.</p> <p>[Ed. Note. — For other cases, see Evidence, •Cent. Dig. §§ 771-785; Dec. Dig. § 220.*]</p> <p>3. Evidence (§ 474*) — Opinion Evidence-Market Value oe Real Property — Qualifications.</p> <p>In an action to recover an interest in real property, witnesses who had lived on adjoining farms from 10 to 25 years, or had lived upon -the tract in controversy and cultivated it for a number of years, and who knew the value of land in the vicinity and about what land sold for in the neighborhood, were qualified to give an opinion as to the market value of the tract.</p> <p>[Ed. Note. — For other cases, see Evidence, •Cent. Dig. §§ 2196-2219; Dec. Dig. § 474.*]</p> <p>4. Appeal and Error (§ 742*) — Assignments oe Error — Statement oe Evidence — Rule oe Court.</p> <p>Where an assignment of error is not followed by any statement of the proceeding, or part thereof contained in the record, as required by rule 31 for Courts of Civil Appeals (142 S. W. xiii), from which it can be seen that the court below erred, the court will not search the record for facts to support the assignment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>5.Judgment (§ 744*) — Decreeing Title to Defendant.</p> <p>In an action to recover part of a tract of land, where the defendant admitted That plaintiff was entitled to an interest in any such sunv over $4,000 as he could sell the land for, and where the jury found that plaintiff had no interest in the land, a judgment, specifically decreeing that plaintiff “has no interest whatever in the land herein sued for,” and decreeing title to defendant and quieting such title, was proper, precluding no right of plaintiff under the agreement admitted by defendant.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1278-1281; Dec. Dig. § 744.*]</p> <p>6. Trespass to Try Title (§. 41*) — Sufficiency oe Evidence.</p> <p>Evidence, in an action to recover a part of a tract of land, held, sufficient to sustain a judgment for defendant.</p> <p>[Ed. Note. — F'or other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. § 41.*]</p>

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Action by Mrs. W. B. Barr against the Southern National Insurance Company of Austin. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>Bob Douglass was convicted, of forgery, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>Willie Adams was convicted, and appeals.</p>

<p>Appeal from Criminal 'District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>John O’Mallay was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, Grayson ■County; B. L. Jones, Judge.</p> <p>Action by Maude Seale and others against the St. Louis, San Francisco & Texas Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Carriers (§ 321*) — Carriage of Passengers — Injuries — Actions — Instructions —Burden of Proof.</p> <p>In an action against a street railway company for injuries to a passenger, an instruction that if a place where defendant stopped a car to enable plaintiff to aligbt was a reasonably safe place to alight, and plaintiff alighted from the car safely, and after she alighted and was walking away therefrom she stepped into a hole in the street, and was thereby caused to fall, and as a result was injured, then the jury should find for defendant, was erroneous as placing the burden on defendant to show not only that plaintiff alighted from the car safely and was injured while walking away by a hole in the street, but also that the place where defendant stopped the car was a reasonably safe place to alight.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*]</p> <p>2. Carriers (§ 321*) — Carriage op Passen-GEBS — INJURIES—ACTIONS—INSTRUCTIONS.</p> <p>Where plaintiff claimed that she was thrown from defendánt’s street car and injured by the sudden starting of the car, and also that the car stopped at a point where there was a hole in the street into which plaintiff stepped as she alighted, while defendant claimed that plaintiff was not injured until after she had left the car, when she stepped into a hole in the street, defendant was entitled to an instruction that, if the car was not started while plaintiff was in the act of alighting, and she alighted safely therefrom, and after she had alighted she turned and walked away and stepped into a hole in the street a step or two from the place where she had alighted and was thereby caused to fall, then defendant was not liable.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*]</p> <p>3. Trial (§ 194*) — Instructions —Weight op Evidence.</p> <p>Such instruction was not objectionable as -on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p> <p>4. Cabriers (§ 318*) — Carriage op Passengers — Injuries—Actions—Evidence.</p> <p>In an action for injuries to a passenger as she was alighting or after she had alighted from the street car, evidence held insufficient to raise the issue whether she stepped into the hole when she alighted from the car.</p> <p>[Ed. Note. — For other cases, see' Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*]</p> <p>■6. Carriers (§ 320*) — Carriage op Passengers — Injuries—Alighting prom Car — Issues.</p> <p>Where, in an action for injuries to a passenger by stepping into a hole in the street after she had alighted from a car, the evidence was insufficient to raise the issue whether she stepped into the hole as she stepped from the car, it was also improper to submit the issues whether the conductor failed to assist her to alight and whether he informed her of the existence of the hole.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1315-1325; Dec. Dig. § 320.*]</p> <p>■6. Carriers (§ 321*) — Carriage op Passengers — Injuries—Actions—Instructions.</p> <p>Where plaintiff at the time she alighted from a street car and was injured was a strong healthy woman, and there was no evidence that she was incumbered or that the step was ■muddy, but she claimed that she was thrown from the car by a sudden movement thereof, while all the other evidence indicated that she alighted in safety and thereafter stepped into a hole in the street and was injured, the carrier was entitled to an instruction that the jury should disregard the issues made by plaintiff’s pleadings as to the conductor’s duty to assist her to alight.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*]</p>

