Volume 165 — South Western Reporter

<p>Appeal from District Court, Bexar County ; R. B. Minor, Judge.</p> <p>Action by Arthur Thomas and another ’ against the Riegler Ice Cream Company. From a judgment for plaintiffs, defendant appeals.</p>

H. Goodrich, Judge. Action by McDavitt Bros, against the St. Louis, Brownsville & Mexico Railway Company, which impleaded one E. D. Dawson. From a.judgment for plaintiffs against the railroad company, with recovery over by the company against Dawson, the railroad company and Dawson appeal.

M. Woods, Judge. Action by George B. Hollamon against H. Leventhal and Abe Freeman. From a judgment in the county court, on appeal from a justice of the peace, for the plaintiff against both defendants, and for the defendant Freeman against the defendant Leventhal, the defendant Leventhal appeals.

<p>1. Courts (§ 489*) — Jurisdiction oe State Court — Interstate Commerce Act — Loss oe Goods.</p> <p>An action against an initial carrier to enforce liability under the Carmack amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]), to the Interstate Commerce Law (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), for loss of goods by a connecting carrier is within the jurisdiction of a state court, and not within the exclusive jurisdiction of the federal tribunals.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1324^-1330, 1333-1341, 1372-1374; Dec. Dig. § 489.*]</p> <p>2. Carriers (§ 185*) — Evidence (§ 314*) — Connecting Carriers — Loss oe Goods — Evidence.</p> <p>Where the agent of a terminal carrier testified that his company had delivered the goods not lost to plaintiff, and that he had located the loss of the other goods on a certain other line of railway, such evidence was not hearsay, and was competent to show that the company by which the witness was employed in fact handled the goods.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 835-850; Dec. Dig. § 185;* Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.*]</p> <p>3. Carriers (§ 177*) — Connecting Carriers —Loss oe Goods — Interstate Commerce Law.</p> <p>In an action against the initial carrier under Carmack' amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) of the Interstate Commerce Law (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) for loss of goods, it is immaterial' where the loss occurred.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. § 177.*]</p> <p>4. Carriers (§ 185*) — Connecting Carriers —Loss oe Goods — Shipping Contract — Alteration.</p> <p>In an action against an initial carrier for loss of goods, plaintiff was entitled to testify that certain notations appearing on a copy of the shipping contract had been written thereon after she signed the original.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 835-850; Dec. Dig. § 185.*]</p> <p>5. Carriers (§ 185*) — Connecting Carriers— Loss oe Goods — Value.</p> <p>In an action against an initial carrier for loss of goods, there being no valuation in the shipping contract, plaintiff was entitled to prove their value.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 835-850; Dec. Dig. § 185.*]</p> <p>6. CARRIERS (§ 135*) — Loss or Goods — Measure of Damages — Freight Rate.</p> <p>Where a freight rate for the transportation of goods was not based on the market value of the goods at the point of shipment, and a clause in the shipping contract, that the measure of damages should be the value of the goods at the time and place of shipment, was not inserted as a basis for obtaining a certain freight rate, and was therefore void, such value at the point of shipment was not conclusive on the question of plaintiff’s damages for loss of the goods.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 557-559, 599-602, 603%-G04% ; Dec. Dig. § 135.*] ' '</p> <p>7. Costs (§ 238*) — On Appeal — Errors—Admitted Correction.</p> <p>Where appellant made no effort in the trial court to obtain a correction of the judgment, which was erroneous only as to two items amounting to $6.50, it would not be relieved of costs on appeal by reason of the correction of such error.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 908-919; Dec. Dig. § 238.*]</p>

<p>1. Appeal and Error (§ 569*) — Statement oe Facts — Authentication.</p> <p>The facts can be presented to an appellate court only by a full statement of facts agreed to and approved by the judge, or by a brief statement of the case and of the facts proven, approved and signed by the judge, and an agreed statement, not approved by the court or referred to in the bill of exceptions, cannot be considered in connection with the bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. § 569.*]</p> <p>2. Appeal and Error (§ 1032*) — Harmless Error.</p> <p>■ A judgment will not be reversed because of the manner of choosing the jury, or because the court failed to formally present the charge to counsel before the arguments, where appellant did not claim that he was thereby injured.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4047-4051; Dec. Dig. § 1032.*]</p>

F. Ezell, Judge. Action by Lela Swearingen against A. J. Swearingen and others to set aside a divorce decree and for a divorce and alimony. From an order denying plaintiff’s application for the appointment of a receiver and for the issuance of a temporary injunction and alimony, she appeals.

