Volume 164 — South Western Reporter

<p>Appeal from Floyd County Court; Arthur B. Duncan, Judge.</p> <p>Action by J. W. Blair against C. S. Low-rey. From a judgment for defendant, plaintiff appeals.</p>

D. Ourn, Judge. Action by J. C. Coy against E. C. Rowland, with cross-action and counterclaim by defendant. Judgment for defendant, and plaintiff appeals.

<p>'Dismissal and Nonsuit (§ 14*) — Yoluntabt Nonsuit — Condition of Cause.</p> <p>Under Rev. St. 1911, art. 1955, providing that a nonsuit may be taken at any time “before the decision is announced by the judge,” the mere filing with the clerk of a written paper stating that plaintiff will not further prosecute the suit, but with the permission of the •court will take a nonsuit, in no way brought to the notice of the judge until after definite announcement of his decision, is not a sufficient election to entitle plaintiff to a nonsuit.</p> <p>[Ed. Note. — For other cases, see Dismissal .and Nonsuit, Cent. Dig. § 30; Dec. Dig. § 14.*]</p>

B. Daviss, Judge. Suit by N. B. Pearman against J. F. Williams, individually and as executor of B. J. Williams, and others. From a judgment for plaintiff, the defendant named appeals.

G. Chambliss, Judge. Habeas corpus by W. E. Clark against A. S. Hendricks and wife to procure the custody of a child. From a judgment awarding custody to defendants, .plaintiff appeals.

B. Thomas, Judge. Minnie Latham was arrested, charged with-murder, and sued out a writ of habeas corpus. From an order that she was entitled to bail, fixing her bail at $30,000, she appeals. Bail reduced to $10,000.

<p>1. COMPROMISE AND SETTLEMENT (§ 23*) — Evidence — Sufficiency.</p> <p>Evidence held sufficient to sustain a finding that defendant agreed that a payment made by plaintiffs should satisfy his claim against them for breach of warranty.</p> <p>[Ed. Note. — For other cases,- see Compromise and Settlement, Cent. Dig. §§ 91-94; Dec. Dig. § 23.*]</p> <p>2. Compromise and Settlement (§ 6*) — Doubtful Claim.</p> <p>To render valid the compromise of a claim, the matter need not be really in doubt; but it is sufficient if the parties consider it so far doubtful as to make it the subject of a compromise.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.*]</p>

<p>Appeal from District Court, Camp County.</p> <p>Action by I. F. Cadenhead against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by Thomas Bailey against George Look, with counterclaim by defendant for dissolution of the partnership and for an accounting.</p>

<p>Appeal from Erath County Court; R. L. Thompson, Judge.</p> <p>Action by the Bluffdale State Bank against J. H. Bibb and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1.Wills (§ 487*) — Evidence to Aid Construction — Mistake by Testator.</p> <p>A testator, who by his will disposed of the estate of his deceased wife as well as his own, and who owned four tracts of 17, 15, 41, and 284 acres, respectively, in the S. survey, gave to his daughter E. the 325 acres of land owned in such survey and purchased in one block from F. and gave to two other daughters 17 acres owned in such survey, and also 15 acres in that survey. The deed from F. to his deceased wife conveyed land described as 325 acres, and by metes and bounds, embracing the 41 and the 284 acre tracts, but the testator claimed to own the 41-aefe tract prior to such deed, and regarded it as a part of his homestead or home place. He told the lawyer who drew the will that he wanted the two daughters mentioned to have the home place, and that he wanted E. to have the land bought from F., but said nothing about the number of acres in the tract bought from F., and the attorney, in stating the number of acres, followed the r.ecital in the deed. 3eld that, assuming that parol testimony of these facts showed that the testator intended to give the 41-acre tract to the two daughters, such intention could not be given effect, as the will itself contained no ambiguity, and the courts cannot grant relief against a mistake by the testator not apparent on the face of the will.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1023, 1026-1032; Dec. Dig. §t 487.*]</p> <p>2.I-Iusband and Wife (§ 193*) — Wife’s Separate Estate — Mode of Alienation.</p> <p>That a married woman did not know that a devise to her included a particular tract, and that she treated her two sisters as the owners thereof did not transfer the title to them, in view of Rev. St. 1911, art. 1114, providing that the husband and wife shall join m the conveyance of the wife’s separate property and for the due acknowledgment of the deed.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 716-718, 940; Dec. Dig, § 193.*]</p> <p>3.Husband and Wife (§ 244*) — Actions— Costs.</p> <p>Where, in trespass to try title by a married woman’s grantee, he demanded judgment against her and her husband on the warranty of title in the event of a determination that a third person owned the land, and in their answer the husband and wife offered to rescind the sale, and judgment was rendered awarding the title and possession to plaintiff, the judgment properly awarded costs to plaintiff against the husband and wife, though he did not recover on the warranty, since they were in effect plaintiffs in a suit against the grantee to rescind the sale, in which suit they failed.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 875-877, 988; Dec. Dig. '§ 244.*]</p>

Appeal, from Bowie County Court; Lee Tidwell, Judge. Action by Edward Johnston against C. E. Ford and another in justice court. From a judgment for plaintiff, defendant Ford appealed to the county court. The appeal was dismissed; and he again appeals.