<p>1. VENDOR AND PURCHASER (§ 93*) — CONTRACTS of Sale — Forfeiture.</p> <p>Where a purchaser in an executory contract of sale made substantial payments of the price and expressed a willingness to pay the remainder, the vendor, retaining a lien for the unpaid price, could not rescind the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 153, 154; Dec. Dig. § 93.*]</p> <p>2. Gifts (§ 41*) — Parol Gift of Real Estate — VAtlDITY.</p> <p>A parol gift of real estate, repudiated by the donor’s demand of possession and bringing suit of forcible entry and detainer for possession prior to the making of any improvements by the donee, is invalid.</p> <p>[Ed. Note. — For other eases, see Gifts, Cent. Dig. § 20; Dec. Dig. § 41.*]</p> <p>3. Gifts (§ 41*) — Contracts — Revocation of Gift.</p> <p>Where a husband made a parol gift of real estate to a child in consideration of the wife relieving» him of any duty to contribute to the support of the child, and pursuant to an understanding that he would at once give the wife possession of the property if she and the child would make it their home, and the wife, accepted the proposition and took possession of the child and made payments for support of the child, and the husband then revoked the gift, and sought to recover possession, the wife could recover the amount expended for the care and education of the child prior to the revocation of the gift, free from liability for rent for the premises prior to the revocation, but, where she retained possession after the revocation, she was chargeable with the rent.</p> <p>[Ed. Note. — For other cases, see Gifts, Cent. Dig. § 20; Dec. Dig. § 41.*]</p> <p>4. VENDOR AND PURCHASER (§ 289*) — TENDER of Price — Rights Acquired.</p> <p>Where a purchaser out of possession tendered the unpaid part of the price secured by vendor’s lien, but the tender was refused by one in possession, the latter was properly charged with the rents of the property from the date of the tender to the date of the trial of the purchaser’s suit to redeem.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 820, 821; Dec. Dig. § 289.*]</p> <p>5. Appeal and Error (§ 1073*) — Harmless Error — Erroneous Judgment.</p> <p>Where, in a suit to redeem land from a vendor’s lien, plaintiff paid into the court the balance due on the purchase-money notes, principal, interest, and attorney’s fees, and the court properly charged two of the adult defendants with rents which were less than the amount paid into court, the error in a judgment against the infant defendant for rents was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. “ 1073.*]</p> <p>6. Vendor and Purchaser (§ 289*) — Contracts — Vend or’ s Lien — Redemptio n.</p> <p>A purchaser giving a vendor’s lien note for the unpaid price brought suit to redeem, and in his petition he alleged that he tendered into court the principal of the note and interest and attorney’s fees, and asked the court to apply the money on the payment of the indebtedness. The court found that the purchaser’s tender of the amount due, principal, interest, and attorney’s fees, was not made until after the suit was instituted, and that the tender was refused. Bold, that the court properly allowed the attorney’s fees tendered in determining the amount necessary to constitute a sufficient tender.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 820, 821; Dec. Dig. § 289.*]</p>

