Volume 159 — South Western Reporter

<p>Appeal from District Court, McLennan Comity; J. N. -Gallagher, Special Judge.</p> <p>Action by M. Holderman against C. S. Reynolds. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>1. Insurance (J 627*) — Actions—Process— Service — Return—Sufficiency.</p> <p>Return of service of citation, in an action, against an insurance company having local agents in the county, which recites that the citation was executed by delivering to one of the local agents at a specified place, “the within named defendant, in person, a true copy” of the writ, is sufficient to show service on the company.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1573, 1574; Dec. Dig. § 627.*]</p> <p>2. Corporations (§ 668*) — Service of Process — Return—Amendments.</p> <p>Under Rev. Civ. St. 1911, art. 1879, providing that any mistake in the return may be corrected by the officer under the direction of the court, the defect, if any, in the return of service of citation in an action against a corporation, which recites that it was executed by delivering to a local agent a true copy, may be cured by an amendment, reciting that the citation was executed by summoning the company by delivering to its local agent named, in person, a copy of the writ.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. §• 668.*]</p> <p>3. Judgment (§§ 143, 145*) — Default Judgment — Vacation—Grounds.</p> <p>A default judgment cannot be set aside unless there is a meritorious defense and a good excuse for failure to answer at the proper time.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 269-271, 272-291, 292-295; Dec. Dig. §§• 143, 145.*]</p> <p>4. Judgment (§ 143*) — 'Vacation of Default Judgment — Diligence.</p> <p>Where a corporation, seeking to vacate a default judgment against it, did not assert that the agent served with process was not its agent, hut showed that he could not employ counsel, and that the general agents empowered to employ counsel were not notified of the suit, and did not show when the agent forwarded the process served on him, and, so far as shown, he might not have forwarded the citation until after the default judgment, it did not excuse its failure to present its answer in time, and the court properly refused to vacate the judgment.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. § 143.*]</p> <p>5. Judgment (§ 124*) — Default Judgment-Process — Service—Proof of Agency.</p> <p>Where the citation, in an action against a corporation, gives the name of its agent, and the citation contains directions requiring service on him, judgment by default may be taken, without proof that the person is the agent.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 226; Dec. Dig. § 124.*]</p> <p>6. Appeal and Error (§ 907*) — Presumptions — Proof.</p> <p>The court on appeal to sustain the judgment may, in the absence of anything in the record to the contrary, presume that proof of an essential fact was made.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.*]</p> <p>On Motion for Rehearing.</p> <p>7. Judgment (§ 17*) — Process to Sustain Default Judgment — Service — Sufficiency.</p> <p>Where the petition in an action against a corporation, alleged that a firm, composed of-persons named, residing in the county, was its agent, and the citation issued commanded service on the corporation by delivering a copy thereof to the agent, and the return of the sheriff showed that the citation was served by delivering a copy thereof to one of the partners, the service was sufficient to support a default judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §•§ 25-33; Dec. Dig. §, 17.*]</p> <p>8. Judgment (§ 17*) — Process to Sustain Default Judgment — Service — Default Judgment.</p> <p>Where the court, in an action against a corporation permitting an amendment of return of service, found that it appeared that the person on whom service was made was at the time a local agent of the corporation, the question whether such person was the agent was judicially determined, and a default judgment was proper.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 25-33; Dec. Dig. § 17.*]</p> <p>9. Process (§ 141*) — Service—Return—Sufficiency.</p> <p>The sheriff’s return of service of process imports absolute verity.</p> <p>[Ed. Note. — For other cases, sea Process, 'Cent. Dig. §§ 189-192; Dec. Dig. § 141.*]</p>

<p>1. Courts (§ 122*) — Jurisdiction — Amount in Controversy — Pleading.</p> <p>Where, in a suit on certain notes and to foreclose a chattel mortgage, in a court the jurisdiction of which depended on the amount in controversy, the petition contained no allegation of the value of the property on which a foreclosure of the lien was sought, it was insufficient to confer jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413, 427; Dec. Dig. § 122.*]</p> <p>2. Appeal and Ebbob (§ 635*) — Jubisdiotion OP TRIAL COURT.</p> <p>Where an appeal was taken from the county court in a suit on certain notes and to foreclose a chattel mortgage, and there was no affirmative showing in the record that the amount in controversy was less than $1,000, so as to be within the trial court’s jurisdiction, the judgment will be reversed, and the cause remanded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2285, 2776-2782, 2829; Dec. Dig. § 635.*]</p>

Prewitt, Judge. Action by M. H. Compere against the American Home Life Insurance Company, R. T. Stuart, and another. Judgment for the plaintiff as against the defendants R. T. Stuart and another, and they appeal.

<p>Appeal from District Court, Brown County; John W. Goodwin, Judge.</p> <p>Action by W. R. Miller & Co. against R. L. Hobdy and another. From a judgment granting insufficient relief, plaintiff appeals.</p>

<p>Appeal from Taylor County Court; rl\ A. Bledsoe, Judge.</p> <p>Action by Earnest Phillipp against George Clayton. From a judgment in favor of plaintiff, defendant appeals.</p>

W. Simpson, Judge. Action by U. T. Wilkes against the-St. Louis Southwestern Railway Company. Judgment for the plaintiff, and defendant appeals. Appellee received bodily injury while in the service of appellant as conductor operating a freight train.

