Volume 16 — Texas Civil Appeals Reports

<p>1. Action on Promissory Note—Parties—Receiver of Railroad.</p> <p>In an action against a railroad company on a note executed by it, a receiver of the company is not a necessary party.</p> <p>Í2. Pledge—Sale—Notice.</p> <p>A power annexed to a note expressly authorizing a private sale of bonds transferred as collateral security for the note, “without advertisement or notice,” authorizes a sale without notice to either the pledgor or the public.</p> <p>3. Same—Same—Failure to Ask Bid.</p> <p>A sale of railroad bonds by a pledgee thereof, empowered to sell the same at pi'ivate sale without notice, is not invalid merely because he offered to sell the same for a specified amount, without asking the purchaser to make a bid, where he had previously informed himself as to the value of the bonds, and the price asked was double such value.</p> <p>4. Principal and Surety—Contribution.</p> <p>One who is induced to sign a note as surety at the request of other sureties, is not liable to contribution on the payment of a note by the latter, where it is shown that the note was given for the use of the latter.</p>

<p>1. Evidence of Damage Erom Assault and Battery—Allegata and Probata. Evidence that 'plaintiff in an action for damages for an assault and battery suffered from headache whenever he worked in the sun after the assault, and could not work as he could before sueff assault, is admissible under an allegation that he had suffered pain and been prevented from the transaction of his necessary business, although there is no specific allegation of the:value of his time.</p> <p>2. Charge of Court—Damages—Double Recovery.</p> <p>An instruction in an action for damages for assault and battery, authorizing the jury in estimating plaintiff’s damages, to consider the “loss of time” and “diminished capacity for labor,” is not objectionable as authorizing, a double recovery.</p> <p>3. Same—Assault and Battery—Damages—Harmless Error..</p> <p>Where the petition alleged that the injuries to and reduced capacity of plaintiff for earning a livelihood would remain for twelve months, failure to limit the re covery to damages sustained within that time is not ground for reversal, where the trial took place within four days after the expiration of the twelve months, and the charge referred only to past damages and such as the evidence showed.</p> <p>4. Charge of Court—Exemplary Damages—Language Hot Improper.</p> <p>An instruction in an action for damages for assault and battery, that if malice on the part of defendant is shown, the jury may in their discretion give exemplary damages by way of punishment to defendant, and “for the purpose of creating a wholesome .example to others,” is not improper..</p>

<p>Appeal from Lavaca. Tried below before Hon. T. H. Spoonee.</p>

<p>1. Municipal Taxation for Street Improvement—Estimate of Cost.</p> <p>Under the city charter of Galveston an estimate of the probable cost of any improvement of the streets of the city, by a special committee or by the city engineer, must be made, and such estimate must be considered by the city council as conditions precedent to a valid tax levy for such improvements.</p> <p>2. Same—Entry of Orders on Minutes of City Council.</p> <p>It will not be presumed that a resolution of the city council, declaring that certain street improvements should be made, was adopted before the engineer’s estimate of the probable cost thereof was considered by the council, from the mere fact that the council’s minutes of the receipt and adoption of the engineer’s report is entered in the record of its proceedings subsequent to that of the adoption of such resolution, where both of such minutes are of proceedings of the same day.</p> <p>3. Same—Sufficiency of Minutes to Show Improvement Ordered.</p> <p>Where the minutes of the city council show that the city engineer, in obedience to a prior order of the council, made a report to it of the probable cost of certain proposed street improvements, and that this report was referred to the committee on streets, with instructions to advertise for bids for the work, and that afterward the clerk received bids, and the committee on streets recommended the acceptance of one of the bids, which was accepted, and the mayor and such committee' instructed to enter into contract with the bidder, such matters are equivalent to an express ordinance of the council directing and ordering the improvements to be made.</p> <p>4. Taxation—Payment of Taxes Hot Involuntary Hor Under Compulsion,</p> <p>When.</p> <p>Where a tax collector levies upon real estate in the possession of its owner and advertises a sale of it for taxes levied thereon, and the owner pays the taxes under protest because of their illegality, and with notice that he will sue for their recovery, this is not such an involuntary payment, or payment made under compulsion, as will entitle him to recover such taxes.</p>

<p>1. Railroad Company—Delayed Train—Duty to Passenger—Question for</p> <p>Jury.</p> <p>Where the further progress of a passenger train was stopped, on a dark, cold, and. rainy night, by the washing away of a bridge, it is a question for the jury whether or not the railway company should have backed the train to a place where the passengers might have been cared for.</p> <p>2. Same—Discomfort Voluntarily Incurred by Passenger.</p> <p>■ A passenger on a railroad train who, when the further progress of the train is. stopped by the carrying away of a bridge, voluntarily leaves the train, with the conductor and other passengers, without being misled, in order to walk back to a farmhouse to get a conveyance to his place of destination, can not recover from the company for the inconvenience and discomfort experienced while on the way to the farmhouse.</p> <p>3. Same—Duty to Shelter Passengers—Breach—Measure of Damages.</p> <p>The measure of damages for the breach by a-railroad company of its duty to its passengers to back its train to a farmhouse or some other place of shelter, where its further progress is prevented by the washing away of a bridge, is the difference between the inconvenience and discomfort experienced by the passenger in walking back to the farmhouse and what he would have experienced if the train had been pushed back to it.</p> <p>4. Same—Liability for Unauthorized Undertaking of Conductor.</p> <p>A railroad company is not liable for the promise of the conductor on a train which is prevented from completing its journey, to the effect that he would procure a conveyance to carry the passengers to their destination.</p>

<p>Appeal from Harris. Tried below before Hon. S. H. Brashear.</p>

<p>1. Married Woman’s Conveyance—Deed of Confirmation Held Effectual.</p> <p>Where a married woman’s deed was void for want of proper separate acknowledgment by her, and she afterwards properly executed an instrument of confirmation, reciting the execution of the former deed, a copy of which was thereto attached, and stating her'purpose to then and thereby ratify and confirm the same so as to make.it effectual from the original date, the two instruments were construed together as one, the copy supplying the necessary words of grant and description, and were held effectual to convey the title from the date of the last instrument.</p> <p>2. Same—Certificate of Married Woman’s Acknowledgment—Clerical</p> <p>Omissions Hot Vitiating.</p> <p>A certificate of joint, acknowledgment by a married woman and her husband, stating that they acknowledged “the” executed, instead of “they” executed the deed, and omitting the word “it” from the clause, “she wished not to retract it,” is not vitiated by such clerical errors.</p>

<p>Appeal from Anderson. Tried below before A. A. Aldrich, Esq., .'Special Judge.</p>

<p>1. Colored School Trustees—Term of Office—Statutes Construed.</p> <p>One of three colored trustees of a school district elected in 1S95 who draws No. 2 is entitled to office for two years, under Acts of 23d Legislature, p. 196, secs. 50 and 58. as amended by Acts of 24th Legislature, p. 29.</p> <p>i2. Same—Same—Effect of Action of Superintendent of Public Instruction.</p> <p>That the Superintendent of Public Instruction fixes at one year the term of a school trustee, which term is fixed by law at two years, does not affect the trustee’s right to hold office for the two years.</p> <p>3. Same—Same—Effect of Commission and Candidacy for Re-election.</p> <p>The right of a school trustee whose term is by law fixed at two years to hold office for that time is not affected by the fact that the commission issued to him was for only one year, and that he became a candidate for re-election at the close of the year.</p>

<p>Depositions—Failure to Swear Interpreter.</p> <p>Where the interpreter employed by the officer in taking a deposition was not sworn as required by law, and the officer himself did not understand the language spoken by the witness, the deposition should be suppressed.</p>

<p>Error from Harris. Tried below before Hon. S. H. Brasheae.</p>

<p>1. Trustee’s Deed Under Power of Sale—Recitals Conclusive, When.</p> <p>Where a deed of trust with power of sale upon default of payment provides that the conveyance made thereunder by the trustee shall be full evidence that the trustee complied with the requirements of the power in making the sale, and that no further proof of the request to sell, or of the advertisement, etc., should be required, but that all prerequisites to the sale should be presumed to have been performed, the effect of such provision is to make the sale and conveyance proof of the performance of all the prerequisites to the exercise of the powers conferred by the trust deed.</p> <p>2. Same—Presumption From Death of Parties and Lapse of Time.</p> <p>Where the trustee and the cestui que trust are both dead, and the deed executed</p> <p>by the trustee is in the usual form, it will be presumed after a long lapse of time that the trustee complied with the terms of the trust deed as to the prerequisites required in making the sale thereunder.</p> <p>3. Same—Void Sale—Tender of Purchase Money Required.</p> <p>Where, upon a sale of land, a vendor’s lien is reserved, secured by deed of trust, and the trustee makes a void sale thereunder, the purchase money note secured by the trust deed remains unsatisfied, the legal title of the land remains in the vendor, and the heirs of the vendee can not recover the land from one who bought it from the purchaser at the trustee’s sale without payment or tender of the unpaid purchase money.</p> <p>4. Record of Trust Deed Hot Hotice, When.</p> <p>Where the deed from the vendor to the vendee is not recorded, the record of a deed of trust executed by the vendee to a third person as trustee to secure unpaid purchase money, is not constructive notice to a subsequent purchaser of the land from the vendor.</p>