<p>Appeal from District Court, Hill County; A. P. Dohoney, Judge.</p> <p>Action by R. L. Tolbert against the Zava-la Land & Water Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Ebeoe (§ 759*) — Assignments op Eeeoe.</p> <p>Paragraphs of the motion for new trial cannot be considered as assignments of error, where they are not copied into appellant’s briefs as required by Courts of Civil Appeals Buies, No. 29 (142 S. W. xii).</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.*]</p> <p>2. Appeal and EIeeob (§ 757*) — Assignments op Eeeoe — Copying in Beief.</p> <p>A paragraph of the motion for new trial asserting error in an instruction submitting an issue was sufficiently copied into appellant’s brief to be considered as an assignment of error under Courts of Civil Appeals Buies, No. 29 (42 S. W. xii), though as copied it omitted a part of the paragraph stating the reasons for charging that the court erre'd in its instruction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*]</p> <p>3. Appeal and Eeeoe (§ 1068*) — Haemless Eeeoe — Insteuctions.</p> <p>In an action for commissions, error in submitting the issue of joint liability of the defendants was harmless, where the verdict for plaintiff was not joint.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p>

Q. Adamson, Judge. Action by H. N. Roberts against John R. Handy and others. From a judgment for plaintiff, defendants appeal. This .is an action of deceit by the buyer against the seller for the damages sustained in the difference between the value of a crop of oats produced from the seed delivered and the value of the crop that would have been produced from the particular kind and variety of seed actually ordered.

<p>Justices of the Peace (§ 44*) — Jurisdiction —Amount in Controversy.</p> <p>The parties agreed that plaintiff should represent defendant in a lawsuit for a certain sum, part of which was paid when the agreement was • made, at which time plaintiff gave a written receipt therefor, which contained a memorandum of the contract as to the remainder to be paid and the condition of its payment, which receipt was accepted by defendant. Rev. St. 1911, art. 4977, provides that, on all written contracts ascertaining the sum payable when no rate of interest is agreed upon, 6 per cent, interest shall be allowed after the time when the same is payable. Held, that the contract was one on which interest was recoverable under the contract, and hence interest did not enter into consideration as a part of the amount in controversy affecting the jurisdiction of the justice’s court in an action on the contract.</p> <p>[Ed. Note. — Eor other cases, see Justices of the Peace, Gent. Dig. §§ 157-172; Dec. Dig. § 44.*]</p>

<p>Error to District Court, Cherokee County; Jas. I. Perkins, Judge.</p> <p>Action by Dr. C. C. Francis against the Texas & New Orleans Railroad Company. Judgment for the .plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error (§ 928*) — Review-Presumptions — Instructions — Evidence Not in Record.</p> <p>In the absence of a statement of facts, the appellate court could not pass. upon the merits of assignments complaining of instructions since, though the instructions were erroneous, it would be presumed that the evidence, if presented, would render such errors harmless.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. § 928.*)</p> <p>2. Appeal and Eebor (§ 571*) — Statement op Facts — Compelling Approval — Mandamus.</p> <p>A party can, by mandamus, compel the trial judge to approve a statement of facts when the judge wrongfully fails or refuses to approve it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2550-2553; Dec. Dig. § 571.*]</p>

<p>Appeal from District Court, ■ Hunt County; Horton B. Porter, Judge.</p> <p>Action by James K. Parr against Perry Harris to reform a deed. Judgment for the plaintiff, and the defendant appeals.</p>