<p>Appeal from Jones County Court; Joe C. Randel, Judge.</p> <p>Action by E. V. Altman against T. J. Head. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and Servant (§ 265*) — Action tor Injuries — Burden oe Proof.</p> <p>To fix the liability of a master for injuries to a servant, his negligence must not only be shown, but must be shown by affirmative evidence to have been the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]</p> <p>2. Master and Servant (§§ 101, 102*) — Master’s Liability — Safe Place to Work.</p> <p>It is the duty of the master to use ordinary care to provide his servant with a safe place in which to work and to provide safe appliances with which to perform his work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*]</p> <p>3. Master and Servant (§ 264*) — Action for Injuries — Pleading and Issues.</p> <p>Allegations, in a servant’s action for injuries, that the belt operating gin stands in a cotton gin, through or behind which plaintiff reached, was old, defective, and unsafe, was negligently fastened together, and that it was laced crooked and was too loose, raised the issue of negligence in allowing the belt to be laced crooked, which caused it to jump.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*]</p> <p>4. Appeal and Error (§ 1033*) — Harmless Error — Instructions.</p> <p>Where the charge was favorable to defendant, although it submitted several undisputed issues, it was without injury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052 — 4062; Dec. Dig. § 1033.*]</p> <p>On Motion for Rehearing.</p> <p>•5. Master and Servant (§ 217*) — Action for Injuries — Assumption oe Risk — Machinery.</p> <p>Plaintiff, -who was employed in and about a cotton gin, was familiar with the situation of the gin stands to each other, knew that a 'belt was laced crooked causing it to jump while passing over the pulley, and that to reach and oil the journal he would have to put his hand between the belt, and who had done some of the lacing himself and knew that the belt was ■laced crooked and that it jumped on the pulley, and had charge of small and temporary repairs, had his arm injured while reaching it between the belt to oil. Held, that he had assumed the risk and could not recover.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*] •</p>

<p>Error to Clay County Court; W. T. Allen, Judge.</p> <p>Action by Frank Sadau against the Fidelity Phenix Fire Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Wise County; J. W. Patterson, Judge.</p> <p>Action by True Bros, against the St. Louis, Brownsville & Mexico Railway Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Jefferson County; D. B. Hightower, Judge.</p> <p>Action by the Oswald Realty Company and others against J. E. Broussard and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Mitchell County; James L. Shepherd, Judge.</p> <p>Action by F. G. Thurmond and others against the First National Bank of Merkel. From a judgment in favor of plaintiffs, defendant appeals.</p>

<p>1. Husband and Wipe (§ 281*) — 'Validity— FRAUD — UNDERSTANDING CONTRACT — EQUI-TABLENESS.</p> <p>Plaintiff and defendant being husband and wife, and having separated, defendant, by contract, gave plaintiff certain land, after her death to go to their children. Defendant set up fraud in procuring the contract. The jury specially found that there was no fraud, but that the contract was not just and equitable and that the parties did not understand its effect. Held error to enter judgment for defendant canceling the contract on such findings; since it was immaterial that the parties did not understand the precise meaning of all the terms of the contract, and the jury could not substitute their judgment of the equitableness of the contract for that of the parties themselves.</p> <p>[Ed. Note. — For other ‘cases, see Husband and Wife, Gent. Dig. § 1061; Dec. Dig. § 281.*]</p> <p>2. Triad (§ 251*) — Instructions—Issues.</p> <p>In an action to enjoin a trespass, where defendant alleged fraud in procuring a contract whereby land was transferred to plaintiff, his wife, from whom he had separated, and asked for its cancellation instructions that a lien on the land reserved in the contract in favor of defendant’s children by a former wife and plaintiff’s promise to pay same were inoperative, and that, though by the contract plaintiff was given the custody of their children, defendant would still be liable for their support, were foreign to the issues in the case.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*]</p> <p>3. Husband and Wife (§ 279*) — Separation Contract — Validity.</p> <p>Where a husband and wife have already separated, a conveyance intended as a provision for the wife’s support will be upheld though the property conveyed was the separate property of the husband.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1054, 1056-1060; Dec. Dig. § 279.*]</p> <p>4. Deeds (§ 211*) — Validity—Equitableness —Evidence.</p> <p>Evidence held not to show that a contract conveying land was so unjust and inequitable as to warrant setting it aside.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.*] '</p>

<p>1. TRESPASS TO Try TITLE (§ 41*) — EXECUTION — Evidence—Sufficiency.</p> <p>In trespass to try title, evidence held to sustain a finding that the person through whom plaintiff claimed had reconveyed the premises, by deed not found and not recorded, to one through whom defendant claimed.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §,§ 62, 63; Dec. Dig. § 41.*]</p> <p>2. Vendor and Purchaser (§ 230*) — Bona Fide Purchaser — Notice.</p> <p>Where a purchaser knew before the purchase that a third person claimed to own the land, and the purchaser and his attorney examining the title had an abstract of title containing a deed reciting facts of conveyances and contracts supporting the claim of the third person, the purchaser was put on notice and he was not a purchaser in good faith.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. §.*</p>

<p>1. Insurance (§ 576*) — Adjustment of Loss —Waiver as to Adjustment.</p> <p>A provision in a tornado insurance policy that the insured should exhibit the property which remained after loss to any person designated by the company as often as required, when reasonably construed, means only that the adjusters of the company should have a reasonable opportunity to examine the property, and when they refused to do so for 10 days after request from the defendant, disclaiming any liability under the policy, the requirement was waived.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1436-1438; Dec. Dig. § 576.*]</p> <p>2. Insurance (§ 658*) — Actions on Tornado Policy — Evidence—Admissibility.</p> <p>Where insurance companies defended an action upon a tornado insurance policy on the ground that the damage was caused by hail and not by wind and offered to show that six months prior to the loss a wind of equal velocity had not injured the goods, the evidence was inadmissible, where it did not affirmatively appear that the conditions at the time of the prior storm were the same as those at the latter, or that they were the same at the Weather Bureau where the velocity was measured as at the store where the damage occurred.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1689, 1690, 1694; Dec. Dig. § 658.*]</p>