<p>Bailway Company—Fellow Servants—Injury to Brakeman Through Negligence of Engineer.</p> <p>A brakeman on a moving freight train went forward to the engine to obtain directions from the engineer, and while on the engine it was derailed and he was injured. Had the engineer given the proper danger signals, the brakeman would not have gone to the engine, and had he not gone there, he would not have been, injured. The rule of the company made it the duty of the brakemen to take their directions and orders from the conductor, but as a matter of convenience they often got them from the engineer. Held, that as the engineer had no right of authority and control over the brakeman, they were fellow servants, and the defendant company was not. liable for the injury.</p>

<p>1. Trespass to Try Title—Improvements—Recovery for by Defendant.</p> <p>To entitle the defendant in trespass to try title to the value of improvements, as against the successful plaintiff, he must have purchased and taken possession of the land under the belief that the title he acquired was superior to that of any other who might be a claimant to the property.</p> <p>2. Same—Taxes—Recovery for by Defendant.</p> <p>Defendant in trespass to try title is not entitled to recover from plaintiff, who succeeds in the action, taxes paid by him in good faith on the land, where the plaintiff also paid the taxes for the years in question.</p> <p>3. Same—Outstanding Title.</p> <p>Defendant in trespass to try title can not avail himself of an outstanding equitable title with which he does not connect himself, to defeat plaintiff’s recovery.</p> <p>4. Adverse Possession—Hot Continuous. .</p> <p>Where, after the inclosure of land, the fence went to decay and the land remained open for two or three years before it was again inclosed, the adverse possession was not continuous.</p>

<p>1. Foreign Court—Land in Texas—Decree Ordering Sale—Validity;</p> <p>A deed to land in Texas made under a decree of a Kentucky court, reciting that “such proceedings were had in said cause that a decree was rendered ordering a sale of the land, will not be held invalid twenty-five years after the rendition of the decree, on the ground that the Kentucky court had no jurisdiction to enter a decree affecting the title to land in Texas.</p> <p>2. Pleading—Admission of Interest in Land—Divestiture of Title.</p> <p>An answer filed in a chancery suit fifteen years before final decree therein, admitting that a specified person is entitled to specified land patented in the name of the answering defendant, who is ready and willing to execute proper deeds of conveyance to such person as the court by decree may direct, is insufficient in itself to divest the title of such defendant.</p>

<p>1. Writ of Error—Defects—'Waiver.</p> <p>A defect in the citation in error is waived by defendant in error filing his brief in answer to the assignments of error without qualification, notwithstanding a motion at the same time to dismiss the writ of error.</p> <p>2. Judgment—Error of Law—Remedy.</p> <p>The proper remedy for an error of law appearing on the face of the record is by appeal or unit of error, and not by a suit to set aside the judgment.</p>

<p>Appeal from Hopkins. Tried below before Hon. E. W. Teehttne.</p>

<p>1. Death by Wrongful Act—Damages—Apportionment.</p> <p>In an action by the father and mother for the negligent killing of their son, the failure of the court to instruct the jury to apportion the damages between the plaintiffs, as provided by statute, does not require a reversal of a judgment in their favor, where no instruction covering the omission was requested.</p> <p>'2. Same—Same—Incidental Expenses—Joinder of Parties.</p> <p>The damages to which a father is entitled on account of incidental expenses accruing from the injury and death of his son may be recovered in an action for the negligent killing of the son in which the mother is joined, notwithstanding that as to the particular item she may be improperly joined.</p> <p>3. Master and Servant—Employment of Minor—negligence.</p> <p>A railroad company which employes a minor and appoints him to the performance of a dangerous nature, knowing that he is of immature judgment and inexperienced in such service, and fails to instruct him as to the dangers of the employment, is guilty of negligence.</p> <p>4. Same—Same—Dangerous Service—Acquiescence of Father.</p> <p>A father who consents to the employment of his minor son in a dangerous service can not recover for his death resulting from his inexperience and the failure of the employer to instruct him against the dangers incident to the employment.</p> <p>5. Same—Same—Same—Same—Charge of Court.</p> <p>An instruction on the question of the father’s acquiescence in the employment of his son in a dangerous service, that one is deemed to have acquiesced when with full knowledge of all the facts he refrains from objecting or enforcing his objections to a proper extent, for such time and under such circumstances, that it may be reasonably inferred that he has waived or abandoned his right to object, is proper if an issue as to acquiescence is raised by the evidence.</p> <p>6. Charge' of Court—Similar Instruction Requested.</p> <p>Appellant can not complain of an instruction which merely presents upon a positive hypothesis the principle of law given at his request upon a negative hypothesis.</p> <p>7. Evidence—Employment of Minor in Dangerous Service—Acquiescence</p> <p>of Father.</p> <p>The testimony of a father, in an action against a railroad company for the negligent killing of his son, employed by the company without his consent in a dangerous position, that he did not go to the headquarters of the company and have the boy discharged because he was afraid the latter would get discouraged and leave him and go to some other road, is admissible to rebut acquiescence by the father in the employment of the son.</p>

<p>Appeal from the County Court of Palo Pinto.' Tried below before Hon. D. M. Hood. '</p>

<p>Appeal from Hardeman. Tried below before Hon. GL A. Brown.</p>

Tried below before Hon. F. G. Mobbis. Walter Tips brought this suit against L. A. Ellis on December 16, 1895, in the District Court of Travis County, the residence of both plaintiff and defendant, to recover the purchase price of certain cotton ginning machinery sold and placed on the plantation of Ellis in Fort Bend County.

<p>Appeal from McLennan. Tried below before Hon. L. W>. Goodrich.</p>

<p>Appeal from McLennan. Tried below before Hon. Sam, R. Scott.</p>

<p>1. Accord—Hew Contract—Failure to Perform.</p> <p>Where an existing liability was agreed to be settled by contract embracing other matters, with which the party liable failed to comply, he thereupon became liable upon the original obligation.</p> <p>2. Charge—Omission.</p> <p>Failure to instruct the jury as to what constituted acceptance, in an issue as to sale of goods, was not error in absence of a request for further instructions.</p> <p>3. Witness—Sued as Partner—Evidence.</p> <p>A witness who is sued as a member of a partnership, the existence of which has. not been put in issue by the answer, may testify to facts showing that he has no interest in the result of the suit, as bearing on the weight of his evidence.</p> <p>4. Same—Pleading—Harmless Error.</p> <p>Permitting the filing of a supplemental answer during the progress of the trial,, to show that such witness had no interest in the result, though irregular, was harmless, and not reversible error.</p> <p>5. Witness—Reputation for Truth—When in Issue.</p> <p>The mere fact that a witness’ evidence is contradicted by opposing testimony will not justify the introduction of evidence in support of his reputation for truth.</p> <p>6. Sale—Rescission—Pleading.</p> <p>Where, in suit on an acccount for goods sold and delivered, defendants did not ask for rescission, but alleged that the sale of part of the goods was never completed and did not go into effect; Held, that a verdict by which plaintiffs recovered only a part of their alleged debt was supported by the pleadings.</p> <p>7. Assignment of Error.'</p> <p>Under an assignment of error which complains that a verdict was not supported by the pleadings, the court can not consider a question as to the failure of the jury to find in response to the charge.</p>

<p>Appeal from McLennan. Tried below before Hon. L. W. Goodbich.</p>

<p>1. Adverse Possession—Community Property After Divorce.</p> <p>The possession by the husband, after divorce, of community property purchased during the marriage, would, in the absence of proof that it was bought with his separate means, be that of a cotenant with his former wife, and not adverse, unless he repudiated her rights as cotenant, and such repudiation was with her actual knowledge, or so notorious as to authorize presumption thereof. Charges on limitation in such case should present these principles.</p> <p>2. Same—Recognition of Cotenant’s Rights.</p> <p>If, at any time after dissolution of the marriage, such former husband, though previously holding in hostility, recognized his cotenant’s rights, his possession ceased to be adverse, and limitation did not begin to run until he again repudiated her right notoriously, or with her knowledge.</p> <p>3. Community Property—Hot Forfeited by Misconduct.</p> <p>In a suit by the divorced wife to recover, not her homestead rights, but her community interest in the homestead, it was improper to admit in evidence the husband’s petition charging her with adultery as ground for the divorce, since no misconduct would divest her of her community interest in the land.</p> <p>4. Estoppel—Adverse Possession—Evidence.</p> <p>A conveyance by the husband to a third party, since the wife did not claim under it, did not estop him from claiming the land as against her; but it could be considered by the jury in determining whether his possession was adverse to the wife.</p>

<p>Jurors—Misconduct.</p> <p>Where two of the jurors, during the progress of the trial, dined at a restaurant with plaintiff and at his expense, a verdict in his favor should be set aside. It is impossible in such a case to determine whether harm or improper influence resulted, and the best policy is to prevent it altogether.</p>