<p>Appeal from District Court, Wilson County; F. G. Chambliss, Judge.</p> <p>Action by W. D. Griffith against the Houston Packing Company. From a judgment for plaintiff, defendant appeals.</p>

W. Simpson, Judge. Action by W. R. Patterson against the Missouri, Kansas & Texas Railway Company of Texas, in which the Occidental Fire Insurance Company intervened. From a judgment for plaintiff and intervener, defendant appeals.

<p>Appeal from Bowie County Court; Lee Tidwell, Judge.</p> <p>Joe Oswald was convicted of unlawfully carrying a pistol, and he appeals.</p>

<p>Appeal from District Court, Colorado County; M. Kennon, Judge.</p> <p>Action by Ad Adams against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for defendant, plaintiff appeals.</p>

Kittrell, Judge. Action by Matilda Kennon and others against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for plaintiffs, and defendant the Missouri, Kansas & Texas Railway Company of Texas appeals.

<p>CarRieks (§ 393*) — Baggage — Delivery to 'Carrier.</p> <p>Where the agent of a passenger the afternoon preceding the purchase of a ticket over a railroad, one of whose posted rules provided that it would not accept baggage until 30 minutes before train time, and would not be responsible for baggage left on the platform, left a trunk on the platform adjoining the baggage-room, without calling it to the attention of the baggagemaster or any one else, and without knowing whether the baggageroom was then open, and it did not appear that the baggage-master or any railroad employé knew the trunk 'was left there, or that there was any custom that trunks left on the platform would be treated as delivered to the carrier, the company was not liable for the loss of the trunk, as goods are not delivered to a common carrier unless accepted by it or delivered at the place where it is the company’s custom to accept delivery without further requirement on the part of the shipper.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1502-1504; Dee. Dig. § 393.*]</p>

<p>Appeal from Hidalgo County Court; James H. Edwards, Judge.</p> <p>Action by T. W. Mitchell against the Niagara Pire Insurance Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hunt County; Wm. Pierson, Judge.</p> <p>Action by Fannie Webb against the Gulf, Colorado & Santa F6 Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Hill County Court; J. D. Stephenson, Judge.</p> <p>Action by D. W. Ward against the Missouri, Kansas & Texas Railway Company of Texas. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Original application by A. B. Conley for a writ of prohibition and. an injunction against W. S. Anderson, Judge of the Thirty-Seventh Judicial District, and others.</p>

Tried below before the Hon. J. H. McHaney. Appeal from a conviction of a violation of the local option law; penalty, a fine of $100 and sixty days confinement in the county jail. The rest of the statement of facts not stated in the opinion is as follows: John Albright, the defendant, being sworn testified that he did not sell the State’s witness T. G.

<p>Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.</p> <p>Frank Kirklin was convicted of murder in the second degree, and he appeals.</p>

<p>Appeal from San Saba County Court; J. T. Hartley, Judge.</p> <p>Jesse Brown was convicted of unlawfully carrying a pistol, and appeals.</p>

<p>1. Insurance (§ 47*) — Consolidation — Rights of Policy Holders — Liability of ■ New Company.</p> <p>Where, on defendant’s insurance business being taken over by the P. Company, the latter offered to assume plaintiff’s policy, but he refused to consent to the novation, the P. Company was under no contractual relations with plaintiff, and hence he could not recover against it for defendant’s alleged breach of contract resulting from the consolidation.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 49; Dec. Dig. § 47.*]</p> <p>2. Insurance (§ 47*) — Consolidation — Breach of Contract — Liability of New Company.</p> <p>Where the consolidation of defendant insurance company with the P. Company did not deprive defendant of ability to perform its contracts or render it insolvent, but on the date when plaintiff chose to treat his policy as having been repudiated by defendant, by reason of the consolidation, defendant was amply able to, fulfill the same, the P. Company was not liable in damages to plaintiff on the ground that it had absorbed all defendant’s assets.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 49; Dec. Dig. § 47.*]</p> <p>3. Contracts (§ 312*) — Breach—Mode.</p> <p>A contract can be breached in only one of three ways, viz.: By failure to perform, by present positive declaration of an intention not to perform and acceptance of such declaration by the other party as a repudiation of the contract before performance is again entered upon, and by inability to perform.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 12791/a; Dec. Dig. § 312.*]</p> <p>4. Insurance (§ 247*) — Contract—Breach.</p> <p>Where an insurance policy obligated the insurer to pay $3,000 to insured’s wife at his death, there could be no breach by the insurer by failure to perform prior to the insured’s death.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 534-536; Dec. Dig. § 247.*]</p> <p>5. Contracts (§ 313*) — Anticipatory Breach —Refusal to Perform — Declaration.</p> <p>Where an anticipatory breach of contract is attempted to be shown by the declaration of the party that he will not perform the same, such declaration must be in positive and unconditional terms.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1279: Dec. Dig. § 313.*]</p> <p>6. Insurance (§ 237*) — Contract—Breach-Refusal to Perform.</p> <p>Defendant insurance company, on consolidating with the P. Company, notified its policy holders of the fact, and the P. Company requested they accept it in lieu of defendant, but the letters did not contain any positive declaration that defendant would not continue to perform its contracts with holders refusing to accept the P. Company in lieu of it, nor did defendant surrender its corporate existence or go out of business as to contracts theretofore written. Policy holders were informed that branch offices of defendant would gradually be discontinued and premiums should be forwarded direct to defendant’s New York office., but until further advised they might be remitted as at present. Held, that such facts did not show that defendant had breached its insurance contract with plaintiff by refusing to perform the same so as to entitle plaintiff to recover damages therefor.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 513-515; Dec. Dig. § 237.*]</p> <p>7. Insurance (§ 237*) — Contracts—Breach-Consolidation.</p> <p>Where, notwithstanding consolidation of defendant insurance company with the P. Company, defendant’s affairs had never been liquidated, and in addition to its capital stock of $100,000 it had on deposit with the New York Superintendent of Insurance $100,000 in bonds, loans, and mortgages valued at $101,710, and its report filed with the Commissioner of Insurance December 31, 1912, showed a surplus of $255,409 over all liabilities, including capital stock, it did not appear that by such consolidation it had breached its policy with plaintiff by pauperizing itself so that it was unable to perform the same.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 513-515; Dec. Dig. § 237.*]</p> <p>8. Insurance (§ 237*) — Policy—Breach of Contract — Measure of Damages.</p> <p>In an action for an insurance company’s breach of an ordinary life policy, plaintiff’s measure of damages was the value of the policy at the time of its breach, consisting of the difference between what it would have cost him to mature the policy from the time of such breach to end of his expectancy, had there been no breach, and what it would have cost him to mature a like policy in a solvent company for the same period, and' not the amount of premiums paid, with interest.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 513-515; Dec. Dig. § 237.*]</p>