<p>Appeal from Erath County Court; J. B. Keith, Judge.</p> <p>Action by Shelby King against John M. Cage, instituted before a justice of the peace. From a judgment of the justice of the peace in favor of the defendant, entered at the request of the plaintiff, the plaintiff appealed to the county court. The county court refused to dismiss the appeal upon motion of the defendant, and rendered judgment for the plaintiff for the amount claimed and the costs in both the justice and county courts. From that judgment, the defendant appeals.</p> <p>The plaintiff alleged that the defendant had bought from him a certain vendor’s lien note, and, in the alternative, that the defendant had converted the note to his own use, and the defendant pleaded that it had been adjudicated in a suit to foreclose the lien, in which both the plaintiff and.defendant in the action before the justice of the peace were parties, that the defendant was the owner of the note.</p>

<p>Appeal from District Court, Tarrant County; W. T. Simmons, Judge.</p> <p>Action by Mrs. Jennie Roth against the Order of United Commercial Travelers of America. Judgment for plaintiff, and defendant appeals.</p>

W. Ritchie, Judge. Action by the Nocona National Bank against A. F. L. Goin and others, in which W. W. Jones intervened. From a judgment for plaintiff and intervener for their respective debts against defendant Goin, together with foreclosure of the respective liens, but giving intervener’s claim priority over plaintiff’s lien, plaintiff brings error.

Terrell, Judge. Action by D. H. Uynch and another against P. H. McFarland to recover a broker’s commission for the sale of land under an exclusive agency claimed by the plaintiffs, but which was denied by the defendant. Judgment for plaintiffs, and defendant appeals. It appeared that the land was sold by the defendant through other agents.

<p>1. Master and Servant (§ 189*) — “Vice Principal” — Who is.</p> <p>One to be a “vice principal” must possess authority to superintend, control; and command employés and hire and discharge them.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 427-435, 437-448; Dee. Dig. §, 1S9.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7313-7316.]</p> <p>2. BlASTER AND SERVANT (§ 287*) —INJURIES to Servant — Instructions.</p> <p>Where, in an action for injuries to an em-ployé in a sawmill, the court charged that, if the sawyer had authority to control the em-ployé and to hire and discharge him, the sawyer was a vice principal and the employer was Hable for his negligence, a charge that a vice principal is one who is intrusted with authority to superintend or command other employés, or with authority to direct other employés as to their duties, and to hire and discharge them, was not misleading.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1034, 1045, 1051, 1052, 1054-1067; Dec. Dig. § 287.*]</p> <p>3. Trial (§ 256*) — Instructions—Requests —Necessity.</p> <p>An instruction in an action for injuries to an employé by the negligence of a coemployé, occupying the position of vice principal, that, if the coemployé was not clothed with power to control and superintend the employé and hire and discharge him, the employé and coemployés were fellow servants, and the employer was not liable, was not affirmatively erroneous, and in the absence of a request to charge it was not error to fail to submit the issues disjunctively, though the employer was entitled to a verdict on the jury finding either that the coemployé had no authority to control the employé or to hire and discharge him.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 62S-641; Dee. Dig. § 256.*]</p> <p>4. Master and Servant (§ 279*) — Injury to Servant — Vice Principal — Evidence.</p> <p>That an employé had the power to hire and discharge employés, essential to make him a vice principal, may be inferred from evidence that he repeatedly exercised such authority with the knowledge and acquiescence of the employer.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. § 279.*]</p> <p>5. Master and Servant (§ 294*) — Injuries— Instructions — Sufficiency.</p> <p>Where the jury must have understood from the instructions given that they could not find for an employé suing for a personal injury unless they found that a coemployé had authority to hire and discharge him, and the court also stated that, if the coemployé did not have authority to direct and control the employé and to hire and discharge him, the verdict’ must be for the employer, the issue of vice principal was sufficiently submitted.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §,§ 1157, 1161, 1162-1167; Dec. Dig. § 294.*]</p> <p>6. Master and Servant (§ 296*) — Injury to Servant — Issue of Discovered Peril — Evidence.</p> <p>Where, in an action for injuries to an employé engaged as a block setter in a sawmill and required to ride the carriage between the doggers thereon and by means of a lever regulate the thickness of the lumber to be sawed in accordance with the orders of the sawyer, whose duty it was to run the carriage by means of a lever, witnesses testified that the sawyer was looking at the saw at the instant the em-ployé lost his balance and fell or was thrown from the carriage, and from his position he could hardly have failed to see the employé fall, and that he could have stopped the machinery in time to have avoided the accident, the issue of discovered peril was sufficiently raised to justify an instruction thereon.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]</p> <p>7. Evidence (§ 471*) — Opinion Evidence-Statement of Facts.</p> <p>The testimony of a witness that an em-ployé hired and discharged employés is not objectionable as mere conclusion of the witness, but is a statement of fact.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §•§ 2149-2185; Dec. Dig. § 471.*]</p> <p>8. Evidence (§ 471*) — Opinion Evidence-Statement of Facts.</p> <p>The statement of a witness that the foreman in a sawmill never put any man back on the carriage against the sawyer’s wishes only means that the witness never heard of such an occurrence, and the probative .force depends on the means of knowledge of the witness.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. § 471.*]</p> <p>9. Evidence (§, 473*) — Opinion Evidence-Statement of Facts.</p> <p>A witness famiHar with the operation of machinery and who saw its movement on the happening of an accident to an employé may state that the employe’s fall from the machinery was caused by a sudden and unexpected reverse movement of the machinery.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2220-2233; Dec. Dig. § 473.*]</p> <p>10. Master and Servant (§ 279*) — Injury to Servant — Vice Principal — Evidence.</p> <p>Evidence ¡helé to support a finding that an employé guilty of negHgence causing injury to a coemployé was a vice principal of the co-employé so as to make the employer Hable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. § 279.*]</p>

<p>Appeal from District Court, Floyd County; D. S. Kinder, Judge.</p> <p>Trespass to try title by Rachel D. Hutche-son and others against W. M. Massie. From a judgment for defendant, plaintiffs appeal.-</p>

Green, Judge. Suit by A. P.- Ward against W. G. Walker and others for specific performance of a contract for the sale of land. Judgment for defendants, and plaintiff appeals.