<p>Appeal from Travis. Tried below before Hon. F. G. Morris.</p>

<p>1. Usurious Notes—Money Advanced to Pay.</p> <p>One who advances money to another to pay notes of the latter bearing usurious interest, taking an assignment of the notes to himself as collateral security, can recover the money so advanced, though he knew of the usury in the notes; but can not recover upon the notes themselves, whether he knew of the usury or not.</p> <p>2. Mechanic’s Lien—Homestead—Preparations to Build.</p> <p>A lot intended for a residence by the owner, who has made preparations to build evidencing such intention, becomes thereby designated as his homestead, and can not thereafter be incumbered by a mechanic’s lien for the construction of the dwelling, except in the manner pointed out by the statute for creating such liens upon the homestead.</p> <p>3. Acknowledgment—Officer Disqualified by Interest—Homestead.</p> <p>A wife’s aeknowledment of a contract with a building association for a mechanic’s lien upon the homestead, taken before a notary who was secretary of the association, was its principal stockholder, and was interested in the contract to the extent of 10 per cent commission, was invalid and created no lien.</p> <p>4. Limitation.</p> <p>Plaintiff could recover money advanced to defendant to take up his notes to another, though the notes, which were assigned to plaintiff as collateral, had become barred by limitation.</p>

<p>Appeal from the County Court of Dallas. Tried below before Hon. T. F. Hash.</p>

<p>District Court—Certiorari to County Court—Discretion.</p> <p>The District Court will not revise an order of the County Court upon a question of discretion alone, as that involved in the objection that the sale of the ward's land was for a grossly inadequate price.</p>

<p>1. Trespass to Try Title—Eight of Part Owner to Full Eecovery Against</p> <p>Trespasser.</p> <p>That plaintiff in trespass to try title' owns only an undivided interest in the land will not abridge his right to a full recovery against a mere trespasser.</p> <p>2. Same—Pleading Common Source Hot Hecessary.</p> <p>That plaintiff in trespass to try title has not pleaded common source of title will not debar him from proving such common source.</p> <p>3. Same—Proof of Common Source.</p> <p>Where the proof offered by plaintiff in trespass to try title showed title in himself from one F., and a chain of title from the heirs of F. to the lessor of defendants sufficient to have invested him with the title had not F. already conveyed it, this was sufficient to show F. to be the common source.</p>

<p>Appeal from Galveston. Tried below before Hon. William H. Stewabt.</p>

<p>•1. Flea in Abatement—Due Order—Two Answers Considered One.</p> <p>Where two papers filed on successive days were both styled “Original Answer,” and the second alone contained a plea in abatement, in order to give the party the benefit on appeal of all of his assignments of error, it was held that the two papers should be considered as one answer, and the plea in abatement being filed out of due order should not be considered.</p> <p>2. Bill of Exceptions—Absence of—Forcing to Trial.</p> <p>Alleged error in forcing defendants to a trial on appearance day, in the absence of their attorney of record, will not be considered on appeal, where there is no bill of exceptions in the record complaining of such action.</p>

<p>1. Corporation—Partnership With Individuals.</p> <p>A corporation chartered under the general laws of Texas is not authorized to form a partnership with individuals, even though the business to be transacted by such partnership is of the character authorized by the corporation’s charter.</p> <p>2. Same—Statute Does Not Authorize Such Partnership.</p> <p>The power given to corporations by article 651 (subdivision 7), Devised Statutes, 1895, “to enter into any obligation or contract essential to the transaction of its authorized business,” does not confer the right to enter into contracts contrary to public policy, such as a partnership with individuals.</p> <p>3. Illegal Contract—Recovery for Future Profits Denied.</p> <p>A corporation can not recover, as damages for the breach of an illegal contract for partnership between it and individuals, the probable profits which might have been realized had the partnership been continued until the expiration of the agreed time, the entire contract being vitiated by the illegality.</p>

<p>Tellow-Servants—Who Are.</p> <p>Ail engineer in charge of á road engine, in a railroad yard temporarily for the purpose of taking out a train, is not, under Revised Statutes 1895, article 4560g, a fellow-servant of the foreman and members of the yard crew.</p>

<p>1. Railway Company—Killing Stock—Evidence.</p> <p>In an action against a railroad company for the value of an animal killed by its engine within the city limits, it is error to admit evidence showing the usual speed of the defendant’s trains, before and after the accident, at that point.</p> <p>2. Same—Interest Recoverable from Date of Killing.</p> <p>The statute which makes railway companies Whose tracks are not fenced liable “for the value of all stock killed or injured,” etc., does not change the common law rule which allows interest on such value from the date of the killing or injury. Railway v. Muldrow, 54 Texas, 233, criticised and not followed.</p> <p>3. Same—Charge—Negligence—Eailure to Ring Bell, Etc.</p> <p>In an action for the value of an animal killed by a train within a city whose ordinances prohibited such animals running at large, it was error for the court to charge that the defendant company was guilty of negligence if, at the time of the killing, its train was being run at a rate exceeding six miles per hour, or if the bell or whistle was not sounded at the public crossings there.</p> <p>4. Same—Liability in City Limits—Gross negligence.</p> <p>A railway company is liable for the value of an animal killed by its train at a point, where it is not required to fence its track, and where such animals are prohibited by ordinance from running at large, only where its servants have been guilty of gross negligence, such as a failure, after seeing the animal on the track, to use such efforts as an ordinarily prudent man would have used to prevent the injury.</p>

<p>Appeal from Johnson. Tried below before Hon. J. M. Hall.</p>

<p>1. Sale of Machinery—Warranty—Agreed Test.</p> <p>When the seller of machinery warrants its quality and. capacity, and the contract of sale provides that, before the purchaser shall be bound, the machinery shall be put in operation and tested, and when the test has been fairly made, and the purchaser has accepted the property and executed his notes therefor, he can not claim damages, either in offset against the notes or for breach of warranty. Following Press Co. v. McKellar, 86 Texas, 694.</p> <p>3. Charge of Court—Issue Without Evidence.</p> <p>Where there was no -issue in the evidence as to whether the copy of the contract sued on was a correct copy of the original, it was misleading and prejudicial for the court to charge that the burden of proof was on plaintiff to show that such copy was correct.</p> <p>3. Verdict and Judgment Must Conform with Each Other.</p> <p>In an action on notes, where the defendant pleaded failure of consideration and breach of warranty, and the verdict found “for defendant damages to the amount of $590,” without finding as to defendant’s liability on the notes, the court was not warranted in deducting from said sum the amount of the notes and entering judgment against the plaintiffs for the remainder.</p>

<p>Appeal from Dallas. Tried below before Hon. R. E. Burke.</p>

<p>1. Lien—Assumption of by Purchaser—Validity—Estoppel.</p> <p>Where a purchaser of property subject to a lien assumes by the terms of his purchase the payment of the lien, he is estopped to deny its validity.</p> <p>2. Same—Debt Not Assumed, When.</p> <p>Where the purchase is made subject to the lien, but without an assumption of the lien debt, or deduction of its amount from the agreed price of the property, the purchaser is not personally liable for the debt or any part of it which can not be made out of the property.</p>

<p>Contribution. Among Tort-Feasors—Wrongful Levy of Attachments.</p> <p>Where three creditors bring separate suits against the same defendant for separate debts, and severally sue out writs of attachment, which are levied at the same time upon the same stock of goods, but in successive order, as writs numbers one, two, and three, and the defendant reconvenes for damages for wrongful levy in the suit brought by creditor number one, and recovers judgment against him for about the value of the stock of goods/ the mere fact that the plaintiff creditors all had the same agent and attorney in bringing the suits and levying the writs is not sufficient' to render the latter two liable to the first one for a proportionate part of the amount so recovered against him by the defendant debtor.</p>

<p>Appeal from Harrison. Tried below before Hon. W. J. Graham.</p>

<p>1. Partnership—Liability of Firm For Acts of One Partner.</p> <p>The liability of a firm of real estate and loan brokers for the conversion by one ■of them of a customer’s money placed with them to loan does not depend on the fact that the transaction was had by the customer with such member alone, and that the other member had no knowledge of it and received no benefit from it, but upon whether the transaction was in the ordinary scope and manner of the firm business, the customer knowing at the time the money was delivered to the one partner that the partnership then existed. •</p> <p>2. Same—Circumstances Not Putting on Notice of Fraud.</p> <p>The fact that the lender, relying on the honesty of the partner with whom he dealt, failed to examine a deed of trust given as security for the money, and the certificate thereto, did not show such want of care as would defeat his right of recovery, although an examination would have shown that the certificate of record had an impossible date, and that the certificate of acknowledgment was without' seal.</p> <p>3. Same—Facts Not Showing an Individual Transaction.</p> <p>The mere fact that, a transaction within the scope of the firm business was had personally with one of the firm, and originated in a suggestion made to him by the customer, before the partnership was formed, will not warrant a finding that it was had with such partner individually.</p>

<p>Plea of Privilege—Continuance by Plaintiff—Acquiescence by Defendant— Effect.</p> <p>A plaintiff by entering a continuance, in the absence of defendant, can not deprive the latter of his right to insist upon a plea of privilege to be sued in the county of his residence previously tiled by him; nor does the latter’s acquiescence in the continuance after it has been entered have such effect.</p>

<p>Appeal from the County Court of Nueces. Tried below before Hon. W. B. Hopkins.</p>