<p>Appeal from District Court, Hunt County; T. D. Montrose, Judge.</p> <p>Action by Mary L. Davis and others against S. X Brooks. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>1. Sales (§ 377*) — Breach of Conteact — -Petition — Damages.</p> <p>A petition, in an action for a buyer’s failure to receive and pay for machinery ordered of the seller, -which alleges that the machinery ordered was special and had to be manufactured, and that the buyer refused to receive and pay for the machinery, does not seek a recovery of special damages, but only such as ordinarily result from the refusal of a buyer to receive and pay for goods he contracted to buy.</p> <p>[E.d. Note. — For other cases, see Sales, Cent. Dig. § 1092; Dec. Dig. § 377.*]</p> <p>2. Damages (§ 76*) — Liquidated Damages— Penalties — Construction of Contkact.</p> <p>The court in determining whether the sum named in a contract to be paid in case of a breach thereof is to be treated as liquidated damages or as a penalty may consider the nature of the contract, the terms thereof, the consequences naturally arising from, a breach, and the peculiar circumstances of the transaction.</p> <p>LEd. Note. — For other cases, see Damages, Cent. Dig. §§ 154, 155; Dec. Dig. § 76.*]</p> <p>3. Damages (§ 78*) — Liquidated Damages— Penalties — Construction op Contract.</p> <p>A contract for the purchase of machinery consisting of numerous parts to be manufactured pursuant to the order of the .buyer, which stipulates that, in the event of the buyer’s failure to receive the “machinery or any part thereof,” he agrees to pay a specified per cent, of the amount of the contract and a specified per cent, as attorney’s fees if placed in the hands of an attorney for collection as liquidated damages, and not as a penalty, does not provide compensation to the seller for a breach by the buyer, but provides for a penalty, and the seller may only recover the actual damages sustained, but the amount of the recovery is not limited by the penal sum.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 157-163; Dec. Dig. § 78.*]</p> <p>4. Sales (§ 201*) — Contracts — Passing op Title.</p> <p>Where a buyer ordered machinery constituting a special outfit and not customarily carried in stock, and the seller ordered the machinery of a third person, and thereafter the buyer notified the seller not to ship the machinery, unless he was willing to allow a rebate on the contract price, and the machinery was subsequently shipped to the buyer, who refused to receive and pay for it, and the seller afterwards advertised the machinery for sale and sold it, the ownership of the machinery never passed to the buyer.</p> <p>[Ed. Note. — For other cases, see Sales, Cent.. Dig. §§ 529-541; Dec. Dig. § 201.*]</p> <p>5. Sales (§ 369*) — Contracts—Breach—Remedy op Seller.</p> <p>Where a buyer of machinery countermanded his order, he exercised a right, subject to pay to the seller the damages sustained thereby, and the seller on receiving a letter countermanding the order could treat the buyer’s repudiation of the contract as a broach and sue for the damages, or he could treat the contract as still in force and recover damages sustained with reference to conditions existing at the time fixed in the contract for performance.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1083, 1084; Dec. Dig. §' 369.*]</p> <p>6. Sales (§ 384*) — Breach op Contract — Measure op Damages.</p> <p>Where a buyer of machinery to be manufactured countermanded his order after the machinery had been manufactured and was ready for shipment, refusing to receive and pay for it, the seller, treating the machinery as belonging to the buyer, could sell it on the buyer’s account, and recover as damages the differences 'between the price it brought at the sale and the contract price.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. § 384.*]</p> <p>7. Sales (§ 384*) — Breach op Contract — Measure op Damages.</p> <p>Where a seller treated the contract of sale as in force notwithstanding the buyer’s countermanding his order, the measure of the seller’s damages was the difference between the value of the goods at the time fixed by the contract for performance and the contract price, less any enhancement of that difference, due to the unauthorized conduct on the part of the buyer after the order was countermanded, and, to determine the difference, the seller could sell the goods and ascertain their value, and the buyer could not complain of the place of the sale, in the absence of any evidence that he was prejudiced in consequence thereof.</p> <p>[Ed. 'Note. — For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. § 384.*]</p>