R. Spencer, Judge. Trespass to try title by J. C. Paul and others against J. B. Magee and others. Erom a judgment for plaintiffs, defendants appeal.

<p>Appeal from District Court, Tarrant County ; R. H. Buck, Judge.</p> <p>Action by A. F. Park against C. A. Swartz and another. Judgment for plaintiff, and defendants appeal.</p>

H. Buck, Judge. Will contest by Mrs. Georgia Scott Townsend and others against Mrs. Elizabeth Scott and others. From a judgment of the district court, on appeal from the county court, setting aside the probate, contestees appeal.

<p>1. Judgment (§ 518*) — Order or Probate-Collateral Attack.</p> <p>Claim that a probate order appointing an administrator de bonis non, and authorizing a sale of an unlocated balance of a headlight certificate, was without jurisdiction of the probate court, because the estate of the deceased certificate holder had been finally closed, was a collateral attack on the order.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 961, 962; Dec. Dig. § 518.*]</p> <p>2. Judgment (§§ 489, 497*) — Jurisdiction of Subject-Matter — Collateral Attack.</p> <p>A judgment rendered when the court has no jurisdiction of the subject-matter is void, and open to collateral attack at any time; but such want of jurisdiction in a court of general jurisdiction must be ascertained from the record alone, and cannot be proved aliunde.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§, 924, 925, 937, 938; Dec. Dig. §§ 489, 497.*]</p> <p>3. Evidence (§ 178*) — Best and Secondary Evidence — Lost Records — Contents.</p> <p>Where an order appointing an administrator de bonis non and authorizing a sale of an unlocated balance of a headlight certificate was attacked in trespass to try title for want of jurisdiction of the probate court, and it appeared that the probate proceedings in the administration of the estate were lost, parol evidence limited to the contents of the original records was admissible; but parol evidence of the acts and doings in the administration of the estate constituting no attempt to show the contents of the record was inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 580-594; Dec. Dig. § 178.*]</p> <p>4. Executors and Administrators (§ 37*)— Discharge — Final Order — Administrator De Bonis Non — Authority to Appoint.</p> <p>A final order discharging certain administrators of an estate absolutely was insufficient to negative the power of the probate court to thereafter appoint an administrator de bonis non; there being nothing to show that the estate had been finally closed.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 267-278; Dec. Dig. § 37.*]</p> <p>5. Evidence (§ 82*) — Presumptions—Judicial Proceedings.</p> <p>Where an administrator de bonis non is appointed after the discharge of original administrators, it may be presumed unless rebutted by the record that the order closing the estate was_ set aside, and the administration legally continued, when such presumption is essential to sustain orders subsequently made recognizing the continuance of the administration.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 104; Dec. Dig. § 82.*]</p> <p>6. Husband and Wife (§,§ 265, 272, 276*)— Community Property — Control by Husband-Dissolution of Community.</p> <p>During the life of a husband he has control and management of the community property, and may dispose of it for any purpose he sees fit; but on his death the community is dissolved, and the widow holds her half interest as a tenant in common with the children who succeed to their father’s portion, and the administrators of the husband’s estate can sell the widow’s interest only to pay community debts as provided by Paseh. Dig. art. 1363.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896. 917-924, 1003-1007, 1032-1045; Dec. Dig. §§ 265, 272, 276.*]</p> <p>7. Husband and Wife (§ 276*) — Community Property — Death of Husband — Sale of Wife’s Interest — Burden of Proof.</p> <p>One claiming "title to a wife’s interest in community property, under a sale by the husband’s executor or administrator, has the burden of proving that the property was sold to. pay community debts.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.*]</p> <p>8.- Husband and Wife (§ 276*) — Community Property — Sale of Widow’s Interest — Parties.</p> <p>Neither a decedent’s widow nor her heirs, can be made parties to- a sale of her community interest in the common property by the husband’s legal representative in the administration of his estate, unless her property is-properly taken to discharge debts with which it stands charged on dissolution of the marriage-relation, so that when disposed of for any other purpose by such administrator, she is not bound by the orders of the probate court directing and approving a sale thereof.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.*]</p> <p>9. Husband and Wife (§| 276*)— Community Property — Sale of Widow’s Interest.</p> <p>Where a widow’s interest in community property has been sold by the husband’s administrator to pay debts, it may be presumed, in the absence of evidence to the contrary, in. support of the sale that community debts existed; but such presumption is one of fact and not of law, and would not be indulged where-there was an agreement of the parties to the-contrary.</p> <p>JEd. Note. — For other cases, see Husband and Wife, Cent. Dig. 276.*] 1032-1045; Dec. Dig.</p> <p>10. Husband and Wife (§ 276*) — Community Property — Sale to Pay Debts.</p> <p>Where an administrator de bonis non was authorized by the probate court to sell the balance of an unlocated balance of a headright certificate, and the records in the probate office-had been lost, evidence of a witness who had been county clerk with the exception of a short, intermission from 1800 to 1876, during which time the estate was in process of administra-, tion, that no claims against such estate had' been filed during his term of office was inadmissible to impeach the judgment appointing the-administrator de bonis non; but was admissible to show whether there were community obligations outstanding at the time of his appointment.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. § 276.*]</p> <p>11. Husband and Wife (§ 276*) — Administration Expenses — Taxes — Community-Obligations.</p> <p>Taxes and expenses of administration accruing after the death of an intestate are not community obligations for which a widow’s interest in a land certificate could be sold.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1032-1045; Dec. Dig. §- 276.*]</p>

<p>Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.</p> <p>Action by J. M. Barnes against Jane Sargent and others. Judgment for the plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Potter County; J. N. Browning, Judge.</p> <p>Action by C. T. Word against the Atchison, Topeka & Santa PS Railway Company and others. From a judgment for plaintiff, defendants, except the Ft. Worth & Denver City Railway Company, appeal.</p>

<p>Appeal from District Court, Cottle County; Jo A. P. Dickson, Judge.</p> <p>Action by T. J. Richards against Johnnie Floyce Rule. Judgment for plaintiff, and defendant appeals.</p>

Calhoun, Judge. Action by the State and others against the Dayton Lumber Company and others. Judgment for defendants, and plaintiffs bring error.