<p>Appeal from Jasper. Tried below before Hon. Stephen P. West.</p>

<p>1. Written Instrument—Court Should Construe—Expert Evidence Inadmissible, When.</p> <p>It is the duty of the court to construe written instruments, and expert evidence as to their meaning is inadmissible1 where the meaning can be determined from the face of the writing.</p> <p>Z. Construction of Contract.</p> <p>A contract calling for an iron fence forty-three inches in height does not necessarily require that the pickets should be forty-three inches in length, where it is shown that such fences are usually constructed so that the pickets are two inches above the ground at them bottom end, and the illustration or cut of the fence exhibited when the contract was made shows a fence constructed in that way.</p> <p>■3. Same—Immaterial Variance.</p> <p>An immaterial variance as to the thickness of the pickets between those furnished and the ones called for in the contract, will not constitute a breach of contract.</p> <p>4. Same—Estoppel.</p> <p>In an action against the county for the contract price of a fence, an order of the Commissioners’ Court and a letter of the county judge rejecting the fence on the ground of a single specified objection, will not estop the county from asserting other grounds of objection and noncompliance with the contract in defense.</p>

<p>1. Husband and Wife—Community Property—Sale by Husband.</p> <p>Where the legal title to community land is in the husband, one who purchases from him, after the death of the wife, without notice of the community interest, is protected. -</p> <p>2. Same—Purchaser Must Be Put on Inquiry.</p> <p>Possession by the vendor of muniments of title showing the legal title in him is a sufficient guaranty to the purchaser that the title is as.the papers show it to be, and a purchase upon the faith of such evidences is entitled to protection against those for whom the legal title may be held in trust, unless circumstances are brought to the attention of the purchaser sufficient to suggest an inquiry as to the existence of the equitable title.</p>

<p>• Error from the County Court of Brazos. Tried below before Hon. V. B. Hudson.</p>

<p>Appeal from Jasper. Tried below before Hon. Stephen P. West.</p>

<p>Appeal from Jefferson. Tried below before Hon. Stephen P. West.</p>

<p>Appeal from Bosque. Tried below before Hon. J. M. Hall.</p>

<p>Usury—Compromise—^Penalty. 1</p> <p>A compromise of' a suit on a note in which the plea of usury had been interposed eliminates the,feature of usury, and the defendant can not thereafter maintain an action for the penalty provided by the statute.</p>

<p>Appeal from Parker. Tried below before Hon. J. W. Pattebson.</p>

<p>1. Land Certificate—Location and Conveyance—Effect of Relocation.</p> <p>A conveyance of an interest in a land certificate described with reference to an existing location entitles the grantee to a corresponding interest in land thereafter patented on a relocation of such certificate.</p> <p>2. Adverse Possession—Tenants in Common—Notice of Repudiation.</p> <p>The possession of land by one tenant in common can not be adverse as to his co-tenants until notice is brought home to the latter of the repudiation of their rights as cotenants.</p> <p>3. Registration—Conveyance of Land Certificate—Relocation.</p> <p>The due registration in one county of a conveyance of an interest in a land certificate originally located in another county, but subsequently relocated in the former county, is constructive notice of the rights of the grantee in the land on which the relocation is made.</p> <p>4. Land Certificate—Relocation—Effect on Wife’s Interest.</p> <p>The interest of a widow in land on which a certificate issued to her husband is relocated is only such as she would have been entitled to under the original location.</p>

<p>1. Judicial Sale—Insufficient Advertisement.</p> <p>An execution sale of land for only 1 per cent of its value will be set aside where the sale was-advertised only in a two-sheet, three-column paper, 9x12 inches in size, whose circulation was less than 300, and did not extend at all to the place where the execution defendant resided, and he did not know of the levy until half an hour before the sale, and at once telegraphed the sheriff net to sell, and tendered the full amount of the judgment on the same day, which was refused, but was paid in full a few weeks later.</p> <p>2. Charge of Court—Harmless Error.</p> <p>In an action to set aside a sheriff’s sale of land, a charge that if there was any such irregularity by plaintiff or his agents or attorneys, “or any other person,” as tended to affect the price, it would invalidate the sale, although too broad, is not ground for reversal, where no conclusion could have been reached under the evidence other than that the sale should he set aside for want of sufficient advertisement and for inadequacy of price.</p>

<p>1. Pleading—Matter of Defense—Forfeiture.</p> <p>A condition in an insurance policy which works a forfeiture if not complied with must be specially set up in the answer in an action on the policy, to be' available.</p> <p>2. Deed by Sole Stockholder of Corporation—Validity.</p> <p>The grantee in a warranty deed executed by the substantial owner of all the capital stock of a corporation which owned the land is a sole, absolute, and unconditional owner of such land in fee simple, within the terms of an insurance policy providing that it shall be void if the insured is not such an owner.</p> <p>3. Deed in Individual Capacity by Survivor in Community.</p> <p>A deed executed by the grantor in his individual capacity, with covenants of general warranty, passes the title vested in him as survivor in community.</p>

<p>Appeal from Hall. Tried below before Hon. G. A. Brown.</p>

<p>1. Expert Testimony—Train Leaving Track.</p> <p>Expert testimony is admissible to show that in the ordinary course a sound truck under an empty car would not have been broken within sixty feet after leaving the track; and that an empty car on a sound truck would not have left a straight track. when going at fifteen or eighteen miles an hour.</p> <p>2. Charge of Court—Railroad Company—Duty to Furnish Safe Appliances.</p> <p>A charge that a railway company is bound to furnish safe machinery and appliances for use by its employes in operating its road, and that if ordinary and reasonable care is not exercised by the company to do this, it is responsible for injuries to employes caused by such neglect, is not objectionable as absolutely requiring the company to furnish safe machinery.</p> <p>3. Master and Servant—Risks Incident to Employment.</p> <p>A railroad employe assumes all the risks ordinarily incident to the employment, but he has a right to rely on the company's implied promise to furnish safe machinery, and it is not his duty to inspect the appliances furnished him, but he takes the risk of such secret defects as can not be discovered by ordinary diligence, and no more.</p> <p>4. Railroad Company—Duty to Inspect Foreign Cars.</p> <p>A railroad company owes its employes the duty of inspecting foreign ears which go-into its trains, as much as that of inspecting its own cars.</p> <p>5. Verdict—Evidence Sustaining—Railroad Accident.</p> <p>A finding that a ear, or the trucks, wheels, or bolsters, or some other part of the outfit, was .defective, is sustained by evidence that such car, while the train was running at ordinary speed, dropped at one corner and left the.rails, and that its trucks became detached and were found broken after the accident.</p>

<p>1. Evidence—Written Bill of Sale—Additional Consideration.</p> <p>Parol evidence is inadmissible, in the absence of fraud, accident, or mistake, to show that an additional consideration for a bill of sale reciting a money consideration was an agreement to furnish the purchaser with such affidavits,' certificates, and proofs of pedigree of the stock purchased as would enable him to procure their registration in any association.</p> <p>2. Fraud—Damages—Deceit in Sale of Horses.</p> <p>A seller of horses, who, with the design of cheating and deceiving the purchaser, and without any intention of performing the same, promises to furnish him such affidavits, certificates, and proofs of pedigree of such horses as will enable him to procure their registration in any association, is liable for damages.</p> <p>3. Same—Representations in Sale of Horses.</p> <p>A false representation by a seller of horses that they are standard-bred trotting horses, and eligible and subject to registration as such in any association in the United States, is actionable fraud.</p>

<p>1. Agency—Collection of Money—Express Authority Vel Mon.</p> <p>A banker who fills out in duplicate for the borrower blank mortgages and notes sent to him by the lender, for the amount of the loan, sending the original mortgage to the latter, together with a note executed by the borrower and indorsed by himself, and a draft drawn on him by the borrower in the banker’s favor for the amount of the loan, which is honored by the lender if the loan is approved, is not an express agent to collect the note.</p> <p>2. Same—Same—Implied Authority Vel Mon.</p> <p>A letter sent by a lender of money secured by a mortgage'to the lender’s agent for the solicitation of the loan, permitting the borrower to sell the mortgaged property, but requiring the net proceeds to be remitted to him at his residence, where it is to be placed to the credit of the borrower on account, does not authorize such agent to col, lect the amount of the debt.</p>

<p>1. Deed—Condition Subsequent—Breach—What Is.</p> <p>A condition in a deed to land that no spirituous liquors shall be sold on the premises until the town is “legally” incorporated, is not broken by such sale after the town has been incorporated, notwithstanding a subsequent dissolution of the corporation, by quo warranto.</p> <p>3. Same—Same—Revival After Performance. •</p> <p>The dissolution of a municipal corporation by quo warranto does not revive a condition in a deed to land within the town, prohibiting the sale of liquor on the premises until the town is “legally” incorporated.</p> <p>3. Same—Same—Waiver of Forfeiture.</p> <p>The right of forfeiture for breach of a condition in a deed is lost by failure to take any steps to claim the forfeiture for three years after the breach.</p>

<p>Venue—Status of Survivor in Community.</p> <p>A surviving wife who has qualified as survivor in community is not an administratrix, and must be sued for a community debt in the county of her residence.</p>