<p>1. Total (§ 252*) — Instructions — Applicability to Evidence.</p> <p>In an action to remove a fence obstructing an alley between the respective tracts of land of plaintiff and defendant, where the evidence showed that the alley was on the land of defendant, and that defendant’s grantor had opened it for his own convenience, and was insufficient to show that the city had accepted it or made any claim to the alley as a dedication, or that the public had acquired a prescriptive right therein, an instruction on the issue of dedication and rights by prescription was erroneous, not being applicable to the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>2. Dedication (§ 15*) — Essentials.</p> <p>The opening of an alley does not work a dedication unless it was opened for the benefit of the public.</p> <p>. [Ed. Note. — For other eases, see Dedication, Cent. Dig. § 13; Dec. Dig. § 15.*]</p> <p>3. Dedication (§ 43*) — Evidence.</p> <p>Whether an alley was dedicated to public use depends on the action or nonaction of the owners of the land, so that it was erroneous to-admit evidence showing that without the alley the public would be greatly inconvenienced in getting through the large block in which the alley was situated.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 83, 84; Dec. Dig. § 43.*]</p>

W. Simpson, Judge. Will contest by Alice Florence Brown and another against T. B. Berry and another. Judgment for contestants, and the eontes-tees appeal.

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action by W. J. Rosborough against Ellen Cook. Judgment for defendant, and plaintiff appeals.</p>

<p>Supplemental petition.</p>

<p>Appeal from District Court, El Paso County; A.'M. Walthall, Judge.</p> <p>Trespass to try title by M. W. Brown against Jesus Villalva and others. Judgment for plaintiff, and defendants appeal.</p>

J. Hinson, Judge. Proceedings by tbe Beaumont & Great Northern Railroad to condemn the land of C. H. Elliott. From a judgment of the county court fixing the compensation, petitioner appeals, and the owner assigns cross-errors.

Error from Dallas County Court; W. F. Whitehurst, Judge. Action by N. D. Dycus against the Commonwealth National Bank of Dallas, in which the American Exchange National Bank was made a party defendant. There was a judgment for defendants, and plaintiff brings error.

R. Harper, Judge. Action by the Van Horn Trading Company against J. R. Day and others. From a judgment transferring the case on a plea of privilege, plaintiff appeals.

<p>1. COMPKOMISE AND SETTLEMENT (§ 23*)— Mutual Mistake — Evidence.</p> <p>Evidence held to support a finding that a settlement of a contract of sale was made under a mutual mistake of fact, authorizing relief.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 9-94: Dec. Dig. § 23.*]</p> <p>2. Depositions (§ 95*) — Admissibility.</p> <p>Where a party introduced a portion of an answer to an interrogatory put to a witness testifying by deposition, the adverse party could introduce other portions of the answer explanatory of the part introduced by the party.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 276, 277; Dec. Dig. § 95.*]</p> <p>3. Appeal and Error (§ 1051*) — Harmless Error — Erroneous Admission oe Evidence.</p> <p>Where sufficient, competent evidence authorized the judgment rendered by the court, trying the case without a jury, the error, if any, in admitting improper testimony was not ground for reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p>

<p>Appeal from Victoria County Court; J. P. Pool, Judge.</p> <p>Action by W. E. Wilson against L. G. Kreisle. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Tom Green County Court; Oscar Frink, Judge.</p> <p>Action by J. M. Hollingsworth against Sam Grayson and another. From a judgment for plaintiff, defendant Grayson appeals.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by Everybody’s Gin & Mill Company against Arbuckle Bros. From a judgment for plaintiff, defendants appeal.</p>

L. Camp, Judge. Trespass to try title by C. J. Gray against Selig Deutschmann, in which Joseph Ryan intervened claiming certain sequestered property. From a judgment in favor of in-tervener against plaintiff and defendant, but denying judgment against defendant and the sureties on a replevin bond, he appeals.