<p>Appeal from District Court, Gaines County; S. J. Isaacs, Judge.</p> <p>Action by J. M. Shannon against the First State Bank of Seminole. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Tkial (§ 192*) — Injuries to Passengers —Trains—Negligent Operation.</p> <p>In an action for injuries to a passenger by being thrown down in the aisle of a passenger coach by an extraordinary and unusual bump as the engine was coupled to the car in which plaintiff was, defendant having made no attempt to show that the bump was not extraordinary and unusually severe, the court did not err in assuming that the sudden movement of the train constituted negligence.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.*]</p> <p>2. Damages (§ 169*) — Injury to Passenger-Evidence — Character.</p> <p>Where, in an action for injuries, defendant, by evidence of its own witnesses and by cross-examination of plaintiff, raised the issue that plaintiff was malingering, evidence that plaintiff’s general reputation in the community in which he lived was g;ood was properly received, though defendant did not otherwise impeach plaintiff or put his character in issue.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 495; Dec. Dig. § 169.*]</p> <p>3. Appeal and Error (§ 1067*) — Review—Instructions — Prejudice.</p> <p>Where, in an action for injuries, the petition alleged $150 as plaintiff’s damage sustained by being compelled to purchase medicine and to pay for physicians’ services, and the court had limited the jury to that amount; and the evidence of the value of the services of one of plaintiff’s physicians approximated closely $150, the fact that plaintiff had employed two physicians and- that the evidence showed the value of the services of only one of them did not render prejudicial to defendant a paragraph of the charge on the subject of plaintiff’s right to recover for medicines and physicians’ services in failing to limit the recovery to the services of the one physician; defendant not having requested a special charge limiting plaintiff to such recovery.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. § 1067.*]</p> <p>4. Trial (§ 296*) — Instructions—Damages— Double Recovery.</p> <p>Where, in an action for injuries, a paragraph of the charge submitted specifically the measure and elements of damage recoverable, a subsequent paragraph charging that, if the jury fbund for plaintiff under the instructions previously given, they should allow him such damages as seemed to'them to be right and proper under all the circumstances and evidence did not authorize the allowance of double damages.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]</p> <p>On Motion for Rehearing.</p> <p>5. Carriers (§ 321*) — Injuries to Passenger —Instructions.</p> <p>Where, in an action for injuries to a passenger, it appeared that he was thrown down in the aisle and injured by an unusual bump as the engine was coupled to the car in which he was standing, an instruction that the carrier in the management of its train was required to employ careful and skillful agents was not objectionable as without evidence to support it.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dee. Dig. § 321.*]</p>

<p>Appeal from District Court, Foard County, D. E. Decker, Judge.</p> <p>Action by J. F. Cheek and others against the Missouri Pacific Railway Company and others. Judgment for plaintiffs, and the Missouri Pacific Railway Company appeals.</p>

