Volume 152 — South Western Reporter

<p>1. Appeal and Error (§ 1094*) — Determination op Facts by Supreme Court.</p> <p>The Supreme Court on writ of error to review a judgment of the Court of Civil Appeals has no power to determine facts, but may determine, as a question of law, whether there is sufficient evidence, or any evidence, to establish the cause of action.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4322 — 4352; Dec. Dig. § 1094.*]</p> <p>2. Appeal and Error (§ 1178*) — Determination op Facts by Supreme Court.</p> <p>Where the Court of Civil Appeals reverses a judgment and renders judgment for insufficiency of the evidence in law to justify a recovery, the Supreme Court, reversing the ruling because in its opinion the evidence supports the recovery, will remand the cause for a new trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604^4620; Dec. Dig. § 1178.*]</p> <p>3. Appeal and Error (§ 1175*) — Determination op Facts by Supreme Court.</p> <p>Where the Court of Civil Appeals finds the allegations and evidence of plaintiff in an action for libel true and undisputed, but insufficient to sustain a charge of libel, and on such finding reverses the judgment of the trial court for plaintiff and renders judgment, the Supreme Court, being of opinion that the evidence found by the Court of Civil Appeals to he undisputed sustains the judgment of the trial court, must reverse the Court of Civil Appeals and render judgment.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4573^1587; Dec. Dig. § 1175.*]</p>

<p>Hawkers and Peddlers (§ 3*) — Traveling Person — Sale of Medicines.</p> <p>The fact that defendant after the expiration of his license continued to sell medicines form his home, his store, and one other place, and that while traveling in a wagon and selling other articles he advertised his medicines, did not make him guilty of selling medicines as a traveling person without a license.</p> <p>[Ed. Note. — For other cases, see Hawkers and Peddlers, Cent. Dig. §§ 3-6; Dee. Dig. § 3.*]</p>

Trespass to try title by George E. Crosby and others against the South Texas Development Company, with cross-action by defendant against H. Masterson. Judgment for plaintiff against all defendants, and for the South Texas Development Company against Masterson, and Masterson appeals.

<p>1.VENDOR AND PURCHASER (§ 3*)— CONSTRUCTION and Operation of Contract — “Option” — “Contract of Sale.”</p> <p>A written agreement, providing that an owner of land bound himself to sell it to another for a specified sum to be paid as therein provided, and that if the vendor’s title was not good the down payment should be refunded, but if he should furnish a good and sufficient warranty deed and abstract of title, and the other party should fail or refuse to carry out the contract, the down payment should be forfeited to the vendor, was an enforceable “contract of sale,” and not an “option”; an agreement by the purchaser to take the land being implied, and the provision for the , forfeiture of the down payment not rendering the contract an option in the absence of an agreement by the vendor to accept such sum as his liquidated damages.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 3; Dec. Dig. § 3.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1531-1534; vol. 8, p. 7616; voi. 6, pp. 5000-5002; vol. 8, p. 7739.]</p> <p>2. Brokers (§ 99*) — Personal Diability on Contracts.</p> <p>A real estate broker executing and delivering a contract for the purchase of land in his own name is bound thereby, although he was in fact acting for others.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§, 140; 141; Dec. Dig. § 99.*]</p> <p>3. Brokers (§ 88*) — Actions for Commissions — Evidence—Sufficiency.</p> <p>Where a person sued for broker’s commissions alleged and produced evidence tending to show that by his agreement with the broker he was to pay no commission unless an actual sale of the land was completed, the title passed, ■ and payment made, and there was evidence that he did everything he could except institute legal proceedings to secure the consummation of the sale, a peremptory instruction for the broker should not have been given, since the evidence did not show beyond dispute that the failure to consummate the sale was due solely to the owner’s fault.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121-130; Dec. Dig. § 88.*]</p> <p>4. Brokers (§ 60*) — Compensation—Sufficiency of Services.</p> <p>Notwithstanding the general rule that a broker employed to sell land earns his commission when he procures a purchaser ready ■and able to buy on the terms offered who enters into an enforceable contract therefor, a special agreement that no commissions shall be paid unless the sale is completed, the title transferred, and payment made, is valid.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 91; Dec. Dig. § 60.*]</p> <p>5. Brokers (§i 60*) — Compensation —Fail- . ure to Complete Transaction.</p> <p>Where a broker agrees that he shall receive no commissions until a sale is actually consummated by a transfer of the title and payment of the purchase price, he cannot recover, in the absence of such consummation, without showing that the failure to complete the sale was due to the owner’s fault.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 91; Dee. Dig. § 60.*]</p>

<p>1. Appeal and Error (§ 883*) — Questions REVIEWABLE — PEREMPTORY INSTRUCTIONS Given by Consent of Parties.</p> <p>A party may not, on writ of error, complain of a peremptory instruction for the adverse party, given with his express consent.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3611; Dec. Dig. § 883.*]</p> <p>2. Pleading (§§ 390, 391*) — Issues, Proof, and Variance — Allegations of Time and 'Place.</p> <p>Though, ordinarily, allegations of time and place are immaterial, and need not be proved as laid, they may be made material by the manner or by the requirement of the averments.</p> <p>[Ed. Note. — Por other eases, see Pleading, Cent. Dig. §§ 1306, 1310, 1311; Dee. Dig. §§ 390, 391.*]</p> <p>3. Municipal Coepoeations (§ 812*) — Defective Streets — Notice of Injury — Condition Precedent.</p> <p>The giving of the notice specified in Pt. Worth City Charter, providing for notice of the time and place of injury to hold the city liable therefor, is imperative, and it is .a prerequisite to a right to recover for injuries on a defective street that notice of the place of the defect is given.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1696-1707; Dec. Dig. | 812.*]</p> <p>4. Municipal Coepoeations (§ 816*) — Defective Streets — Place of Accident — Notice — Petition.</p> <p>Where the statutory notice of injury on a defective street stated that the accident occurred at or near the crossing of C. avenue and Twenty-Third street, and near a grocery store whose number was 2308 C. avenue, and the locality of the defect was substantially stated in the same way in the petition, the allegation as to the place of the accident was descriptive of the cause of action, and the proof must correspond at least substantially with the notice.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§, 1711-1724; Dec. Dig. § 816.*]</p> <p>5. Municipal Corporations (§ 821*) — Defective Streets — Place of Accident — Notice — Petition—Evidence.</p> <p>Where, in an action for injuries on a defective street, the notice described the place of the accident as at or near the crossing of C. avenue and Twenty-Third street, and near a grocery store whose number was 2308 C. avenue, and there was evidence that the accident happened at the crossing of C. avenue and Twenty-Second street, about 600 feet away, and that the conditions at or near the crossings were similar, the question whether the intersection of Twenty-Second street was within the notice was for the jury, and their finding that the place of the accident as stated in the 1 notice was not substantially proved was justified.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 1745-1767; Dec. Dig. § 821.*]</p>

<p>Appeal from Matagorda County Court; W. S Holman, Judge.</p> <p>Action between J. W. Powell and B. J. Hill in which Powell appealed to the Court of Civil Appeals.</p>

<p>Appeal from District Court, Uvalde County; B. H. Burney, Judge.</p> <p>Action by West Bros, and others against the St. Louis, Iron Mountain & Southern Railway Company. On motion to dismiss, defendant appeals.</p>

<p>1. Evidence (§ 54*) — Presumption on Presumptions.</p> <p>A presumption cannot be based upon a presumption, hence a presumption of judicial regularity furnishes no basis for the presumption that disqualification of the trial judge which was of record had been removed before judgment.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 74; Dec. Dig. § 54.*]</p> <p>2. Appeal and Ekrok (f 911*) — Presumption —Qualification oe Judge.</p> <p>Where it appeared from the record that, at the time of trial, the judge of the lower court was disqualified, it cannot, in the absence of any evidence to the contrary, be presumed that the disqualification was removed in less than a month, so as to entitle him to render judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3682-3688; Dec. Dig. § 911.*]</p> <p>3. Appeal and Error (§ 839*) — Questions Presented for Review.</p> <p>Where a judgment is wholly void for want of jurisdiction, the trial judge being disqualified, it is improper for the appellate court to pass on any proposition save the nullity of the judgment.</p> <p>. [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 2915, 3279-3300; Dec. Dig. § 839.*]</p>

<p>Appeal from Waller County Court; J. D. Harvey, Judge.</p> <p>Action by H. B. Crowder against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Nolan County; Jas. L. Shepherd, Judge.</p> <p>Action by Ethel D. Pope and others against the Kansas City, Mexico & Orient Railway Company of Texas. From judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Haskell County; John B. Thomas, Judge.</p> <p>Action by the White Sewing Machine Company against W. D. Wingo and. another. Prom a judgment1 for defendants, plaintiff appeals.</p>

<p>, Appeal from District Court, Baylor County ; P. A. Martin, Judge.</p> <p>Action by J. M. Lanham against J. T. Cockrell. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Telegraphs and Telephones (§ 35*) — Delay in the Delivery of Messages — Lia- . BILITY.</p> <p>Where it was no part of the duty of art agent of a telegraph company in charge of an office to write out messages, the agent when writing out a message for a sender, at the sender’s request, was his agent, and the negligence of the agent was not chargeable to the company.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 25; Dec. Dig. § 35.*]</p> <p>2. Telegraphs and Telephones (§ 37*) — Delay in Delivery of Messages — Liability.</p> <p>A telegraph company receiving for delivery a message containing a mistake in the address must exercise ordinary care to deliver the message, and, where it fails so to do, it is liable for the damages sustained by the addressee in consequence thereof.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 24, 29, 32; Dec. Dig. § 37.*]</p> <p>3. Telegraphs and Telephones (§ 38*) — Delay in Delivery of Messages — Excuse.</p> <p>Where a sender paid the fee charged for the delivery of a message, and no extra fee for delivery at the addressee’s residence known by the. agent of the company receiving the message for delivery to be outside of the free delivery limits was demanded, the failure to pay any extra fee did not relieve the company from liability for a negligent delay in the delivery of the message.</p> <p>[Ed. Note. — For other eases; see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.*]</p> <p>4. Appeal and Error (§ 1040*) — Harmless Error — Erroneous Rulings on Pleadings.</p> <p>The error, if any, in overruling an exception to allegations of the petition, is harmless where the issues raised thereby are not submitted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error] Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p>

<p>1. Appeal and Error (§ 837*) — Scope of Review — Matters Considered Below.</p> <p>Where the judgment in an action to restrain enforcement of a judgment recited the sustaining of several exceptions to the petition and dissolved the injunction, but continued under date of the next day, and recited that plaintiff’s application to file a trial amendment was granted, but that the court was of opinion that plaintiff’s application to vacate the order dissolving the injunction should be denied, the trial amendment was considered by the court on the issue of continuing the injunction, requiring similar consideration on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3278; Dec. Dig. § 837.*]</p> <p>2. Judgment (§ 429*) — Enforcement — Injunction.</p> <p>Where the defendant in sequestration proceedings replevied the sequestered chattels, but before trial redelivered them to the plaintiff, his surety on his replevin bond is entitled to enjoin the enforcement of a judgment in favor of the plaintiff for the value of the property replevied and damages for the withholding, though it appeared that the defendant had not urged as a defense the redelivery of the chattels ; for, -while a party is bound to make his defense at his first opportunity, it would be inequitable to preclude the surety who had no control over the action from urging that defense, and compel him to pay damages which the plaintiff did not sustain.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. §§ 808, 810, 815; Dec. Dig. § 429.*]</p> <p>3. Judgment (§ 456*) — Enforcement — Injunction — Laches.</p> <p>That a surety on a replevin bond in reliance on false statements of the defendant principal, who, after the disposal of the action, conspired with the plaintiff to defraud the surety, that he would settle the judgment against which the surety had a defense, and that it would be all right, delayed injunction proceedings for more than a year, will not, despite Sayles’ Ann. Civ. St. 1897, art. 2991, providing that no injunction to stay execution on any judgment shall be granted after one year from the rendition, unless it appears that an application was delayed in consequence of fraud, preclude him from maintaining an injunction.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 863-866; Dec. Dig. § 456.*]</p> <p>4. Injunction (§ 172*) — Pleading — Construction.</p> <p>While a temporary injunction may be dissolved upon a verified denial of the material allegations in the petition, averments in verified answer to a petition praying an injunction against enforcing a judgment on the ground that the property in litigation had been redelivered to plaintiff before the judgment that no article of such property had ever been returned to plaintiff for credit on the judgment furnish no grounds for dissolution, because not equivocally denying the actual return.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 374-384; Dec. Dig. § 172.*]</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Action by Hester E. Chamberlain against Worth Moore. From a judgment for plaintiff, defendant appeals.</p>

<p>Telegraphs and Telephones (§ 67*) — Messages — Notice op Relationship.</p> <p>A telegram addressed to “Sterling Dosier, Colo. Texas,” read, “Tom Tucker’s baby died to-day. If any one can come, send telegram. [Signed.] Sam Corley.” Dosier was plaintiff’s son-in-law and a brother-in-law of Tucker, whose wife was plaintiff Jenkins’ daughter and the mother of the child referred to. Held, that the language indicated that others than addressee had an interest in the child’s death, and was sufficient to put the company upon inquiry which would have disclosed the relationship between the parties.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 64-68; Dec. Dig. § 67.*]</p>

<p>Appeal from District Court, Mitchell County; James L. Shepherd, Judge.</p> <p>Aption by Tom Tucker against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Counties (§ 213*) — Action— Capacity to be Sued.</p> <p>Under Rev. St. 1895, art. 789, which declares counties to be bodies corporate and political, and article 790, which provides that no county shall be sued, unless the claim upon which such suit is founded has been presented to the commissioners’ court for allowance, and such court shall have neglected or refused to audit and allow it, a county against which any liability exists may be sued after the claim has been presented and litigated.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 342, 343; Dec. Dig. § 213.*]</p> <p>2. Counties (§ 146*) — Torts—Acts oe Officers or Agents.</p> <p>Counties are not liable for the mere neglect or wrong of their officers, unless made so by statute.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 212; Dec. Dig. § 146.*]</p> <p>3. Pleading (§ 214*) — Demurrer — Admissions.</p> <p>The allegations of a petition must be accepted as true on demurrer.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]</p> <p>4. Confusion of Goods (§ 7*) — Rights of Owners.</p> <p>Where a collector of state and county taxes commingled the tax money belonging to the state and county, whether regarded as a trust fund or as a fund jointly owned by the state and county, either the state or county, if without fault, might sue for a recovery in proportion to'its interest.</p> <p>[Ed. Note. — For other cases, see Confusion of Goods, Cent. Dig. §§ 5-10; Dec. Dig. § 7.*]:</p> <p>5. Subrogation (§ 7*) — Subrogation to Rights of Creditors — Sureties of Public Officers.</p> <p>Where collected tax money belonging to the state and to a county was commingled by the collector, and in part embezzled, and the balance paid to the county, the sureties on the collector’s bond to the state, after payment to the state under the terms of the bond, were subrogated to the state’s rights, as against the county and the sureties on the collector’s county bond.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 17, 18, 21-23, 25-28; Dec. Dig. § 7.*]</p> <p>6. Principal and Agent (§ 159*) — Wrongful Acts — Rights of Principal.</p> <p>A tax collector, for whom plaintiffs were sureties on his bond to the state, was not their agent in the sense so as to make them liable for his wrongs, save as made so by the terms of their bond, nor their agent iso as to bar an action for his wrong.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 599-613; Dec. Dig. § 159.*]</p> <p>7. Pleading (§ 34*) — Construction —In-tendments.</p> <p>All reasonable intendments are to be indulged in aid of a petition rather than against it.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 66-75; Dec. Dig. § 34.*]</p> <p>8. Trusts (§ 371*) — Following Trust Funds — Petition—Notice to Third Person.</p> <p>A petition, in an action by sureties on a tax collector’s bond to the’ state, after payment to the state and subrogation to the rights of the state, as against a county to whom the tax money in the hands of the collector as a trust fund had been paid, could not be held insufficient because it did not state the county’s want of notice, since such want of notice was a matter of defense.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 588-599; Dec. Dig. § 371.*]</p> <p>9. Trusts (§ 357*) — Following Trust Funds — Purchaser’s Notice.</p> <p>Where a tax collector wrongfully commingled tax money belonging to the county with that of the state, and embezzled part of it, and paid the balance to the county, which, appropriated it to its own benefit, without being led to act to its prejudice, its want of notice was no defense to an action by the sureties on the collector’s bond to the state, brought after payment of such bond and subrogation to the rights of the state.</p> <p>[Ed. Note — For other cases, see Trusts, Cent. Dig. §§ 539-552; Dec. Dig. § 357.*]</p>

<p>1.Carriers (§ 321*) — Passenger’s Action fob Injuries — Instbuqtions—Conformity . to Pleadings and Issues.</p> <p>The petition, in a passenger’s action for injuries, alleged that after the train started there was something wrong with the engine, that it became defective or out of repair in some way unknown to the passenger, and that the agents and servants of the company in operating the train caused it to suddenly stop and start with unexpected jerks and to lurch forward and backward with unusual and extraordinary movements by reason of which jerks, jars, or sudden stopping or starting plaintiff was thrown against a door, and that her injuries were proximately caused by defendant’s negligence in operating a defective engine in a careless and negligent manner. The court submitted to the jury the questions whether defendant was negligent by reason of using an engine in the disabled condition shown by the testimony or in making sudden stops or starts. Held, that this erroneously submitted a ground of negligence not alleged in the petition; the petition limiting the charge of negligence to the manner in which the defective engine was operated, and not charging that the condition of the engine was due to negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1337, 1343; Dec. Dig. § 321.*]</p> <p>2. Akpeal and Ebbob (§ 1170*) — Disposition — Affikmance Notwithstanding Er-ROB.</p> <p>Rule 62a for Courts of Civil Appeals (149 S. W. x), providing that judgment shall not be reversed and new trials ordered for errors in the course of the trial unless the appellate court shall be of the opinion that the error amounted to such a denial of appellant’s rights as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, does not require the affirmance of a judgment notwithstanding the erroneous submission of a ground of negligence not alleged in the petition in view of Rev. Civ. St. 1911, art. 1524,- limiting the power of the Supreme Court to make rules to such as are not inconsistent with the laws of the state'; article 1827 requiring the petition to set forth a full and clear statement of the cause of action and other necessary and pertinent allegations, and article 1994 requiring the judgment to conform to the pleadings.</p> <p>[Ed. Note. — For other cases,.see Appeal and Error, Cent. Dig. §§ 4540-4545; Dec. Dig. § 1170.*]</p> <p>3. Carriers (§ 320*) — Injuries to Passenger-Proximate Cause.</p> <p>In a passenger’s action for injuries caused by the sudden starting or stopping of the train, the submission, as the proximate cause of the injuries, of the carrier’s failure to furnish the passenger a seat was not erroneous, since if the carrier negligently failed to furnish her a seat it should have anticipated that any considerable and unusual jerking of the . train would probably cause her to fall and be injured.</p> <p>[Ed. .Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160,1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315, 1325; Dec. Dig. § 320;* Negligence, Cent. Dig. § 301.]</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by Crisman & Nesbit against C. C. Slaughter. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from -District Court, Matagorda County; Wells Thompson, Judge.</p> <p>Action by Pred S. Robbins against the Unknown Heirs of Criswell and others. Prom a judgment for plaintiff, defendants appeal.</p>

<p>1. Pleading (§ 48*) — Petition—Allegation of Defense-t-Avoidanoe.</p> <p>Where plaintiff’s petition sets up facts constituting a defense to the cause of action alleged, it is insufficient unless the effect of such defense is avoided by other allegations.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 105, 106; Dec. Dig. § 48.*]</p> <p>2. Pleading (§ 21*) — Conflicting Allegations — Injuries to Servant — Petition.</p> <p>Where the petition in a fireman’s action for injuries alleged for the first cause that plaintiff was wholly and permanently disabled for performing services as a fireman, for the second cause that the defendant wrongfully refused to continue him in its employment, and for the third cause that through defendant’s fault he was unable to obtain employment as fireman from other ’railroad companies, there could be no recovery upon any such allegations; the allegation of permanent disability being in irreconcilable conflict with the necessary implication of the second and third causes that plaintiff again became able to perform the duties of a fireman. ►</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 44; Dec. Dig. § 21.*]</p> <p>3. Release (§ 17*) — Fraud — ÍnÁdequate Consideration.</p> <p>Before an injured fireman could be granted a rescission of his release of defendant because procured by fraud, he was required to allege in his petition facts sufficient to show that the amount received by him in consideration of the release was inadequate.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. § 17.*]</p> <p>4. Release (§ 52*) — Inadequacy oe Consideration — Pleading.</p> <p>Where the petition in an action by a servant for injuries alleged that after the injury plaintiff and defendant entered into a contract by which plaintiff released the claim for injuries in consideration of the payment of a stated sum of money, and a reinstatement in defendant’s employment, and a breach of such contract, and the petition was insufficient to support a recovery for permanent injuries, a failure to allege that the damage arising from the temporary disability following the injury was in excess of the amount received under such contract of release rendered it insufficient to present any ground for rescinding the release.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 92; Dec. Dig. § 52.*]</p>

H. Hopkins, Judge. Action by J. A. Fain and others against A. G. Davis and another. From a judgment for plaintiffs in the Justice Court, defendants appealed to the County Court, where plaintiffs again had judgment, and defendants appeal.