<p>Appeal from Collin County Court; H. L. Davis, Judge.</p> <p>Action by Walter Giddings against the Texas Company. Judgment for plaintiff. Defendant appeals.</p>

G. Street, Judge. Action by W. F. Ort and. others against M. C. Bowden and others. Application for temporary injunction denied, and plaintiffs appeal.

<p>Appeal from I-Iarris County Court; A. E. Amerman, Judge.</p> <p>Action by Mrs. R. A. Lucas against the Atchison, Topeka & Santa Fé Railway Company and another. From a judgment for plaintiff, defendants appeal.</p>

L. Davis, Judge. Condemnation proceedings by the Texas Traction Company against Mrs. L. A. Routh and others. From the judgment on the commissioners’ award, the landowners appeal.

A. Read, Special Judge. Trespass to try title by Mrs. Rebecca Joseph against L. E. Adels, in which E. W. Vaughn, L. H. Dunn, and the Vaundun Company intervened as plaintiffs. From a judgment for the Vaundun Company, defendant appeals.

<p>Teespass to Try Title (§ 44*) — Direction of Verdict — Evidence.</p> <p>Where, in trespass to try title, the undisputed evidence was that, while the plaintiff was in possession through his tenants, the defendant entered upon and fenced the land in dispute, and there was no evidence to show a superior right in the defendant, the court properly instructed a verdict for plaintiff on the issue of prior possession.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 66; Dec. Dig. § 44.*]</p>

<p>Appeal from District Court, Refugio County ; John M. Green, Judge.</p> <p>Action by Diana Johnson and another against Walter Avery and others for the construction of a will of William Avery, deceased. ■ From a judgment construing the will, plaintiffs appeal.</p>

<p>Appeal from District Court, Travis County.</p> <p>Action by the State against Caswell & Smith. Prom a judgment for plaintiff, defendants appeal.</p>

<p>1. Witnesses (§ 372*) — Cross-Examination— Discretion oe Trial Court.</p> <p>Where a physician testifying for a patient suing for a personal injury testified that he did' not attend the patient on a percentage of any recovery for the injury, but that the patient was to pay him as any other patient would when he obtained the money to do so, the refusal to permit a question on cross-examination whether his arrangement with the patient was the same as that with a third person was within the discretion of the trial court.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.*]</p> <p>2. New Trial (§ 104*) — Newly Discovered Evidence — Sueeiciency.</p> <p>Denial of new trial on the ground of newly discovered evidence consisting of the testimony of witnesses who could only repeat what they had testified to on the trial, and further state some facts impeaching the testimony of the successful party, was within the discretion of the trial court.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 218-220, 228; Dec. Dig. § 104.*]</p> <p>3. New Trial (§ 102*) — Newly Discovered Evidence — Diligence.</p> <p>An affidavit of counsel for defendant in an action for a personal injury in support of a motion for new trial on the ground of newly discovered evidence that he caused investigations to be made that he thought would disclose any facts as to plaintiff’s condition, and that it was only after the deposition of a physician had been taken that he learned that the physician had examined plaintiff more than two weeks before the trial, when it was too late to interview him again, and that he did not know until after the trial of any agent of defendant who knew of the fact that plaintiff had been taken off the' pay roll of the government because he was able to go back to work, did not show due diligence to obtain the newly discovered evidence before the trial, and a new trial was properly denied.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.*]</p> <p>4. Damages (§ 59*) — Personal Injuries — Loss oe Time — Payment of Wages.</p> <p>One sustaining a personal injury resulting in loss of time may recover from the wrongdoer compensation therefor, though his wages continued during the time he was incapacitated.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 108-112, 114, 117, 118; Dec. Dig. § 59.*]</p> <p>5. Damages (§ 132*) — Personal Injuries — Excessive Damages.</p> <p>A man 27 years old drawing a salary of $1,000 a year as mail clerk sustained a personal injury which confined him to his bed 42 days. His left kidney was enlarged, and his right limb was partially paralyzed. His injuries were permanent, and he would probably grow worse. Prior to the accident he was in excellent health, and was energetic. Reid, that a verdict for $8,500 should not be disturbed as excessive, not being manifestly unreasonable.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]</p>