<p>Appeal from District Court, Kendall County; R.-H. Burney, Judge.</p> <p>Action by D. W. King against the Boerne State Bank and another. Judgment for defendants, and plaintiff appeals.</p> <p>Appellant, on March 14, 1912, sued appel-lees, the Boerne State Bank and its president, C. J. Doe, for damages, charging such defendants with the conversion of 8,009 shares of the capital stock of the Boerne Electric Power & Manufacturing Company of the par value of $8,000, which had been pledged by plaintiff to said bank as collateral security on his note for $1,000, dated December 29, 1911,: and due January 29, 1912.</p> <p>Plaintiff alleged that on February 24, 1912, he had a conversation with said G. J. Doe in which he assured Doe that he was endeavoring to raise the money to pay the note, and would be able to pay same within a few days, but if the bank had to have the money and insisted upon it he would take 2,000 shares of his pledged' stock and sell the same at a sacrifice of 50 cents on the dollar in order to pay the note immediately; that thereupon said Doe told plaintiff he hoped he would pay said note in a, few days, and by this statement and Doe’s conduct plaintiff was led to believe that it would be all right for him to let said note run for a few days, and would not have to sacrifice any of his stock, which was reasonably worth its par value; that, notwithstanding said agreement and conduct of the defendants, the bank wrongfully and maliciously, with intent to harass plaintiff and to oust him from said Boerne Electric Power & Manufacturing Company in which he was a director and one of the largest stockholders, fraudulently conspired with its president, C. J. Doe, and sold plaintiff’s $8,000 worth of shares of stock to said Doe for the grossly inadequate sum of $100; that such sale was made about February 26, 1912, privately, without any notice to plaintiff and without any advertisement or publicity whatever, knowing that said stock was worth $8,000; that after receiving notice of such sale plaintiff went to the bank and tendered the amount due on his note and demanded his note and stock, but the bank refused to accept the money and to turn over to plaintiff the stock. Plaintiff further alleged that said stock was reasonably worth $8,000 and prayed that he recover $8,000 with 6 peh cent, interest thereon from February 26, 1912, less whatever sum he may be found to owe the bank, and also prayed for recovery of $10,000 exemplary damages.</p> <p>Defendants answered with general demurrer, special exceptions, general denial, and plea in the nature of a cross-action alleging the execution of the $1,000 note by plaintiff-to the bank, the pledge of the stock, their authority to sell the stock upon default in the payment of the note, the failure of plaintiff to pay the same (and in this connection denied an agreement for forbearance set up in plaintiff’s petition), the sale and delivery on February 26, 1912, of the stock to O. J. Doe for $100; that thereafter on February 26, 1912, the bank, for a valuable consideration, assigned and transferred, without recourse, the said note to the said C. J. Doe; that Doe thereby became and still was the legal and equitable owner and holder of said note; that plaintiff has failed and refused to pay the same; that upon the sale of the stock as aforesaid the bank credited the note with $100 paid it by Doe for said stock; that the stock was of no greater value than $100; that defendants are willing and ready to return said stock to plaintiff upon payment of the note, interest, and attorney’s fees. Defendants prayed as follows: “Wherefore defendants pray that plaintiff take nothing by his said suit, and that defendant Loe be quieted in the title and possession of said shares of stock, and that he have judgment against plaintiff for the balance due on said note, or if for any reason they should be held not entitled to such relief, or the sale of said shares of stock should be held invalid, then defendants pray for judgment against plaintiff for the amount of said note, principal and interest, and attorney’s fees, and for the foreclosure of said lien on said shares of stock, and for decree directing the sale of said shares of stock and satisfaction of such judgment; and they also pray judgment for costs, and for general relief.”</p> <p>Plaintiff filed a supplemental petition containing exceptions to defendants’ answer.</p> <p>The jury was instructed to return the following verdict: “We, the jury, find for the defendants against the plaintiff as to his action for conversion and damages, and we further find that the sale of the pledged shares of stock, to wit, 8,000 shares of stock in the Boerne Electric Power & Manufacturing Company, was invalid, and we further find for the defendant G. J. Loe against plaintiff on his cross-action on said note for the amount thereof, principal and interest, to wit, $1,058.33, and for the foreclosure of his lien on said shares of stock.”</p> <p>Judgment was entered in accordance with the verdict, and plaintiff appealed.</p> <p>Summary of Evidence.</p> <p>December 29, 1911, King gave the Boerne State Bank his note for $1,000, due January 29, 1912. The debt evidenced by the note had existed since the spring of 1911, and the original note had been renewed several times. Eight thousand dollars of the stock of the Boerne Electric Power & Manufacturing Company, a company of which Loe was president, had been pledged by King as collateral to secure the debt. When the note was renewed on December 29, 1911, Loe notified King that no further renewals would be made, and the note would have to be paid at maturity. On January 18, 1912, the bank mailed King notice that his note would mature on January 29, 1912, which notice was received by King two or three days before the note matured. King testified he saw Loe at once and asked him if he would extend the note, that Loe said he could not, that the bank did not wish to renew it, and that he was to endeavor to pay as soon as possible. This conversation is denied by Loe. The note was not paid. King also testified that on February 24, 1912, he told Loe he was endeavoring to raise the money to pay the note and hoped to do so in a few days and if necessary would sell the stock for $2,000, that he was pretty sure he could sell it for 50 cents on the dollar, and Mr. Loe told him he had better not sacrifice it, not to sell it below par, as the company had several thousand dollars worth of treasury stock which they wished to sell, and the sale of which might be prejudiced by a sale of other stock at a low price. Loe denied that this conversation occurred. On February 26, 1912, the bank wrote King as follows: “Boerne, Texas, February 26, 1912. Mr. L. W. King, City— Dear Sir: We have sold the collateral attached to your one thousand dollar note which matured nearly a month ago consisting of 8,000 shares of the Boerne Electric Power and Manufacturing Company stock to C. J. Loe for $100.00 and have applied the same as a credit upon your note. Yours truly, C. J. Loe, President.” King also received a letter from Loe as follows: “Boerne, Texas, February 26, 1912. Mr. L. W. King- — Dear Sir: I have bought from the Boerne State Bank 8,000 shares of the Boeme Electric Power & Manufacturing Company’s stock issued in your name, for $100.00. I expect to make an effort to get the accounts of this company settled in some satisfactory manner within the next ten days, and if you will arrange to take care of the balance of your note to the bank of $900.00 and the money that I am spending in settling up accounts of the company within the next fifteen days, I will be glad to transfer the stock back to you. I will of course expect you to refund me what money I am out in this matter with interest from the date that I took it on. Yours very truly, O. J. Loe.”