<p>1. Appeal and Error (§ 742*) — Assignments op Error — Propositions.</p> <p>An assignment of error will be overruled where the proposition thereunder, though abstractly correct, is not predicated on a state of facts by which it can be supported.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Action (§ 35*) —Remedies — Statutory and Common-Law Remedies.</p> <p>A statute which gives a remedy in a case in which the common law gives a remedy, without negativing expressly or impliedly the right to the common-law remedy, but which merely prescribes other than the usual remedy for the enforcement of the right, is cumulative, and not exclusive.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 273-294; Dec. Dig. § 35.*]</p> <p>3. Insane Persons (§ 53*) — Custody and Support — Compensation por Support in Asylum.</p> <p>The remedy prescribed by Rev. St. 1895, art. 116, for the reimbursement by the state of expenses for maintaining 'patients in insane asylums, is not exclusive, and does not affect the common-law right of the state to recover for money expended in the care of a demented person against his guardian or other person liable for his support, based on implied duty to pay for the benefits received without reference to the lunacy proceedings, and the common-law remedy is unaffected by the fact that the lunatic is dead, and an action may be maintained against his administrator.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 84, 85; Dec. Dig. § 53.*]</p> <p>4.Limitation of Actions (§ 11*) — Limitations Against the State.</p> <p>Limitations do not run against the state, unless the statute specifically so provides.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 35-39; Dec. Dig. §</p> <p>5.Appeal and Error (§ 742*) — Questions Reviewable — Assignments op Error— Propositions.</p> <p>An assignment of error will not be considered where the propositions under it are not germane to it.</p> <p>ijíjQ. rsoie. — nor otner cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>6.Insane Persons (§ 53*) — Liability pob Support — Enforcement—Laches.</p> <p>The defense of stale demand is purely an equitable one, and is not available in an action at law for a debt by the state for expenses incurred in maintaining a lunatic at an asylum.</p> <p>[Ed. Note. — For other cases, see Insane Persons, Cent. Dig. §§ 84, 85; Dee. Dig. § 53.*]</p>

<p>Appeal from Shackelford County Court; J. A. King, Judge.</p> <p>Action by M. W. McMinn against R. J. Patterson. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Victoria County; John M. Green, Judge.</p> <p>Action by S. S. Maddox against the St. Louis, Brownsville & Mexico Bail way Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Evidence (§ 472*)— Opinion Evidence-Matters Directly in Issue.</p> <p>In an action for injuries to a shipment of live stock, a question to a witness as to what would be a reasonable time to transport the car of stock was an invasion of the province of the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195; Dec. Dig. § 472.*]</p> <p>2. Evidence (§ 508*) — Opinion Evidence-Admissibility.</p> <p>, In an action for injuries to a shipment of live stock, testimony of one who was familiar with the horse and mule business for 20 years, and who was thoroughly acquainted with the condition of stock after having been shipped, whether it is usual that in the transportation of a car load of young mules several hundred miles over different railroads that some of them will be skinned somewhat by knocking or bumping against the sides of the car as a natural result of the trip_ and of the vitality of the mules was admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2311; Dec. Dig. § 508.*]</p> <p>3. Evidence (§ 508*) — Opinion Evidence — Admissibility.</p> <p>In an action for injuries to a shipment of mules, testimony of a witness qualified as an expert as to w'hether, if the mules had been placed in a proper pasture after their arrival at destination, they would have entirely recovered within a few weeks from injurious effects of the trip was admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2311; Dec. Dig. § 508.*]</p> <p>4. Appeal and Error (§ 216*) — Questions in Trial Court — Instructions—Requests —Necessity.</p> <p>The failure to set forth in the charge the various issues involved cannot avail plaintiff in error in the absence of a request for such submission.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216.*]</p> <p>5. Carriers (§ 215*) — Transportation oe Live Stock — Liabilities eor Injuries.</p> <p>It is no defense to an action for injuries to a shipment of live stock that "they were transported on the first scheduled train after their arrival if the carrier in so doing was guilty of negligence.</p> <p>[Ed. Note.' — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. § 215.*]</p> <p>6. Carriers (§ 215*) — Transportation oe Live Stock — Liabilities eor Injuries.</p> <p>That a shipper of live stock was ignorant of the carrier’s schedules governing the movement of stock trains does not affect the carrier’s liability for injuries to the stock.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 923; Dec. Dig. § 215.*]</p> <p>7. .Carriers (§ 211*) — Transportation oe Live Stock — Liabilities por Injuries.</p> <p>Under Rev. Civ. St. 1911, art. 714, making . it the duty of a common carrier of stock to feed and water it during conveyance and until it is delivered to the assignee unless otherwise provided by special contract, it is not sufficient that the carrier exercised reasonable care to provide reasonably sufficient facilities for watering the stock.</p> <p>[Ed. Note. — For other cases, see Carriers; Cent. Dig. § 928; Dec. Dig. § 211.*]</p> <p>8. Trial (§ 263*) — Instructions—Requests.</p> <p>In an action for injuries to live stock in shipment, where the defendant requested a number of special charges on the _ question whether it exercised ordinary care in transporting the cattle on its first scheduled train after their arrival, and one of such instructions was given, defendant cannot complain that the others were not given, since by the submission of several it in effect invited the court to elect which charge it would give on that issue.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 662, 663; Dec. Dig. § 263.*]</p> <p>9. Appeal and Error (§ 1032*) — Review-Prejudicial Expect ox Ebrob.</p> <p>The refusal to give a special charge concerning a written contract of shipment pleaded by a carrier is not ground for reversal where It is not shown that the liability of a carrier was different with than without the written contract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047-4051; Dec. Dig. § 1032.*]</p> <p>10. Carriers (§ 230*) — Carriage ox Live Stock — Actions xor Injuries — Instructions.</p> <p>An instruction that, where live stock have been transported by successive carriers and are shown on arrival at destination to have been injured en route, there is a presumption of law that the injuries occurred on the line of the last carrier is properly refused where there is evidence that the injuries were caused by the negligence of an intermediate carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]</p> <p>11. Appeal and Error (§ 1170*) — Review-Reversal — Prejudicial Expect ox Error.</p> <p>In an action for injuries to a shipment of live stock, the erroneous admission of .opinion evidence as to a reasonable time to transport the car of stock, and exclusion of evidence as to the ordinary effect of transportation and the extent of the injuries to the stock in question requires a reversal notwithstanding undisputed evidence of delay in the shipment, and notwithstanding Supreme Court rule 62a (149 S. W. x) providing that no judgment shall be reversed for error of law unless the appellate court shall be of opinion that the error amounted to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4540-4545; Dee. Dig. § 1170.*]</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Application by J. F. Henderson, administrator, to probate a will. From a judgment of probate, Ella Sehnable appeals.</p>

<p>Appeal from District Court, Baylor County; Jo. A. P. Dickson, Judge.</p> <p>Action by J. S. Foster against R. G. Bennett and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Eminent Domain (§ 307*) — Benefits—Instructions — Evidence.</p> <p>Where, in action by landowner for damages, the evidence showed that a railroad was constructed across the tract in question; that the railroad company fenced its right of way, separating the tillable land from the tract used for grazing purposes, relieving the landowner from the expense of erecting such fence, it warranted the charge given that the jury in estimating plaintiff’s damages should, under Rev. Civ. St. 1911, arts. 6518-6520, consider the benefits as well as the injuries resulting to the remainder of the tract not taken.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 820-824; Dec. Dig. § 307.*]</p> <p>2. Eminent Domain (§ 293*) — Evidence—Issues.</p> <p>In an action for damages for a cut made by a railroad across plaintiff’s land, a complaint that described the strip taken, and alleged that deep cuts were made on some portions of that strip and large dumps on other portions, which dumps and excavations prevent access from one portion of the tract to the other in use of the same, that the damages to said survey as a whole by reason of the erection of the railway through it in its dis-figuration and impairment of its conveniences for use and cultivation are reasonably of the value of, etc., did not include ,a claim for damages for excavations made on the tract outside the strip taken for right of way purposes, and evidence thereof was inadmissible.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 797-892; Dec. Dig.. § 293.*]</p>

<p>Appeal from District Court, Johnson County; Wi F. Ramsey, Jr., Special Judge.</p> <p>Action by H. P. Barnes and wife against Daniel Hewitt and another. Prom a judgment for defendants, plaintiffs appeal.</p>

D. Scruggs, Judge. Action by W. T. Hancock against E. B. Hollinger and others. Prom a verdict in the justice’s court, plaintiff appealed to the county court, where the judgment went against defendants, and they appeal.

L. Blanton, Judge. Suit by Richard Cordwent and others against C. D. Russell and others to enjoin execution of a contract. Erom judgment for plaintiffs, defendants appeal.

<p>Appeal from District Court, Fayette County; L. W. Moore, Judge.</p> <p>Action by Mary Lehmann against Mary Medack and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Insurance (§ 623*)— Fuse Insurance — Waiver of Stipulations.</p> <p>An insurer, who denies liability under a fire policy, thereby waives the stipulation therein that any loss shall not be payable until 60 days after receipt of proofs of loss, and cannot claim that because of such stipulation a suit brought within that time is premature.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1551-1553; Dec. Dig. § 623.*]</p> <p>2. Insurance (§ 389*)—Fire Insurance — " Waiver of Stipulations.</p> <p>Where insurer, when issuing a fire policy stipulating that it should be void if insured should keep gasoline on the premises, knew that gasoline was kept on the premises and used by insured in his business, the keeping of gasoline on the premises did not invalidate the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1028-1031; Dec. Dig. § 389.*]</p> <p>3. Insurance (§ 163*) — Fire Insurance — Property Covered — *‘Merchandise.’ ’</p> <p>A fire- policy “on ‘merchandise,’ consisting principally of clothing made and in process of making' and materials for same,” covers the stock in trade and all articles necessarily or conveniently used in the business,' and embraces tools and implements of the business as conducted by insured.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 339-346; Dec. Dig. § 163.*</p>

<p>1. Peeading (§ 228*) — Special Exception.</p> <p>Where the petition of a mortgagee intervening in a suit to foreclose a chattel mortgage alleged that its mortgage was duly filed for registration, but did not disclose that a copy, and not the original, had been filed, the point that its registration did not affect plaintiff with notice was not properly raised by special exception.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.*]</p> <p>2. Chattel Mortgages ■(§ 60*) — Registration-Mortgage Not Witnessed.</p> <p>The fact that a chattel mortgage was witnessed by two of the beneficiary parties would I not invalidate its registration, since, under the statute, a chattel mortgage is entitled to' registration, though' not witnessed at all.</p> <p>[Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. § 115; Dec. Dig. § 60.*]</p> <p>3. Chattel Mortgages (§§ 152, 194*) — Priorities — Failure to Register — Effect tn General.</p> <p>An unrecorded chattel mortgage is absolutely void as to creditors, but not as to subsequent purchasers, lienholders, and mortgagees, unless they have become such in good faith.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 254, 266, 426, 427; Dec. Dig. §§ 152, 194.*] .</p> <p>4. Chattel Mortgages (§ 142*) — Priorities —Purchaser in Good Faith.</p> <p>As between chattel mortgages, the prior one is superior, in the absence of allegation and proof that the subsequent mortgagee took in good faith, which can only be shown by proof of payment of valuable consideration and want of notice of the prior mortgage.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 228, 229, 239; Dec. Dig. § 142.*]</p> <p>5. Appeal and Error (§ 934*) — Presumptions — Finding Necessary to Sustain Decision.</p> <p>Where there is no statement of facts in the record, the Court of Civil Appeals, in order to support a judgment for a prior chattel mortgagee, will impute to the court a finding against the subsequent mortgagee on the issue of priority.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781; Dec. Dig. § 934.*]</p>

<p>1. Appeal and Error (§ 500*) — Questions Reviewable — Rulings on Pleadings — Record.</p> <p>The sustaining of a general demurrer, or of a special exception to a pleading, is not reviewable on appeal, where the transcript contains no judgment or record entry showing the ruling.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. 5 500.*]</p> <p>2. Courts (§ 169*) — Jurisdiction—Amount in Controversy — Set-Off.</p> <p>A defendant in the county court may not prove a set-off in an amount in excess of the jurisdiction of the court, since -a plea of set-off is in effect a suit against plaintiff for the amount demanded.</p> <p>[Ed. Note. — For other cases, see Courts, 'Cent. Dig. §§ 413-436; Dec. Dig. § 169.*]</p> <p>.'3. Pleading (§ 292*) —Verification — Account — Items Constituting.</p> <p>An account in part for items due for sal■ary under a contract, and in part for board, involves isolated transactions resting on spe■cial contract, and is not an account whereby the relation of debtor and creditor is created diy a general course of dealing, and, though the account is sworn to, defendant need not deny ■the same under oath, as prescribed by Rev. •Civ. St. 1911, art. 3712, in order to deny by parol its correctness.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Cent. Dig. § 880; Dec. Dig. § 292.*]</p> <p>4. Pleading (§ 382*) — General Denial — Evidence — Admissibility.</p> <p>In an action on an account involving isolated transactions resting on special contract, testimony of the incorrectness of items of the account is admissible under the general denial.</p> <p>[Ed. Note. — For other cases, see Pleading, ‘■Cent. Dig. §§ 1280-1294; Dec. Dig. § 382.*]</p>

<p>Appeal from Nolan County Court; John J. Ford, Judge. ■ .</p> <p>Action by R. C. Crane against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Nolan County; Jos. L. Shepherd, Judge.</p> <p>Action by John Hall against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p> <p>The instructions covered by the eleventh and twelfth assignments of error mentioned in the opinion were as follows:</p> <p>“An employe of a railroad cotapany is held in law to assume such risks as are ordinarily incident to the service he engages to perform and such other as he knows of, or must necessarily know of in the ordinary discharge of the duties of his service; but risks arising from negligence of the company’s servants or employés that are chargeable to it are not assumed by the employe unless he knows of them or must necessarily know of them in the ordinary discharge of his duties as a servant, or unless a person of ordinary care knowing such defects or danger, if any, would then continue in the service of the employer, and until then he has the right to assume that risks arising from such negligence do not exist.</p> <p>“In determining the issue as to whether plaintiff did or did not assume the risk, if any, attending work on the coal chute, you are instructed that, if- plaintiff’s alleged injury was the result of defendant’s negligence, then if plaintiff had no knowledge of the danger or risk arising to him until he was injured, and if he would not necessarily have known thereof in the ordinary discharge of the duties of his service, then the defense of assumed risk would not prevail, nor will plaintiff have assumed such risk, if any, if a person of ordinary care would have continued in such service with the knowledge of the defects and danger, if you find there was such defect and danger.”</p> <p>The instruction on the burden of proof mentioned in the opinion was as follows: “The burden is upon the defendant to prove by preponderance of the evidence (to ‘be considered in its entirety, no matter by which side adduced) the facts necessary to show contributory negligence, and a like burden is upon the defendant to show its, defense of assumed risk.”</p>

L. Camp, Judge. Action by Sarah Banks and others against Addie Smith. From an order denying a motion to dissolve a temporary injunction, the defendant named appeals.

<p>On Motion for Rehearing.</p> <p>1. Waters an.d Water Courses (§ 89*)— Bed or Stream — Boundaries—Intent or Grantor.</p> <p>Although a grant may call for marked corners upon the bank of a nonnavigable stream, and for a line or lines between such corners which do not correspond with the center of the stream, yet the boundary line extends to the center of the stream unless there is a clear intent that the grantor wished otherwise.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 91, 92, 107; Dec. Dig. § 89.*]</p> <p>2. Boundaries (§ 43*) — Judgment — Construction-Field Notes.</p> <p>Where a judgment gives to a certain party a tract of land, and in describing it used the same field notes that were used in a survey made many years before, the construction thereof as to boundaries will be the same as though the field notes were contained in a voluntary deed.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 208; Dec. Dig. § 43.*]</p>

<p>1. Appeal and Error (§ 1064*) — Review-Assumed Facts.</p> <p>In an action for injuries to a passenger in a collision between street cars, a charge assuming that the collision was caused by the carrier’s negligence, in the absence of any evidence explaining the cause of the collision, is harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p> <p>2. Steeet Raileoads '(§ 114*) — Injueies to Passengers — Steeet Raileoads — Collision.</p> <p>In an action for injuries to a passenger in a street railroad collision, evidence held to warrant a finding that the collision was of sufficient violence to cause the injury complained of, and that such injuries were the direct and proximate result thereof.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 239-250; Dec. Dig. § 114.*]</p> <p>3. Damages (§ 132*) — EIxcessiveness—Per-sonal Injueies.</p> <p>Plaintiff’s wife, who was 45 years old, was injured in a street railway collision. She suffered a displaced kidney and womb, a spinal shock, and afterwards had an abnormal heartbeat and adhesions in the pelvic cavity. These afflictions were permanent, caused pain, and incapacitated her from every kind of work. It was shown that they could only have resulted from inflammation due to infection, in which case there would have been a condition of chronic invalidism, or from accident. There was evidence that prior to the collision the wife was a strong, healthy woman doing considerable work and had an earning capacity of some $35 to $60 a month. Held, that a verdict allowing $10,000, was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 178, 372-385, 396; Dec. Dig. § 132.*]</p> <p>4. Appeal and Ebkob (§§ 930, 1031*) — Presumptions — Instructions Followed — Prejudice.</p> <p>Where, on objection to a question asked of counsel during argument, the court immediately instructed the jury not to consider the same, and the counsel who asked the question also joined in such request, it must be presumed that the instructions were obeyed and that the question was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761, 4038-4046; Dec. Dig. §§ 930, 1031.*]</p>

<p>Appeal from District Court, Montgomery County; L. B. Hightower, Judge.</p> <p>Action by Joseph Hubbart and others against the Willis State Bank and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Venue (§ 8*) — Action fob Fraud.</p> <p>Under Rev. St. 1895, art. 1194, -§ 4, providing that suit may be brought in any county where one defendant resides, and section 7, providing that in cases of fraud suit may be brought where the fraud was committed, a purchaser’s action against the vendor and his agent for the payments made for an option on land misrepresented by the agent was properly brought in the county where the misrepresentations were made.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 17; Dec. Dig. § 8.*]</p> <p>2. Appeal and Error (§ 1002*) — Verdict-Conflicting Evidence.</p> <p>A verdict for pjaintiff in case of fraud could not be disturbed on appeal, where the evidence was conflicting.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>3. Principal and Agent (§ 158*) — Fraud of Agent — Liability.</p> <p>Where a party is induced to purchase and pay for an option on land in reliance on false representations of the. vendor’s agent that gold in commercially paying quantities has been found on adjoining land, he is entitled to recover from the vendor and his agent, regardless of the form of the representation and whether defendants knew them to be false.</p> <p>[Ed. Note. — For other cases, see Principal and Aaent, Cent. Dig. §§ 589-598; Dec. Dig. § 158.*]</p> <p>4. Evidence (§ 157*) — Admissibility—Best Evidence.</p> <p>Evidence which shows on its face that better evidence exists is properly excluded.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 460 — 470; Dec. Dig. § 157.*]</p> <p>5. Principal and Agent (§ 158*) — Misrepresentations of Agent — Liability of Principal. /</p> <p>Where, in an action against vendors and their agent for payments made for an option on land which plaintiff was induced to make by misrepresentations that gold in paying quantities existed on adjoining land, the vendors admitted the agency and that the agent was authorized to sell the lands, and it appeared that he was furnished with copies of data indicating the presence of such gold, plaintiff’s testimony as to the representations made to him by the agent as to the gold was properly admitted, though there was no showing that such representations were in fact specifically authorized, or even that the principal knew of them.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 589-598; Dec. Dig. § 158.*]</p> <p>6. Evidence (§ 536*) — Experts—Competency.</p> <p>A miner and assayer, who had acted as superintendent and assayer for a mining company and had been employed as an assayer by defendants, was prima facie competent to testify for plaintiff as an expert assayex-.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2343, 2344, 2347; Dec. Dig. § 536.*]</p> <p>7. Evidence (§ 314*) — Remedy of Purchaser —Recovery of Payments — Evidence.</p> <p>In a purchaser’s action for payments made for an option on land which he was induced to buy by fraudulent representations of the vendors’ agent that gold in paying quantities existed on adjoining land, the testimony of an assayer as to a statement, made by him in the presence of plaintiff to the vendors’ agent as to the result of an assay' made by him, upon which the plaintiff relied, was not hearsay, but was admissible upon the issue of the truth of the agent’s representations.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.*]</p>

<p>1. Appeal and Error (§ 750*) — Questions Re viewable — Assignments op Erkor — Motion por New Trial.</p> <p>Under court rule 24 (142 S. W. xii), requiring an assignment of error to distinctly specify the grounds of error relied on, and distinctly set forth in the motion for new trial, an assignment of error predicated on the refusal to give a peremptory charge, for defendant will not he considered as raising the question of the insufficiency of the evidence in a respect not called to the attention of the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 3074-3083; Dec. Dig. § 750.*1</p> <p>2. New Trial (§ 128*) — Motion—Specifications — Sufficiency.</p> <p>A statement in a motion for new trial that the court erred in not giving a peremptory instruction to find for a party, without specify-' ing the grounds therefor, is insufficient under district court rule 67 (142 S. W. xxii), providing that each ground of motion for new trial must refer to the part of the ruling complained of, so that the point of objection can be identified and understood.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 257-262; Dec. Dig. § 128.*]</p> <p>3. Negligence (§ 121*) — Acts Constituting —Obligations Incurred.</p> <p>Where an act is done which creates or increases a condition of danger, the duty of the person creating the condition to take necessary steps to guard the public from the danger will be presumed.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 217-220, 224-228, 271; Dec. Dig. § 121.*]</p> <p>4. Street Railroads (§ 117*) — Defects in Streets — Liability—Question por Jury.</p> <p>Where, in an action for injuries to a pedestrian stepping into a hole in the street alongside a. street ear rail, there was evidence that the street car company was repairing its track in the vicinity, and there was evidence justifying an inference that the hole had been cleaned and ready for repair, and there was also evidence that the company had opened up a hole in its track, rendering it thereby dangerous, and had left it unguarded, the negligence of the company was a question for the jury, which could draw any rational deductions from the facts proved.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*]</p> <p>5. Trial (§ 191*) — Instructions — Assumption of .Facts.</p> <p>An instruction in an action for injuries to a pedestrian caused by stepping into a hole in a street alongside a street car track that if the hole, if any, was within 12 inches of the car rail, and if the hole, if any, was unguarded, and if it was the duty of the street railway company to maintain the street paving in good repair at the point where the hole was, and if the company was negligent in permitting the hole, if any, to remain in the pavement, and such negligence directly caused the injuries, the verdict must be for the pedestrian,, requires the jury to find whether the hole was left unguarded, and permits a recovery only on finding it was negligence to permit the hole to remain in the street, and is not objectionable as assuming that the hole was unguarded, and that it was negligence to permit the hole to remain unguarded.</p> <p>[Ed. Note. — For other cases, see Trial, Cent Dig. §§ 420-431, 435; Dec. Dig. § 191.*]</p> <p>6. Damages (§ 132*) — Personal Injuries— Excessive Damages.</p> <p>Where a girl 14 years old sustained personal injuries negligently inflicted, and in consequence thereof became a mental and physical wreck, a verdict' for $15,000 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 178, 372-385, 396; Dec. Dig. § 132.*]</p> <p>7. Damages (§ 133*) — Injuries to Child-Excessive Damages to Parent.</p> <p>Where a girl 14 years old sustained a negligent personal injury, causing her to become a mental and physical wreck, and her mother, earning $13 per week at the time of the accident, was obliged to devote more than half her time to the care of the girl, whose injuries were permanent and progressive, so that she. would continue to be an increased care, and the girl at the time of the injury earned $3.50 per week, a verdict in favor of the mother for $3,000 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 368, 369, 386-395; Dec. Dig. § 133.*]</p> <p>8. Damages (§ 168*) — Personal Injuries— Evidence — Sufficiency.</p> <p>In an action for injuries to a pedestrian stepping into a hole in the street alongside a street car track, evidence AeZd to justify a finding that the injuries affected plaintiff’s mind, and rendered her a. mental wreck.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 480, 482-486; Dec. Dig. § 168.*]</p> <p>On Motion for Rehearing.</p> <p>9. Appeal and Error (§ 301*) — Assignments of Error — Requisites.</p> <p>Court of Civil Appeals rule 24 (142 S. W. xii), providing that the assignments of error shall distinctly specify the grounds of error relied on, and distinctly set forth in the motion for new trial, and district court rule 67 (142 S. W. xxii), providing that each ground of a motion for new trial shall refer to the part of the ruling complained of, so that the point of objection can be identified and understood, require appellant to present to the trial court in the motion for new trial the point which he intends to assign as erfor in the court on appeal, and in such language that it may be identified and understood, and assignments of error not distinctly set forth in the motion' for new trial must be ignored.</p> <p>[Ed. Note. — For other cases, see Appeal and •Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.*]</p> <p>10. Appeal and Error (§ 742*) — Assignments OE ERROR — PROPOSITIONS.</p> <p>The propositions under assignments of error are a necessary part of the point for consideration, unless the assignment itself presents but one point of law,, and is in form of a proposition, and assignments' not so prepared will be ignored.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>11. Appeal and Error (§ 1002*) — 'Verdict— Conclusiveness.</p> <p>A verdict on conflicting evidence, on which the minds of men of ordinary judgment may honestly differ, will not be disturbed on appeal, though the court on appeal may disregard a verdict when manifestly wrong.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p>