<p>Appeal from District Court, narris County; Norman G. Kittrell, Judge.</p> <p>Action by Clarence Hogan, by next friend, against the Houston Belt & Terminal Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Reeves County; S. J. Isaacs, Judge.</p> <p>Garnishment proceedings by T. C. Pope against B. F. Looney. From a judgment against the garnishee, he appeals.</p>

Error from District Court, McLennan County; Marshall Surratt, Judge. Action by J. M. Smith against B. H. Derrick and another. There was a judgment for plaintiff, and defendant Derrick brings error.

<p>1. Brokers (§ 102*) — Misrepresentations bt Broker — Liability oe Principal.</p> <p>Representations as to the character of the land are within the scope of the duties of an agent, employed merely to find a purchaser for the land and having no authority to sell or exchange, and are binding on the principal.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 146; Dec. Dig. § 102.*]</p> <p>2. Fraud (§ 52*) — False Representations— Actions — Evidence.</p> <p>A husband and wife conveyed land in exchange for other land; the husband alone executing notes for the difference in the price. In an action on the notes, he defended on the ground of fraud and deceit practiced on his wife and himself. Held, that the wife’s testimony as to the false representations made to her concerning the character of the land taken in exchange, and her reliance thereon, was competent; she being a party to the exchange, although not a party to the action.</p> <p>[Ed. Note. — For other cases, see Fraud, Oent. Dig. § 48; Dec. Dig. § 52.*]</p> <p>3. Witnesses (§ 372*) — Credibility—Interested Witnesses — Cross-Examination — Scope.</p> <p>Where interested witnesses testified to the value of certain land, it was within the discretion of the court to permit cross-examination as to what they would give for it to test their credibility.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.*]</p> <p>4. Evidence (§ 113*) — Relevancy —Value oe Property — Time oe Valuation.</p> <p>In an action involving the falsity of representations as to the value of land, where there was evidence that its value at the time of the trial was the same as when the representations were made, the admission of depositions giving the witnesses’ opinions of its value when the depositions were taken was proper.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 259-296; Dee. Dig. § 113.*]</p> <p>5. Evidence (§ 488*) — Opinion Evidence-Value op Real Property.</p> <p>In an action involving the value of land, testimony of witnesses, shown to be qualified to give such an opinion, that the land was not suitable for cultivation, was properly admitted.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2273; Dee. Dig. § 488.*] •</p> <p>•6. Appeal and Error (§ 1050*) — Review — Harmless Error.</p> <p>Although a surveyor’s certificate attached to a plat of land is hearsay, its admission was harmless, where the surveyor, who prepared the plat, testified that it was correct; it being improbable that the jury were influenced by the certificate.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160, 4166; Dec. Dig. § 1050.*]</p> <p>7. Appeal and Error (§ 1062*) — Review — Harmless Error.</p> <p>Where the defense to an action on notes was fraud, and defendant admitted his liability except so far as it might be defeated by his plea of fraud, and the court gave a peremptory instruction for plaintiff subject to the same contingency, an instruction that the burden was on defendant to prove the fraud, and unless he had done so the jury need consider the case no further, was not prejudicial to plaintiff, since it must have been understood by the jury as referring only to defendant’s plea.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*]</p> <p>■8. Evidence (§ 271*) — Declarations—Self-Serving Declarations.</p> <p>Where a party exchanging land with another, when sued on his notes for the difference in the value, defended on the ground of false representations as to the character of the land taken by him, his testimony, that after he first saw the land he notified the other party that it was not of the quality represented and demanded a rescission, was competent to show that he had not ratified the transaction after discovering the fraud and to contradict a possible inference that his testimony, as to the false representations, was an afterthought and untrue.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.*]</p> <p>On Motion for Rehearing.</p> <p>9. Trial (§ 85*) — Reception of Evidence-Objections — Evidence Admissible in Part.</p> <p>Where it appeared that some of an agent’s misrepresentations as to the character of land were made after he was employed to find a purchaser therefor, an objection to the testimony concerning such representations as a whole was properly overruled.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 223-225; Dec. Dig. § 85.*]</p>