<p>1. Appeal and Error (§ 712*) — Record — Matters Not Shown — Jurisdiction.</p> <p>Where the notation of the pleadings of an action begun in justice court made on the docket in accordance with Rev. St. 1911, art. 2326, did not show whether the amount in controversy would give jurisdiction to the Court of Civil Appeals on an appeal from the county court, the Court of Civil Appeals may, under the article 1593, inquire into the facts to ascertain whether it has jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2951-2954; Dec. Dig. § 712.*)</p> <p>2. Appeal and Eeror (§ 65*) — Jurisdiction —Amount in Controversy — Cases Arising in Justice Courts.</p> <p>In an action begun in justice court, plaintiff sought to recover against one of the defendants on two notes, and against appellants for the conversion of cotton mortgaged to secure payment of the notes. The value of the cotton did not appear from the notation of the pleadings made on the docket of the justice, and neither did the amount due on the notes. Held that, where the agreed statement of facts showed that the value of the cotton was in excess of $100, the Court of Civil Appeals had jurisdiction of an appeal from the judgment of the county court also in favor of plaintiff, even though the amount of the debt was less than $100, and the county court restricted recovery to that amount.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 315-328; Dec. Dig. § 65.*]</p>

<p>Courts (§ 169*) — County Court — Jurisdiction — Amount in Controversy.</p> <p>Where plaintiff sued defendant in the county court on five notes, aggregating $942.75, with 10 per cent, interest and attorney’s fees, praying judgment for the amount of the notes and fees, the amount in controversy exceeded the jurisdiction of the county court!</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.*]</p>

<p>1. Highways (§ 184*) — Animals Frightened by Automobiles — Contributory Negligence— Sufficiency oe Evidence.</p> <p>Evidence, in an action for the death of one mule and injury to another from a runaway caused by fright at an automobile negligently operated by defendant along the public highway, held insufficient to show that plaintiff’s son, who was in charge of the mules, was guilty of contributory negligence, barring recovery.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 471-474; Dec. Dig. § 184.*]</p> <p>2. Highways (§ -181*) — Animals Frightened at Automobile — Negligence—Liability.</p> <p>Where a person operating an automobile along a public highway, after seeing that a team of mules indicate fright and are liable to run away, increases the speed of the car, and thereby causes a noise which is calculated to and does frighten the mules, he is liable for the resulting damages.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. § 469; Dec. Dig. § 181.*]</p> <p>3. Highways (§ 181*) — Animals Frightened by Automobile — Negligence—Anticipated Injury — Defense.</p> <p>Where the operator of an automobile, at the time he negligently frightened a team of mules, causing them to run against a tree, whereby one was killed and the other- injured, must have known that some injury would result to them, he could not avoid liability on the ground that the particular injury could not have been anticipated.</p> <p>[Ed. Note. — For other cases', see Highways, Cent. Dig. § 469; Dec. Dig. § 181.*]</p> <p>Bookhout, J., dissenting."</p>

<p>Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.</p> <p>Action by the First National Bank of Georgetown against the Georgetown Mercantile Company and others. From a judgment against it, the defendant named appeals.</p>

<p>Appeal from District Court, Ei Paso County ; A. M. Walthall, Judge.</p> <p>Action by the Government Hill Company against J. J. Mundy and others. From an amended judgment entered by the court upon a verdict for the plaintiff, the plaintiff appeals.</p>

C. Douglas, Judge. Trespass to try title by F. Lehmann against Elizabeth Moore, individually and as guardian of G. Bedell Moore, a minor. Judgment for the plaintiff, and defendant ap peals.

<p>Error to District Court, Dallas County; Kenneth Eoree, Judge.</p> <p>Action by B. E. Plaley against the American Machinery Company. From a judgment for plaintiff, defendant brings error.</p>

<p>Appeal from District Court, Busk County; W. G. Buford, Judge.</p> <p>Action by J. E. and Joe Smith against the Timpson & Henderson Bailway Company. From a judgment for plaintiffs, defendant appeals.</p>

W. Simpson, Judge. Original proceeding by E. W. Dean against R. A. Dean and others to set aside a judgment in a partition suit. From a judgment for defendants, plaintiff appeals. In August, 1905, there was filed in the district court of Smith county a suit for partition of 140 acres of land. R. A. Dean was plaintiff in the suit, and Fannie, Edna, Ernest, and Murchison Dean and John Thomas were defendants therein.