<p>Appeal from District Court, Kaufman County; F. L. Hawkens, Judge.</p> <p>Action by Lula Womble against John W. Womble. From a judgment for defendant, plaintiff appeals.</p>

Action by the City of Llano against A. H. Wilbern, county judge, and others, for a writ of mandamus. From the judgment the City appeals. Held: as conclusions of law, as follows: “(1) That articles 419, 420, Revised Oivil Statutes of the state of Texas, give to cities duly incorporated under the laws of this state exclusive control and power over the streets and highways of a city, and that it was the duty of the said city of Ulano, after the same was duly incorporated, to…

<p>Appeal from District Court, Hunt County; T. 'D. Montrose, Judge.</p> <p>Action by O. E. Branch against the City of Greenville. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Grayson County; B. L. Jones, Judge.</p> <p>Action by J. H. Wood and another against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Coryell County; J. H. Arnold, Judge.</p> <p>Suit by T. A. Morrison against J. W. Ham-maek and others. Judgment for defendants, and complainant appeals.</p>

<p>Appeal from District Court, Hunt County; R. L. Porter, Judge.</p> <p>Action by J. O. Mosteller against J. P. Astin. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>Action, by the First State Bank of Teague against B. A. Munger, the Farmers’ & Mechanics’ National bank of Ft. Worth, the First State Bank of Bangs, and others. From the judgment; the defendant the Farmers’ & Mechanics’ National Bank of Ft. Worth appeals.</p>

<p>1. Bills and Notes (§§ 49, 540*) — Accommodation Makers — Liability.</p> <p>Accommodation makers of a note are, as between the parties, sureties, so that the judgment in an action on the note must be so framed that the execution shall first run against the property of the principal maker.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 66, 1918-1934; Dec. Dig. §§ 49, 540.*]</p> <p>2. Bills and Notes (§ 140*)' — Release oe Surety — Extension oe Time oe Payment.</p> <p>Where a note signed by a principal and accommodation makers stipulated that an extension of time of payment might be made without the consent of the accommodation makers, an extension of time without the consent of the accommodation makers did not release them from their liability as sureties.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 355-359; Dee. Dig. § 140.*]</p> <p>3. Banks and Banking (§ 109*) — Authority oe Officers — Estoppel.</p> <p>A bank which accepts a note obtained in negotiations conducted by its president may not deny that he had authority to represent the bank in the transaction.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 257-260; Dec. Dig. § 109.*]</p> <p>4. Contracts (§ 47*) — Consideration—Necessity.</p> <p>Where there was no consideration for a payee’s agreement with the principal maker to accept the note signed by him and an accommodation maker, the payee could refuse to accept the note and loan the money regardless of what occurred between him and the accommodation maker before the acceptance of the note.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 220, 221, 256-258; Dec. Dig. § 47.*]</p> <p>5. Bills and Notes (§ 49*) — Accommodation Makers — Liability—Revocation.</p> <p>Where an accommodation maker delivered the note to the principal maker to enable him to obtain a loan, he made the principal maker his agent to deliver the note to the payee to obtain the' loan, but the agency could be revoked at any time before the payee had -paid the money or anything of value to the principal maker.</p> <p>,[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 66; Dec. Dig. § 49.*]</p> <p>6. Bills and Notes (§ 49*) — Accommodation Makers — Liability—Revocation.</p> <p>The revocation of agency created by an accommodation maker delivering the note to the principal maker to enable him to obtain money thereon may be accomplished by the accommodation maker either by erasing his name from the note or by notifying the payee that he does not desire to be bound.</p> <p>[Ed. Note. — For other cases, see Bills and Notes', Cent. Dig. § 66; Dec. Dig. § 49.*]</p> <p>7. Witnesses (§ 246*) — Conduct oe Trial-Conduct of Trial Judge.</p> <p>A trial judge may not ask questions to emphasize to the jury testimony previously given by a witness, nor aid either party to the litigation by attempting to supply omissions on the part of the litigant or his attorney; but he may ask a witness questions to get clear in his mind the testimony of the witness.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 852-857; Dec. Dig. § 246.*]</p> <p>8. Trial (§ 29*) — Misconduct of Trial Judge.</p> <p>The remark of the trial judge, in response to an objection to counsel and his statement that he reserved a bill of exceptions, that he would give counsel two bills if he desired them, though irrelevant and uncalled for, is not ground for reversal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 80-84, 508; Dec. Dig. § 29.*]</p> <p>9. Appeal and Error (§ 1066*) — Prejudicial Error — Instructions—Issues.</p> <p>An instruction submitting a defense not pleaded, and authorizing a verdict for defendant on finding enumerated facts essential to support the defense, is reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*]</p>

<p>Appeal from District Court, Tom Green County; J. W. Timmins, Judge.</p> <p>Action by H. C. Goldwire against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

.Appeal from District Court, Freestone County; H. B. Daviss, Judge. Action by the Fabric Fire Hose Company against the City of Teague. From a judgment for plaintiff for less than the relief demanded, it appeals.

<p>Error from Karnes County Court; A. J. Parker, Judge.</p> <p>Action by M. Wishert against W. B. McKay. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Trespass to try title by H. B. Strange against the Home Investment Company and others. From the judgment, defendants appeal.</p>

W. Seeligson, Judge. Action by Ermi Fant and D. R, Fant, prosecuted after their death by D. R. Fant, Jr., and others, against D. Sullivan and another. From a judgment for defendants, plaintiffs appeal.

<p>Appeal from Crosby. County Court; Pink.L. Parish, Judge.</p> <p>Action by Julian Bassett against J. R'.. Kerlin. Prom a judgment dismissing defendant’s appeal to the county court, he appeals;.</p>

<p>Appeal from Kaufman County Court; Thos. R. Bond, Judge.</p> <p>Action by H. .E. Dean against the St. Louis ex San Francisco Railroad Company and others. From judgment for plaintiff, the St. Louis & San Francisco Railroad Company appeals.</p>

<p>Appeal from Bell County Court; W. S. Shipp, Judge.</p> <p>Action by J. J. Ulmer against the Western Union Telegraph Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Insurance (§ 654%*) — Forfeiture — Waiver — Evidence. .</p> <p>On an issue of forfeiture of a policy for nonpayment of premium due March 24, 1906, correspondence between the insured and the company’s agents with reference to extensions of time for the payment of the 1905 premium was admissible as tending to show the insurer’s attitude toward the risk as revealed by its action in respect to the payment of that premium.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1674, 1686; Dee. Dig. § 654%.*]</p> <p>2. Insurance (§ 375*) — Life Policy — For-eeitube — Premium-Failure to Pay — Waives.</p> <p>An agent of an insurance company in charge of its loan and extension department at its headquarters in New York would be deemed to have general authority to waive forfeiture on behalf of the company for nonpayment of premiums.</p> <p>'[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 948-951, 956-965; Dec. Dig. § 375.*]</p> <p>3. Insurance (§ 392*) — Life Policy — Forfeiture-Nonpayment of Premiums.</p> <p>After the expiration of the days of grace provided by a life policy, and the premium not having been paid, the insurer offered to make a loan on the insured’s policies of $1,059 to be used in paying the current premiums and interest, provided that the insured would remit $356.50 to complete the loan transaction, no suggestion being made that proof of insured’s good health should also be submitted in order to reinstate the policies before the transaction could be completed, and these negotiations were continued, and were in progress at the time insured was shot and killed. Held, that the insurer, by offering to make a loan, treated the policies as still in force, and such offer constituted a waiver of the forfeiture for nonpayment of the premiums.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1041-1070; Dec. Dig. § 392.*]</p> <p>4. Insurance (§ 388*) — Nonpayment of Premiums — Forfeiture—Waiver.</p> <p>Waiver of a forfeiture of a life policy for nonpayment of premiums may result from any unequivocal acts by which the insurer, after knowledge of the forfeiture, recognizes the continued validity of the policy, or does some act based thereon, without insured having acted on the faith thereof.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1026-1040, 1057; Dec. Dig. § 388.*]</p>

<p>Appeal from McLennan County Court; Sam E. Stratton, Special Judge.</p> <p>Nash Clay was convicted of crime, and he appeals.</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Trespass to try title by J. W. Tobin against W. D. Benson and another. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Evidence (§ 157*) — Best Evidence.</p> <p>In an action on notes, given for a stallion, in which defendant claimed that the horse was not registered as represented, evidence by the seller that the horse W., taken from his place by his agent for delivery to the purchaser, was actually registered in the French Draft Horse Association, was admissible as tending to identify the horse which the seller turned over to the purchaser, and was not objectionable on the ground that the books of the association would be the best evidence of registration.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 460-470; Dec. Dig. § 157.*]</p> <p>2. Evidence (§ 471*) — Opinion Evidence-Conclusion op Witness.</p> <p>In an action on. a note claimed to have been indorsed to plaintiff after maturity, evidence that the notes were “owned” by plaintiff since a certain date, and at that time were sent to another bank, was properly excluded as a conclusion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>3. Evidence (§ 121*) — Res Gesms.</p> <p>In an action on notes claimed by defendant to have been indorsed to plaintiff bank after maturity, a letter signed by its president, dated March 7, 1910, and addressed to another bank, was admitted ip evidence, which' stated that plaintiff therewith inclosed the notes due March 25, 1910, at 8 per cent, interest from March 25, 1909, for collection, and added, “We purchased this note on your recommendation, dated April 9, 1909.” Held, that the quoted part of the letter was properly admitted as a verbal act, having been written before plaintiff knew that defendant claimed that the note had been received by plaintiff after maturity or that their consideration had failed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. § 121.*]</p> <p>4. Bills and Notes (§ 214*) — Assignment.</p> <p>Under Rev. Civ. St. 1911, art. 583, permitting the assignee of negotiable instruments to maintain any action in his own name which the original payee might have brought, by allowing all just discounts, etc., a negotiable note may be assigned either verbally or in writing; indorsement not being necessary.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 492, 493, 505-510, 512, 513, 515, 517; Dec. Dig. § 214.*]</p> <p>5. Witnesses (§ 414*) — Notes—Corroborating Evidence.</p> <p>Where, in an action on negotiable notes, the evidence as to whether they were indorsed to plaintiff before maturity sharply conflicted, and its president testified that they were purchased before maturity, a letter dated before maturity of the notes signed by the president, addressed to another bank, stating that they purchased the notes on such bank’s recommendation, dated as stated before the notes matured, was admissible to support the president’s testimony at trial.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.*]</p> <p>6. Bills and Notes (§ 344*) — Bona Fide Purchaser — Purchase After Maturity-Series of Notes.</p> <p>The purchase of one of a series of notes after maturity operates as a purchase of all of them after maturity.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 866-868; Dec. Dig. § 344.*]</p> <p>7. Sales (§ 347*) — Notes—Failure of Consideration.</p> <p>The fact that a registered stallion sold as such was by mistake described in the registration book as having a star, when he had none, would not damage the purchaser beyond the cost of correcting the mistake in registration, in absence of special damage.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 962-972; Dec. Dig. § 347.*]</p>

<p>Appeal from District Court, Wheeler County; F. P. Greever, Judge.</p> <p>Action by C. R. Hardy against W. E. Lamb. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Principal and Surety (§ 156*) — Action by Creditor Against Surety — Answer— Sufficiency. ,</p> <p>In an action against a surety, an answer, alleging that the creditor, without the surety’s knowledge or consent, extended the time of payment, but not alleging that such extension was for any definite period or upon any consideration, was insufficient, since it apparently showed rather a mere neglect to immediately enforce collection than a definite and agreed extension.</p> <p>i[Ed. Note. — Eor other cases, see Principal and Surety, Cent Dig. §§ 423-426; Dec. Dig. § 156.*]</p> <p>2. Principal and Surety (§ 156*) — Action by Creditor Against Surety — Answer-Sufficiency.</p> <p>In an action against a surety, an answer, alleging that plaintiff did not sue on the debt at the first term of court after maturity, but not alleging that any statutory notice to sue was given or any fact making, it obligatory on the creditor to sue at the first term of court, was insufficient.</p> <p>[Ed. Note. — Eor other cases, see Principal and Surety, Cent. Dig. §§ 423-426; Dec. Dig. § 156.*]</p> <p>3. Principal and Surety (§ 125*) — Discharge of Surety — Neglect to Proceed Against Principal.</p> <p>Mere passivity or inaction by a creditor will not discharge a surety, even though the debt could have been collected from the principal if the creditor had acted promptly, where the creditor acts in good faith and takes no afiirmative action detrimental to the surety’s rights.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 312-328; Dec. Dig. § 125.*]</p> <p>4. Principal and Surety (§ 156*) — Action by Creditor Against Surety — Answer-Sufficiency.</p> <p>A surety, seeking to exonerate himself on the ground of the creditor’s neglect or carelessness, should plead the specific facts constituting such negligence, and not mere general allegations of negligence.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 423-426; Dec. Dig. § 156.*]</p> <p>5. Principal and Surety (§ 114*) — Discharge of Surety — Release or Loss of Other Securities.</p> <p>A surety on a note payable to a bank is not discharged because the bank' fails to exercise its privilege of appropriating to the payment of the note a deposit to the credit of the principal in its possession.'</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 240-243; Dec. Dig. § 114.*]</p> <p>6. Principal and Surety (§ 126*) —■ Discharge of Surety — Neglect to Proceed Against Principal.</p> <p>A surety is not discharged because the creditor, after notice to do so, fails to present his claim for payment to the guardian of an insane principal and sue thereon if payment is refused, since, in the absence of statutory authority, a surety cannot require the creditor to proceed against the principal, and Rev. St. 1895, art. 3811, authorizing a surety, by notice in writing, to require the creditor forthwith to institute suit on the contract, does not authorize notice to proceed against the estate of an insane principal; and hence an answer alleging such failure was insufficient, especially where it merely alleged the giving of notice and did not allege noncompliance therewith.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 329-351; Dec. Dig. § 126.*]</p> <p>7. Principal and Surety (§§ 91, 126*) — Discharge of Surety — Neglect to Proceed Against Principal.</p> <p>Upon the death of a principal, a creditor may look to the surety, and cannot be compelled by the surety to first resort to the probate court to collect the debt-; and hence a failure to do so after notice by the surety did not release the surety.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 141, 329-351; Dec. Dig. §§ 91, 126.*]</p> <p>8. Principal and Surety (§ 125*) — Discharge of Surety — Neglect to Proceed Against Principal.</p> <p>Where a creditor, after presenting his claim to the guardian of an insane principal and procuring its allowance, negligently and carelessly permitted the debt to go unpaid, the surety was not thereby discharged; the creditor owing the surety no duty of active diligence.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 312-328; Dec. Dig. § 125.*]</p> <p>9. Principal and Surety (§ 126*) — Neglect to Proceed Against Principal — Notice by Surety — Sufficiency.</p> <p>Under Rev. St. 1895, art. 3811, providing that a surety may, by notice in writing, require the creditor forthwith to institute suit upon the contract, a notice reading: “You will please file claim with the probate court for payment. The estate * * * is now being represented * * * by E. as administratrix, and there is plenty of property or funds there to pay you. Please kindly see to this matter at once, and oblige” — is insufficient, even assuming that article 3811 authorizes a surety to require the creditor to present his claim to the probate court, since such a notice must be a full, explicit, and peremptory demand that suit be brought forthwith, with the further statement that the surety will not be bound any further if that is not done.</p> <p>[Ed. Note. — For ' other cases, see Principal and Surety, Cent. Dig. §§ 329-351; Dec. Dig. § 126.*]</p> <p>10. Principal and Surety (§ 136*) — Remedy of Creditor Against Surety — Defenses— Estoppel.</p> <p>A creditor was not estopped to proceed against a surety on the theory that, by looking to the estate of the deceased principal for collection for several years, he permitted the surety- to believe that he was released and placed him in a position that he could not reimburse himself, where it appeared that he requested the creditor to pursue the estate, was informed as to the status of the claim before the probate ■court, and was cognizant of the progress being-made.</p> <p>[Ed. Note. — Bor other cases, see Principal and Surety, Cent. -Dig. § 385; Dec. Dig. § 136.*]</p> <p>11. PRINCIPAL AND SURETY (§ 89*) — REMEDY op Creditor Against Surety — Defenses— Estoppel.</p> <p>A creditor was not estopped to proceed against a surety because- his attorney informed the surety that the .administratrix of the principal had money with which to pay the debt and that the surety need not trouble himself about the matter, where, before the surety altered his position to his injury, the attorney notified him that the administratrix refused to pay the claim.</p> <p>[Ed. Note. — For other cases, see . Principal and Surety, Cent. Dig. §§ 133, 133%, 136-139; Dec. Dig. § 89.*]</p>

Error from District Court, Tarrant County; W. T. Simmons, Judge. Action by William Linden against H. C. Cantrell and Mrs. V. F. Withers to restrain a sale under execution in which defendant Mrs. V. F. Withers filed a plea in reconvention. There was a judgment determining the right to damages in reconvention and dissolving the temporary. restraining order, and J. H. McKenzie and another, sureties on plaintiff’s injunction bond, bring error.

<p>Appeal from Tarrant County Court; R, E. Bratton, Judge..</p> <p>Action by John Stember & Co. against D. H. Keene. Erom a judgment for plaintiff for less than the relief demanded, he appeals.</p>

<p>Divorce (§ 15*) — Grounds — Antenuptial Pregnancy.</p> <p>Antenuptial pregnancy, followed by the birth of an illegitimate child of which the husband is not the father, is ground for a divorce, unless followed by condonation on the husband’s part.</p> <p>[Ed. Note. — Eor other cases, see Divorce, Cent. Dig. §§ 29, 30; Dec. Dig. § 15.*]</p>

<p>1. Judges (§ 30*) — Statement of Facts¡— Time fob Filing.</p> <p>A judge of the district court while sitting in one county of his district is not sitting as a court as to other counties of his judicial district, and so he cannot, while holding court in one county, enter an order extending the. time of filing statement of facts in an action tried in another county at a term which might by law continue more than eight weeks.</p> <p>[Ed. Note. — For other cases, see Judges, Cent.Dig. § 143 ; Dec. Dig. § 30.*]</p> <p>2. Appeal and Ejskob (§ 227*) — Statement of Facts — Excuse fob Failuee to FILE-CONSIDERATION BY APPELLATE COUBT.</p> <p>Where, in an action' tried at a term which might by law continue more than eight weeks, the statement of facts was not filed within the time provided by statute, the Court of Civil Appeals cannot consider whether the appellant was without fault, unless that question was ruled on below; for not only does the statute itself expressly confer on the trial court the discretionary power of passing on the reasonableness of an excuse thus impliedly declaring that no other tribunal shall have that power, but the Court of Civil Appeals, having jurisdiction regardless of the filing of a statement of facts, and, such statement not constituting part of the transcript unless filed within the time limited, Sayles’ Ann. Civ. St. 1897, arts. 998, 1015, respectively, providing that the Courts of Civil Appeals shall have power to ascertain such matters of fact as may be necessary to the proper exercise „of their jurisdiction, and that the appellant shall file the transcript with the clerk of such court within 90 days provided that for good cause the court may permit the transcript to be thereafter filed, do not confer any such power.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 227.*]</p>

<p>Appeal from District Court, Coleman County; John W. Goodwin, Judge. ■</p> <p>Action by C. Q. Hassard and others against A. P. Penny, J. L. May, and others. From the judgment, O. Q. Hassard and others appeal.</p>

<p>Fraudulent Conveyances (§ 47*) — Sale of Stock in Bulk — Notice to Creditors.</p> <p>Where a trustee of a stock of goods belong-' in»- to an insolvent, preferring certain creditors to the exclusion of others, sold the stock, the sale was void under Rev. Civ. St. 1911, art. 3971, regulating sales of stock of merchandise for failure of the purchaser to inquire as to the names of the creditors, and notify them of such intended purchase.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. § 47.*]</p>

<p>Appeal from District Court, Potter County; J. N. Browning, Judge.</p> <p>Action by J. F. Price against W. Arte-burn.</p>

<p>Appeal from District Court, Hill County; C. M. Smithdeal, Judge.</p> <p>Action by J. N. Dixon and others against Hugh McNeese and another.' Judgment for defendants, and plaintiffs appeal.</p>

Error from Potter County Court; W. M. Jeter, Judge. Suit by Lorena Morris, by next friend, J. S. Morris, against C. E. Anderson and others. Judgment for defendant Lois Morris was rendered against plaintiff and the sureties on her bond, and they brought error. Heard on rehearing.