Error from District Court, Harris County; W. P. Hamblen, Judge. Action by Gertrude Forrester and others against W. T. Dickey. There was a judgment for plaintiffs, and defendant brings error.

Error from District Court, Brazoria County ; Wells Thompson, Judge. Action by J. E. Hooper and others, partners doing business under the name of the Velasco Fish & Oyster Company, against the Texas Company. There was a judgment for defendant, and plaintiffs bring error.

<p>1. Trial (§ 420*) — Waiver oe Errors — Rulings on Direction oe Verdict.</p> <p>Error in refusing to direct a verdict for defendant at the close of plaintiff’s case cannot be reviewed, where defendant did not rest its case on this evidence, but introduced its own evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.*]</p> <p>2. Sales (§ 345*) — Actions eor Price — Partial Delivery.</p> <p>Where an indivisible contract for the sale of a quantity of pipe did not provide when it should be delivered or that it should all be delivered at one time, and .upon delivery of a part the buyer wrongfully refused to accept it, not placing his refusal on the failure to deliver it at one time, the seller could regard the contract as broken and sue for the contract price of the quantity delivered.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 956-961; Dec. Dig. § 345.*]</p> <p>3. Sales (§ 359*) — Actions eor Price — Quality — Evidence.</p> <p>In an action for the price of pipe required by the contract of sale to stand a pressure of 1,500 pounds to the square inch, where, although no witnesses testified that the pipe delivered would stand such pressure, there was testimony that it was standard pipe line pipe, and that such standard pipe would stand the required pressure, and, although the pipe delivered was rusty, this was not shown to have affected its suitability for the purpose for which intended, a special finding of the jury that the pipe delivered would stand the pressure required by the contract was supported by the evidence.</p> <p>[Ed. Note. — For other1 cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. § 359.*]</p> <p>4. Appeal and Error (§ 1041*) — Harmless Error — Amendment oe Petition During Trial.</p> <p>Where no objection was made to the filing, in the form of a trial amendment, of an amendment not made necessary by the sustaining of an exception to the petition, the allowance of the amendment was not reversible error, since, although not proper as a trial amendment, it might be allowed by the court in its discretion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. § 1041.*]</p>

<p>Appeal from District Court, Houston County; B. H. Gardner, Judge.</p> <p>Action by the Louisiana & Texas Lumber Company against I-I. PI. Bennett and the Southern Pine Lumber Company, and the latter impleaded T. J. Alexander and N. D. Wright. There was a judgment for plaintiff and for defendant the Southern Pine Lumber Company against defendants Alexander and Wright, and defendant Bennett alone appeals.</p>

<p>1. Contracts (§ 26*) — Tim® of Going Into Effect.</p> <p>Effect is to be given to the contract from the time the parties agreed to its terms, as they did when plaintiff accepted defendant’s proposition as contained in its letter giving all its terms, though the contract was to be, and was, subsequently written out, signed, and delivered.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 119, 120; Dec. Dig. § 26.*]</p> <p>2. Carriers (§ 253%*) —Passes — Contract for Ties — Anti-Pass Law — Effect.</p> <p>The anti-pass law does not affect a contract of a railroad in effect before such law was in force, providing, as part of the consideration for furnishing ties to the railroad, the furnishing by it of transportation over its lines to the employés of the other pa,rty while in performance of the contract.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1019; Dec. Dig. § 253%.*]</p> <p>3. Carriers (§ 253%*) —Passes—Contract for Ties — Anti-Pass Law.</p> <p>The agreement of a contract for furnishing ties for a railroad, in effect before, and therefore unaffected by, the Texas anti-pass law, that as part consideration for furnishing them the railroad shall furnish transportation -over its line to the employés of the tie company while performing the contract, is not impaired by the provision that the transportation shall not be furnished if the agreement to do so shall be held invalid under the law of any state; evidently intended, in view of the contract providing for delivery of some of the ties in other states, to protect the railroad against legislation of any of them similar to said Texas law.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1019; Dec. Dig. § 253%.*]</p>