<p>1. Survey—Conflicting Calls.</p> <p>Upon the evidence in this case, an instruction allowing the jury to ascertain the boundaries of a survey by course and distance from an ascertained comer of another survey was erroneous, because it permitted them to disregard ascertainable corners of other connecting surveys which might bear upon the question of the true location.</p> <p>2. Same.</p> <p>Such charge was also erroneous in disregarding evidence (acts and declarations of the locating surveyor in making subsequent adjoining surveys) tending to identify the actual location of the line in controversy, upon the ground, without reference to the corner assumed in the charge as controlling.</p> <p>3. Same—Question of Fact.</p> <p>See evidence under which the location of the lines of a survey was a question of fact for the jury, and the charge should not have suggested that they control their finding by any one portion of the testimony.</p> <p>4. Liens—Foreclosure—Harmless Error.</p> <p>Defendants, pleading failure of consideration to a suit on one of several vendor’s lien notes, made the holder of another of such notes, not yet due, a party to the suit, but, not having prayed for an adjustment of the rights of all the parties, they were not entitled to complain of the action of the court in denying a recovery on such other note because not yet due.</p> <p>5. "Vendor’s Lien—Foreclosure— Mote Mot Due.</p> <p>In a proceeding to foreclose one of several vendor’s lien notes given on sale of the same tract of land, all the notes secured by the lien, though one was not yet due, could and should have been prosecuted to judgment in one suit.</p>

<p>1. Limitation—Constructive Possession—Tenant of Part.</p> <p>Defendant having color of title, by a regular chain of conveyances, to the land in controversy (plaintiff being an innocent purchaser from heirs of a patentee, whose deed, a link in defendant’s title, was unrecorded), had no inclosure or improvements thereon, except a garden and dwelling house, rented to a tenant and so occupied for three years before" suit. In connection with incidental use of the uninclosed portion for grazing purposes (for particulars of which see opinion), such tenant’s occupancy gave the defendant possession to the limits of his deed. (Following Bowles v. Brice, 66 Texas, 724).</p> <p>2. Same—Possession of Part by Tenant.</p> <p>In the opinion of Justice Key, there should be no distinction between actual possession of part by the claimant himself and that by his tenant, but both should be held to extend by construction to the limits of claimant’s deed, though a sale by the claimant of the part in his actual possession would terminate his constructive possession of the remainder.</p>

<p>1. Abstract of Title—Omission—Damages—Pleading.</p> <p>See petition, seeking damages for omission of names of adverse claimants of land from abstract of title, whereby plaintiff, failing to bring suit against them in time, lost his title by limitation, held insufficient to show the last named fact, plaintiff having recovered judgment against, and afterwards settled with and released to such claimants, and failing to allege facts showing such concession of title to them to be justified.</p> <p>3. Same—Withdrawal of Pleading.</p> <p>It was not an abuse of discretion for the court to refuse to permit plaintiff to withdraw his supplemental petition after rulings on demurrer, and to stand on his original petition, especially when the result would have been, the same.</p>

<p>1. Parol Evidence to Show Deed a Mortgage.</p> <p>Parol evidence is admissible to show that purported conveyances by deed absolute and a contemporaneous written agreement reciting privilege of repurchase, notwithstanding it contains admissions that the deed was not intended as a mortgage, still, in the absence of testimony showing that they had been relied on in such a manner as to constitute an estoppel, were intended as a mortgage to secure the loan of money.</p> <p>3. Same—Lease Contract—Disputing Landlord’s Title.</p> <p>Though, under the instruments, defendants were tenants of plaintiff, they could show the truth and dispute his title.</p> <p>3. Trespass to Try Title—Pleading—Special Defense—General Issue.</p> <p>The suit being one- to recover land in trespass to try title, by virtue of a conveyance thereof by defendant, and not for foreclosure of a mortgage, a special plea merely that t'he land was defendants’ homestead when the conveyance was made presented no defense, and did not authorize the introduction of evidence. Such plea would not prevent the defendants from showing, under their plea of not guilty, that the conveyance was in fact a mortgage, and void because given on the homestead.</p> <p>4. Deed Intended as Mortgage—Subsequent Purchaser.</p> <p>A purchaser from the grantee, with notice that the latter’s deed was intended as a mortgage, would acquire only such rights as his grantor had.</p> <p>5. Same.</p> <p>If the deeds by defendants, absolute on their face, were intended to operate as mortgages, defendants being in possession of the land, plaintiff could not recover it, though his mortgage lien was valid and defendants had defaulted in the payment of the secured debt. Plaintiff’s remedy woidd be a suit to foreclose his lien.</p>

<p>1. Failure of Consideration—Flea—Verification—Waiver.</p> <p>. Failure of defendant to verify by affidavit a plea of failure of consideration, as required by the statute, is waived where plaintiff goes to trial without excepting to it on that ground, but urges his objection to evidence offered to sustain the plea.</p> <p>2. Same—Cases Discussed.</p> <p>Pickett v. Abney, 84 Texas, 618, dissented from; eases holding an unverified plea of non est factum or denial of partnership insufficient distinguished, because such pleas change the burden of proof; and Bankert v. Clow, 16 Texas, 10, and later cases to same effect followed.</p>

<p>Usury—National Bank—Penalty.</p> <p>One who has paid to a national bank interest in excess of the legal rate may recover back, under Revised Statute^1, U. S., sec. 5198, double the entire amount of interest paid. His recovery is not limited to double the amount in excess of the legal rate.</p>

<p>Surface Water—Obstruction of Mow.</p> <p>The common law ride that an adjoining proprietor is not liable for the diversion of surface water upon the land of his neighbor, is recognized in this State in Gross v. City of Lampasas, 74 Texas, 197. But such case is distinguishable from that here presented, in which the obstruction complained of was of a watercourse, a branch of a neighboring creek, and containing running water most of the time; and a petition showing damages to plaintiffs premises thereby stated a cause of action.</p>

<p>Appeal from the County Court of Fayette. Tried below before Hon. W. S. Robson.</p>

<p>1. Deed—Description of Land—Sufficiency.</p> <p>A description of land in a deed as being part of a specified league, beginning at a designated corner, “thence N. 45 E.-vrs.; thence N. 45 W.-vrs.; thence E. 45 S.-vrs., to the place of beginning,” containing a specified number of acres, is insufficient to convey any land.</p> <p>2. Execution Sale—Equitable Eight—Notice—Effect.</p> <p>An execution creditor who is notified by the execution debtor that the land levied upon has been purchased from him for value by a specified person, and a deed made to her, but that by mistake the land conveyed was not described therein, can not, by purchasing at such sale, defeat the equitable right of the grantee in such deed to have the same reformed so as to properly describe the land.</p> <p>3. Deed—Insufficient Description—Correction by Second Deed.</p> <p>A defect in a deed in failing to properly describe the land conveyed may be corrected by the grantor’s giving a second deed properly describing such land.</p>

<p>Appeal from Wharton. Tried below before Hon. T. S. Reese.</p>

<p>Appeal from Bexar. Tried below before Hon. J. L. Camp.</p>

<p>Appeal from Harris. Tried below before Hon. S. H. Bbasheak.</p>

<p>Mortgage—Foreclosure—Bight of Junior Mortgagee.</p> <p>A junior mortgagee can not elect to transfer his lien after a sale under the first mortgage, which did not in any way affect him, to the surplus derived at such sale, but must resort to the land.</p>

<p>Appeal from Houston. Tried below before Hon. J. R. Bubeett.</p>

<p>Appeal from Harris. Tried below before Hon. S. H. Bbasheab.</p>

<p>1. Impaneling Jury—Objection to Talesman.</p> <p>Where it is discovered, after the selection of a jury, that one of them is missing, and can not be found, the action of the court in permitting a talesman to go on the jury, over objections of one of the parties who had exhausted all his peremptory challenges, is not reversible error, where there is no showing of any valid objection to such last juror, or that he would have been challenged peremptorily, if the party objecting had had any further peremptory challenges, or that such party demanded a re-selection of the jury and a new list of the regular jurors actually in attendance, as the statute contemplates.</p> <p>3. Charge of Court—Abandonment of Homestead.</p> <p>It is not error for the court to refuse a charge which requires that the evidence clearly establish an abandonment of the homestead.</p> <p>3. Homestead—Abandonment—Wife’s Intention to Beturn.</p> <p>The husband and wife having left the homestead and taken board elsewhere, and the wife having then left the husband and gone to another State with another man, her intention to return to. the homestead does not preserve her homestead right therein as against a purchaser of the property from the husband during her absence, who is without actual or constructive notice of her intention to return.</p> <p>4. Same-=-Cases Discussed and Doubted.</p> <p>Portwood v. Newberry, 29 Texas, 337, and Hudson v. Wynne, 66 Texas, 9, discussed, and doubted in so far as they intimate that where husband and wife have ceased to use the homestead, the intention of the husband alone not to return and use the property is sufficient to authorize its full conveyance by him.</p> <p>5. Practice on Appeal—Erroneous Charge.</p> <p>Appellant can not complain of error in the charge of court favorable to himself.</p>