<p>1. Street Railroads (§ 91*) — Collision—Evidence— Speed Ordinance.</p> <p>In an action against an interurban electric railroad for injuries in a collision at a street crossing, it was error to admit a speed ordinance relating to railway trains, such an ordinance having no application to trains propelled by electricity.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190-192; Dee. Dig. § 91.*]</p> <p>2. Street Railroads (§ 113*) — Collision with Automobile — Evidence — Contributory Negligence.</p> <p>In an action against an electric railroad for injuries in a collision, evidence as to what a witness would have done if he had been back from the street a certain distance and heard the gong and seen the car was irrelevant, being conjectural and throwing no light on the issue of contributory negligence under consideration.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 229-238; Dec. Dig. § 113.*]</p> <p>3. Negligence (§ 122*) — Contributory Negligence-Burden of Proof.</p> <p>In a personal injury case, wherein plaintiff’s evidence raised the question of contributory negligence, it was error to place the burden on defendant to show such negligence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 221-223, 229-234; Dec. Dig. § 122.*]</p> <p>4. Street Railroads (§ 118*) — Collision with Automobile — Action fob Injuries— Instructions.</p> <p>In an action against an interurban electric railroad for injuries ' in collision at a street crossing, the court, in charging on the issue of negligence, should omit any reference to an ordinance relating to speed of steam engines.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*]</p> <p>5. Street Railroads (§ 118*) — Collision with Automobile — Crossing Accident — Action for Injuries — Instructions.</p> <p>In an action against an interurban railroad for injuries in a collision at a street crossing, it was error to give a charge making defendant liable, not only if its servants operating the ear did in fact discover plaintiff’s position before it was too late to stop it, but also if they, “by the exercise of ordinary care, could have discovered him in a position of danger.”</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*]</p> <p>6. Street Railroads (§ 118*) — Collision with Automobile — Action for Injuries— Instructions.</p> <p>Where the evidence in an action against an interurban railroad for injuries in collision at a street crossing called for a charge on accident, it was error to refuse a charge to find for defendant, if plaintiff’s wife and automobile were injured as the result of a cause which defendant by ordinary diligence could not have foreseen and guarded against.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dee. Dig. § 118.*]</p> <p>7. Street Railroads (§ 91*) — Collision with Automobile — Violation of Ordinance — Negligence.</p> <p>Failure of an interurban car to stop in front of a station on its way to the rear to unload baggage and freight, in course of which it. collided with an automobile at a street crossing adjoining the station, was not a violation of an ordinance requiring cars to stop at stations, and was not negligence under the law.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190-192; Dec. Dig. § 91.*]</p> <p>8. Negligence (§ 141*) — Contributory Negligence-Instructions.</p> <p>Where the court in a negligence case charged on contributory negligence in a general way, but did not tell the jury that if plaintiff was guilty of contributory negligence he could not recover even though they might believe from the evidence that defendants were also guilty of. negligence, it erred in failing to give a requested charge to that effect.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.*]</p> <p>9. Negligence (§ 141*) — Contributory Negligence-Instructions.</p> <p>Where thé court did not present in an affirmative way the defense of contributory negligence, it was error to refuse a special charge calling the jury’s attention to facts which, if found to be true, would defeat a recovery on that issue. /</p> <p>[Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.*]</p> <p>10. Steeet Railroads (§ 118*) — Collision with Automobile — Action eor Injuries— Instructions.</p> <p>In an action against an interurban railroad for injuries in a collision at a street crossing adjoining a station, wherein it appeared that employés of defendant on its depot platform saw plaintiff's danger in time to have prevented the collision had they warned him in time, but did not do so, and the jury may have concluded from the court’s charge that their failure to do so was imputable to defendant, it was error to refuse a charge which precluded the jury from considering evidence of such omission as showing negligence attributable to defendant.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dee. Dig. § 118.*]</p> <p>11. Trial (§ 260*) — Instructions—Requests. Where the court charged on discovered peril</p> <p>in an action against an interurban railroad for injuries in a collision at a street crossing, but a requested charge on the same subject was fuller, and more accurately expressed the law with reference to the facts, it was error for that reason not to give it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*].</p> <p>12. Street Railroads (§ 118*) — Collision with Automobile — Instructions.</p> <p>Where, in an action against an interurban railroad for injuries in a collision with an automobile at a street crossing, the evidence calls for a charge on accident, it was error to refuse a charge to find for defendant if it was shown that plaintiff’s injury was due to misfortune and misadventure, and that defendant’s servants in charge of the car exercised, under the circumstances, ordinary care in its operation.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*]</p>

Error from Collingsworth County Court; R. H. Cocke, Jr., Judge. Action by the First National Bank of Wellington against E. M. 1-Iix, as principal on a note, and O. B. Couch and others, as sureties. There was a judgment against the principal defendant and in favor of the sureties, and plaintiff brings error.