<p>1. Appeal and Eeeoe (§ 1140*) — Deteemination — Reveesible Eeeoe.</p> <p>That the judgment in an action on notes adjudged too high a rate of interest is not reversible error, where the excess is remitted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4478; Dec. Dig. § 1140.*]</p> <p>2. Payment (§ 22*) — Check— Sellee’s Lien.</p> <p>Where the seller executed a bill of sale to the buyer, accepting checks as part of the purchase price, and notes secured by a mortgage for the remainder, he has no Hen upon the property for the amount of the checks, though they proved worthless.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. §§ 87, 88; Dee. Dig. § 22.*]</p> <p>3. Appeal and Eeeoe (§ 1153*) — Determination-REFORMATION OF JUDGMENT.</p> <p>Under Rev. St. 1895, art. 1024, providing that there shall be no reversal on writ of error if the record enables the court to decide the cause upon its merits, a judgment which improperly gave plaintiff the seller’s lien for the full amount of the purchase price of the property, where it appeared he was entitled to a lien for only that portion of the purchase price secured by a mortgage, will be reformed without reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4507-4512; Dee. Dig. § 1153.*]</p> <p>4. Costs (§ 234*).</p> <p>Where a writ of error results in the reformation of a judgment correcting errors by .the trial court, costs will be allowed the plaintiff in error, although the judgment was in the main affirmed.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 892-899; Dec. Dig. § 234.*]</p>

<p>1. Vendor and Purchaser (§ 281*) — Lien— Bona Fide Purchaser —IN otice —Sufficiency of Evidence.</p> <p>In an action to foreclose a vendor’s lien assigned by the vendor to P. and by P. to plaintiff, neither of which assignments were recorded, the agent of a subsequent lienor testified that he discovered on the records a release from P. of part of the premises and believed he owned the notes, that he saw P., who claimed to be the owner, and who gave him to understand that they were paid, and that he prepared a release which the original vendor, at P.’s request, executed. Held, that this testimony supported findings that the subsequent lienor acquired its lien in good faith without notice of the outstanding lien, that the agent exercised ordinary care and prudence, that a reasonably prudent person would have believed P. was the owner of the notes, and that the agent did so believe.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. § 281.*]</p> <p>2. Vendor and Purchaser (§ 205*) — Vendor’s Lien — Assignment — Necessity of Recording.</p> <p>An assignment of vendor’s lien notes is such an instrument as is required by the registry laws to be recorded in order to be effectual against subsequent purchasers for valuable consideration without notice.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. § 265.*]</p> <p>3. Vendor and Purchaser (§ 281*) — Vendor’s Lien — Assignment—Sufficiency of Evidence.</p> <p>In an action to foreclose a vendor’s lien by an assignee whose assignment was not recorded, evidence held sufficient to show that the assignee of a subsequent lien without notice of plaintiff’s lien paid a valuable consideration for his assignment.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig, §§ 792-794; Dec. Dig. § 281.*]</p> <p>4. Vendor and Purchaser (§ 267*) — Vendor’s Lien — Unauthorized Release — Liability to Assignee.</p> <p>A vendor who had assigned his vendor’s lien to P., who reassigned to plaintiff, neither of which assignments were recorded, at P.’s request executed a release of the lien, whereupon an insurance company took, an assignment of a subsequent lien. . The insurance company’s agent knew that the vendor was not the owner Of the lien, having made inquiry of P., who said he was the owner, and that the vendor’s lien notes had been paid. Held, that P., and not the original vendor, was liable for plaintiff’s loss from his lien being subordinated to the subsequent lien, since the insurance company became a purchaser in good faith in reliance on P.’s representations, and not on the release by the original vendor.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent Dig. §§ 751-758; Dee. Dig. § 207.*]</p> <p>5. Vendor and. Purchaser (J 267*) — Vendor’s Lien — Unauthorized Release — Liability to Assignee.</p> <p>Where a vendor, who had assigned his vendor’s lien, the assignment not having been recorded, executed a release of the lien and in reliance on the record of such release a third person purchased the premises, the vendor was liable to an assignee of the lien for his unauthorized act.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. § 267.*]</p> <p>6.Vendor and Purchaser (§ 267*) — Vendor’s Lien — Release.</p> <p>After an assignment of a vendor’s lien, the assignee alone had authority to release the lien prior to payment of the secured debt and to execute the written evidence thereof, and the assignor had no such authority.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. § 267.*]</p> <p>7.Vendor and Purchaser (§ 261*) — Vendor’s Lien — Assignment.</p> <p>A vendor’s lien passes by an assignment of purchase-money notes retaining such lien.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-695; Dec. Dig. § 261.*]</p> <p>8.Vendor and Purchaser (§ 267*) — Vendor’s Lien — Unauthorized Release — Liability to Assignee.</p> <p>A vendor who had assigned his lien could not excuse his wrongful act in releasing the lien on the ground that, the assignment not being recorded, he could have been compelled to execute a release or be subject to an action to remove a cloud from the title, since he could have secured immunity by executing an instrument reciting the assignment, and disclaiming or quitclaiming any further interest therein.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. § 267.*]</p> <p>9. Vendor and Purchaser (£ 267*) — Vendor’s Lien — Unauthorized Release — Liability to Assignee.</p> <p>The cause of action by an assignee of a vendor’s lien against his assignor for a wrongful release of the lien sounds in tort, and rests upon the right to restitution commensurate with the loss sustained.</p> <p>[Ed. Note. — For.other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. § 267.*]</p> <p>10. Chattel Mortgages (§ 177*) — Conversion — Action by Mortgagee — Damages.</p> <p>When mortgaged personal property is converted by a third person, the mortgagee has a right of action against the wrongdoer for his damages measured by the value of the property, if it does not exceed the amount of the secured debt.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 336, 340-357, 477; Dec. Dig. § 177.*]</p> <p>’ 11. Vendor and Purchaser (§ 267*) — Vendor’s Lien — Unauthorized Release — Liability to Assignee.</p> <p>The measure of damages recoverable by an assignee of a vendor’s lien for his assignor’s wrongful release of the lien is the value of the security lost, not exceeding the amount of the debt or the unpaid balance of the debt when the action is instituted.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. $ 267.*]</p> <p>12. Vendor and Purchaser (§ 280*) — Vendor’s Lien — Action, for Unauthorized Release — Petition.</p> <p>A petition for the foreclosure of a vendor’s lien by an assignee whose assignment was not recorded alleged that a number of defendants acquired their liens and purchases in reliance on a release of the lien executed by an assignor thereof, that, if it should appear on the trial that they had acquired rights superior to plaintiff’s rights, then he averred that he had been damaged for the full value of the land or the full amount of the depreciated value of the lien by such release, and demanded judgment against the assignor for all such damages as might be shown by the evidence. Held, that this was insufficient to warrant a judgment against the assignor, since it failed to allege a cause of action by failing to affirmatively allege that plaintiff had sustained loss, and, by failing to allege the amount of the loss, failed to show that the district court had jurisdiction.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 7S4 — 791; Dec. Dig. § 280.*]</p> <p>13. Vendor and Purchaser (§ 267*) — Vendor’s Lien — Right oe Action for Unauthorized Release.</p> <p>A right of action by an assignee of a vendor’s lien against his assignor for a wrongful release of the lien is an independent one not connected with an action on the vendor’s lien notes, or for a foreclosure of the lien, and need not be prosecuted in the same action with either.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. § 267.*]</p> <p>14. Vendor and Purchaser (§ 280*) — Vendor’s Lien — Action for Unauthorized Release — Petition.</p> <p>The joinder of a cause of action by an. assignee of a vendor’s lien against his assignor for a wrongful release of the lien with causes of action on the notes, and for a foreclosure of the lien, does not relieve plaintiff of the necessity of alleging all the facts essential to the cause of action for the wrongful release, an'd necessary to confer jurisdiction on the trial court.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 784-791; Dec» Dig. § 280.*]</p> <p>15. Vendor and Purchaser (§ 285*) — Vendor’s Lien — Unauthorized Release — Liability to Assignee.</p> <p>In an action to foreclose a vendor’s lien with which was joined an action against an assignor of the lien for a wrongful release, the court could not render judgment against such assignor for the amount of the lien remaining unsatisfied after a sale of the property, since this would involve a measure of damages unauthorized and unjust.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 806-807; Dec. Dig. § 285.*]</p> <p>16. Judgment (§ 248*) — Conformity to Pleadings.</p> <p>The trial court properly refused to render a judgment unauthorized by the petition, although it would have been justified by the evidence.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 434; Dec. Dig. § 248.*]</p>

<p>Appeal from District Court, Tarrant County ; W. T. Simmons, Judge.</p> <p>Action by E. P. Bomar against H. L. Ga-hagan. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Tarrant County ; W. T. Simmons, Judge.</p> <p>Action by Cassandra Warren against the Waggoner Bank & Trust Company. From a judgment for plaintiff, defendant appeals.</p> <p>Appellee and Francis Warren were married August 3, 1910, in Ohio, and lived together as husband and wife until November 17, 1910, when, for a reason not disclosed by the testimony in the record, but because, as alleged in the pleadings, appellee had been informed that at the time he married her Warren had living a wife from whom he had not been divorced, they separated, in Ft. Worth; appellee returning to her father’s home in Ohio. They never afterwards lived together. On the day, but 'before, they separated, appellee and Warren called at appellant’s bank in Ft. Worth, where she presented to appellant’s cashier, to whom several days before this time she and Warren had been introduced as husband and wife, a draft on a bank in New York for $1,500, and had the cashier to pay her on account thereof $200 in cash, to place to Warren’s credit in the commercial department of the bank $600, and to her credit in its savings department'$700. The draft was a part of appel-lee’s separate estate, and the testimony was sufficient to support a finding, involved in the judgment rendered, that the cashier knew it. At the time the $700 was placed to ap-pellee’s credit, the cashier gave her a passbook in which he had noted the deposit as follows: “The Waggoner Bank & Trust Co., Fort Worth, Texas, Savings Department. In account with Mrs. Cassandra Warren”— and then advised her that “the money could not be withdrawn from the bank without sending the book to the bank, or bringing it.” On the outside of the cover of the passbook a statement as follows had been printed: “Take care of this book. It must be presented when money is deposited or withdrawn. Be sure that no unauthorized person secures possession of it. If lost or stolen, notify the bank at once.” In the book had been printed “rules and regulations governing deposits and payments” in the bank’s savings department. Among those rules were the following: “(3) All deposits and all payments shall be entered at the time they are made in the passbook of the depositor. This book shall be the voucher of the depositor, and although the bank will endeavor to prevent fraud on its depositors, yet all payments to persons producing the .passbooks issued by the bank shall be valid payments to discharge the bank. (4) Interest at the rate of 4 per cent, shall be paid on savings deposits, when the account reaches $10.00. Deposits made on or before the fifth day of any month shall draw interest from the first day of that month; those made after the fifth day of any month shall draw from the first day of the next succeeding month, but no interest shall be allowed on any fraction of a dollar, or any fraction of a month. Money withdrawn between any interest paying period (June 30 and December 31) will be entitled to draw no interest. (5) All drafts drawn on account of deposits made in the bank must be made by the depositor, or by his or her ordér in writing, and on production of the depositor’s passbook; but all payments made to the person producing the depositor’s passbook shall be valid and good. In the event the passbook is lost, the bank shall b.e notified at once. When money is drawn, the book must be brought to the bank to have the payment entered therein, and in all cases in which the whole amount is drawn, the book must be surrendered to the bank. Absent depositors may withdraw their deposits on their order, properly witnessed, blanks for which purpose will be furnished by the bank on request.” Appellee relied on the statement made to' her by the cashier that the $700, or any part of same, he had placed to her credit in the savings department, could not be withdrawn from the bank unless the passbook was presented to it at the time the application for the withdrawal thereof might be made; and, had she known that the bank would recognize a right in Warren to withdraw it without the presentation' to it of the passbook, she would not have made the deposit. She retained the book in her possession until March 20, 1911, when she sent it by mail to the bank with a letter requesting it to send her a draft or check for the $700, payable to her father, with whom she was living in Ohio. In reply to her request she was advised by the bank that on December 20, 1910, it had paid to her husband on a check therefor drawn by him in her name $600 of the amount of the deposit, and on December 29, 1910, on a similar check had paid the remaining $100 to him. On the theory that the payment to Warren was unauthorized by and therefore not binding on her, appellee sued and reeov-■ered a judgment against the bank for the $700 and interest thereon.</p>

<p>1. Trusts (§ 43*) — Creation—Validity oe Oral Trusts.</p> <p>A trust may be created by parol evidence varying the terms of a written instrument.</p> <p>[Ed. Note. — Por other cases, see Trusts, Cent. Dig. §§ 62-65; Dec! Dig. § 43.*]</p> <p>2. Deeds (§ 54*) — Requisites—Delivery.</p> <p>In order to vest title in a grantee, it is necessary, not'only that the deed be executed, but also that it be delivered.</p> <p>[Ed. Note. — Por other cases, see Deeds, Cent. Dig. § 116; Dec. Dig. § 54.*]</p> <p>3. Deeds (§ 194*) — Evidence—Presumption— Delivery.</p> <p>The record of .a-deed is presumptive, but not conclusive, evidence of its delivery, i [Ed. Note. — Por other cases, see Deeds, Cent. Dig.- §§ 574-583, 623; Dec. Dig. § 194.*]</p> <p>4. Trial .(§ 85*) — Offer oe Proof — Evidence Admissible in Part.</p> <p>Where any part of offered evidence is- admissible, it is error, to sustain an objection to .the whole .of it., . ...</p> <p>[Ed. Note! — Por other cases, see Trial,'Cent. Dig. §§ 223-225; Dee. Dig. § 85.*]</p> <p>5.Witnesses (§ 159*) — Competency—Transactions with Decedent.</p> <p>In an administrator’s action to recover real property and rents thereon, testimony of one of the defendants showing that he had never delivered a deed to decedent, that a codefendant had paid the purchase money for the property,- and that the deed to decedent was delivered to such third party did not relate to transactions by defendant with decedent, but solely to what decedent himself did as to the deed and to a transaction between defendant and his code-fendant, and hence was competent.</p> <p>[Ed. Note. — Por other cases, see Witnesses, Cent Dig. §§ 664, 666-669, 671-682; Dec. Dig.</p> <p>6. Trespass to Try Title (§ 34*) — Disclaimer — Effect.</p> <p>Where a party in trespass to try title files a disclaimer, he is no longer a party to the suit, unless, in addition to land, it is sought to recover damages.</p> <p>[Ed. Note. — Por other cases, see Trespass to Try Title, Dec. Dig. § 34.*]</p> <p>7. Witnesses (§ 139*) — Competency—Transactions Between Party and Decedent.</p> <p>In an action to recover a lot and rents as damages, testimony of a defendant who had executed a replevin bond making himself liable for such rents, but who had filed a general denial and also a disclaimer of any interest in the_ property, was inadmissible as to any transaction between himself and decedent relative to the property.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 582-597; Dec. Dig. § 139.*]</p>

<p>1. CORPORATIONS (§ 448*) — PROMOTERS — PERSONAL Liability on Contracts.</p> <p>Plaintiff was employed by the promoters of a railway company to secure bonuses and subsidies from residents and landowners along the proposed route of the railroad, under a contract by which he was to have certain percentages of the net profits from town sites on the proposed road and subsidies and bonuses. It was contemplated by all parties that a railway corporation was to be organized, and that plaintiff’s services were to be performed for the benefit of that enterprise, and that the railway company, when created, should succeed to the rights and liabilities arising under the contract. A corporation was organized, and thereafter plaintiff was in its employ, under such contract. It did not appear that, at the time it was substituted for the promoters, anything was due or had been earned under the contract, ¿eld, that plaintiff’s right of action for damages from wrongful discharge or for the amount due under the terms of the contract was against the corporation and not against the promoters.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 1709, 1789-1792; Dec, Dig. § 448.*]</p> <p>2. Corporations (§ 30*) Promoters — Personal Liability on Contracts.</p> <p>Promoters who, in contemplation of the formation of a corporation, make contracts and incur liabilities in its behalf are personally liable unless it is expressly stipulated and agreed that they shall not be so held and the mere fact that the corporation, when organized, assumes the liability does not release the promoters.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 97-100; Dee, ,Dig. § 30.*]</p>

Error from District Court, Harris County; A. R. Hamblen, Judge. Action by L. B. Carlton against tbe Texas Banking & Investment Company and tbe Farmers’ Union Commission & Grain Company and others. There was a judgment for plaintiff against the Grain Company, tbe last defendants, and in favor of tbe Banking Company, and plaintiff and tbe Grain Company bring error.

<p>1. Evidence (§ 432*) — Written Instruments-—Parol Evidence — Consideration.</p> <p>Evidence of an understanding that a note would not be enforced, or create a liability, was admissible to show that a contract, evidenced by the note, was invalid for want of consideration.</p> <p>[E'd. Note. — For other cases, see Evidence,. Cent. Dig. §§ 1981-1989; Dec. Dig. § 432.*]</p> <p>2. Bills and Notes (§ 96*) — Accommodation' Paper — Consideration.</p> <p>Accommodation paper must always be supported by a consideration, but the accommodation party is bound by the beneficial consideration moving to the party accommodated, if no other passes.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 165; Dec. Dig. § 96.*]</p> <p>S. Bills and Notes (§ 49*) — Accommodation Paper — Parties.</p> <p>An accommodated party cannot sue or recover from an accommodation party.</p> <p>[Ed. Note. — For other' cases, see Bills and Notes, Cent. Dig. § 66; Dec. Dig. § 49.*]</p> <p>4. Banks and Banking (§ 116*) — Officers— Notice to President — Agency.</p> <p>Where the president of a bank receives paper under an agreement that it will not be collected, it cannot be said that he was not acting for the bank, and that notice to him of such an agreement was not notice to the bank, simply because he was personally the one at interest in having the bills receivable of the bank to properly balance the books.</p> <p>[Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. §§ 282-287; Dec. Dig. § 116.*]</p> <p>5. Bills and Notes (§ 113*) — Collateral Agreement — Estoppel.</p> <p>Where one gave a note without consideration to a bank, with an understanding that it was not to be collected and was to be canceled at maturity, and it was renewed several times as though to cover interest, no element of estoppel in favor of the bank exists in an action on the note after maturity.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. § 223; Dee. Dig. § 113.*]</p>

<p>1.Mortgages (§ 6*) — Essentials — Conditional Sale.</p> <p>A conditional sale of land with the right to repurchase, but without any indebtedness or obligation on the part of the vendor to repay the purchase money, is not a mortgage.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. § 5; Dec. Dig. § 6.*]</p> <p>2. Brokers (§ 88*) — Issues of Fact — Question for Jury.</p> <p>Where, in a broker’s action for commission, the evidence raises a clear issue of fact whether an actual sale has been consummated, such issue is for the jury.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 121-130; Dec. Dig. § 88.*]</p> <p>3. Pleading (§ 398*) — Variance—Surprise.</p> <p>Where the defendant in a broker’s action for commission on a sale was not misled or surprised by a variance between the petition, which alleged that defendant contracted with plaintiff and another broker, and evidence which disclosed that the contract was with plaintiff alone, such variance was not fatal.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent.-Dig. § 1338; Dec. Dig. § 398.*].</p> <p>4. Estoppel (§ 110*) — Pleading—Necessity.</p> <p>Where a real estate broker’s estoppel through violation of his contract was not pleaded, it was not available as a defense to his action for commission.</p> <p>[Ed. Note — For other cases, see Estoppel, Cent. Dig. § 300; Dec. Dig. § 110.*]</p> <p>5. Brokers (§ 57*) — Right to Commission.</p> <p>The fact that an owner disposed of his property to a purchaser, procured by a broker, at a less price than he authorized the broker to sell same, did not deprive the broker of his right to a commission.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. § 57.*]</p> <p>6. Appeal and Error (§ 742*) — Assignment of Error — Sufficiency.</p> <p>An assignment of error submitted’ as a proposition, being multifarious, was not entitled to consideration.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>7. Trial <§ 256*) — Specific Instructions— Duty to Request.</p> <p>Where the defendant in a broker’s action for commission desired to have the jury’s attention specifically directed to certain matters, he should have requested instructions to such effect.</p> <p>[Ed. Note. — For other cases, see Trial, Cent Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>8. Appeal and Error (§ 882*) — Favorable Error.</p> <p>The defendant in a broker’s action for commission could not complain that the court submitted a defense upon which he relied.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. 8 882.*]</p> <p>9. Trial (§ 203*) — Submission of Issues— Evidence.</p> <p>It is the duty of the trial court to submit all issues raised by the pleadings and the evidence, and not merely such as are supported by a preponderance of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 477-479; Dee. Dig. § 203.*]</p> <p>10. Brokers (§ 57*) — Right to Commission-Conditional Sale.</p> <p>A broker’s right to a commission on a sale to a purchaser procured by him is not defeated by the fact that his principal reserves the right to repurchase.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. § 57.*]</p> <p>H. Brokers (§ 85*) — Evidence.</p> <p>In a broker’s action for commission on a sale made to a purchaser procured by Mm, defendant’s testimony that he made the sale because in great need of money, being immaterial, was properly excluded.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. § 85.*]</p> <p>On Rehearing.</p> <p>12. Brokers (§ 45*) — Right to. Commission— Abandonment of Negotiations.</p> <p>The fact that a real estate broker, after procuring a purchaser, discontinued his efforts to make the sale, did not show an abandonment by him of such negotiations, where such discontinuance was due to the principal’s suggestion that he could better make the sale alone, and the principal then promised to pay the commission when the sale should be completed.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 46; Dee. Dig. § 45.*]</p>

<p>1. Appeal and Error (§ 837*) — Questions Reviewable — Instructions—Evidence. The court on appeal, in determining whether instructions were probably confusing, must consider the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3262-3278; Dee. Dig. § 837.*]</p> <p>2. Appeal and Eeeoe (§ 1170*) — Reversal — Technical Error — Instructions — Misleading Instructions.</p> <p>In an action for injuries to a street car passenger, the passenger testified that after signaling the car to stop he walked to the rear platform, with a bundle in his left hand, at the same time holding to the support placed there for passengers, and rested his right hand against the car door, and was thrown from the platform by a violent jerk of the car. The conductor testified that the passenger stood on the step with bundles in both hands, not holding to anything, and. that he fell without any unusual movement of the car. The court charged that if the motorman caused the car to give a violent jerk and was negligent in so doing, and such negligence was the proximate cause of the accident, the passenger could recover, and that the passenger must exercise ordinary care, and if he took a position on the step without taking hold and was negligent in so doing, and the negligence was the proximate 'cause of the injury, there could be no recovery. It also charged that if the'passen-' ger had bundles in both hands and went on the steps and lost his balance, and the fall was not due to any sudden movement of the car, there could be no recovery. Held, that the issues were sufficiently presented, and failure to qualify the first charge by making a finding for the passenger contingent on a finding of freedom from contributory negligence must be disregarded, as required by court rule 62a, because the error did not cause an improper verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4540-4545; Dec. Dig. § 1170.*]</p> <p>3. Trial (§ 315*) — Verdict—Misconduct op Jury.</p> <p>Where the jury differed as to the amount of the recovery and agreed to divide by 12 the sum each should name, but it was understood that the method was not to be binding as to the result, and a verdict was thereafter agreed to by ¿11, the court properly refused to set aside the verdict on the ground that it was arrived at by an improper method.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740, 741; Dec. Dig. § 315.*]</p>