<p>Illegal Contract—Liability of Agent to Principal.</p> <p>While the law will not aid in the enforcement of illegal contracts, such as dealing in futures, yet where an agent has received money from a third person belonging to his principal, although coming from the prosecution of the illegal enterprise, he will be held liable to his principal for the money so received.</p>

<p>1. Community Property—Deed of Trust—Joinder of Wife.</p> <p>The joinder of the wife in a deed of trust to community property is not necessary.</p> <p>2. Same—Same—Consideration—Innocent Purchase.</p> <p>A previous indebtedness is sufficient consideration for a mortgage on community property executed by the husband alone, although the mortgagee is not an innocent purchaser if there was no other consideration than the antecedent debt.</p> <p>3. Homestead—Abandonment—Proof.</p> <p>The rule that the abandonment of a homestead once acquired must be shown by clear and unmistakable proof, and that when a doubt exists in respect to such issue it must be resolved against the theory of abandonment, does not apply where another place answering the purposes of a home has been obtained and settled upon and used with all the externals of a home, and the decisive question is whether the intention to abandon existed.</p> <p>4. Same—Same—Pact Case.</p> <p>That one on leaving a homestead in a city on which a butcher’s shop is located, and staying away two years in the country, during which time the homestead dwelling is rented or offered for rent, leaves some household furniture in the butcher’s shop, and uses the same during casual visits to town, does not prevent the abandonment of the homestead.</p>

<p>1. Common Law Marriage Without License—Second Marriage Invalid.</p> <p>Where a marriage ceremony without license was celebrated between a man and woman, and they afterwards lived together for several years as husband and wife, a valid common law marriage was effected, and the woman could not, her common law husband still living, contract with another man a valid marriage under license and the forms prescribed by statute.</p> <p>S. Same—Homestead Bight of Common Law Wife.</p> <p>The grant of a homestead donation to a man as the head of a family inures to the benefit of his common law wife, with whom he was not living at the time of the grant, nor at any time during his residence on the land, and not to that of a woman with whom he had contracted an invalid marriage at the time of the grant, and who then lived with him, but who had, prior to her marriage with the deceased, contracted a valid common law marriage with another man, still living and from whom she had not been divorced.</p> <p>3. Same—Community Eight as Partner of Wife Hot Lawfully Married.</p> <p>Where a man and woman not lawfully married to each other live together as husband and wife, and acquire personal property by their joint labor, she is, at his death, entitled as a partner to a share of the personal property thus acquired. Following Morgan v. Morgan, X Texas Civil Appeals, 315.</p>

<p>Appeal from Anderson. Tried below before Hon. James R. Bubmett.</p>

<p>Appeal from Angelina. Tried below before Hon. Tom 0. Davis.</p>

<p>Appeal from Bexar. Tried below before Hon. Robert B. Greek;</p>

<p>1. Land Certificate—Joint Owners—Location.</p> <p>The owner of a land certificate for 6Í0 acres sold and assigned an undivided one-fourth interest therein, and afterwards a tract of 160 acres was located by virtue of the certificate. The surveyor’s records recited that the survey was made for the original owner, but the patent, which issued after the rights of the adverse claimants in this case had attached, issued to the assignee of the one-fourth interest; Held, that in the absence of more specific evidence as to the intention of the parties in having the location made, it would be presumed that it was made for the benefit of both, as tenants in common, in proportion to their interests in the certificate.</p> <p>2. Bona Fide Purchaser at Execution Sale.</p> <p>By force of the registration laws a purchaser of land at execution sale, for value and without notice of prior claims thereto, takes the land as against such claims, and the fact that patent to the land has not issued does not prevent such application of the registry laws.</p> <p>3. Uotice—Filing Transfer in General Land Office—Case Distinguished.</p> <p>The case of Dodge v. Littler, 73 Texas, 320, reviewed, and declared not to announce the rule that the filing of a transfer of a land certificate in the General Land Office is constructive notice of such transfer.</p> <p>■ 4. Execution Sale—Proof of Levy.</p> <p>Where it appeared at the trial that the execution was lost, but the execution showed the issuance thereof, and the sheriff’s deed, which was over thirty years old, recited the levy of the execution on the land, this was sufficient proof of a valid levy of the execution.</p>

<p>1. Assignment of Cause of Action—Sufficiency.</p> <p>Words importing a sale and conveyance and an agreement to pay and deliver to the assignee one-half of whatever sum may be realized out of and collected from a railroad company by virtue of a claim for personal injuries, are sufficient to transfer one-half of the cause of action.-</p> <p>2. Charge of Court—Railroad Accident Hot at Crossing.</p> <p>A requested charge making the liability of a railroad company for injuries to one struck by an engine conditional upon the actual discovery of his peril by the operatives of the train, if he was struck away from a public crossing, is properly refused where there is evidence that the place where he was struck was, with the knowledge of the company, commonly used by persons traveling on foot from one part of the city to another.</p> <p>3. Assignment of Cause of Action—Subsequent Settlement by Assignor.</p> <p>The assignee of a part of a cause of action is not bound by any settlement subsequently made by the assignor with the defendant, and may prosecute the suit commenced by the former in his own behalf to the extent of his interest..</p>

<p>Homestead—Abandonment.</p> <p>The acquiring of another residence for temporary occupancy will not operate as an abandonment or forfeiture of the homestead.</p>

<p>Appeal from Fannin. Tried below before Hon. E. D. McClellan.</p>

<p>Appeal from Fannin. Tried below before Hon. E. D. McClellan.</p>

<p>1. Negotiable Instruments—Purchaser for Value—Failure of Consideration</p> <p>A purchaser of a note for value before maturity is entitled to recover thereon against the maker, notwithstanding a failure of consideration, unless he had actual or constructive notice thereof.</p> <p>8. Secondary Evidence—Letter Not. Accounted For.</p> <p>Secondary evidence of the contents of a letter is inadmissible ‘without accounting for its absence or giving notice to the opposite party to produce the same.</p> <p>8. Pleading—Partnership, Incidentally Alleged—Necessity for Denial.</p> <p>In an action on a promissory note, where defendant, in order to charge plaintiff with notice of a failure of consideration, has set up a partnership between the plaintiff and the payee in the note, plaintiff is not required to deny such partnership under oath.</p>

<p>1. Commercial Eatings—Detailed Statement of Merchant—Duty to Exam-</p> <p>ine. .</p> <p>The seller of goods is entitled to rely upon the commercial rating of the buyer based upon the buyer’s detailed statement, and is not bound to examine the detailed statement for himself.</p> <p>2. Sale—Fraud of Buyer—Eescission.</p> <p>Where a purchaser of goods had made false statements as to his indebtedness, to commercial agencies, and the seller was induced to make the sale in reliance upon the credit given him by such commercial agencies from such statements, and the purchaser had executed a deed of trust for certain creditors before the arrival of the goods, which was held open and made to cover the goods immediately upon, their arrival, held, that the sale was consummated by fraud and the seller was entitled to a rescission.</p>

<p>1, Judgment in Joint Action Held Final.</p> <p>Plaintiffs action was in Justice Court upon an account for goods against the buyer and a guarantor, and the judgment rendered (there being no jury) was, that “plaintiffs failed to make a case against defendant H., the guarantor. " It is therefore ordered (etc.), that plaintiffs take nothing by this suit, and that defendant H. go hence without day.” Held, a final-judgment against both-the defendants; and,that if, as the record upon its face indicates, the other defendant appeared with H. and defended the suit, the judgment as rendered would be a bar to plaintiff’s recovery in •another suit, upon the same cause of action, against such other defendant.</p> <p>.2. Verified Account—Affidavit Hot Impeachable Without Counter Affidavit.</p> <p>Where plaintiff sues upon a verified accohnt, defendant will not be permitted to impeach the credibility of the affiant, who swears to the account and his knowledge of its justice, unless he has filed a counter affidavit, as required by the statute.</p> <p>3. Same—Payment or Offset May Be Proved -Without Counter Affidavit.</p> <p>Where plaintiff sues upon an account verified under the statute, the absence of the statutory counter affidavit will not preclude defendant from proving that the account has been paid in whole or in part, or from proving a counterclaim.</p>

<p>Appeal from Smith. Tried below before Hon. Felix J. McCord.</p>

<p>Appeal from Galveston. Tried below before Hon. William H. Stbwabt.</p>

<p>Error from Harris. Tried below before Hon. S. H. Brashear.</p>

<p>Appeal from Waller. Tried below before Hon. T.. S. Reese.</p>

<p>1. Mandamus—Insufficiency of Petition Por.</p> <p>A petition for a mandamus to compel the authorities of a public school to reinstate a pupil therein, alleging that the pupil had been wrongfully suspended and dismissed therefrom, but failing to state tbe grounds of such dismissal, is insufficient to authorize a grant of the writ.</p> <p>2. Same—Does Hot Lie to Control Public School Officers, When.</p> <p>A petition for mandamus to compel certain public school authorities to reinstate a pupil in the public schools, which fails .to show that application was made to any of the school authorities to have the pupil reinstated, does not show a case that would authorize the -writ.</p>