<p>1. Appeal and Error (§ 302*) — Presentation below — Motion por New Trial.</p> <p>Paragraphs of plaintiff’s motion for new trial, assigning error “because on the face of the pleadings and the undisputed testimony plaintiff was entitled to recover,” and “in finding that the facts and evidence in the case were not such as to estop the defendant to deny the amount claimed,” were too general to support assignments of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1744-1752; Dec. Dig. § 302.*]</p> <p>2. Appeal and Error (§ 759*) — Brieps—As-signments op Error.</p> <p>Courts of Civil Appeals rule 29 (142 S. W. xii) requires appellant to file a brief of the points relied on in accordance with and confined to the specifications of error, which assignment shall be copied in the brief, and each assignment not so copied and accompanied with its appropriate propositions and statements shall be deemed abandoned, and rule 30 (142 S. W. xiii) provides that each point under each assignment shall be stated as a proposition, unless the assignment sufficiently discloses the point, when it shall be sufficient to copy the assignments. Bold, that assignments in appellant’s brief should be copies of those contained in the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>3. Appeal and Error (§ 301*) — Assignments op Error — Motion for New Trial.</p> <p>Courts of Civil Appeals rule 24 (142 S. W. xii) provides that a ground of error not distinctly set forth in the motion for new trial is waived, unless it is so fundamental that the court would act upon it without an assignment of error, and section 25 provides that, to be a distinct specification of error, an assignment of error must refer to that part of the motion for a new trial in which the error is complained of. Held, that the purpose of the rules was to confine appellant in the Court of Civil Appeals to such grounds of error as were brought to the trial court’s attention in the motion for new trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 801.*]</p> <p>4. Appeal and Error (§301*) — Presentation below — Motion for New Trial.</p> <p>Acts 33d Leg. c. 136, amended Bev. St. 1911, art. 1612, so as to require appellant to file assignments of error specifying the grounds on which he relies, provided that, where a motion for new trial is filed, the assignments therein shall constitute the assignments of error, and that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the court’s attention to the error complained of. Held, that the statute required all errors to tie called to the trial court’s attention in the motion for new trial in order to be reviewed.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.*]</p>

<p>1. Judgment (§ 461*) — Equitable RelieiN-Burden oe Prooe.</p> <p>In an equity suit to be relieved from liability on a judgment because of the release of the principal obligors on the note sued on, the burden is on the complainants to show the release.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 892, 893, 895; Dec. Dig. § 461.*]</p> <p>2. Vendor and Purchaser (§ 261*)- — Merger — Legal and Equitable Title.</p> <p>Where a deed is given to a vendor by the vendee to satisfy the indebtedness and the vendor before that time has sold the note to another, the legal and equitable title do not coalesce in the vendor’s hands, but he holds the land subject to the lien he has transferred.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674r-686, 688-695; Dec. Dig. § 261.*]</p> <p>3.Attorney and Client (§ 101*) — Authority— Settlement oe Judgment.</p> <p>An attorney cannot bind his client in the settlement of a judgment unless he was specifically authorized so to act.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 209-216; Dec. Dig. *]</p>