</p> <p>These letters were received by King either on February 26th or 27th. On March 9th King secured $1,200 from Gilleat to pay off his note to the bank. King saw Loe on February 10th at the bowling alley but did not mention the matter of taking up the note, giving as his reason for not mentioning the matter that it was Sunday and he did not talk business on Sunday. He said further, it there were any other reasons for his not mentioning the matter, they were personal reasons. Loe left for Asherton on February 10th, and King on February 11th, about 9:30 or 10 o’clock a. m., went to the bank knowing that Loe was not there, and tendered to Fred Loe and Mr. Fabra, assistant cashiers, the $1,200 and demanded his note and stock. Fred Loe produced the note, but was unable to find the stock, and King declined to pay the note unless the stock was delivered to him, Mr. Fabra told him that C. J. Loe was away and he would like to have time to communicate with him as all of King’s business transactions had been with O. J. Loe. King said he would give him one hour, but called twice during the day, and finally gave Fabra until the evening to hear from G. J. Loe, but Fabra reported he had been unable to speak to Loe over the telephone. After C. J. Loe returned to Boerne, he called on King and offered to surrender the stock if King would pay the note. King said he could not accept it, as the matter was out of his hands and in the hands of his lawyers, to whom he referred Loe. Loe says this offer was made on Wednesday, the 13th. King first testified it was either Tuesday or Wednesday, but being recalled later said he was mistaken, that Loe called on him on Thursday, March 14th, after suit had been filed.</p> <p>G. W. Oalrow, a brother-in-law of plaintiff, testified that about a week before the sale of the stock he had a conversation with O. J. Loe about the King transaction, and after the sale, about March 4th or 5th, he had another conversation with O. J. Loe concerning which the witness testified: “I asked if he was in the bank, and I went to the directors’ room to the best of my recollection and told him that I had procured the money to take up this note. If I state the exact conversation, I have got to bring in L. E. King, for the exact conversation brings him in. I said that I had procured the money to take up the two King notes, $1,000 notes, and I asked him: ‘Will you hold that stock providing those two notes are paid; will you hold that stock for a certain other note?’ It doesn’t make any difference what the other note was, and he said: ‘No, that is now my stock. I have been under some expense and expect to be under considerable more, and it just takes $4,500 to get this stock and note.’ And that was almost the sum total of the conversation. As to what I then did with reference to notifying Mr. King, I went out and told Mr. Gilleat, who was waiting for me, and both of us walked out and met Mr. King right at the lumber yard, and I told him the result of this conversation.” On cross-examination he said: “I told him that I had procured the money from A. G. Gilleat. I asked him whether he would hold the stock providing those two $1,000 notes were paid, whether he would return the stock or hold it as security against another note that was in there. That was another note that doesn’t enter into this case. It was a note that I was on as security with L. W. and L. E. King. The amount of that note was $3,000. 1-Ie told me that he would return the stock. Mr. Loe then said, ‘That is my stock.’ Those are his very words. T have been out some expense, and I expect shortly to be out considerable more, and it will just take $¡1,500 to get that stock.’ ” King gave the report made him by Oalrow as his reason for taking no further action after March 6th. O. J. Loe denied that he made any such statement to Oalrow.</p> <p>King made no inquiry to ascertain whether O. J. Loe had paid out anything on accounts of the Boerne Electric Power & Manufacturing Company. In fact, Loe had made no such payments at the time he offered to surrender the stock on payment of the note.</p> <p>O. J. Loe testified he made the sale of the stock to himself after banking hours on February 24, 1912, without offering the same to any one else; that he saw plaintiff at the meeting of the directors of the Boerne Electric Power & Manufacturing Company that afternoon, but did not remember whether he walked to the meeting with him; that he did not tell King nor any of the directors he was going to buy the stock; that the transfer to him was made without recourse and did not require any action from the board of directors of the bank; that the transaction of his taking over the stock and note was put down on the books of the bank on February 26th; that he took over the note and stock on account of a prior agreement on his part with the directors of the bank who were dissatisfied with the loan.</p> <p>Considerable evidence was introduced in regard to the value of the stock, which will not be stated, as it is immaterial upon the questions arising upon this appeal. The evidence failed to show any depreciation in the stock between date of sale of the plaintiff’s stock to C. J. Loe and the date of the trial.</p> <p>The note given by King contained a provision that upon default in its payment the bank had full power to sell, assign, and deliver the whole of said securities or any part thereof at public or private sale, at its option, or that of its president or cashier, without demand, advertisement, or notice of any kind, all of which were expressly waived, and that the bank itself might purchase at such sale; also, that upon indorsement or transfer of the note the collateral could be delivered to the transferee, and the bank would thereafter be relieved from any liability or responsibility in the matter. The note was indorsed on the back as follows: “Collateral sold, to C. J. Loe for $100.00 2/24/12, without recourse. Boerne State Bank, Boerne, Texas. C. J. Loe, Pr.”</p> <p>Two checks were introduced in evidence, both signed C. J. Loe, and dated February 24, 1912, both payable to the Boerne State Bank, one for $100, which recited that it was given for 8,000 shares Boerne Electric Power & Manufacturing Company stock, L. W. King note, and the other for $900, which recited that it was for loss on L. W. King note No. 3,416. Both checks were stamped: “Boerne State Bank. Paid Feb. 26, 1912, Boerne, Texas.”</p> <p>On March 19th, C. J. Loe wrote King as follows: “I have your note for $1,000.00 which was due Jan. 29th, and bears 10 per cent, interest from maturity until paid. Attached to this note is 8,000 shares of the B. E. P. & Mfg. Co. stock. Please advise me by return mail if you care to pay this note and interest and have your stock returned to you.”</p> <p>Defendants, upon the trial, tendered to plaintiffs $8,000 worth of stock issued in lieu of the $8,000 pledged by him, which had been canceled, together with a transfer thereof, on condition that he pay the note for $1,000 executed by him, which tender was declined.</p>