<p>Principal and Surety—Discharge of Sureties.</p> <p>Sureties for the performance of a contract for an advance by H. to M. of $1000 to be used by M. in the purchase of a specified number of cattle of designated classes, to be passed upon, graded, and counted at a specified place, and delivered free from all expense to H., who was to pay the balance on the delivery of the cattle, are released from liability where'H., before the time for delivery, without the knowledge of the sureties, pays M. $650 in addition to the $1000 specified in the contract, this being a material alteration of its terms. Following Eyan v. Morton, 65 Texas, 258.</p>

<p>1. Evidence—Transactions With Decedent.</p> <p>In an action against an administrator for board of the intestate, evidence of plaintiff that such intestate had lost her position and did not have ready cash to meet her current expenses for room rent with her landlord, and came to plaintiff to get her to board her, and that she was not working for plaintiff for her- board, is inadmissible.</p> <p>3. Appeal Erom Justice Court—Bond—Sufficiency of Condition.</p> <p>On appeal from the Justice Court to the County Court, an appeal bond conditioned as follows is sufficient: “That H., the appellant, shall prosecute her appeal to effect, and shall pay off and satisfy the judgment which may be rendered against her on such appeal.”</p>

<p>Appeal from Stephens. Tried below before Hon. T. H. Conner.</p>

<p>Pleading—Question of Law—Admissibility of Evidence.</p> <p>Evidence as to the intention of the parties in signing a deed to land is inadmissible under an allegation that such deed, when read in connection with ,a contract to resell, constituted in legal contemplation a mortgage, the question being one of law. to be determined from the face of the instruments themselves.</p>

<p>Appeal from Potter. Tried below before Hon. H. H. Wallace.</p>

<p>Appeal from Wichita. Tried below before Hon. George E. Miller.</p>

<p>Appeal from Tarrant. Tried below before Hon. Irby Dunklin.</p>

<p>Appeal from Tarrant. Tried below before Hon. Ibby Dunklin.</p>

<p>1. Evidence—Self-Serving Declarations.</p> <p>In an action for damages, the declarations of a .woman that she-had suffered a. miscarriage, made several days after alleged acts of violence to her, are inadmissible to show that fact.</p> <p>•</p> <p>2. Deposition—Replies to Cross-Interrogatorips—Binding Force.</p> <p>The rule binding a party by evidence elicited by him on cross-examination, while under other circumstances it would be inadmissible, does not apply when the testimony consists in the depositions of a witness in reply to cross-interrogatories.</p> <p>3. Damages—Exposure of Person of Woman—Reputation for Chastity. Evidence of the bad reputation of a woman for chastity, not too remote in time, is.</p> <p>admissible upon the question of the damages sustained by her due to mortification on account of the exposure of- her person by the acts of defendant’s agents.</p> <p>4. Railroad Company—Ejection of Passenger—Reasonable Force—Peace</p> <p>Officer.</p> <p>A railroad company is not liable for the damages inflicted on a female passenger by a peace officer who had been called upon to assist the conductor in ejecting her husband, who h'ad unjustly refused to pay his fare, where the officer used no more force than was reasonably necessary to prevent a repetition of her interference and assaults upon him.</p> <p>5. Same—Same—Charge of Court.</p> <p>The right of a conductor to eject a passenger who wrongfully, refused to pay his fare should not be qualified by an instruction restricting the same in case of the passenger’s illness, where the latter was not in fact ejected, and the conductor refrained, from further .attempts to eject him upon his falling in a fit, genuine or simulated.</p> <p>6. Same—27ontransferable Ticket—Wrongful Holder—Taking Up—Receipt. One who boards a train having a nontransferable ticket issued to another, and</p> <p>which the company has'the right to take up and cancel if presented by any person other than the one to whom it was issued, is not, as matter of law, entitled to a receipt for the ticket from the conductor, as a condition of paying his fare. •</p>

<p>Appeal from Tarrant. Tried below before Hon. Irby Dunklin.</p>

<p>1. Subrogation—Principal and Surety—Promissory Note.</p> <p>A surety on a note who pays it and has it indorsed, to him is entitled to sue thereon and recover from the principal maker the attorney’s fees provided for therein, the same as the .original holder might have done.</p> <p>3. Attachment—Wrongful Issue.</p> <p>If the statement in the affidavit that plaintiff will probably lose his debt unless attachment issues be untrue, the attachment' is wrongfully sued out.</p>

Tried below before Hon R E. Bbooks. The following statement of the correspondence relating to extension of time upon the note is taken from the brief of appellee: “On November 1,1893, J. K. Hawes wrote to plaintiffs’ agents inclosing the interest then due and asking when the loan would be due, and if they would renew it; on November 5, 1893, these agents replied that the loan would be due on November 1, 1894, cand if you wish, we shall be glad to renew same for five years’…

<p>Appeal from Travis. Tried below before Hon. E. E. Ebooks.</p>

Tried below before Hon. H. Teichmueller. The instructions requested by defendant and refused, referred to in the opinion and in the fourth assignment of error, were as follows: “First—Whether negotiation between plaintiff and defendant’s- agent concerning the shipment of cattle did or did not terminate in a binding verbal contract between the parties becomes immaterial, in this cause, by reason of the subsequent contract made by the parties, under the undisputed evidence…

Tried below before Hon. F. C. Morris. For the history of this litigation, see Schintz v. Morris, 89 Texas, 648; Hume v. Schintz, 90 Texas, 72; Schintz v. Morris, 13 Texas Civ. App., 580; same case, 35 S. W. Rep., 516; 35 S. W. Rep., 825 (on rehearing); 36 S. W. Rep., 292 (dissenting opinion); Hume v. Schintz, 91 Texas, 204.

<p>Appeal from Collin. Tried below before Hon. J. E. Dillard.</p>

<p>Aureal from McLennan. Tried below before Hon. L. W. Goodrich.</p>

<p>Appeal from Runnels. Tried below before Hon. B. W. Rimes*</p>

<p>Appeal from Bowie. Tried below before Hon. John J. King.</p>

<p>Appeal from Hill. Tried below before Hon. J. M. Hall.</p>

<p>Appeal from McCulloch. Tried below before Hon. J. 0. "Woodwaed.</p>

<p>1. Hew Trial After Term—HCistake.</p> <p>Where by mistake, without defendant’s fault, a case was tried, under an agreement that one A. R. was the common source of title (there having been separate grants to two persons of that name, and the one under whom plaintiff had showed title not being the grantee of the premises in controversy, under whom defendant held), it was proper to grant a new trial, on petition of defendant at a subsequent term, and upon such new trial to render judgment for such original defendant.</p> <p>2. Same—Procedure.</p> <p>It was proper, after having granted the new trial, to docket the proceeding as in the original cause, and in the trial thereof to impose upon plaintiff the burden of proof.</p>

<p>1. Election—Ambiguous Ballot—Extraneous Eacts.</p> <p>Where a ballot, voted under the “Australian Ballot” system, had upon it the name of M., but did not disclose the office voted for, and the evidence showed that ¡M. was running for alderman, and that no other person by the name of M. was running for any office at that election, the ballot was properly counted for M. as alderman.</p> <p>2. Same—Statement of Rule.</p> <p>A ballot is to be interpreted by the ordinary rules which apply to .written instruments ; and where there is doubt as to the intention of the voter, because of some apparent ambiguity on the face of the ballot, it is error for the court to reject proper evidence offered to explain the ambiguity, and refuse to' count the balloti</p>

<p>Appeal from LaSalle. Tried below before Hon. M. F. Lowe.</p>

<p>Appeal from Bexar. Tried below before Hon. Robert B. Green.</p>

<p>Practice on Appeal—Statement of Pacts Stricken Out—Want of Diligence.</p> <p>Under article 1382, Revised Statutes, 1895, providing that a statement of facts filed after the prescribed time shall not be considered unless it be shown that appellant used due diligence to get it prepared and filed in time, etc., the failure of appellant’s atttorney to begin the preparation of a long statement until four days after notice of appeal given, shows a want of due diligence. .</p>

<p>Ebbob from Bexar. Tried below before Hon. J. L. Camp.</p>

<p>Appeal from Bexar. Tried below before Hon. J. M. Camp.</p>

<p>Appiíad from Dimmitt. Tried below before Hon. M: F. Lowe.</p>

<p>Appeal from Fannin. Tried below before Hon. E. D. MoClellaw.</p>

<p>Appeal from the County Court óf Grayson. Tried below before Hon. J. H. Wood.</p>

<p>1. Municipal Taxation.</p> <p>The validity of city ordinances levying taxes is not affected by the fact that the city council, as a preliminary step, required the mayor and finance committee to make estimates and calculations.</p> <p>2. Same—Levy of Taxes.</p> <p>The assessment rolls need not be officially approved before the levy of city taxes under a provision in the city charter that the council shall “examine the assessment rolls and levy” the taxes.</p> <p>3. Same—City Board of Equalization—Constitutionality.-</p> <p>A provision in the charter of .a city having over 10,000 inhabitants for a board of appeals with full power to equalize values of assessed property is authorized by article 11, section 5, of the Constitution, providing that such cities may levy, assess, and collect such taxes as may be authorized by the law (without prescribing the manner of asssessment), and does not violate article 8, section 16, requiring the Legislature to provide for equalizing the valuation of all property subject to taxation, with the provision that the County Commissioners Court shall constitute the board of equalization, as such provision relates to State and county taxes only.</p> <p>4. Same—Description of Property.</p> <p>An assessment for taxes will not be held invalid for insuffieienpy of the description of the property assessed, where it was originally assessed as it was described by the taxpayer, and was subsequently reassessed on a supplemental roll in accordance with a statutory provision, and in the reassessment the description is full and accurate.</p>