<p>1. Pledges (§ 58*) — Validity of Debt Secured — Notes—Consideration.</p> <p>Where plaintiff, as transferee of a vendor’s lien note, sued ta foreclose, and intervener set up a similar note transferred to him as collateral security for a debt owing him by the vendee, plaintiff might show that the intervener’s note had been discharged after it was transferred by the vendor and. require the intervener to show the indebtedness due under the obligation for which he held it as collateral.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 186-194; Dec. Dig. § 58.*]</p> <p>2. Estates (§ 10*) — '“Merger.”</p> <p>Merger at law is defined to be when a greater and a less estate coincide, in the same person, in the same right, without any intermediate estate. At law the rule is inflexible, but in equity a person may become entitled to an estate subject to a charge for his own benefit, which estate, if he chooses, he can hold and keep the charge alive.</p> <p>[Ed. Note. — For other cases, see Estates, Cent. Dig. §§ 9-13; Dec. Dig. § 10.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4492, 4493.]</p> <p>3. Bills and Notes (§ 527*) — Payment—Evidence — Sufficiency.</p> <p>Possession by tbe maker of a note is prima facie evidence that it has been paid.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1847-1855; Dec. Dig. § 527.*]</p> <p>4. Vendor and Purchaser (§ 261*) — Lien— Surrender — Transfer of Note to Vendee.</p> <p>The transfer of a vendor’s lien note by tbe vendor to the vendee created a presumption of intention on the part of the vendor that the vendee, the maker "of the note, should thereafter hold it absolutely as his own property.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.*]</p> <p>5.. Vendor and Purchaser (§ 266*) — Vendor’s Lien — Merger.</p> <p>Where a vendee gave two lien notes to the vendor, one of which she transferred to plaintiff, and the other she indorsed and redelivered to the vendee, who was her son, who transferred it to intervener as collateral security for a debt owing by the vendee to intervener, and the evidence showed that, by the transfer from the vendor to the vendee, he became the real owner of the note, it became without effect as to plaintiff or .persons other than the vendee and intervener, though the vendor and vendee had agreed that .the vendee should negotiate it, and that- it was. his intention that the debt should not be extinguished.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 687, 713-750; Dec. Dig. § 266.*]</p> <p>6. Vendor and Purchaser (§ 261*) — Lien-Merger.</p> <p>That the.lien reserved was but one lien given to secure the two notes did not prevent a merger as to the note indorsed by the vendor and redelivered to the vendee.</p> <p>[Ed. Note. — For other cases, see Vendor and' Purchaser, Cent. Dig. §§ 674-686, 688-695; Dec. Dig. § 261.*]</p> <p>7. Bills and Notes (§ 357*) — Bona Fide' Purchaser — Notice.</p> <p>A party receiving as collateral security a vendor’s lien note from the maker, the vendee,, bearing the indorsement of the vendor, the payee, was not a purchaser in due course of-trade.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 909-912, 961; Dec. Dig. § 357.*]</p> <p>8. Vendor and Purchaser (§ 260*) — Transfer of Lien Notes — Bights of Parties.</p> <p>A vendee gave two lien notes to the vendor,: one of which she transferred to plaintiff, and the other she indorsed and redelivered to the vendee, who transferred it to intervener as collateral security for a debt owing by the vendee to the intervener. The transfer of the note from vendor to vendee was with intention that he become the absolute owner, though it may have been agreed that he should retain it and use it as' collateral. Held that, as to plaintiff and intervener, the transfer from vendor to ven-dee discharged the lien, so .that, on foreclosure by plaintiff, the. intervener’s lien • was subse? quent tó that! oi the plaintiff, but intervener was next entitled after the plaintiff as against vendor and vendee, and, if there was any residue after discharging his obligation, he would hold it as trustee for them.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 664-669; Dec. Dig. § 260.*]</p> <p>9. Alteration of Instruments (§ 8*) — In-dorsement on Note.</p> <p>It was error to permit the attorney for in-tervener, after trial had begun, to write into the indorsement of his note, over the signature of the vendor, “Pay to the order of C.,” the intervener; such indorsement showing a direct transfer to intervener, which was not the fact, as shown by the prior indorsement, and the evidence showing that the intervener received the note from the vendee, the maker.</p> <p>[Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 40-46; Dec. Dig. § 8.*]</p> <p>10. Depositions (§ 88*) — Admissibility in Evidence.</p> <p>The depositions of the vendee and inter-vener showing the facts as to the indorsements and transfers of intervener’s note were properly admitted; there being nothing to show that the trial court considered the depositions of one of the parties as against the other.</p> <p>[Ed. Note. — For other cases, see Depositions, Gent Dig. §§ 234-236%, 242-245; Dec. Dig. § 88.*]</p> <p>11. Vendor and Purchaser (§ 280*) — Assignment of Vendor’s Lien — Pleading's — Sworn Denial of Assignment.</p> <p>A vendee holding two lien notes transferred one to plaintiff, and the other she indorsed and redelivered to the vendee, who delivered it to C. as collateral security for a debt owing by the vendee. On a suit to foreclose by plaintiff, C. intervened, and after trial was begun was permitted to alter the vendor’s indorsement of C.’s note by inserting the words, “Pay to the order of C.” Held that, as the vendee did not deny the indorsement as first made, it was not error to admit evidence to prove ownership, assignment, or transfer affecting the right of the intervener, without denial of the assignment by vendor under a sworn plea.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 784-789, 791; Dec. Dig. § 280.*]</p>

<p>Account, Action on (§ 12*) — Statutes.</p> <p>Rev. St. 1911, art. 3712, declaring that, when any action is founded upon an open ac* count, supported by affidavit of the party, his agent or attorney, that the account is just and true, and that all just and lawful set-offs have been allowed, it shall be prima facie evidence thereof unless the party resisting shall file a written denial under oath, does not preclude a defendant, sued upon a verified account, from proving under appropriate pleadings that the account has in fact been paid, or from showing ■a merely conditional liability, and that the condition fixing liability did not arise; the statute merely making the account conclusive as to the justness of the amount due in case there is no verified denial.</p> <p>[Ed. Note. — For other cases, see Account, Action on, Gent. Dig. § 37; Dec. Dig. § 12.*]</p>