<p>1. Telegbaphs ahd Telephones (§ 10*)— Rights to Roads ano Stbeets — Statutes.</p> <p>Rev. Civ. St. 1911, art. 1231, authorizing corporations created for constructing and maintaining magnetic telegraph lines to set their poles and wires along roads and streets, applies to telephone as well as telegraph lines.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.*].</p> <p>2. Telegraphs and Telephones (§ 10*)— Control op Stbeets — Statutes.</p> <p>The power of control of its streets, with right to abate any encroachments thereon, given s city by Rev. Civ. St. 1911, art. 854, is subordinate to the power given telegraph and telephone companies by article 1231 to set their poles along streets, subject only to the right given the city by article 1235 to specify location and kind of poles, so that injunction against interference by the city with erection of telephone poles in- streets does not divest the city of its right of possession of the street; such right having been granted the company by the state.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.*]</p> <p>3. Telegraphs and Telephones (§ 10*)— Rights to Stbeets — Regulation be City Council — Waiver op Right.</p> <p>A city being without right to exclude a telephone company from occupancy of its street, but having merely right to direct where the poles should be located, which it had, by ordinance, undertaken to do, and the company having agreed to comply with the ordinance, and in addition offered to conform to any suggestions of the council, the council, by merely refusing to act, waived its privilege in this respect, giving the company the right to proceed with the work according to the ordinance, so that injunction against the city and its officers interfering with the work was proper, and not an exercise of the city’s right of designating location of the poles.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dee. Dig. § 10.*]</p> <p>4. Injunction (§ 14*) — Adequate Remedy at Law.</p> <p>By provision of Rev. Giv. St. 1911, art. 4643, one showing itself entitled to injunction under the principles of equity is- entitled to the writ, where it is threatened with irreparable -injury to its property rights, independent of whether it has an adequate legal remedy.</p> <p>[Ed. Note. — For other cases, see Injunction, Gent. Dig. § 14; Dee. Dig. § 14.*]</p> <p>5. Injunction (§ 16*) — Adequate Remedy at Law.</p> <p>Even if right of a telephone company to injunction against interference with its right to erect poles in a street is dependent on its not having complete and adequate remedy at law, such remedy is wanting; its line being completed to the city, and it being threatened with arrest and prosecution of its employés if they proceed with the work.</p> <p>[Ed. Note. — For other cases, see Injunction, Gent. Dig. § 15; Dec. Dig. § 16.*]</p> <p>6. Mandamus (§ 3*) —Other Remedy —Injunction.</p> <p>The city council having acted on and refused a .telephone company’s application to erect poles in the streets,- it cannot be said resort should be to mandamus rather than injunction against the city’s interference with such erection.</p> <p>[Ed. Note. — For other eases, see Mandamus, Gent. Dig. §§ 8, RP34; Dec. Dig. § 3.*]</p> <p>7. Telegraphs and Telephones (§ 10*) — Use oe Street — Application eob Permit — Deposit — Gertieied Check.</p> <p>It is no ground, for a city refusing permit to a telephone company to erect poles in streets, that it deposited, instead of money, a certified check to cover any damages; that being equivalent to a deposit of money.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.*]</p> <p>8. Corporations (§ 513*) — Authority oe Oe-EICErs — Pleading.</p> <p>The petition of a telephone company to enjoin interference by a city with erection in its streets of poles of the company, the city council having denied its application for a permit, need not allege that authority of its president and manager, who presented its application to act in its behalf therein, was shown to the council, or possessed by him; such authority being- presumed, in the absence of plea raising the issue.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2017-2027, 2031-2034, 2036-2045; Dec. Dig. § 513.*]</p> <p>9. Telegraphs and Telephones (§ 10*) — Use of Street — Petition for Permit — Reference to Ordinance.</p> <p>That the application of a telephone company to a city council for permit to erect poles in the street, referring to and offering to comply with all the ordinances on the subject, erroneously designated them as civil, instead of criminal, is immaterial.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.*]</p>

<p>Appeal from District Court, Cooke County; Clem B. Potter, Judge.</p> <p>Action by Mrs. Sudie Bryant and others against Grand Lodge Sons of Hermann. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Intoxicating Liqtjobs (§ 306*) — Civil Damage Laws — Exceptions.</p> <p>• In an action on the bond of an intoxicating liquor dealer given under a statute (Rev. Civ. St. 1911, art. 7452) making the condition of such bond that the dealer will not sell or give intoxicating liquors to any habitual drunkard after having been notified in writing- through a peace officer by the wife of such drunkard, an averment in the petition that defendant was legally notified by plaintiff through a peace officer not to sell intoxicating liquors to her husband, who was an habitual drunkard, is not inshfficient for failing to properly allege notification.</p> <p>[Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. §§ 441, 442; Dec. Dig. § 306.*]</p> <p>2. Intoxicating Liqtjobs (§ 88*) — Liqtjob Dealeb’s Bond — Breach — Question fob Juey.</p> <p>Whether there has been an “entering and remaining” in a saloon by a minor so as to create a liability on the liquor dealer’s bond, given under the statute (Rev. Civ. St. 1911, art. 7452), is a question of fact, to be determined ' by the triors of the facts in an action on the bond.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig.-§§ 91-95; Dec. Dig. § SS.*]</p> <p>3. Intoxicating Liquoes (§ 86*) — Liquob Dealee’s Bond — Bbeach—Pebmitting Mi-nobs to Resoet in Saloons.</p> <p>Where a minor enters a saloon, makes a purchase of liquor which may not lawfully be sold to him by the proprietor or his agent, and remains only long enough to complete that transaction, the offense will be referred to another provision of the bond specifically covering such conduct, and not that provision rendering the dealer liable for permitting minors to “enter and remain” in the saloon, and where the minor enters for any purpose, and stays only momentarily, or for so brief a space of time that his presence could not in the common acceptation of the term be defined as remaining in the saloon, no liability will be imposed under the condition of the bond for permitting him to enter and remain.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 89; Dec. Dig. § 86.*]</p> <p>4. Constitutional Law (§ 70*) — Judicial Poweb — Encboachment on Legislatuee.</p> <p>The Legislature having the right to provide against minors entering and remaining in saloons, it is not for the courts to attach a qualification to such prohibition which the language of the law does not warrant or the rule of reason dictate.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 3.29-132, 137; Dec. Dig. § 70.*]</p> <p>5. Intoxicating Liquoes (| 88*) — Liquob Dealer’s Bond —Bbeach —Question foe Juey — “Remaining” — “Enter and Remain.”</p> <p>While the entry of a minor into a saloon with the purpose of attempting to induce his father, who was intoxicated, to leave the saloon, does not constitute a breach of the liquor dealer’s bond, conditioned that he would not permit minors to “enter and remain” in his saloon, where the evidence showed that the father frequently resorted to defendant’s saloon, and there became intoxicated, and that his minor sons on various occasions came to the saloon to take their father away, it was a question of fact whether such condition of the bond was broken, in view of the fact that the word “remaining” does not mean a tarrying after the execution of some purpose not unlawful in itself, and the expression “enter and remain” means to stay for some indefinite length of time; that is, longer than is required for an immediate exit.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 91-95; Dec. Dig. § 88.*</p> <p>For other definitions, see Words and Phrases, vol. 7, pp. 6068-6073; vol. 8, p. 7783.]</p>

<p>1. Master And Servant (§ 276*) — Safe Place to Work — Evidence of Causal Connection.</p> <p>Evidence, in an action for the death of plaintiff’s intestate from a fall due to a shock from negligently insulated electric wires at a power plant where he was working as fireman, held sufficient, though circumstantial only, to show causal connection between the defendant employer’s negligence and decedent’s death.</p> <p>[Ed. Note. — Por other eases, see Master and Servant, Cent. Dig. §§ 950-952,' 954, 959, 970, 976; Dec. Dig. § 276.*]</p> <p>2. Negligence (§ 134*) — Proof Required.</p> <p>In a negligence case, direct connection between the negligence and injury must be shown, and there can be no recovery where it is equally consistent to infer that the injury was produced by some other cause as by defendant’s negligence, but plaintiff’s evidence need not exclude all mere possibilities of other causes if the reasonable deduction from the evidence is that defendant’s negligence was the producing cause.</p> <p>[Ed. Note. — Por other cases, see Negligence, Cent. Dig. §§ 267-273; Dec. Dig. § 134.*]</p>

<p>Appeal from District Court, Grayson County; B. L. Jones, Judge.</p> <p>Action by J. W. Odom against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff for $11,000, defendant, appeals.</p>

<p>Appeal from Hill County Court; Horton B. Porter, Judge.</p> <p>Action by the Citizens’ National Bank of Hillsboro against- J. D. Abney and another. From a judgment for plaintiff, the named defendant appeals.</p>

<p>1. Appeal and Error (§ 925*) — Review — Presumptions.</p> <p>In an action on an assigned claim, where defendant filed a plea alleging fraud in the assignment, and claiming the privilege of being sued in the county of his residence, and pleaded estoppel upon the merits of the case, and where special exceptions to the form of the plea of privilege were sustained, the court, in the absence of a statement of facts, must presume that the questions of estoppel and of fraudulent assignment were eliminated, and that defendant was denied the right to proye such allegations.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3729-3734; Dec. Dig. § 925.*]</p> <p>2. Pleading (§ 11*) — Form—Matters op Evidence.</p> <p>A simple allegation of facts meets the requirement of pleading, and it is not proper to plead the evidence.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 31; Dec. Dig. §' 11.*]</p> <p>3. Tenue (§ 58*) — Action on Assigned Claim — Plea op Privilege — Fraudulent Assignment.</p> <p>In an action on an assigned claim, the plea of privilege on the ground of residence properly included allegations of a fraudulent and fictitious assignment, and it was sufficient for defendant to set up that the assignment was fraudulent or fictitious; that being a fact susceptible of proof.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 88-90; Dec. Dig. § 58.*]</p> <p>4. Sales (§ 121*) — Rescission by Buyer-Waiver op Right to Recover Price — Es-toppel to Rescind.</p> <p>That the buyer, though complaining that the goods sold were not in accordance with the contract of sale, refused to ship them to another point at( defendant’s expense to be disposed of on the account of defendant who was to pay the difference, did not constitute a waiver of the right to rescind the purchase.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 296-301; Dee. Dig. § 121.*]</p> <p>5. Sales (§ 391*) — Remedies op Buyer — Recovery op Price.</p> <p>A buyer cannot keep goods bought and aft-erwards recover the full purchase price paid.</p> <p>. [Ed. Note. — For other eases, see Sales, 'Cent. Dig. §§ 1110-1127; Dec. Dig. § 391.*]</p> <p>6. Sales (§ 396*) — Remedies op Buyer — Action to Recover Price — Defenses.</p> <p>In an action on a buyer’s assignment of his claim to recover the price paid for goods bought, the defense that the buyer kept the goods cannot be raised by plea of estoppel to rescind.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1134, 1135 ; Dec. Dig. § 396.*]</p> <p>•On Motion for Rehearing.</p> <p>7. Appeal and Error (§ 551*) — Absence op Statement op Facts — Eppect.</p> <p>Assignments based upon the exclusion of evidence and in some cases upon the overruling of special exceptions will rarely be considered in the absence of a statement of facts, because it is impossible for the court to determine whether the ruling below was right or wrong; but, where bills of exceptions are in the record sufficient to reveal the facts to the court, the rule does not apply.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2457; Dec. Dig. § 551.*]</p>

<p>Error to District Court, Burnet County; Clarence Martin, Judge.</p> <p>Action by James O’Donnell against Mrs. E. J. Epley and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from District Court, Oarson County; F. P. Greever, Judge.</p> <p>Action by F. W. Vance against the Southern Kansas Railway Company of Texas. From a judgment for defendant, plaintiff ap-</p> <p>peals.</p>

<p>1. Contracts (§ 232*) — Performance—Building Contracts — Additional Work — Right to Compensation.</p> <p>Though plaintiff expressly contracted to superintend the construction of a building in consideration of a lump sum, if the owner made ■changes during the progress of the work requiring a longer time to complete the building than ■originally contemplated, and plaintiff did the ■extra work with the owner’s knowledge, he could recover compensation therefor, though the owner ■did not act fraudulently in making the changes, and hence evidence of the final cost of the building and the time required to complete it was admissible in an action for plaintiff’s services.</p> <p>[Ed. Note. — Eor other cases, see Contracts, •Cent. Dig. §§ 1071-1094; Dec. Dig. § 232.*]</p> <p>2. Contracts (§ 232*) — Building Contracts —Extra Compensation.</p> <p>Where changes in a building made by the owner necessarily entailed extra service by one contracting to superintend the construction of a building for a certain sum, such contractor need not give the owner notice that he expected additional compensation for his additional services in order to recover ther.efor.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1071-1094; Dec. Dig. § 232.*]</p> <p>3. Trial (§ 200*) — Instructions—Request.</p> <p>A .requested charge was properly refused if embraced in the main charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659 ; Dec. Dig. § 260.*] .</p>

<p>Appeal from Kaufman County Court; Thomas R. Bond, Judge.</p> <p>Action by McKissack Brothers against the Texas Midland Railroad. From a judgment for plaintiffs, defendant appeals.</p>

T. Simmons, Judge. Action by A. J. Anderson against the Southwestern Surety Insurance Company and others. From a judgment for plaintiff, the defendant named appeals. Appellee, Anderson, who resided in Tar-rant county, owned a dwelling house in Ft.

<p>Appeal from District Court, Hill County; C. M. Smithdeal, Judge.</p> <p>Action by C. W. Parham against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading (§ 417*) —Demurrer—Form and Requisites.</p> <p>Under rule 6 for district and county courts (142 S. W. xvii), providing that the answer shall consist of an original answer and such supplemental answers as may be necessary, and that they shall he indorsed so as to show their respective positions, as “Original Answer,” “Defendants’ First Supplemental Answer,” etc., and rule 13 (142 S. W. xviii), providing that the party amending shall point out the instrument sought to be amended as the “Original Answer,” etc., and amend by filing a substitute, to be styled and indorsed “Amended Criginal Answer,” etc., where defendants filed three separate exceptions, indorsed “Demurrers Nos. 1, 2, and 3,” and on the same day what was called “Defendants’ First Amended Original Answer,” which contained general and special exceptions and a general denial, the so-called demurrers were not a part of the amended original answer, and were properly disregarded.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1401, 1402; Dec. Dig. § 417.*]</p> <p>2. Appeal and Error (§ 732*) — Assignments op Error — Beperence to Motion por New Trial.</p> <p>Assignments of error filed in March, 1912, before attorneys were generally aware of the amendment of rule 25 for Courts of Civil Appeals (142 S. W. xii), will be considered, although they do not refer to the ground in1, the motion for new trial, setting up the alleged error, as required by that amended rule.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*)</p> <p>3. Limitation op Actions (§ 127*) — Commencement op Action — Amendment op Pleadings.</p> <p>The petition in an action by a married woman, in which her husband joined, alleged the making of a contract with defendant, a real estate broker, by the wife in the husband’s presence, and with his consent, by which she was to have a share of the broker’s commissions on sales to purchasers sent him by her. An amended petition, filed after a new action would have been barred by limitations, in which the husband was named as sole plaintiff, alleged the making of the contract by him. Eeld, that the contract alleged in both petitions was the same; and hence the cause was not barred by limitations, since the contract alleged in the original petition was the husband’s contract, made by the wife ' as agent, in view of Bev. St. 1895, art. 2970, which is the only statute authorizing a married woman to contract, and which only authorizes her to contract debts for necessaries furnished herself or children, and for expenses incurred by her for the benefit of her separate property.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. § 127.*)</p> <p>4. Husband and Wipe (§§ 208, 221*) — Bight op Action by Wipe on Contract.</p> <p>‘ A wife could not sue in her "own name on a contract made in her husband’s presence, and with his consent, with a broker for a share of commissions on sales to persons procured by her, and was hot a necessary or proper party to a suit on such contract by the husband.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §jj 760-764, 707, 802-806; Dec. Dig. §§ 208, 221.*]</p> <p>5. Husband and Wipe (§ 79*) — Contracts— Capacity to Contract.</p> <p>A married woman has no power, except such as is given by statute, to bind herself personally by a contract.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 317-323; Dec. Dig. § 79.*]</p> <p>6. Husband and Wife (§ 259*) — Bight op Husband to Wipe’s Earnings.</p> <p>The earnings of a husband and wife belong to the community estate, and are under the control of the husband.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 911; Dec. Dig. § 259.*]</p> <p>7. Husband and Wipe (§ 23%*) — Agency op Wipe por Husband.</p> <p>Authority on the part of a wife to act as agent for her husband may be presumed from the acts and conduct of the parties.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 145, 146; Dec. Dig. § 23%.*]</p> <p>8. Husband and Wipe (§ 229*) — Actions— Variance.</p> <p>Where the petition alleged a contract with a broker to pay plaintiff a share of his commissions on sales to purchasers procured by plaintiff, while the evidence showed the making of such a contract by plaintiff’s wife in his presence, and with his consent, there was no variance..</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 816-834; Dec. Dig. § 229.*]</p> <p>9. Appeal and Error (§ 1040*) —Beview— Harmless Error.</p> <p>The erroneous overruling of exceptions to allegations of fraud in the petition, in an action on contract, was harmless, where the question of fraud was not submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>10. Husband and Wipe (§ 232*) — Actions— Admissibility op Evidence.</p> <p>Testimony of plaintiff, suing on a contract between his wife and a broker for a share of the broker’s commissions on sales made to purchasers procured by the wife, that he was present and joined in the conversation in making the contract, and adopted it, was properly admitted; the witness by “adopt” apparently meaning that lie assented to the contract, and that it was his contract.</p> <p>[Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 844-848; Dec. Dig. § 232.*]</p> <p>11. Appeal and Error (§ 901*) — Burden op Showing Ebeob.</p> <p>Where the record leaves it in doubt whether an alleged erroneous instruction was requested by appellant, as claimed by appellee, it will be presumed that it was so requested, since it is the duty of an appellant to show error.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3670; Dec. Dig. § 901.*]</p> <p>12. Brokers (§ 82*) — Action pob Share op Commissions — Pleading—Suppiciency.</p> <p>In an action against B. and others, real estate brokers, for a share in the commission on a sale, a petition alleging that the other brokers knew of L.’s agreement with plaintiff, and of the part plaintiff and his wife had taken to secure the purchasers, that they entered into an agreement with L. to defeat plaintiff’s claim, sold the land, got the commission, and divided it, and also alleging that they had promised that plaintiff should have his part of the commission, sufficiently alleged a ratification of L.’s contract by the other brokers.</p> <p>[Ed. Note/ — Eor other cases, see Brokers, Cent. Dig. §§ 101-103; Dec.'Dig. § 82.*]</p> <p>13. Partnership (§ 218*) — Actions Against —Verdict.</p> <p>A verdict against “C. & S.” was not necessarily, because of the use of their names con-junctively, a verdict against them as a partnership, where they were also sued as individuals.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 426-428; Dec. Dig. § 218.*)</p>

<p>Appeal from Collingsworth County Court.</p> <p>Action by H. E. Singley and others against the Maxwell-Clark Drug Company and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Negligence (§ 136*) — Contributory Negligence — -Infants’ Responsibility fob Acts.</p> <p>The question as regards contributory negligence of one 13 yeafs old of his responsibility for his acts is for the trial court in the absence of a jury.</p> <p>[Ed. Note. — -For other cases, see Negligence, Cent. Dig. §§.277-353; Dec. Dig. § 136.*]</p> <p>2. THEATERS AND SHOWS (§ 6*)-PERSONAL Injury — Wild'Animals.</p> <p>Within the rule requiring the keeper of an animal ferae natura to so keep it as to absolutely prevent its injuring another, and making him liable for such injury, unless the other was voluntarily responsible for the attack, a boy who gave peanuts to a monkey running at large in a museum, and, on stooping to pick up one it had dropped, was bit by it, was not so responsible for its attack.</p> <p>[Ed. Note. — For other cases, see Theaters and Shows, Cent. Dig. § 6; Dec. Dig. § 6.*]</p>

<p>1. Partnership (§ 183*) — Transfer of Partner’s Interest.</p> <p>A lien given by a partner on his interest in the partnership property to secure an individual indebtedness is not invalid merely because the partnership is insolvent at the time.</p> <p>[Ed. Note. — For other eases, see Partnership, Cent.Dig. §§ 312, 319-336,348; Dec.Dig. § 183.*]</p> <p>2. Partnership (§ 76*) — Interest of Partner in Firm Property.</p> <p>A partner’s right in the firm property is in effect a right to share in the surplus after discharging the firm debts, including reimbursements for advancements in excess of his proportional share.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 116, 124; Dec. Dig. § 76.*]</p> <p>3. Partnership (§ 179*) — Right of Partner as to Application of Assets to Firm Debts.</p> <p>Each partner has the right to require the application of all the firm assets to the payment of the firm debts.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 314; Dec. Dig. § 179.*]</p> <p>4. Partnership (§§ 95, 227*) — Transfer oi Partner’s Interest — Property AssiGnable.</p> <p>A partner’s right to share in the surplus after payment of debts and to have the firm assets applied to the payment of firm debts is property which can be sold and transferred and is transferred by a sale and transfer of his interest in the firm property either to his partner or to a stranger.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 142, 143, 473^75; Dec. Dig. §§ 95, 227.*]</p> <p>5. Partnership (§ 264*) — Purchase of Co-partner’s Interest — Effect.</p> <p>A sale and transfer of a partner’s interest in the firm property to his copartner dissolves the partnership, extinguishes the partner’s rights in the property as partnership assets, and converts the property into the individual property of the purchaser free from the equities of the seller, even though the purchaser has agreed to pay the firm debts.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 608, 614, 617; Dec. Dig. § 264.*]</p> <p>6.Vendor and Purchaser (§ 231*) — Constructive Notice — Record.</p> <p>A partner, who purchased his copartner’s interest in the firm realty and other realty owned by the copartner individually, was charged with notice of a recorded deed of trust thereon given by the copartner and could not deny that he had notice.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 513-539; Dec. Dig. §' 231.*]</p> <p>On Motion for Rehearing.</p> <p>7.Subrogation ■(§ 41*) — Pleading and Evidence.</p> <p>Before subrogation can be decreed, the facts from which it arises must be distinctly and appropriately alleged and shown, and the equity therefrom must plainly appear.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 109-118; Dec. Dig. § 41.*]</p> <p>8.Subrogation (§ 23*) — Person Making Advances for Discharge of Incumbrances.</p> <p>Where partners who had given a vendor’s lien on land borrowed upon their personal responsibility without security the money necessary to discharge the lien, the lien was extinguished and could .not be subsequently revived for the benefit of one of the partners who paid the loan, and hence he was not entitled to be subrogated to the rights of the lienor, but was only entitled to reimbursement out of the firm assets.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. § 23.*]</p> <p>9.Partnership (§ 183*) — Right to Have Assets Applied to ‘Firm Debts — Loss.</p> <p>A partner, who purchased his copartner’s interest and undertook to settle with the firm creditors and the copartner’s individual creditors, instead of invoking the aid of the court to administer the assets so as to give partnership creditors and himself preference, lost his partnership lien and took the copartner’s interest subject to a deed of trust thereon, previously executed and recorded.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent.Dig. §§ 312, 319-336, 348; Dec.Dig. § 183.*]</p>