E. Decker, Judge. Action between R. W. Gutheridge and others and Alice Gutheridge. From a judgment for Alice Gutheridge, R. W. Gutheridge and others appeal. On motion of Alice Guth-eridge to dismiss the appeal on account of a defect in the certificate of the clerk of the district court and for a writ of certiorari to secure a supplemental transcript. Certiora-ri granted, and motion sustained, with leave to appellants to correct the certificate.

<p>1. Usury (§ 142*) — Action yob Penalty — Sufficiency of Petition.</p> <p>A petition in an action to recover the statutory penalty for usury, which alleged that plaintiff borrowed $30 of defendant for 30 days, executing as security therefor his note and power of attorney, authorizing defendant in default of payment to draw his wages, and paid defendant $6 per month interest for 10 months, and borrowed other amounts upon similar terms, that the interest charged was usurious, and that the moneys were borrowed of defendant’s agent and the interest was paid to him, was good as against a general demurrer.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 428-433; Dec. Dig. §.142.*]</p> <p>2. Debt, Action of (§ 11*) — Pleading—Demand.</p> <p>In ordinary actions of debt a failure to allege a demand for and refusal of payment renders the petition bad on general demurrer.</p> <p>[Ed. Note.' — Eor other cases, see Debt, Action of, Cent. Dig. §§ 27, 28; Dec. Dig. § 11.*</p> <p>3. Principal and Agent (§ 189*) — Usury (§ 142*) — Recovery “by Action of Debt”— Pleading — Demand—Agency.</p> <p>Under Rev. Civ. St. 1911, art. 4982, providing that usurious interest received may “by action of debt” be recovered with an equal amount as penalty, the collection of such interest does not create the relation of debtor and creditor, and in a suit to recover it the allegations essential in a common-law action of debt need not be made, the term “by action of debt” not requiring that the action be technically the common-law action of debt; and an allegation that the payments were made to defendant’s agent, in the absence of any allegation that defendant had more than one agent, was sufficient to enable defendant to prepare his defense; and under the express terms of the statute the right of recovery is the same whether interest was exacted under a written or a verbal contract.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 713-717; Dee. Dig. § 189;* Usury, Cent. Dig. §§ 428-433; Dee. Dig. § 142*</p> <p>For other definitions, see Words and Phrases, vol. 2, pp. 1886-1887.]</p> <p>4. Pleading (§ 433*) — Defects — Cure by Judgment.</p> <p>Error, if any, in overruling a special exception to a petition, alleging that usurious payments of interest were made to defendant’s • agent without showing that he had more than one agent, was cured by judgment for plaintiff upon evidence conclusively showing that defendant had but one agent.</p> <p>[Ed. Nóte. — For other cases, see Pleading, Cent. Dig. §§ 1451-1477; Dec. Dig. § 433.*]</p> <p>5. Pleading- (§ 229*) — “Trial Amendment.”</p> <p>The office of a “trial amendment” is to supply allegations in a pleading after exception thereto has been sustained.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 591; Dec. Dig. § 229.*]</p> <p>6. Pleading (§ 279*) — Supplemental Petition-Discretion of Court.</p> <p>It was within the discretion of the'court to permit plaintiff to file a supplemental petition after the parties had announced ready for trial and after the exceptions to plaintiff’s petition had been overruled.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 836-841; Dec. Dig. § 279.*]</p> <p>7. Appeal and Error (§ 1170*) — Harmless Error — Allowing Supplemental Petition.</p> <p>Error, if any, in allowing plaintiff to file a supplemental petition after the parties had announced ready for trial and after the exceptions to his pleadings had been overruled was not such a denial of the rights of defendant as to probably cause an improper judgment, within rule 62a for Courts of Civil Appeals (149 S. W. x), and hence was not reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]</p> <p>8. Appeal and Error (§ 555*) — Striking out Bills of Exception — Consideration of Assignment.</p> <p>Where bills of exception have been stricken out so that there are no exceptions in the record to support the assignments, the court is without power to consider such assignments.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2955; Dec. Dig. § 555.*]</p> <p>9. Usury (§ 142*) — Action to Recover Penalty-Pleading and Issues.</p> <p>In an action to recover the statutory penalty for usury, where plaintiff alleged that he had borrowed money of defendant, who had charged and collected interest thereon in excess of the legal rate, but did not set out the contract, which, as pleaded by defendant, evidenced a sale by plaintiff to defendant of a part of his wages, and where plaintiff by a supplemental petition alleged that the contract did not truly represent the transaction, but was only a scheme of defendant for collecting usury, it was not necessary that plaintiff allege the execution of the contract as the result of fraud or mistake in order to prove that it was in fact other than the contract pleaded by defendant, but the allegations of his supplemental petition were , sufficient to let in proof of its true character.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 428-433; Dec. Dig. § 142.*]</p> <p>10. Usury (§ 106*) — Subject-Matter — Action for Usurious Interest.</p> <p>The right to sue for usurious interest paid may be the subject of compromise and adjustment, where such compromise is made in good faith, and the right to recover the usury is waived by the payer for a sufficient consideration.</p> <p>[Ed. Note. — For other cases, see Usury, Gent. Dig. § 263; Dec. Dig. § 106.*]</p> <p>11. Usury (§ 104*) — Defenses—Release as Estoppel.</p> <p>Plaintiff applied to defendant for a loan and signed a contract upon its face selling a certain part of his wages and containing a power of attorney to collect the same, but it was not intended that defendant should collect the wages, which were in fact collected by plaintiff and paid to defendant, and after several of such loans, illegal because of usurious interest, plaintiff at defendant’s request signed a so-called release or stated account; there being no valid consideration therefor. Held, that under the facts the release did not estop plaintiff to sue for a recovery of the usurious interest.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 260, 261; Dec. Dig. § 104.=*]</p> <p>12. Usury (§ 104*) — Action to Recover Penalty — Pleading — Fraud in Obtaining Release.</p> <p>Where plaintiff who had borrowed money of defendant at usurious rates of interest had signed a so-called release, procured by defendant as an estoppel against a suit to recover, it was not necessary for plaintiff to show that the release was signed by him as the result of fraud or mistake.</p> <p>[Ed. Note. — Eor other cases, see Usury, Cent. Dig. §§ 260, 261; Dec. Dig. § 104.*]</p> <p>13. Usury (§ 142*) — Action —Set-Off of Amount Owed Defendant.</p> <p>In a suit to recover the statutory penalty for usury the amount owed by plaintiff to defendant was allowable to defendant as an offset against the amount of plaintiff’s recovery.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 428-433; Dec. Dig. § 142.*]</p> <p>14. Usury (§ 100*) — Rights of Parties — Application op Payment.</p> <p>Each payment made upon a contract affected with usury is a payment upon the principal applied by law, notwithstanding it was paid and received as payment of interest.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. §§ 219-234; Dec. Dig. § 100.*]</p>

N. Browning, Judge. Action between the First National Bank of Amarillo and another and J. W. Rush and wife. From a judgment for the latter parties, the former parties appeal. Appellants move to affirm on certificate. Appellees move to have the record considered as filed seasonably.

<p>Appeal from District Court, Collingsworth County; D. E. Decker, Judge.</p> <p>Suit by J. T. Estes and others against J. Hunker. From a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Castro County; L. S. Kinder, Judge.</p> <p>Action by the J. E. Bryant Company against T. A. Turnbow. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Orange County; W. B. Powell, Judge.</p> <p>Action by A. L. Lyons against the Yellow Pine Paper Mill Company. Judgment for the plaintiff, and defendant appeals.</p>