<p>On motion for rehearing. Motion granted, and judgment of the trial court affirmed as to the moving party.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by Olin W. Stewart against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Judgment (§ 956*)—Res Adjudicata—Is-sue Not Decided.</p> <p>Where it appears from the pleading and judgment in a former suit that recovery was sought on two causes of action, one for possession of property, and the other for its detention, and the judgment disposes of one and is silent as to the other, it is prima facie an adjudication that plaintiff therein was not entitled to recover on the other, in the absence of pleading and proof showing that before judgment he withdrew one of the issues or the court refused to decide it; and the applicability of this rule is not affected by a recital in the judgment “that plaintiff was entitled to the relief prayed for.”</p> <p>[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1822-1825; Dec. Dig. § 956.*]</p> <p>2. Evidence (§ 138*) — Relevancy— Similar Pacts and Transactions.</p> <p>In an action for work done, defended on the ground that the .charges were excessive and the work inefficient, evidence that similar work done by plaintiff for others was inefficient and the charges excessive is inadmissible as tending to show a general course of dealing similar to 'facts alleged.</p> <p>[Ed. Note. — For other eases, see Evidence, Gent. Dig. §§ 414, 414% ; Dec. Dig. § 138.*]</p> <p>3. Evidence (§ 376*) — Account—Competency of Witness.</p> <p>The correctness of an account for supplies and labor on an automobile cannot be proved by a witness who did not make the entries, and who neither claimed nor had any personal knowledge thereof.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1628-1646; Dec. Dig. § 376.*]</p> <p>4. Evidence (§ 376*) — Account—Competency oe Witness.</p> <p>Neither could the correctness of such account be proved by a witness whose testimony is based on the fact that he was superintendent of the shops where the ear was repaired, and that the time slips from which entries were made were made out and signed by men under him, who actually did the work, delivered to the witness, and by him in turn delivered to the office.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1628-1646; Dec. Dig. § 376.*]</p> <p>5. Evidence (§ 377*) — Account—Time Slips.</p> <p>Time slips made by mechanics repairing an automobile could only be admitted on their testimony as to their accuracy, in a case where the-shop books in which they were entered or the-, bookkeeper are not available, and it was error to admit them on the testimony of the foreman, identifying them as the slips turned over to-him for delivery to the office, though, if he had signed them and made the other necessary preliminary proof, they would have been admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1647; Dec. Dig. § 377.*]</p>

<p>1. Frauds, Statute of (§ 17*) — Promise to Answer fob Debt of Another.</p> <p>An oral agreement by defendant that, if plaintiff bank would let a third’ person have some money, defendant would guarantee payment, in pursuance of which the bank let the third person have the money and took his note therefor, was unenforceable, under the statute of frauds.</p> <p>[Ed. Note. — For other'cases, see Frauds, Statute of, Cent. Dig. §§ 13, 16, 17; Dec. Dig. § 17.*]</p> <p>2. Corporations (§ 484*) — Corporate Powers — Contract of Suretyship.</p> <p>Under Rev. St. 1911, art. 1164, providing that no corporation shall use its property or assets for any purpose other than to accomplish the objects of its creation, a land and irrigation company was without authority to agree to guarantee and secure the debt of a third person.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1815; Dec. Dig. § 484.*]</p>

<p>1.Appeal and Error (§ 699*) — Review—Assignments op Ekrob.</p> <p>Acts 33d Leg. c. 59, amending Rev. St. 1911, art. 1971, requires the charge to be in writing and signed by the judge, and provides that, after the evidence has been concluded, the charge shall .be submitted to the parties for exception, and a reasonable time given to examine and present objections to it, which objections shall, “in every instance,” be presented to the court before the charge is read to the jury, and all objections not so presented shall be waived. Held that recitals in the record showing that appellant in open court, “prior to the reading of the main charge herein, excepts thereto as follows,” stating the objections to the charge, and “each and all of the above exceptions to said charge being overruled, defendant in open court excepts,” followed by a recital, “Refused,” signed by the judge, were insufficient to authorize a review of álleged errors in the main charge.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2928-2930; Dec. Dig. § 699.*]</p> <p>2. Appeal and Error (§ 907*) — Exceptions— Refusal of Instructions — Presumptions.</p> <p>Acts 33d Leg. c. 59, amending Rev. St. 1911, art. 1974, provides that, when instructions requested are refused, the judge shall note distinctly which are given and which are refused, and such instructions shall be filed with the clerk, and be a part of the record, and article 2061 provides that a ruling in refusing instructions shall be regarded as approved, unless excepted to as provided herein. Held that, in absence of exceptions in the record to the refusal of instructions, the court’s action thereon is deemed approved.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. § 907.*]</p> <p>3. Insurance (§ 761*) — Mutual Benefit Insurance-Reinstatement. '</p> <p>Where a mutual benefit certificate or the by-laws of the association do not require the insured to be in good health as a condition to reinstatement upon the payment of arrears, it is not necessary that he be in good health in order to be so reinstated.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. § 1924; Dec. Dig. § 761.*]</p> <p>4. Appeal and Error (§ 1002*) — Findings— Gonclusiveness.</p> <p>The Court of Civil Appeals is bound by the jury’s finding on a disputed question of fact.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Action by Mary Hurst against L. A. Knight and others. Judgment for defendants, and plaintiff appeals.</p>

C. Joiner, Special Judge. Suit by J. F. Dollar against the Lockney Supply Company and others. From a judgment for plaintiff against the defendant named only, plaintiff appeals.