<p>1. Charge of Court—Question Hot Raised.</p> <p>In an action for personal injuries, a charge that even though defendant’s agents and employes were negligent, if the jury believe that plaintiff was also negligent, and his negligence contributed so “proximately and directly” to the production of his injury that but for it he would not have been hurt, the jury will find for defendant, is erroneous, where the question of proximate cause is not raised by the evidence.</p> <p>3. Practice on Appeal—Erroneous Charge Requested.</p> <p>A judgment will not be reversed for an erroneous charge, where appellant requested a similar instruction.</p> <p>3. Railroad Company—Personal Injuries—Liability to Minor for Dimin-</p> <p>ished Earning Capacity.</p> <p>A railway company which negligently inflicts injury upon a minor while his mother is living is liable for the diminished ability of the minor to earn wages by reason of the injury,' after the mother’s death and during his minority, where no claim for damages was made by the mother, and no settlement for the same was made in any manner with the company.</p> <p>4. Pleading—Personal Injuries to Minor—Defensive Matter.</p> <p>It is the duty of a railway company, in an action by a minor for personal injuries received while his mother was living, to plead any reason preventing such minor from recovering for diminished ability to earn wages during Ms minority after the mother’s death, where the latter dies before the commencement of the action.</p> <p>5. Railroad Company—Personal Injuries to Minor—Liability For—Charge of Court.</p> <p>A railway company is not liable for an injury to a boy while attempting to get on board a freight train at the invitation of an employe who had no authority to give the same, if at the time of the accident he had such a degree of intelligence that he could and should have appreciated the danger of his act; and the jury should be so-instructed.</p>

<p>Appeal from Lamar. Tried,below before Hon. E. D. McClelland.</p>

<p>Guardian and Ward—Action Against—Venue.</p> <p>Where bank stock belonging to the ward has been pledged by the guardian to secure the payment of a note, an action to foreclose the lien must be brought in the county in which the guardianship is pending, if it has not been actually closed, though the note is payable elsewhere, and though the ward has been released from disability for some years.</p>

<p>Appeal from Dallas. Tried below before Hon. B. E. Bubke.</p>

<p>1. Practice on Appeal—Assignment of Error.</p> <p>An assignment of error to the effect that the court erred in overruling the demurrers and exceptions of defendant, of which there are several, is too general to be considered, even though the reasons why the court erred are set out in the assignment.</p> <p>2. Pleading—Petition Against Railway Company Good on General Demurrer.</p> <p>Where, in an action against a railway company for injuries occurring to plaintiff while a passenger on a freight train, the petition alleged that plaintiff had the right to ride on the freight train by virtue of the terms of a written live stock shipment contract, without setting out such terms, this was sufficient against a general demurrer.</p> <p>3. Same—Facts Showing Negligence Sufficiently Pleaded.</p> <p>See the opinion for pleading held to sufficiently allege facts charging a railway company with negligence because of the failure of its freight conductor to warn a passenger who, on a dark night, was erroneously informed that the train, which had then stopped, was at a station, not to attempt to alight there, the train being in fact on a high trestle.</p> <p>4. Same—Averment of Negligence.</p> <p>Where the petition states the act or omission complained of, and avers that it was negligence, or that it was negligently done, it is sufficient, unless such act or omission can be declared, as a matter of law, not to constitute negligence.</p> <p>5. Negligence Dependent on the Circumstances.</p> <p>Where plaintiff was riding on a freight train by virtue of a live stock shipment contract which gave him the right to alight and examine his stock at each station at which the train stopped, the conductor was thereby charged with notice that he might desire and attempt to alight at a given station, and so was negligent in failing to warn him, upon seeing him go out the door of the car, against attempting to alight at a place he knew to be dangerous, but plaintiff did not.</p> <p>6. Negligence—Proximate and Concurring Causes—Jerk of Train. •</p> <p>An erroneous statement of the conductor of a freight train, that the train was then stopped at a station, induced a passenger to go out on the platform, intending to alight, and a start and sudden jerking of the train caused him to fall off. The jerking of the train- was not, of itself, of such character as to constitute negligence. Held, that the jerking was not the direct and proximate cause of the fall, but only a concurring cause with the negligence of the conductor in making the erroneous statement and his failure to warn the passenger of the character of the place.</p>

<p>1. Master and Servant—Promise to Repair Defective Machinery.</p> <p>A servant does not, by continuing in his employment after a promise by the master to repair a defect in the machinery, assume the additional risk arising from a want of repair, so long as he has reasonable ground to expect that the promise will be fulfilled, and the danger is not so great that a person of ordinary prudence would not have continued in the service after such promise.</p> <p>2. Charge of Court—Requested Charge Hecessary.</p> <p>Where the charge is defective merely in not more fully and definitely stating the law, the appellant should have sought to cure the defect by requesting a correct charge from the court, and having failed to do so, he will not be heard to complain of the charge in this respect upon appeal.</p>

<p>1. Injunction—Petition and Answer Construed Together, When—Practice.</p> <p>In determining upon appeal the sufficiency of a petition for an injunction, the facts supplied by the answer will be taken into consideration; and where it appears, thus considered, that an issue was presented which was tried below, an assignment of error attacking the petition as not sufficient upon general demurrer will not be sustained.</p> <p>2. Same—Restraining Sale Under Execution—Cloud Upon Title.</p> <p>A sale of plaintiff’s land under an execution against his grantor would not, of itself, create such a cloud upon his title as to entitle him to an injunction to restrain the sale, since purchasers thereat would take only such title as the grantor then had, and the burden would be upon them to show the fraudulent character of the grantor’s deed to plaintiff.</p> <p>3. Same—Multiplicity of Suits and Irreparable Injury.</p> <p>Where plaintiff had divided a tract of land into 300 town lots, and had advertised and was selling them, the entire tract was levied on by creditors of his grantor, upon the theory that the sale to plaintiff was fraudulent, the multiplicity of suits which the execution sale would have entailed upon plaintiff and the injury to the value and sale by him of the lots, entitled him to an injunction restraining the execution sale until his title could be adjudicated.</p> <p>4. Fraudulent Sale—Motice—Putting on Inquiry.</p> <p>Where the purchaser, at the time he was approached by the vendor and offered a tract of land for one-third its value, knew that the vendor was insolvent and being pressed by creditors, this was sufficient to put him on notice that the vendor’s purpose in making the sale was to defraud his creditors, and to subordinate the title he acquired to their claims. !</p>

<p>Guardian—Contract of Purchase of Land Mot Approved—Recovery of Purchase Price.</p> <p>Where land was purchased by a guardian without a previous order of court approving the contract of sale, as required by statute, she was held entitled to recover the amount paid therefor; and this although there was an order of court authorizing her to sell certain bonds and invest the proceeds in the land actually bought.</p>

<p>Fellow-Servants—Negligence—Rules of Railway.</p> <p>Plaintiff was injured while at work under a car on defendant’s repair track, by the running in, without -notice to him, of another car. Before the car was run in, in accordance with the custom then in force, a switchman was sent to warn him to get .out, but failed to do so. Beyond the custom referred to, there were no rules governing the matter. Held, that the accident was due to the negligence of a fellow-servant, and not to the want of suitable rules.</p>

<p>1. Foreign Receiver—Bight to Sue—Limitation.</p> <p>A receiver located in a foreign jurisdiction and exercising' his powers by virtue of appointment of courts in such jurisdiction^ can not maintain an action in this State, and suit commenced by him in his right as receiver does not interrupt the running of limitation against the person whose property he seeks therein to recover.</p> <p>S3. Same—Amendment—Case Stated.</p> <p>A receiver of property of K. & Co., appointed by the courts of Illinois, brought suit in Texas to recover property alleged to have been obtained from them by fraud. Subsequently he was discharged, and thereupon, but more than two years from the discovery .of the .fraud, K. & Co. filed an amended petition alleging such discharge and seeking to recover in their own right. Held, that the suit by the receiver did not interrupt the running of limitation, and the action was barred at the time the amended petition was filed.</p>

<p>Verdict—Joint Recovery—When Not Warranted by Pleadings.</p> <p>Defendant, being sued for recovery of two tracts of land, which were sequestered, claimed rents while dispossessed; interveners claimed a half interest with defendant in both tracts and in the rents thereof, and were awarded the half of one tract but less than half of the other. Held, that defendant was entitled to have the rents apportioned between himself and interveners; the pleadings did not warrant a joint verdict and judgment therefor in favor of both; and such verdict and judgment was error demanding reversal on his appeal.</p>

<p>Garnishment of County.</p> <p>A county is not subject to garnishment.</p>

<p>Appeal from Bexar. Tried below before Hon. J. L. Camp.</p>

<p>Appeal from Dallas. Tried below before Hon. Edwabd G-eay.</p>

<p>Appeal from Kaufman. Tried below before Hon. J. E. Dillard.</p>