<p>Appeal from District Court, Hall County; S. P. Huff, Judge.</p> <p>Trespass to try title by J. W. Gilley against M. S. Smith and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Gabnishment (§ 60*) — Money Subject— Subplus on Execution.</p> <p>Under the statute directing the surplus of the proceeds of a sale under execution remaining in the sheriff’s hands after satisfaction of judgment to be immediately paid over to the execution defendant, the officer ceases to hold the remainder of the proceeds in his official capacity, and becomes a debtor to the execution defendant as to the surplus, so that such surplus is subject to garnishment by a creditor of the execution defendant.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 115, 116; Dee. Dig. § 60.*]</p> <p>2. Execution (§ 55*) — Second Execution.</p> <p>An officer having a surplus in his hands after a sale of property under execution and satisfaction of the judgment may subject it to a second execution against defendant.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 137-140; Dec. Dig. § 55.*]</p>

<p>1. Trial (§ 250*) — Instructions—Conformity to Pleadings and Evidence — “Contributory Negligence.”</p> <p>“Contributory negligence” is a failure to exercise ordinary care, or that degree of care that a person of ordinary prudence of plaintiff’s age, intelligence, and discretion would have exercised under the same or similar circumstances, and is properly so defined by the court, in an action by a boy of 13 for personal injuries received in a collision with a street car while driving across the tracks, though there was no pleading nor evidence showing that he was not of sufficient intelligence and discretion to know the danger of attempting to cross in front of an approaching car.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. § 250.*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1541-1547; vol. 8, p. 7617.]</p> <p>2. Trial (§ 296*) — Misleading Instruction —Cure by Other Instructions.</p> <p>A charge “that a street car company has no right to the exclusive use of that part of the street upon which its track is laid, but all persons have an equal right to use the same,” was not misleading, where the reciprocal duties of the parties were defined, and the right of the plaintiff to recover made to depend on the negligent operation of the car, in other instructions.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]</p> <p>3. Trial (§ 252*) — Instructions—Conformity to Evidence.</p> <p>An objection, in an action against a street car company for personal injuries in a collision with a wagon, that by using the plural term “agents” in an instruction, when the evidence showed that no one but the motorman could have been negligent, might lead the jury to believe that there was another agent, whose duty it was to stop the car, was without merit.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>4. Street Railroads (§ 111*) — Collision with Wagon — Pleading and Issues — Discovered Peril.</p> <p>An allegation that defendant street car company should, after it discovered plaintiff’s peril, have stopped or slackened the speed of the car, but failed to do so, to which the defendant answered that plaintiff drove onto the track so near the car that it did riot have time to stop the car, though all means a.t hand were used to that end to the best advantage, raised the issue of discovered peril.</p> <p>[Ed. Note. — For other cases, see Street Railroad^, Cent. Dig. §§ 225, 226; Dec. Dig. §</p> <p>5. Street Railroads (§ 117*) — Collision with Wagon — Question for Jury — Discovered Peril — Evidence.</p> <p>In an action against a street railroad for injuries at a street intersection, evidence 'held sufficient to go to the jury on the issue of discovered peril.</p> <p>[Ed. Note. — For other eases, see Street Railroads, Cent. Dig. §§ 239-257; Dee. Dig. § 117.*]</p> <p>6. Street Railroads (§ 90*) — Collision with Wagon — Duty of Motorman — Discovered Peril.</p> <p>Where a motorman saw a boy attempting to drive across the track in front of the car, or the manner of the boy’s driving was such as to reasonably indicate that he intended to cross, it was his duty to use proper care to prevent the collision; and he could not take any chances on the boy’s getting across before the car reached him, nor wait until the danger was manifest.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190-192; Dee. Dig. § 90.*]'</p> <p>7. Negligence (§ 138*) — Misleading Instructions — Contributory Negligence — Burden of Proof.</p> <p>An instruction that the burden upon the issue of contributory negligence was upon the defendant was not misleading, on the theory that the jury might be prevented from finding contributory negligence from the evidence produced by plaintiff, where the court in submitting the issue used the expression “If you find from the evidence,” etc., which clearly refers to all the evidence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 354-370; Dec. Dig. § 138.*]</p>

<p>1. Telegraphs and Telephones (§ 65*) — Delay in Delivery oe Message — Actions — Petition.</p> <p>A person suing for anxiety, mental pain, and anguish and distress of mind caused by his inability to attend his brother’s funeral because of delay in delivery of a telegram must allege that he would have attended the funeral if he had received the telegram in time.</p> <p>[Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. § 65.*]</p> <p>2. Judgment (§ 250*) — Conformity to Pleadings.</p> <p>Where facts essential to a cause of action are not pleaded, a judgment for plaintiff cannot be sustained, although such facts are shown by the evidence.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. § 250.*]</p> <p>3. Telegraphs and Telephones (§ 65*) — Delay in Delivery op Message — Actions— Petition.</p> <p>A person suing for delay in delivery of a telegram concerning his brother’s death and funeral alleged that, as soon as he received the telegram, he went to the place where the funeral was held, but arrived after the funeral, and that because of defendant’s negligence and careless delay in the delivery of the message he was deprived of the comfort, solacei and satisfaction of attending the funeral, and seeing his brother before he was buried. Held, that this was a sufficient allegation that he would have attended the funeral if the message had been delivered in time.</p> <p>[Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dee. Dig. § 65.*]</p> <p>4. Telegraphs and Telephones (§ 66*) — Delivery op Message — Negligence.</p> <p>In an action for delay in delivery of a telegram preventing the addressee from attending his brother’s funeral, the evidence showed that the telegraph messenger did not deliver the message until the day following its delivery to him because of the darkness of the night and the condition of the road, and that plaintiff had left his home and gone to a camp before the messenger could have reached his home, there was no evidence that, if he had taken the message to plaintiff’s home that night, it would have reached him any sooner than it did, and testimony that, because of the darkness and condition of the road, the messenger could not have gone to the camp that night was not contradicted by plaintiff. Held, that the evidence failed to show negligence on the part of the messenger.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]</p> <p>5. Telegraphs and Telephones (§ 37*)— Delivery op Message — Negligence.</p> <p>A telegraph messenger is only required to use reasonable diligence to deliver a telegram.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dee. Dig. § 37.*]</p> <p>6. Appeal and Error (§ 1177*)— Reversal-Rendering Final Judgment.</p> <p>Upon reversal of judgment for plaintiff for insufficiency of evidence, where it does not appear that the evidence to support the cause of action has been fully developed, judgment will not be rendered for defendant, but the cause will be remanded for a new trial.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4597-4620; Dec. Dig. § 1177.*]</p>

<p>CakRiers (§ 277*) — Passengers—Failure to Stop Train — Damages.</p> <p>A railroad company, failing to stop its train at a station to take up a passenger for a nearby city, the station being one at which the train was scheduled to stop, is liable for such direct and consequential damages sustained as were reasonably within the contemplation of the parties, and if the company had notice of a diseased condition of the passenger’s teeth, etc., it would be liable for additional suffering caused by the delay in reaching a dentist through -the company’s failure to stop the train; but, in the absence of such knowledge or notice, the company is not liable for such mentioned element of damage.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. § 277.*]</p>

<p>Appeal from District Court, Potter County; 'Jno. W. Veale, Special Judge.</p> <p>•Action by H. A. Nobles against Hugh Tol-leson and. others. From judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error (§ 564*) — Time to File Statement — Repeal.</p> <p>Act 32d Leg. c. 119, giving 30 days in which to prepare and file a statement of facts, is in conflict with the old statute giving 20 days, and repeals the latter.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. § 564.*]</p> <p>2. Appeal and Error (§ 569*) — Statement op Facts — Reversal.</p> <p>Where the parties to an action could not .agree on the facts, and submitted statements to the judge, who could not from his own knowledge determine the facts, but had conferences, with jurors, and thus determined them, such statement was not prepared according to Rev. Civ. St. 1911, art. 2069, providing that the judge shall prepare a statement on disagreement from the statements of the respective parties and his own knowledge.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dee. Dig. § 569.*]</p> <p>3.Appeal and Error (§ 644*) — Statement op Facts — Waiver op Defects.</p> <p>Where there is no record of the evidence, and the judge makes out the statement of facts by conferring with some of the jurors, being unable to do so from his own knowledge and statements of the parties, the party aggrieved by such statement of facts did not lose his right to complain thereof by failing to apply for a mandamus to compel a proper statement, because a writ of mandamus will not be issued wben it would prove unavailing or when the respondent cannot obey it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2795-2798; Dee. Dig. § 644.*]</p>

<p>Appeal from Anderson County Court; O. •C. Funderburk, Judge.</p> <p>Action by the American Laundry Machinery Manufacturing Company against George Belcher. Judgment for defendant, and plaintiff appeals.</p>

B. Powell, Judge. Action by J. O. Davidson and others against the Ragley-McWilliams Lumber Company. From so much of the judgment as decreed that plaintiffs, other than Rebecca Stone, were entitled to certain interest in the land in controversy, defendant appeals.

<p>Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.</p> <p>Action by A. D. Simpson and another against the City of Nacogdoches and others. Prom an order refusing a temporary injunction, plaintiffs appeal.</p> <p>This suit was brought by the appellants, A. D. Simpson and O. E. Hubbard, citizens and taxpayers of the city of Nacogdoches, who sue for themselves and other citizens and taxpayers of said city, and the Nacogdoches Light & Power Company, a corporation having its domicile in said city, against said city and its mayor and board of aldermen, who are each and all named in the petition, to enjoin the defendants from selling or disposing of certain bonds of said city described in the petition, and from constructing a light plant in said city and using the funds or any part thereof derived from the sale of any of said bonds, if any part thereof has been sold for the construction of a light plant in said city, and from the payment of any debts contracted for bridges or other purposes before the issuance of said bonds or before the call for the election at which said bonds were voted.</p> <p>The petition alleges, in substance, that on February 12, 1912, the city council of the city of -Nacogdoches passed the following resolutions and order of election: “Whereas the city council of the city of Nacogdoches, Texas, deem it advisable to issue the bonds of said city for the purpose hereinafter mentioned, therefore it is hereby ordered by said city council of the city of Nacogdoches that an election be held on the 19th day of March, 1912, at which election the following propositions shall be submitted: Pirst. Shall the city council of the city of Nacogdoches, Texas, be authorized to issue the bonds of said city in the sum of $2.0,000, payable 40 years after date, with the option of redeeming same at any time after 5 years from date, bearing interest at the rate of 5 per cent, per annum, interest payable annually, and to levy a tax sufficient to pay the interest on said bonds and create a sinking fund to redeem them at maturity, for the purpose of purchasing and constructing an electric light plant for said city. Second. Shall the city council of the city of Nacogdoches be authorized to issue the bonds of said city in the sum of $15,000, payable 40 years from date with the option of redeeming same at any time after 5 years from date, bearing interest at the rate of 5 per cent, per annum, interest payable annually, and to levy a tax sufficient to pay the interest on said bonds and create a sinking fund sufficient to redeem them at maturity, for the purpose of the construction of sewers in said city. Third. Shall the city council of the city of Nacogdoches be authorized to issue the bonds of said city in the sum of $30,000, payable 40 years after date with the' option of redeeming same at any time after 5 years from date, bearing interest at the rate of 5 per cent, per annum, interest payable annually, and to levy a tax sufficient to pay the interest on said bonds, and create a sinking fund sufficient to redeem them at maturity for the purpose of street improvement in said city. Said election shall be held at the city hall in said city of Nacog-doches, and J. A. Spears is hereby appointed manager of said election. Said election shall be held under the provisions of chapter 149, Acts of the Twenty-Sixth Legislature, Laws of 1899, and only qualified voters who are property taxpayers of said city shall be allowed to vote, and all voters desiring to support the first proposition to issue bonds shall have printed on their ballots the words: ‘For the issuance of bonds for electric light plant.’ And those opposed shall have printed on their ballots the words: ‘Against the issuance of bonds for electric light plant.’ All voters desiring to support the second proposition to issue bonds shall have printed on their ballots the words: ‘For the issuance of bonds for the construction of sewers.’ And those opposed shall have printed on their ballots: ‘Against the issuance of bonds for the construction of sewers.’ And all voters desiring to support the third proposition to issue bonds shall have printed on their ballots the words: ‘For the issuance of bonds for street improvements.’ And those opposed shall have printed on their ballots the words: ‘Against the issuance of bonds for street improvements.’ The manner of holding said election shall be governed by the laws of the state regulating general elections.” That in accordance with said order, and after due notice had been given, an election was held in said city on March 19, 1912, and said election resulted in a majority in favor of the issuance of each of the series of bonds named, and the result of the election was declared by the city council at a meeting of said council held on March 20, 1912. That thereafter, on April 16, 1912, the city council passed an ordinance authorizing the issuance of the bonds described in the resolution and order of election before set out, but providing that the period of redemption of the bonds should be fixed at 10 years from their date instead of 5 years, as provided in the resolution submitted to the voters- by said order of election. That thereafter, on July 2, 1912, the city council passed another ordinance authorizing the issuance of said series of bonds as provided for in the ordinance of April 16th, but changing the amount of bonds for the construction of sewers from $15,000 to $7,000, and in pursuance of said ordinance the bonds therein described had been prepared and executed by the city.</p> <p>Then follow allegations to the effect that it was understood by many of the voters at said election, from representations made by the city council through authorized publication in the newspapers, and by verbal representations by the defendant mayor and some of the defendant aldermen, that, in event a majority of the voters at said election should vote in favor of the issuance of the proposed bonds for the purpose of purchasing and constructing an electric light plant for said city, the defendants would favor the purchase of the plant of the Nacogdoches Light & Power Company, which was and is a light plant operating in said city and serving the purposes and needs of the city, and that, because of said understanding on the part of the voters, many of them were induced to vote for said bonds; but that since said election the defendants had declined to purchase said plant at the price fixed by an expert electrician selected and appointed by the defendants, and have declared their purpose to construct a competing plant in said city. It is further alleged that the sum of $20,000, the amount of the bonds issued for that purpose, is insufficient for the construction of a light plant adequate for the needs of said city, and the construction of such a plant as could be constructed for the amount of said bonds would result in a waste of money, and the taxpayers would suffer loss because of the eompeti'tion between such plant and the existing plant in said city. It is further alleged: “That the order for said election provided and declared that said bonds, if issued, should be payable 40 years after date with the option of redeeming them at any time after 5 years from their date. That said city council arbitrarily, willfully, and without the authority of the taxpaying voters of said city issued said bonds with the option to redeem same after 10 years from date. That said city council arbitrarily, willfully, and without authority from taxpaying voters of said city, and contrary to their expressed will in said election, issued the bonds for sewers in the sum of $7,000; that said sum of $7,000 is inadequate and insufficient to build any kind of competent sewer system for said city, and its investment for such purpose would be a waste and loss to the majority of the taxpayers of said city and result in no benefit whatever to a large proportion of the people. That after the result of said election was declared, as has been here-inbefore stated, it was found that not more than the sum of $57,000 in bonds of said city could be legally issued; that, said sum of $57,-000 was less than the sum voted to be issued by the taxpaying voters in said election in the sum of $7,000, and that said city council arbitrarily and without the consent of the citizens, who voted in said election, and contrary to their expressed will, forced the reduction of said issuance totally from the sum voted- for sewers in said election. Plaintiffs aver that the total amount possible to be levied for taxes in said city has been levied, and that the total amount of bonds possible to be issued by said city have been issued. That on the 13th day of February, 1912, the city council of said city awarded a contract for the construction of two concrete bridges in said city of Nacogdoches at a cost of more than $4,000, and petitioners are informed and believe, and upon such information and belief aver, that the members of said city council have declared it their purpose to use and appropriate a portion of the funds realized from the sale of said bonds to discharge and pay off this indebtedness contracted and assumed prior to said election; that it is the purpose of said city council, as expressed by the members thereof, to pay off said indebtedness out of the funds to be realized for the sale of bonds issued for street improvements. Plaintiffs aver upon information and belief, and will undertake to show to the court, that the city of Nacogdoches is now without funds to pay its current expenses, and is indebted to the Commercial Guaranty State Bank of Nacogdoches in the sum of $4,660. Petitioners say that they have no legal remedy for their protection; that they will suffer irreparable injury, as they verily believe, should the purposes and intent of said city council, as hereinbefore stated, be put into execution, wherefore petitioners pray your honor to issue a writ of injunction restraining George H. Matthews, mayor of said city, and each and every alderman thereof, to wit, G. A. Blount, O. F. Swift, J. A. Drewery, J. R. McKinney, and F. B. Sublett, and the city council of said city, from- selling or disposing of said bonds or any part thereof, and from constructing a light plant in said city of Nacogdoches and from using the funds, or any part thereof, derived from the sale of any part of said bonds, should they have been sold, for the construction of a light plant in said city of Nacogdoches, and for the payment of any debts contracted for bridges or other purposes before the issuance of said bonds or before the call for said election, and from expending the sum of $7,000, or any sum less than the sum of $15,000, for the construction of sewers in said city, and from using or' applying any of the taxes of said city for the purpose of'creating a sinking fund and paying off the interest on the aforesaid bonds. ■ Petitioners pray that defendants be cited to appear, and that your honor hear proof in the matters herein alleged, and that the injunction herein applied for be made perpetual, and for other and further relief, special and general, both in law and equity, that they may be entitled to.”</p> <p>This petition, properly verified, was presented to Hon. James I. Perkins, judge of the district court of Nacogdoches county, on July 31, 1912, in chambers, and he thereupon indorsed his fiat thereon, granting a temporary restraining order in accordance with the prayer of the petition, and setting the matter of granting the injunction for hearing on the first Monday in September, 1912; On August 17, 1912, the defendants filed an answer and a motion to dissolve the temporary restraining order theretofore issued. These pleadings of the defendants, in addition to general and special exceptions, aver that the bonds mentioned in plaintiffs’ pe£ition were duly approved by the Attorney General of this state and registered by the comptroller in accordance with the provisions of the statute, and, after such approval and registration, they were sold by the defendants and delivered to the purchaser, the Commercial Guaranty State Bank of the city of Nacogdoches, and the proceeds of such sale received by the city before the granting of said restraining order of July 31, 1912. Attached to said answer as exhibits are certificates of the Attorney General and comptroller showing the approval and registration of said bonds on July 24 arid July 25, 1912, respectively.</p> <p>In reply to defendants’ answer and motion to dissolve, plaintiffs on August 19, 1912, filed an answer containing a general demurrer and special exceptions, the nature of which it is unnecessary to state, and also the following averments: “The writ of injunction granted in this cause was granted about 11 o’clock a. m. on July 21, 1912, the fiat of the judge being placed thereon about 1 o’clock p. m. of said day; that said sales of said bonds to the Commercial Guaranty State Bank at Nacogdoches was not in any manner made nor said bonds delivered to said bank until 4 o’clock p. m. of said date; that the officers of said bank and the mayor of the city of Nacogdoches, representing the city of Nacogdoches, knew before said attempted sale that the writ of injunction granted was being applied for, and said bank had been notified before the purchase of said bonds not to purchase said bonds as they were invalid, said notice being both written and verbal, and petitioners are informed and believe that said bank is not, in truth and in fact, the purchaser of said bonds, but a mere go-between as to the city and some other parties; that, at the time of said sale, said George H. Matthews was the acting mayor of the city of Nacogdoches, and that he received no money at said sale of said bonds; that said bank did not have the money to pay for said bonds, the sum being $57,000 and the accrued interest thereon; plaintiffs allege that said bonds could only be sold for cash, and no cash was paid by the Guaranty State Bank for said bonds, and neither did the mayor nor the city of Nacogdoches receive any cash for said bonds, and plaintiffs allege and say that no sale of said bonds has ever been made as they are informed and believe, and plaintiffs allege the fact to be that all of said bonds were delivered to said Guaranty State Bank about 4 o’clock p. m. on July 31, 1912, and that it. now has in its possession about two-thirds of said $57,000 worth of said bonds; that said bank had an arrangement with another concern substantially that, if said bank would procure said bonds, such other concern would take said bonds in three equal installments, and that said third concern had full notice and knowledge of all the above facts in fact, and also by virtue of the agency of said Guaranty State Bank.” ' This answer also asks that Zeno H. Cos, tax collector of the city of Nacogdoches, and the Commercial Guaranty State Bank of Nacog-doches be made parties defendant.</p> <p>It does not appear that any service was had upon either of these parties, and they made no appearance herein by answer or otherwise. On August 31st the motion of defendant to dissolve the restraining order was heard and granted by the judge in chambers, and thereafter, on September 2, 1912, the day named in the restraining order, the application for temporary injunction was heard by the court upon the pleading and affidavits presented by the parties, and said application was refused. From the order refusing the application, plaintiffs prosecute this appeal.</p>

<p>Appeal from District Court, Liberty County; L. B. Hightower, Judge.</p> <p>Action by Ed T. Hastings against the Dayton Lumber Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Nacogdoches County; James I. Perkins, Judge.</p> <p>Action by A. D. Simpson and another against the City of Nacogdoches and others. Prom an order dissolving a temporary restraining order, plaintiffs appeal.</p>

<p>1. Exchange of Property (§ 8*) — Fraud— Evidence — Admissibility.</p> <p>In an action to cancel a deed for fraudulent representations as to value and earning ■capacity of a certain electric plant and factory for which an exchange was made, evidence that the business was conducted in the same manner after the exchange as before, and that it did not pay running expenses, was admissible upon the question of the falsity of the statements with reference to the net income.</p> <p>[Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. §§ 14-18; Dee. Dig. § 8.*]</p> <p>2. Appeal and Error (§ 1050*) — Harmless Error — Admission of Evidence.</p> <p>Permitting a witness to testify in such case that after he took charge as manager the business was conducted in the same manner as before, if error, was harmless, where another witness testified to the same effect from personal knowledge.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153h1157, 4166; Dee. Dig. § 1050.*]</p> <p>3. Trial (§ 252*) — Instruction—Conformity to Evidence.</p> <p>In an action to cancel a deed procured by false representations in an itemized statement of the net earnings of the business for which the land was exchanged, failure to instruct that plaintiff could not recover if the representations were matters of opinion and not of fact was not error, since such representations could not have been mere matters of opinion.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>4. Trial (§ 256*) — Instruction — Duty to Request.</p> <p>If defendant, in an action to cancel a deed for misrepresentations, desired a more specific charge in relation to the misrepresentations, he should have requested same.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>5. Vendor and Purchaser (§ 242*) — Innocent Purchaser — Evidence.</p> <p>Where, in an action to cancel a deed to land which had been conveyed by the original vendee to a bank, which assumed payment of the purchase price notes, there was no proof, aside from recitals in the deed, that the bank paid value for the land, or took it without notice of the plaintiffs’ equities, the bank was not entitled to the rights of an innocent purchaser.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. § 242.*]</p> <p>6. Exchange of Property (§ 5*) — Fraud-Ratification and Affirmance.</p> <p>Where, in an action to cancel a deed, executed July 12th, because procured. by false representations as to the value and income of the business for which it was exchanged, it appeared that plaintiff permitted the business to be run by the employés previously in charge until August 2d, and made no investigation and received no further information of its condition until that time, and that then, upon discovering the falsity of the representations, he immediately brought suit for rescission and cancellation, there was' no ratification or af-firmance precluding rescission.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 6, 8-10; Dec. Dig. § 5.*]</p> <p>7. Homestead (§ 123*) — Right to Rescind Sale — I-Iusband and Wife.</p> <p>A wife’s right to rescind a sale of the homestead for fraud could not be cut off by any act of ratification by her husband.</p> <p>[Ed. Note. — For other eases, see Homestead, Dec. Dig. § 123.*]</p> <p>8. Exchange of Property (§ 8*) — Fraud-Sufficiency of Evidence.</p> <p>Evidence, in an action to cancel a deed because procured by false representations as to the value and income of a business for which an exchange was made, held to sustain a finding that the representations were false.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent Dig. §§ 14-18; Dee. Dig. 8.*)</p>

H. Pope,. Judge. Action by Thomas IT. Langham and others against the City of Beaumont- and others. Prom an order denying a temporary injunction, plaintiffs appeal. On motion to dismiss appeal.