<p>1. CONTRACTS (§ 147*) — CONSTRUCTION — INTENT.</p> <p>The governing principle in the construction of contracts is the intention of the parties.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*]</p> <p>2. Contracts (§ 164*) — Construction—Contemporaneous Writings.</p> <p>Contemporaneous instruments relating to the same subject-matter may be read together as forming parts of one transaction.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 746-748; Dec. Dig. § 164.*]</p> <p>3. Contracts (§ 147*) — Construction as a Whole.</p> <p>It is a canon of construction of contracts that the particular words may not be isolatedly considered, but the whole contract must be interpreted with reference to the nature of the obligation between the parties.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. § 147.*]</p> <p>4. Contracts (§ 152*) — Enforceable as Written.</p> <p>It is the duty of courts to enforce contracts as the parties have made them, notwithstanding a hardship may be worked.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 732, 733, 738; Dec. Dig. § 152.*]</p> <p>5. Contracts (§ 154*) — Construction.</p> <p>Where an instrument is susceptible of two constructions, the one working no injustice should be adopted.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 735; Dec. Dig. § 154.*]</p> <p>6. Contracts (§ 175*) — Construction — Evidence to Aid.</p> <p>A chancery court will always refer a transaction to that construction, predicable upon the evidence, where there is serious doubt as to what the parties intended, which will lead to the more just results.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 766, 978, 1010, 1067-1069, 1786, 1803, 1810; Dec. Dig. § 175.*]</p> <p>7. Sales (§ 85*) — Construction—Independent Stipulation.</p> <p>The owner of a well drilling equipment contracted with a town-site company to drill wells for it to an amount of $600, $200 of which was to pay for the purchase of a unit in the town-site distribution. The owner sold the equipment and the contract, in consideration of a note with a specified maturity date for $600, secured by a chattel mortgage. A separate agreement was executed, reciting that payments received by the buyer under the contract were to be applied on the note and the seller would furnish the drilling in order to be entitled to the payments of the note. The town-site company furnished no drilling. Held, that the agreement to furnish the drilling could not be treated as a condition of liability on the note, in view of the fact that a chattel mortgage was given, the note bore a specified maturity date, and under the contract for drilling only $400 could be applied in payment of the note as the balance was to go in payment of a unit.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 236-238; Dec. Dig. § 85.*]</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by Mrs. M. M. Priddy against Joshua Wood. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Delta County; A. P. Dohoney, Judge.</p> <p>Action by Z. T. McVey and others against J. W. AVheeler. From judgment for plaintiffs, defendant appeals.</p>

<p>1. Sales (§ 61*) — Construction oe Contract —Executory or Executed Contracts.</p> <p>Where, at the time a contract of sale of certificates of stock was made, the purchaser already had possession of the certificates, the contract was an executed- contract; it being fully performed on the part of the seller.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 162-170; Dec. Dig. § 61.*]</p> <p>2. Appeal and Error (§ 1040*) — Harmless Error — Pleading.</p> <p>Error in overruling an exception to an immaterial portion of a petition was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>3. Appeal and Error (§ 1046*) — Remarks and Conduct oe Judge.</p> <p>A remark of the trial judge, made in reference to an immaterial matter which was not submitted to the jury, was not prejudicial, and hence did not justify a reversal, under Courts of Civil Appeal rules 62A (149 S. W. x).</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. § 1046.*]</p>

<p>On motion to pass assignments.</p>

<p>Appeal from Hidalgo County Court; J. H. Edwards, Judge.</p> <p>Action by J. T. Waniger against 'Harry May. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Martin County Court; A. C. Eidson, Judge.</p> <p>Action by the Connell Lumber Company against M. A. Grisham. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Bexar County -Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by L. B. Kilborn against B. F. Johnson, Sr., and others. Judgment for defendants, and- plaintiff appeals.</p>

<p>1. Vendor and Purchaser (§ 38*) —Deception Constituting Fraud — Injury prom Fraud.</p> <p>Where, the better to enable her agent to perfect a sale of land, a vendor executed to him a contract of sale which the agent on the same day assigned to the purchaser, the fact that, at the time of the execution of such contract, the agent represented that he already had an offer from the prospective purchaser could not be the basis of a charge of fraud to avoid the contract, since the vendor was in no way injured.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 61-65; Dec. Dig. § 38.*]</p> <p>2. Brokers (§ 102*) — Fraud op Broker — Rights Acquired by Purchaser.</p> <p>The fact that the agent of a vendor, in perfecting a sale, made misrepresentations to the vendor could not affect the purchaser, who had no knowledge of such misrepresentations.</p> <p>• [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 146; Dec. Dig. § 102.*]</p> <p>3. Vendor and Purchaser (§ 143*) — Construction op Contract.</p> <p>A clause in a contract of sale providing that the vendor was to have a reasonable time in which to perfect her title, and, should she be unable to do so, the contract was to be void, was for the benefit of the vendee, and the vendor could not insist that the contract was void, where the vendee was willing to accept the title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 267-270, 311; Dec. Dig. § 143.*]</p>

<p>1. Appeal and Eeeoe (§ 743*) — P>eiefs—As-signments of Eeeoe — Refeeence to Motion fob New Teial.</p> <p>Tbe requirement of rule 25 for Courts of Civil Appeals (142 S. W. xii) that the assignments of error must refer to that part of the motion for new trial in which the error is complained of was repealed by Rev. St. 1911, art. 1(512, as amended by Acts 33d Leg. e. 13(5, providing that, where a motion for a new trial has been filed, the assignments therein shall constitute the assignments of error, and need not be repeated by the filing of assignments; and, while this amendment does not affect the rules relating to the method of briefing assignments, consideration of an assignment would not be denied, though neither it nor the statement referred to the paragraph of the motion, where pages of the transcript were referred to which pages contained the motion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. § 743.*]</p> <p>2. Sales (§ 72*) — Construction—Quantity.</p> <p>A contract for the sale of oil and gasoline to a company engaged in the retail business to supply its local trade provided for the sale of stipulated quantities of each or such quantity thereof as the buyer might require during 12 months for its own consumption. The seller supplied the oil and gasoline needed for the buyer’s own use and its local trade; but the buyer demanded the balance of the stipulated quantities, intending to sell it as a speculation to dealers outside its local trade. Held, that it did not appear that the balance of the stipulated quantities was required for the buyer’s own consumption, and hence it was not entitled thereto.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 197-202; Dec. Dig. § 72.*]</p>