<p>1. Adverse Possession (§ 114*) — Acquisition oe Title — Evidence—Sueeioienot.</p> <p>Evidence held to support a finding that a person’s possession of land was adverse and continuous and undisputed for more than 10 years, ripening into title by limitation.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dec. Dig. § 114.*]</p> <p>2. Appeal and Error (§ 1033*) — Harmless Error — Erroneous Judgment.</p> <p>Plaintiff in trespass to try title may not complain of the judgment because it awards defendant less land than he is entitled to under the evidence.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4052^-4062; Dec. Dig. § 1033.*]</p> <p>3. Adverse Possession (§ 109*) — Title by Limitations — Divesting oe Title.</p> <p>One who had acquired title by limitations did not, by renting the premises from another and stating that he did not claim them, divest himself of the title acquired.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 629-635; Dec. Dig. § 109.*]</p> <p>4. Trial (§ 143*) — Instructions—Conelict-ing Evidence.</p> <p>A requested instruction, directing a finding on an issue, is properly refused, where the evidence on the issue is conflicting.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]</p> <p>5. Trial (§ 194*) — Instructions—Weight oe Evidence.</p> <p>An instruction, directing the jury to consider certain evidence in arriving at a verdict, is properly refused as a charge on the weight of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p>

<p>1. PRINCIPAL AND SURETY (§ 59*) — CONTRACTS of Suretyship — Construction.</p> <p>A bond must be strictly construed according to its terms, and cannot be extended by implication, so as to make sureties liable beyond its stipulations.</p> <p>[Ed. Note. — Eor other cases, see Principal and Surety, Cent. Dig. §§ 103, 103%; Dec. Dig. § 59.*]</p> <p>2. Mechanics’ Liens (§ 227*) — Building Contracts — Bonds of Contractors — Liability of Sureties.</p> <p>A surety on a bond of a contractor to erect a school building for a district, which recites that the contractor and surety are bound unto the trustees of the district and to persons who may become entitled to liens under the contract, and which declares that the condition of the obligation is such that, if the contractor shall perform the contract and discharge all indebtedness that may be incurred by him, the obligation shall be void, and that the bond is made for the benefit of all persons who may become entitled to liens under the contract, is not liable to one who furnished labor and materials for the construction of the building, since, under the school law of 1905 (Acts 29th Leg. c. 124) § 85, no lien can attach against the building.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 410; Dec. Dig. § 227.*]</p>

<p>Bkokebs (§ 88*) — Compensation—Actions— Evidence — Sufficiency.</p> <p>In an action by a real estate broker to recover commissions which he claimed were due him in furthering a sale, evidence held, insufficient to go to the jury.</p> <p>[Ed. Note.' — For other cases, see Brokers, Cent. Dig. §§ 121-130; Dec. Dig. § 88.*]</p>

<p>Appeal from District Court, Madison County; S. W. Dean, Judge. Habeas corpus on relation of Dick Decker. Erom an order remanding relator to custody, he appeals.</p>

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge. Juan Garcia was convicted of perjury, and appeals.</p>

<p>Appeal from Johnson County Court; J. B. Haynes, Judge. Lin Griffin was convicted of carrying a pistol, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Andrew Harris was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, Jefferson County; L. B. High-tower, Jr., Judge. Action by the State against Benjamin De Silva. There was an order refusing an injunction, and the State appealed, and the Court of Civil Appeals certified questions to the Supreme Court.</p>