<p>1. Insurance (§ 610*) — Statutes—Repeal-Service on Domestic Insurance Companies — “Mat Only.”</p> <p>Acts 31st Leg. c. 108, § 34, providing that process in the case of domestic insurance companies of certain kinds “may” be served “only” on certain of their officers, or by having a copy at the home office, and that laws relating to corporations in general shall apply to such companies so far as pertinent and “not in conflict” with the provisions of this act repeals, so far as concerns such companies. Rev. St. 1895, art. 1222, as amended by Acts 28th Leg. c. 47, authorizing service of citation in an action against an incorporation company on its local agent.</p> <p>[Ed. Note. — Por other cases, see Insurance, Dec. Dig. § 610.*</p> <p>Por other definitions, see Words and Phrases, vol. 5, pp. 4420-4447; vol. 8, p. 7719.]</p> <p>2. Appeal and Error (§ 662*) — Recital in Judgment.</p> <p>Recital in the judgment that defendant was “duly served and cited” is not conclusive on appeal, the original petition showing service was sought on defendant’s local agent, and the citation in the record showing it was served on such agent.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2850-2852; Dee. Dig. § 662.*]</p>

<p>1. Appeal ard Eeeob (§ 10-10*) — Habmless Ebbok — Pleading—Submission oe- Issues.</p> <p>The overruling of exceptions to an allegation that the defendant carrier was negligent in not accepting baggage checks as evidence of right to transportation was harmless, where the only ground of recovery submitted by the court was the ejection after an offer to pay fare had been made.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>2. Cabeiees (§ 381*) — Evidence — Admissibility.</p> <p>In an action against a carrier for ejection of a passenger, evidence that the conductor did not ask the ejected person whether she had any money or ask her for any was admissible, where there was evidence that the conductor told her she could do nothing but get off, to show- that the conductor was hasty.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1473-1482; Dee. Dig. § 381.*]</p> <p>3. Cabeiees (§ 358*) —> Passengebs — Ejection — Tendee oe Fabe.</p> <p>A formal tender of money by one about to be ejected from a train is not necessary where the conductor in reply to an offer to pay said that the only thing to do was to get off.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1434-1438; Dec. Dig. § 358.*]</p> <p>4. Appeal and Eerob (§ 1033*) — Harmless Error — Instructio ns.</p> <p>Though the court charged that, if the jury found that plaintiff was a passenger, the defendant owed her ordinary care, when in fact the carrier owed her a very high degree of care, the defendant cannot -complain.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]</p> <p>5. Cabeiees (§ 383*) — Questions fob Juey • —Ejection from Train — Evidence.</p> <p>In an action against a carrier, evidence held sufficient to take the question whether defendant ejected plaintiff’s wife to the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. 'Dig. §§ 1492-1496; Dec. Dig. § 383.*]</p> <p>6. Cabeiees (§ 384*) — Ejection of Passenger — Misleading Instructions.</p> <p>An instruction that if plaintiff purchased a ticket for his wife, and negligently permitted her to embark without the same, and that if such negligence, coupled with the negligence of defendant, was the proximate cause of the injuries, and without which such injuries would not have occurred, then the jury should find for defendant, was not misleading, as instructing that the negligence of plaintiff would not defeat his right to recover, unless it co-operated with the negligence of the defendant.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1497-1500; Dec. Dig. § 384.*]</p> <p>7. Cabeiees (§ 370*) — Negligence — Ejecting Passenger — Defenses.</p> <p>Where a conductor refused to accept fare from plaintiff’s wife or ejected her at an unsuitable place, the plaintiff’s negligence in putting her on the train and forgetting to give her the ticket he had bought was immaterial to recovery.</p> <p>[E'd. Note. — For other cases, see Carriers, Cent. Dig. § 1459; Dec. Dig. § 370.*]</p> <p>8. Trial (§ 260*) — Requested Instructions —Instructions Given.</p> <p>A requested charge that it was not sufficient in the absence of tickets that a passenger was willing to pay cash, and, unless such willingness was accompanied by some act or move suggesting such willingness, then ejection was justified, was covered by instructions given that unless the passenger offered to pay fare, and the conductor refused, he could not recover, so that the requested charge was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 200.*]</p> <p>9. Trial (§ 260*) — Instructions — 'General Charge — Special Instructions.</p> <p>Where the general charge throughout made it plain that plaintiff could not recover for an ejection from a train unless an offer to pay fare was made, a special charge on such an issue was unnecessary.</p> <p>[E'd. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>10. Carriers (§ 382*) — Ejection from Train —Excessive Damages.</p> <p>Where a conductor wrongfully put plaintiff’s wife off a train in an insulting manner several miles from a station in a light shower, with her sick baby and a small child, and it was very muddy from several days’ rain, and the child was taken sick with tonsilitis, and the baby’s sickness aggravated, and she and the children were under the care of a doctor for two weeks, a verdict of $1,000 damages will not be held excessive.</p> <p>[E'd. Note. — For other cases, see Carriers, Cent. Dig. §§ 1478, 1483-1491; Dec. Dig. § 882.*]</p> <p>11. Trial (§§ 139, 140*) — Province of Jury —Weight of Evidence — Credibility of Witnesses.</p> <p>The jury in the trial court is the judge of the credibility of the witnesses and the weight to be given to the testimony.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333. 334, 335, 338-341, 365; Dec. Dig. §§ 139, 140.*]</p>

<p>1. Husband and Wine (§ 155*) — Borrowing Monet — Redemption op Sepabate Estate —“PuRCiiase of Property.”</p> <p>Where property of a married woman had been sold under a trust deed, and title taken in the name of the mortgagee, under an express agreement of record that it might be redeemed upon paying the indebtedness for which it had been sold, the payment of such indebtedness was not a “purchase of property,” so as to be prohibited as a purpose for which a married woman may borrow money.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 605-607; Dec. Dig. § 155.*]</p> <p>2. Husband and Wipe (§ 155*) — Wife’s Separate Property — Borrowing Monet.</p> <p>A married woman has the right to borrow money to discharge a mortgage indebtedness, and thereby to charge her separate estate.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 605-607; Dec. Dig. § 155.*]</p> <p>3. Husband and Wife (§ 232*) — Action to Charge Wife’s Separate Property — Sufficiency of Evidence.</p> <p>Evidence, in an action on a note for borrowed money, brought against a married woman and her husband to charge her separate property, held, to sustain allegations that upon the first application for the loan it was represented that the money was wanted to improve her separate estate, and afterwards, and before the money was loaned, that it was represented as wanted to pay off debts due by her for which her separate estate was liable, and that it was so used.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 844-848; Dec. Dig. § 232.*]</p> <p>4. Husband and Wife (§ 155*) — Wife’s Separate Estate — Liability — Bills and Notes.</p> <p>A married woman’s note for borrowed money is not binding upon her, unless the money borrowed was used for the benefit of her separate estate.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 605-607; Dec. Dig. § 155.*]</p> <p>5. Limitation of Actions (§ 25*) — Particular Action — Written Contract — Note.</p> <p>An action on a married woman’s note for borrowed money, valid because borrowed for the benefit of her separate estate, was not barred until four years after the maturity of the note.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 118-131; Dec. Dig. § 25.*]</p> <p>6. Husband and Wife (§ 155*) — Charges on Wife’s Separate Estate — Mortgage.</p> <p>A part of a loan to a married woman, not used for the benefit of her separate estate, cannot be made a charge on such estate, except as to the property upon which she has executed a deed of trust to secure its payment.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 605-607; Dec. Dig. § 155.*]</p> <p>7. Mortgages (§ 376*) — Payment (§ 38*) — Application — ‘‘Involuntary Payment. ’ ’</p> <p>A payment of an indebtedness by the sale of mortgaged real property is an “involuntary payment,” as to which the debtor has no right to make an application under the rules governing voluntary payments.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1125-1132; Dec. Dig. § 376;* Payment, Cent. Dig. §§ 99-103; Dec. Dig. §38.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3764.]</p> <p>8. Mortgages (§ 376*) — Application op Payments — Appropriation by Parties —Consent.</p> <p>Where a married woman gave a deed of trust upon her separate estate to secure a loan, part of which she paid over to her husband, and part of which she used for the benefit of such estate, neither party on a sale of the property could, without the other’s consent, apply the proceeds first to the payment of either portion of the indebtedness, but such proceeds, in the absence of any agreement, must be applied pro rata to the payment of the debt due by her and that due by her husband.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1125-1132; Dec. Dig. § 376.*]</p>

<p>1. Railroads (§ 400*) — Injuries on Track-Jury Question — Negligence.</p> <p>Evidence, in an action for the death of plaintiff’s husband by being struck by defendant’s passenger train while lying on the track, held to raise the issue of negligence in failing to use due care to stop the train, and avoid striking decedent after his peril was discovered.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.*]</p> <p>2. Trial (§ 194*) — Instructions — Weight oe Evidence.</p> <p>An instruction in an action for death on defendant’s railroad track that as ■ to whether the persons operating the engine discovered decedent’s peril, and, when they discovered his peril, if they did so, as to whether they. used all means at their command, if any, consistent with the train’s safety, to avoid injury after they discovered his peril, if they did so, “may be shown by circumstances, .and same must be determined by circumstances at the time,” was not on the weight of the evidence, as excluding consideration of the trainmen’s testimony.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 439-441, ,446-454, 456-466; Dec. Dig. § 194.*]</p> <p>3. Railroads {§ 400*) — Injuries on Tracks— Evidence — Cause oe Death.</p> <p>Evidence in an action for decedent’s death by being run over, while lying on a railroad track in connection with the presumption that a man will not take his own life held to make it a jury question whether decedent suicided.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.*] =</p>

B. Powell, Judge. Trespass to try title by W. L. Holman against the Houston Oil .Company of Texas, and others intervene. Judgment for defendant and interveners as against the plaintiff and defendant, and for defendant as against the plaintiff, and both appeal.

<p>1. Criminal Law (§ 781*) — Trial—Instruc- • TIONS.</p> <p>A charge on circumstantial evidence is sufficient if it contains the ’test of exclusion; that is, that the evidence is sufficient only when it excludes every other reasonable hypothesis save that of guilt.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, I960; Dec. Dig. § 784.*]</p> <p>2. Larceny (§ 12*) — Prosecution — Essentials.</p> <p>Where accused took possession of and tied a cow to a tree to be butchered, he was guilty of larceny, although she had not yet been sold or butchered.</p> <p>[Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 22-29; Dec. Dig. § 12.*]</p> <p>3. Larceny (§ 27*) — Prosecution — Defenses.</p> <p>That accused took a cow for another is no defense to a prosecution for larceny where it did not appear that he believed the cow belonged to the person for whom he acted.</p> <p>[Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 55-57; Dec. Dig. § 27.*]</p> <p>’4. Criminal Law (§ 830*) — Trial—Instructions.</p> <p>In a prosecution for crime, an imperfectly drawn request to charge on an issue is sufficient to draw the court’s attention to that issue and necessitate the giving of a good charge.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017; Dec. Dig. § 830.*]</p> <p>5. Animals (§ 10*) — Prosecution—Evidence.</p> <p>' Iñ á prosecution for the theft of a cow, an unrecorded brand cannot be introduced to establish ownership.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 8-12; Dec. Dig. § 10.*]</p> <p>6. Criminal Law (§ 673*) — Prosecution-Instructions.</p> <p>In a prosecution for the theft of a cow, where the direct testimony as to ownership was sufficient to establish it, and evidence of an unrecorded brand was admitted without objection, the court heed not in a special charge restrict the scope of such evidence to proof of identity.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.*]</p>

<p>Appeal from Tom Green County Court; Oscar Frink, Judge.</p> <p>Roman Andrada was convicted of an offense under Local Option Law, and he appeals.</p>

<p>Criminal Law (§ 1144*) — Appeal and Error — Record.</p> <p>Where the record on appeal contains neither a statement of facts nor hills of exceptions, it will be presumed that the court’s rulings were correct and that the evidence supports the verdict.</p> <p>LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]</p>

<p>Criminal Law (§ 1101*) — Appeal—Affirmance.</p> <p>'Where the motion for new trial complains of the charge and the refusal of special charges requested by defendant, which, in the absence of a statement of facts, cannot be considered, the conviction will be affirmed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. § 1101.*)</p>

<p>Criminal Law (§ 1094*) — Appeal—Affirmance.</p> <p>Where the court properly submitted the offense charged, and the record contains neither a statement of facts nor bill of exceptions, a conviction will be affirmed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. § 1094.*]</p>

<p>Appeal from Dallas County Court at Law; W. F. Whitehurst, Judge.</p> <p>W. H. S. Thomas was convicted of being a vagrant, and he appeals.</p>

<p>Appeal from Dallas County Court at Law; W. P. Whitehurst, Judge.</p> <p>Lester Chandler was convicted of crime, and he appeals.</p>

H. Burney, Judge. Frank Misher was convicted of following the business and occupation of selling intoxicating liquors in prohibition territory, and he appeals.

<p>1. Criminal Law (§ 829*) — Requested Instructions — Reeusal.</p> <p>A requested instruction that if the jury believed that the wife alleged to have been assaulted by the defendant, her husband, sustained bodily injuries at the time alleged, or if they believed or had a reasonable doubt as to how the same were occasioned, whether by accident or fall, and were not caused by violence on his part, and that he was at the time intending to do her no bodily harm, or if they had a reasonable doubt of the same, to acquit him, was sufficiently covered by a given instruction that “if you believe that she sustained bodily injury at the time alleged, but you further believe that said injury, if any, was not caused by any violence on the part of the defendant, and that he was at the time intending to do her no injury, or if you have reasonable doubt of the same,” to acquit the defendant, and its refusal was-not error.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] -</p> <p>2. Assault and Battery (§ 96*) — Violence-Injuries — Presumptions.</p> <p>Where defendant denied assaulting his wife and insisted that the bodily injuries she received-at the time they were struggling for the possession _ of a baby were accidental, and there was evidence that he caused the injuries, am instruction that, when an injury is caused by violence to the person, the intent to injure is-presumed, and it rests with the person inflicting the injury to show accident or innocent intention, -was proper, under Pen. Code 1911, art. 1009, providing that intent to injure is presumed.</p> <p>[Ed. Note. — For other cases, see Assault and. Battery, Cent. Dig. §§ 142-150; Dee. Dig. §. 96.*]</p> <p>3. Criminal Law (§§ 419, 420*) — Hearsay Evidence.</p> <p>One charged with having assaulted his wife, who left him -and went out of the state, although asked on cross-examination if he did not go after her and have a conversation with her, having so testified on direct examination, was-properly not permitted to detail to the jury the conversation he had with her.</p> <p>[Ed. Note. — For other cases, see Criminal</p> <p>Law, Cent. Dig. §§ 973-983; Dee. Dig. §§ 419, 420.*]</p> <p>4. Criminal Law (§ 656*) — Trial—Remarks- or Court.</p> <p>Where the court remarked, on sustaining an objection to evidence, that it was the “rankest kind of hearsay testimony,” there was no-error.</p> <p>[Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1524r-1533; Dec. Dig. §■ 656.*]</p> <p>5. Criminal Law (§§ 419, 420*) — Evidence— Affidavits.</p> <p>Where a defendant, prosecuted for assaulting his wife, had applied for a continuance to-take her deposition, she having left the state, but failed to get it, the court did not err in refusing to admit affidavits and other papers</p> <p>claimed to toe signed by her attempting to-exonerate him.</p> <p>[Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419,. 420.*]</p> <p>6. Criminal Law (§ 721%*) — Trial—Conduct of Counsel.</p> <p>Where a defendant was granted a continuance to take the deposition of his wife, whom, he was charged with assaulting and who had left him, the court did not err in permitting the prosecuting attorney to comment on his-failure to take such deposition.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1677; Dec. Dig. § 721%.*]</p> <p>7. Criminal Law (§ 730*) — Trial — Argument of Counsel — Remarks of Court.</p> <p>Where defendant’s attorney in his argument to the jury; told them the substance of a conversation which the court had not allowed' the defendant to introduce because it was hearsay, the court did not commit error by merely admonishing him to stay within the record.</p> <p>[Ed. Note — For other cases, see Criminal1 Law, Cent. Dig. § 1693; Dec. Dig. § 730.*]</p>

<p>Original application by George Pitchios for writ of habeas corpus.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>P. Wingate was convicted of assault with intent to rob, and appeals.</p>

Error from District Court, Dallas County; J. C. Roberts, Judge. Action by W. J. Thurmond and others against W. S. Kirby, in which defendant cross-complained against plaintiff and the surety on plaintiff’s injunction bond. There was a judgment for plaintiff and his surety, defendant’s cross-complaint being denied, and defendant brings error.

<p>A.ppeal from Kaufman County Court; Thos. R. Bond, Judge.</p> <p>Action by R. H. Gilmore against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Taylor County Court; T. A. Bledsoe, Judge.</p> <p>Action by McIntyre & Hampton against the Texas & Pacific Railway Company and others. From judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Hunt County; R. L. Porter, Judge.</p> <p>Action by C. A. Simmons against the Texas Midland Railroad. From judgment for plaintiff, defendant appeals.</p>

<p>1. Triad (§ 244*) — Inujbies to Servant — Actions — Instructions.</p> <p>In a personal injury'action by a servant, who testified that it was not his duty to examine the machinery which caused the injury, a special charge that plaintiff could'not recover if the defect was one which he was bound to discover or repair was improper, as unduly emphasizing the defenses of assumption of risk and contributory negligence, submitted in the general charge, since plaintiff did not assume risks incident to defects in the machinery, unless he knew of them or in the proper discharge of his duties must necessarily have acquired that knowledge, and it appeared that it was not a part of his duty to inspect the machinery.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-481; Dec. Dig. § 244.*]</p> <p>2. Trial <§ 237*) — Instructions.</p> <p>In a personal injury action, an instruction that it devolves upon plaintiff to sustain material allegations in his petition by preponderance of the evidence, and, unless it is found that he has “established” the material allegations in the petition, verdict should be for defendant, is improper in the use of the word “established.”</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 542, 548-551; Dec. Dig. § 237.*]</p> <p>3. Appeal and Error (§ 216*) — Objections Below — Improper Instruction.</p> <p>An unsuccessful plaintiff in a personal injury action cannot complain of an instruction which failed to submit grounds of negligence where he did not request an instruction submitting those omitted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dee. Dig. § 216.*]</p> <p>4. Master and Servant (§ 293*) — 'Injuries to Servant — Instructions.</p> <p>In a personal injury action by a servant, a charge that the degree of care which should be used by the master in procuring reasonably safe machinery and appliances is to be considered with the risk to be incurred does not furnish the proper guide to the jury.</p> <p>[Ed. Note. — For other cases,_see Master and Servant, Cent. Dig. §§ 1148-1161; Dec. Dig. § 293.*]</p> <p>5. Trial (§ 253*) — Injuries to Servant-Instructions.</p> <p>In a personal injury action by servant, an instruction that a servant assumes the ordinary risks of the operation of machinery and his employment, but not risks caused by negligence of the master, unless he knew of.them or in the ordinary discharge of his duty must necessarily have acquired knowledge thereof, is not improper as ignoring the issue of the servant’s ignorance of dangers incident to his employment, and the negligence of the master in failing to- warn him.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>6. Master and ‘Servant <§ 296*) — Injuries to Servant — Actions — Questions por Jury.</p> <p>In a personal injury action by servant, testimony that immediately after the accident he said that the lever broke, and he got his hand into the saws, and that he should have known better, is sufficient to warrant a submission of the issue of contributory negligence to the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]</p> <p>7. Appeal and Error (§ 216*) — Objection Below — Necessity op Requesting Instructions.</p> <p>The failure of the court to submit issues of negligence alleged in plaintiff’s petition cannot be complained of, in the absence of request for their submission.</p> <p>[Ed. Note. — For other cases, see Appeal and ETror, Dec. Dig. § 216.*]</p> <p>8. Master and Servant (§ 267*) — Injuries to Servant — Actions—Evidence.</p> <p>In a personal injury action by a servant who worked in a ginhouse, testimony by a witness that the master’s ginhouse was the best constructed building of the kind he had ever seen was irrelevant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 909, 911; Dec. Dig. § 267.*]</p> <p>9. Master and Servant (§ 274*) — Injuries to Servant — Evidence.</p> <p>In a personal injury action by a servant, who denied that he ever received instructions that, if anything got out of order, to fix it, testimony by the master’s vice principal that he always instructed the employés to fix anything that was out of order is admissible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. § 274.*]</p> <p>On Motion for Rehearing.</p> <p>10. Master and Servant <§ 296*) — Injuries to Servanis-Actions — Instructions.</p> <p>In a personal injury action by a servant in a ginhouse, testimony by the superintendent that he always instructed employés to report anything that got out of order, though he could not say that he instructed plaintiff to do so, will not warrant an instruction submitting the issue to the jury, whether it was plaintiff’s duty to inspect the defective appliance which caused the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]</p> <p>11. Appeal and Error (§ 1050*) — Review-Harmless Error.</p> <p>In an action by a servant for personal injuries received in a cotton gin, the improper admission of testimony that the defendant’s gin was the best constructed building of the kind a witness had ever seen was harmless, where it appeared from plaintiff’s own testimony that prior to the accident he was familiar with its construction and with the vibrations which he claimed constituted a contributing cause of the accident.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153^157, 4166; Dec. Dig. § 1050.*]</p>