<p>Appeal from Grayson County Court; J. Q. Adamson, Judge.</p> <p>Action by J. C. Field against D. I-C Thompson. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Covenants (§ 108*) — Breach — Assertion of Paramount Title — Invitation of Cov-enantee.</p> <p>Where a grantee under a warranty deed learned after the conveyance of the existence of an alleged superior title, the bringing of a suit by him to clear the title, without any collusion with the holder of the superior title, was not an invitation to assert the superior title which would defeat the grantee’s right to recover upon the warranty.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 175, 179-185; Dec. Dig. § 108.*]</p> <p>2. Covenants (§ 102*) — Actions for Breach — Conditions Precedent — Resistance to Superior Title.</p> <p>While the mere existence of a superior title will not support a recovery upon a warranty of title, where there is an assertion of a superior title, the grantee is not required to make a useless resistance thereto, but may resort to his warranty.</p> <p>FEd. Note. — For other cases, see Covenants, Cent. Dig. §§ 157-168; Dec. Dig. § 102.*] '</p> <p>3. Limitation of Actions (§ 47*) — Accrual of Right of Action — Breach of Cove- , NANT.</p> <p>Where the holder of a superior title made no assertion of title until after action was brought against him by the grantee under a warranty deed to clear his title, the right of action upon the warranty did not accrue until the assertion of the superior title by the filing of the answer, and the statute of limitations did not begin to run in favor of the warrantors before that time.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 254-258; Dec. Dig. § 47.*]</p> <p>4. Covenants (§ 116*) — Action for Breach-Scope of Proof — Matters Admitted bv Pleadings.</p> <p>Where the owners of land conveyed it by warranty deed to a corporation, which after-wards conveyed it to its president by warranty deed, and the original owners in an action by the last purchaser upon the warranty admitted the conveyance by the corporation, there was no necessity to offer proof as to such conveyance.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 209, 210; Dec. Dig. § 116.*]</p> <p>5. TELAD (§ 101*) — RECEPTION OF EVIDENCE— Objection — Necessity.</p> <p>A party who fails to object to a deed, when it is introduced in evidence, waives any objection to it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 254; Dec. Dig. § 101.*]</p> <p>6. Cobpoeations (§ 432*) — Conveyances— Peesumption of Authoeity.</p> <p>Where a deed from a corporation to its president recited that it was authorized by resolution of the board of directors, and it was signed by the president and attested by the secretary under the seal of the corporation, it will be presumed that the officers were acting under the authority of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717,1718, 1724, 1726-1735, 1737, 1743, 1762; Dee. Dig. § 432.*]</p> <p>7. Cobpoeations (§444*)— Conveyances — 'Validity— Conveyance to Peesident.</p> <p>A deed executed by a corporation is not inadmissible in evidence because it was made by the president of the corporation to himself.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1779-1781; Dec. Dig. § 444.*]</p> <p>8. Covenants (§ 39*) — Actions foe Breach— Defenses — Knowledge of Defects in Title.</p> <p>The fact that a purchaser, before accepting the deed, could have ascertained the defects in a title, or even that he had knowledge thereof, is no defense to an action by him upon the covenant of warranty after eviction by a superior title.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 39, 40; Dec. Dig. § 39.*]</p> <p>9. Covenants (§ 130*) — Measure—Beeach of Covenant Waeeanting Title.</p> <p>In an action upon a warranty of title, the measure of damages is the price paid for the land, and plaintiff need not prove that the land was of the value he paid for it.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 245-253, 255, 256, 257; Dec. Dig. § 130.*]</p>

<p>1.Railroads (§ 303*) — Crossings—Maintenance-Character of Road.</p> <p>Rev. St. 1911, art. 6494, makes it the duty of every railroad to keep that portion of its right of way over which any public road may run in proper condition for use of the traveling public, and article 6485 declares, that railroads may construct their roads across, along, or on any highway which its road shall intersect, provided the corporation shall restore the road, etc., to its former state, and keep the crossing in repair. Meld, that the absolute duty imposed on railroad companies by both articles to keep highway crossings in repair was limited to public highways established by the county authorities, and did not apply to a crossing of a road not so established, as to which the railroad company was only required to exercise ordinary care.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 959-963, 966, 967; Dee. Di§. § 303.*]</p> <p>2. Railroads (§ 303*) — Crossings—Defects— Knowledge.</p> <p>Where plaintiff was injured by a defective railroad crossing not at the intersection of a public county road or one where the railroad company was absolutely bound to keep t&e crossing in repair, its duty being only to exercise reasonable care in that regard, the cojjr.t properly submitted to the jury the question of the railroad company’s want of knowledge of the alleged defect as an element of its alleged negligence.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 959-963, 966, 967; Dec. Dife. § 303.*]</p> <p>3. Railroads (§ 350*) — Crossing Accident-Defective Character of Crossing — Contributory Negligence.</p> <p>Where, in an action for injuries to plaintiff by a defect in a railroad crossing, it was undisputed that the lumber with which plaintiff’s wagon was loaded slid forward onto the team when the front wheels dropped from an elevation in the road onto the crossing, and .defendant pleaded-that plaintiff was negligent in loading the wagon so that the lumber could slip or slide, plaintiff’s contributory negligente in that regard was properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p>