<p>1.Brokers (§ 102*) — Misrepresentations. .</p> <p>Where a vendor’s agent did not describe the land to a purchaser, but merely pointed it out on a map, which both he and the purchaser believed to be correct; but which incorrectly showed a creek as running' through the land, he was not guilty of a fraudulent misrepresentation.</p> <p>,[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 146; Dec. Dig.' § 102.*)</p> <p>2. Vendor and Purchaser (§ 114*) — Rescission by Purchaser.</p> <p>A purchaser of land who sells it to a third party who assumes payment of the vendor’s lien notes is not in a position to rescind his purchase.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 202-204; Dec. Dig. § 114.*]</p> <p>3. Vendor and Purchaser (§ 119*) — Rescission by Purchaser.</p> <p>A purchaser could not rescind because of a fraudulent representation that a creek ran through the. land, where, although he learned long before the attempted rescission that this was not so, he failed to make known to the vendor that he had been defrauded, but, instead, sought an extension of time for payment of the first vendor’s lien note, since a purchaser desiring to rescind for fraud, accident, or mistake must proceed promptly, or he will lose such right.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 2121-214; Dee. Dig. § 119.*]</p>

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

<p>1. TELEGRAPHS AND TELEPHONES (§ 38*)— Actions fob Delay — Evidence—Notice of Relationship.</p> <p>A telegraph message reading, “Mother is very low,” is sufficient, on its face, to put the company upon notice of the relationship between the person referred to and the addressee of the message, so as to render the company liable for its negligent delay.</p> <p>[Ed. Note. — For other casgs, .see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 38.*]</p> <p>2. Telegraphs and Telephones (§ 66*) — Actions for Delay — Evidence.</p> <p>In an action against a telegraph company for damages for the failure to deliver a telegram in time, so that the addressee was prevented from reaching her mother before her death, where the company claimed that she should have taken an earlier train than she did, evidence of the reasons for her delay are admissible.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]</p> <p>3. Telegraphs and Telephones (§ 71*) — Actions for Delay — Damages.</p> <p>In an action against a telegraph company for damages from its negligent delay in the transmission of a message, which prevented the addressee from reaching her mother before the latter’s death, where it was sliown that the defendant _ was guilty of negligence, and that the plaintiff took the first train which was reasonably possible and suffered serious mental anguish, an award of $850 damages is not excessive.</p> <p>[Ed. Note. — For other cases, see Telegraphs and ^Telephones, Cent. Dig. § 74; Dec. Dig. §</p>

Calhoun, Judge. Action by the State of Texas against Claude Hamilton add others for public free school land and rents. From judgment for plaintiff, defendants appeal.

<p>Appeal from Matagorda County Court; W. S. Holman, Judge.</p> <p>Action by R. J. Hill against J. W. Powell. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Witnesses (§ 37*) — Qualification — Knowledge.</p> <p>A witness who had made but two trips from a point in this state to St. Louis, and whose sources of knowledge were not set out or inquired into, was not incompetent to state the time of the ordinary run between the two points, where he stated generally that he knew such .time.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 80-87; Dee. Dig. § 37.*]</p> <p>2. Appeal and Error (§ 1051*)i — Harmless Error — Admission of Evidence — Facts Otherwise Shown.</p> <p>In a shipper’s action for injuries to live stock from delay, error, if any, in permitting a witness to state that the ordinary run between the two points was 40 to 46 hours, was without harm to defendant, where it was thereafter shown by one of defendant’s own witnesses that the run, barring delays, could be made in 36 hours.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161 — 4170; Dec. Dig. § 1051.*]</p> <p>3. Trial (§ 260*) — Requests—Charges Already Given.</p> <p>A requested charge incorporated in the court’s main charge need not be repeated.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. § 260.*]</p> <p>4. Carriers (§ 230*) — Carriage of Live Stock — Action for Injuries — Instructions —Liability.</p> <p>In a shipper’s action for damages to live stock from delay, a requested charge that if the delay at a point in this state was caused by a wreck at a point in another state, and defendant exercised ordinary care, under the circumstances, to move the live stock without unnecessary delay, and in keeping it during the delay, it was not liable, was properly refused, since it permitted a finding for- defendant, notwithstanding the wreck may have been occasioned by its own negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. § 230.*]</p> <p>5. Carriers (§ 99*) — Carriage of Live ■ Stock — Delay in Transportation.</p> <p>..Railroad companies are not responsible for delays occasioned by accidents, but are responsible where such delays are attributable to their own negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 415-426; Dec. Dig. § 99.*]</p> <p>6. Appeal and Error (§ 742*) — Assignments of Error — Separate Propositions.</p> <p>■An assignment submitted as a proposition and involving two separate and distinct propositions of law in violation of rule 29 (142 S'. W. xii) will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

<p>Appeal from Shackleford County Court; J. A. King, Judge.</p> <p>Action by A. J. Dimford against the Texas & Pacific Railway Company and the Texas Central Railroad Company. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Taylor County Court; T. A. Bledsoe, Judge.</p> <p>Action by the J. M. Radford Grocery Company against B. C. Davis and others, in which defendants J. H. & J. T. Pace, by plea of intervention, sought judgment against defendant Davis. From a judgment for plaintiff and in favor of J. H. & J. T. Pace against defendant Davis, but adjudging plaintiff’s mortgage prior to the mortgage of J. H. & J. T. Pace, they appeal.</p>

<p>Contracts (§ 353*) — Construction—“Econ-OMY”-1 ‘PARSIMO NT.”</p> <p>Where defendant agreed that plaintiff should complete certain bridge piers and charge the expense to him, and that plaintiff should exercise ordinary care and reasonable skill, an instruction, in an action by plaintiff for such expenses, that the plaintiff should exercise “reasonable economy” was proper and not misleading, since, if the plaintiff was acting in good faith, it was its duty to exercise such economy, though it did not expressly agree to do so; the word “economy” meaning “frugality” or “prudent economy” and not “parsimony.”</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1829-1844; Dec. Dig. § 353.*]</p>

B. Felder, Judge. Action by R. M. Moore and others against Wiley Wyatt, who pleaded over against his alleged tenants. From a judgment in favor of the tenants against defendant and in favor of plaintiffs against defendant, he appeals.

<p>Appeal from District Court, Hunt County; R. L. Porter, Judge.</p> <p>Action by J. D. McBride against tbe Farmers’ & Merchants’ Gin Company and others. From judgment fir defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Potter County;' J. N. Browning, Judge.</p> <p>Action by H. P. Trout against the Chicago, Rock Island & Gulf toilway Company and others. Judgment for plaintiff, and defendants appeal.</p>

Denton, Judge. Trespass to try title by J. F. McFarland against M. J. Dickerson and others. From a judgment for plaintiff, defendants appeal. The appellee brought the action in trespass to try title to 47% acres of land of the Josiah Hart survey in Fannin county. The appellants entered a disclaimer of title to-any part of the 47% acres of land except as to 16% acres off of the west end of the same, describing it by field notes.

<p>Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.</p> <p>Action by G. L. Davids on against H. B. McKinley and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Johnson County; O. L. Lockett, Judge.</p> <p>Action by Fred A. Snodgrass against W. E. Watts. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Trial (§ 356*) — Special Interrogatories —Necessity or Answers.</p> <p>It would be improper to render judgment upon a verdict not answering special interrogatories, if they were material.</p> <p>[Ed. Note. — For other cases, see Trial, Cent Dig. §§ 849-854; Dec. Dig. § 356.*]</p> <p>2. Bills and Notes •(§ 373*) — Defenses— Fraud.</p> <p>By the weight of authority, the maker of a negotiable. instrument, procured through fraud going to its inception, is liable to a bona fide purchaser for value without notice, notwithstanding the fraud.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 966-970; Dec. Dig. § 373.*]</p> <p>On Motion for Rehearing.</p> <p>3. Bills and Notes (§ 373*) — Bona Fide Purchasers — Defenses — Fraud — Contributory Negligence.</p> <p>Even if he could otherwise do so, to enable one signing a $600 negotiable note under fraudulent representations that it was for $100 to defend on that ground against a bona fide purchaser, the maker must, without negligence on his own part, have believed, because of the fraud, that he was signing a $100 note.</p> <p>[Ed. Noté. — For other cases, see Bills and Notes, Cent. Dig. §§ 966-970; Dec. Dig. § 373.*]</p> <p>4. Bills and Notes (§ 494*) — Action—Burden of Proof — Fraud.</p> <p>The burden was on the maker, sued on a $600 negotiable note by a bona fide purchaser, to prove that the note was procured, without negligence on his own part, by fraudulent representation that it was only for $100.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. § 494.*]</p> <p>5. Bills and Notes (§ 373*) — Validity— Contributory Negligence.</p> <p>Though one who signed a- $600 note, believing, because of fraudulent representations, that it was. only for $100, could not read or write English, he was ■guilty of negligence precluding him from asserting fraud against a bona fide purchaser, where he had been in the country for many years, could read and write German, had transacted much business, and failed to take advice before signing.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 966-970; Dec. Dig. § 373.*]</p>

<p>1. Appeal and Eeeoe (§ 173*) — Necessity of Exceptions in Lower Court.</p> <p>In an action on a sworn account, exceptions to the account cannot be urged for the first time on appeal.</p> <p>[Ed; Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.*]</p> <p>2. Appeal and Error (§ 548-*) — Assignments op Eeeoe.</p> <p>An assignment of error not based on a bill of exceptions will be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.*]</p> <p>3. Appeal and Eeror •(§ 1050*) — Harmless Error — Hearsay Evidence.</p> <p>Where, in an action on a sworn account, the defense of defendant is based wholly on the fact that the items of the account were subject to a trade discount not allowed, hearsay evidence to show’ that defendant bought all the goods alleged was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p> <p>4. Appeal and Eeeoe (§ 1048*) — Harmless Error — Qualification op Witness.</p> <p>Where, in an action on a sworn account, the defense of defendant is based wholly on the fact that the items of the account were subject to a trade discount not allowed, the prices charged not being disputed that witnesses testifying as to market value of the items had no knowledge of the goods themselves is harmless error.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4140HÍ145, 4151, 4158-4160; Dec. Dig. § 1048.*]</p> <p>5. Appeal and Eeeor (§ 742*) — Proposition Under Assignment.</p> <p>Where no proposition is submitted under an assignment in accordance with rule 29 (142</p> <p>5. W. xii), the assignment will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and. Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>6. Appeal and Error (§ 732*) — Assignments op Erroe^-Generality.</p> <p>An assignment of error which seeks to raise every question presented in the motion for new* trial is too general to be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3022-3024; Dec. Dig. § 732.*]</p> <p>7. Appeal and Error (§ 731*)—AssignIients op Error—Generality.</p> <p>An assignment of error which attacks the verdict for insufficiency of the evidence is too general, where no specific evidence relied on is pointed out.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Gent. Dig. §§ 3017-3021; Dec. Dig. § 731.*]</p>

<p>1. Vendor and Purchaser (§ 220*) — Vendor’s Lien — “Bona Fide Purchaser.”</p> <p>Where a purchaser from a vendee indebted to the original vendor had no notice of such indebtedness, and paid adequate consideration, he was a bona fide purchaser.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 461-465, 720; Dec. Dig. § 220.* -</p> <p>For other definitions, see Words and Phrases, vol. 1, pp. 825-830; vol. 8, p. 7591.]</p> <p>2. Biles and Notes (§ 359*) — Indorsement— Bona Fide Holder.</p> <p>One who in good faith takes by indorsement negotiable paper before maturity in payment of an existing debt is a purchaser for value and in the usual course of trade.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 924-936; Dec. Dig. § 359.*]</p> <p>3. Bills and Notes ■(§ 362*) — Indorsement— Bona Fide Holder.</p> <p>Where one acquires in good faith and for value negotiable paper, it is immaterial whether a subsequent holder thereof pays value, or has notice at the time he acquires it.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 937-943; Dec. Dig. § 362.*]</p> <p>4. Bills and Notes (§ 357*) — Indorsement— Bona Fide Holder.</p> <p>A transfer of negotiable paper as collateral for a debt less in amount than the paper is in due course of trade and for a valuable consideration.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 909-912, 961; Dec. Dig. § 357.*]</p> <p>5. Appeal and Ebbob (§ 1033*) — Ebbob in Favoe op Party Complaining.</p> <p>A party may not complain of an error in rendering judgment in his favor.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]</p> <p>6. Appeal and Ebbob {§ 742*) — Questions Review able — Assignments op Ebbob.</p> <p>Assignments of error, each of which complains of a distinct ruling of the trial court, and involves different subjects not germane to each other, cannot be grouped.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. § 3000; Dec. Dig. § 742.*]</p> <p>7. Appeal and Ebbob (§ 742*) — Questions Review able — Bbieps—Rule op Court.</p> <p>Under Court of Civil Appeals rule 30 (142 S. W. xiiij, providing that appellant shall in his brief make a preliminary statement of the nature and the result of the suit, and follow the same by his assignments, and that each point under each assignment shall be stated as a proposition, unless the assignment may sufficiently disclose the point, grouped assignments of error complaining of the refusal of distinct requested charges not germane to each other followed by propositions under the last assignment, none of which referred to any of the assignments, and followed by a statement failing to set out the refused charges or to state -the substance thereof, will not be considered.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p>

<p>Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.</p> <p>Action by Mrs. Y. F. Withers against R. 3. Roberson. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Tarrant County ; W. T. Simmons, Judge.</p> <p>Action by M. H. Harmon against W. R. Thompson and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Louis Carrou against the Dallas Consolidated Electric Street Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Specific Performance (§ 121*) — Actions —Sufficiency of Evidence.</p> <p>In an action for specific performance of a contract to convey land to persons named or their assigns executed to reimburse such persons for 75 acres of land donated to procure a factory near defendant’s land, evidence held to show that such persons substantially contributed the value of such land so as to sustain a judgment awarding specific performance of defendant’s contract.</p> <p>[Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 387-395; Dec. Dig. § 121.*]</p> <p>2. Specific Pebfobmanoe (§ 64*) — Right of Action — Perfoemance by Other Party —Sufficiency.</p> <p>If persons to whom defendant agreed to convey land to reimburse them for land they agreed to donate to procure. a factory near defendant’s land made contributions of the substantial value of the land agreed to be contributed and succeeded in getting the factory, the form of their contribution was immaterial on the right to enforce defendant’s contract to convey.</p> <p>[Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 191-195, 198; Dec. Dig. § 64.*]</p>

<p>1. Telegraphs and Telephones (§ 37*) — Failure to Deliver Message — 'Excuse.</p> <p>That the addressee lived at C. and the telegrams were sent to him at O. did not excuse a nondelivery, where C. was less than a mile from the station at O., and had no station of its own, and its inhabitants got their mail and transacted their business at O. and the two places were in effect one village, though formerly C. was a separate village.</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 (§ 37*) — Failure to Deliver Message — Excuse^Free Delivery Limits.</p> <p>That the addressee lived beyond the free delivery limits did not relieve the telegraph company from its duty to exercise ordinary diligence to deliver telegrams, where it made no demand either upon the sender or the addressee for extra charges for delivery; the effect of the free delivery rule being merely to define the limits within which the company undertakes to deliver messages without charge, and not to lessen its obligation to deliver messages.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. § 37.*]</p> <p>3. Telegraphs and Telephones (§ 74*) — Failure to Deliver Message — Instructions — Evidence.</p> <p>Where, in an action for delay in delivering two telegrams, the evidence in addition to showing that, though the addressee lived outside of the free delivery limits, no demand was made upon the sender for extra charges, also showed that the addressee after the arrival of the messages and on the same day spent about 3% hours at public places within the free delivery limits, and was well known there, it was proper to instruct to find for plaintiff if defendant failed to exercise such diligence in an effort to find plaintiff and deliver the messages as a reasonably prudent person would have exercised under like circumstances.</p> <p>[Ed. Note. — For other cases,'see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. § 74.*]</p> <p>4. Trial (§ 252*) — Instructions — Application to Case.</p> <p>Where, in an action for- delay in delivering telegrams to an addressee who resided beyond the free delivery limits, there was no evidence of a demand to pay the extra charges, it was not error to refuse to instruct that the fact that some messages were delivered outside such limits would not amount to an abrogation of the free delivery rule.</p> <p>[Ed. Note. — For other cases, see Trial, Cent Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>5. Appeal and Error (§ 1067*) — Harmless Error — Refusal to Instruct — Telegraphs and Telephones.</p> <p>In an action for delay in delivering telegrams, the refusal of an instruction on what will constitute an abrogation of the free delivery rules, if error, is harmless, where the un-contradicted evidence shows that the addressee was within the free delivery limits for 3 hours after the messages were received, and that the messages could have been delivered to him in the exercise of ordinary diligence.</p> <p>[EcL Note. — For other cases, see Appeal and Error, Cent'. Dig. § 4229; Dec. Dig. § 1067.*]</p> <p>6. Trial (§ 260*) — Instructions—Requests.</p> <p>In an action for delay in delivering telegrams resulting in the addressee’s failure to attend his mother’s funeral, an instruction that plaintiff would be entitled to recover for mental anguish proximately resulting from the defendant’s negligence, if as a proximate result of such negligence he “was prevented from attending his mother’s funeral,” sufficiently confined the jury to a consideration of only such suffering as resulted from his being unable to attend the funeral, and hence it was not error to refuse defendant’s requested instruction that plaintiff could not recover for such damages as would naturally grow out of the news of his mother’s death.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>7. Appeal and Error (§ 1056*) — Harmless Error — Exclusion of Evidence.</p> <p>In an action for delay in delivering telegrams, the facts that no demand was made for charges for delivering them beyond the free delivery limits, that with reasonable diligence the telegi'ams could have been delivered to the addressee within such limits, and that the substance of the free delivery rule was testified to by defendant’s witnesses without objection, each rendered harmless'the court’s refusal to permit the defendant to read to the jury the printed provision on the back of the telegram that delivery would not be made outside of the fixed free delivery limits except at the sender’s request and cost.</p> <p>[Ed. Note. — For otlier eases, see Appeal and Error, Cent. Dig. §§ 4187-AÍ93, 4207; Dec. Dig. § 1056.*]</p> <p>8. Telegraphs and Telephones (§ 71*) — Delay in Delivering Message — Excessive Recovery.</p> <p>In an action for negligent delay in delivering telegrams resulting in the addressee’s failure to attend his mother’s funeral, an award of $500 was not excessive, though the plaintiff stated that he did not visit his mother’s grave while in the vicinity because he did not want to do so; such statement not necessarily showing want of a proper degree of filial love and respect.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 74; Dee. Dig. § 71.*]</p>

<p>Appeal from District Court, Hill County; F. E. McKee, Special Judge.</p> <p>Consolidated actions by F. L. Doke and another against the Trinity & Brazos Valley Railway Company. From judgments for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Hill County; C. M. Smithdeal, Judge.</p> <p>Action by the Sturgis National Bank against Mrs. Susan A. Rodgers, administra-trix of Edmund Rodgers, deceased. Erom a judgment granting relief, defendant appeals.</p>

<p>Appeal from District Court, Tarrant County; W. T. ’Simmons, Judge.</p> <p>Action by E. H. Limberg against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant- appeals.</p>

Ashe, Judge. Trespass to try title by the Wm. M. Rice Institute for the Advancement of Literature, Science, and Art against J. C. League. Judgment for plaintiff, .and defendant appeals.

<p>Appeal from District Court, Johnson County; O. L. Lockett, Judge.</p> <p>Action by Genelle Odom and another against James T. Miller. From a judgment for plaintiffs, defendant appeals.</p>

<p>Rehearing Denied Jan. 16, 1913.)</p> <p>Monopolies (§ 17*) — Anti-Trust Acts — “Conspiracy in Restraint oe Trade”— “Commodity” — “Article op Merchandise.”</p> <p>A contract giving plaintiff the exclusive right to bottle “Jersey-Creme,” a drink, in a certain part of the country, by which the plaintiff agreed to use defendant’s copyrighted labels and bottles and to buy the syrup for making such drink from the defendant, was a “conspiracy in restraint of trade” within Anti-Trust Statute of 1903 (Acts 28th Leg. c. 94) § 3, defining such conspiracy as an agreement between two or more engaged in selling or buying any article of merchandise, produce, or commodity to refuse to buy from or sell to any other person; the bottles and labels being only incidentals, and “Jersey-Creme” being a “commodity” or “article of merchandise,” and since it indirectly conferred upon appellee the exclusive right to purchase and resell the syrup.</p> <p>[Ed. Note. — Por other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.*</p> <p>Por other definitions, see Words and Phrases, vol. 1, pp. 511-515; vol. 2, pp. 1309, 1310, 1454r-1461; vol. 8, p. 7613.]</p>

<p>Error to District Court, Harris County: Wm. Masterson, Judge.</p> <p>Action by W. E. Woodruff against J. N. Taub. From judgment for plaintiff, he brings error.</p>

<p>Appeal from District Court, Franklin County; P. A. Turner, Judge.</p> <p>Action by the Merchants’ & Planters’ National Bank of Mt. Vernon against J. W. May. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error (§ 1127*) — Affirmance ' on Certificate — Time for Motion.</p> <p>A motion to affirm on certificate under Rev. St. 1895, art. 1016, must be made at the term to which the appeal is made returnable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4482-4440; Dec. Dig. § 1127.*]</p>

M. Blanding, Judge. Action by J. J. Smith and others against W. B. Peevehouse and others, who filed a cross-action. From a judgment for plaintiffs, defendants appeal.

B. Hightower, Judge. Earnest Sewall was charged with crime, and resorts to a writ of habeas corpus to obtain bail. From a judgment remanding him without bail, he appeals.

<p>Appeal from District Court, Harris County; C. W. Robinson, Judge. Steve Woods was convicted of assault with intent to murder, and he appeals.</p>