Action by H. W. Peterman against the Home Insurance Company. There was a judgment for plaintiff, and defendant brings error. This suit is by defendant in error on a policy of fire insurance covering $700 upon a dwelling house. The house was destroyed by fire on March 20, 1912. The insurance company answered by general denial, and specially averred the clause of the policy avoiding it if the dwelling house be or become vacant or unoccupied and so remain for ten'.days.

<p>Appeal from Hale County Court; W. B. Lewis, Judge.</p> <p>Action by W. W. Laney against J. C. Ro-berds and another. From a judgment for plaintiff, defendant named appeals.</p>

<p>1. Carriers (§ 205*) — Transportation of Animals — Quarantine Regulations.</p> <p>Where cattle are to be shipped from the quarantined area in Texas into the area outside the quarantine line, the duty of complying with the government regulations is primarily that of the shipper, so that if he has been relieved of the duty and the same has been imposed on the carrier, it is the shipper’s duty to plead and prove it; the dipping of the cattle before crossing the line being no ’ part of the contract of shipment.</p> <p>{Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 918, 920, 923; Dec. Dig. § 205.*]</p> <p>2. Carriers (§ 227*) — Transportation of Cattle — Quarantine Regulatio ns — Fail - ure to Fulfill.</p> <p>Where plaintiff contracted for the transportation of certain cattle from the quarantined area in Texas to outside the quarantine line, and failed to plead and prove that the carrier was charged with the duty of dipping the cattle or complying with the quarantine regulations, it could not be held for any damages resulting from the failure to dip the cattle or to deliver them at destination, because it was forbidden by law to transport them over the line.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 232, 953-956; Dec. Dig. § 227.*]</p> <p>3. Carriers (§ 229*) — Transportation of Animals — Co n versio n .</p> <p>Where a carrier was forbidden by law to transport certain cattle to destination over the quarantine line, and some of the cattle died and others were sold, at a point short of destination, the carrier’s conversion, if any, occur-' red there, and the measure of damages was the reasonable market value of the cattle at that point, and not at destination.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.*]</p> <p>4. Carriers (§ 229*) — Transportation of Cattle — Sale.</p> <p>Where cattle are sold by a carrier under Rev. St. 1911, arts. 726, 728, authorizing such sale when cattle are unclaimed for 48 hours, there is no conversion, and the owner may only recover the balance of the proceeds after deducting expenses, etc.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 930, 963, 964; Dec. Dig. § 229.*]</p>

<p>1. Frauds, Statute oe (§ 38*) — False Representations — Application oe Statute.</p> <p>Rev. St. Mo. 1909, § 2785, providing that no action shall be brought to charge any person by reason of any representations made concerning the credit, ability, or dealings of any other person, unless such representations be in writing, and subscribed by the parties charged, would not apply to representations made by defendant as to the solvency, etc., of a corporation whose stock he sold to plaintiff, where defendant owned the stock, and by means of the sale also secured the release of his own personal liability on commercial paper.</p> <p>LEd. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 60; Dec. Dig. § 38.*]</p> <p>2. Cancellation oe Instruments (§ 45*)— Actions — Burden oe Prooe.</p> <p>In an action to have a transfer of notes by plaintiff in consideration of corporate stock declared fraudulent, and to have the notes surrendered, or, in the alternative, for a personal judgment against defendant for damages from fraudulent representations in inducing plaintiff to buy the stock, the general rule as to the burden of proof in fraud cases applies.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 100, 101; Dec. Dig. § 45.*]</p> <p>3. Fraud (§ 22*) — Misrepresentations — Duty to Discover.</p> <p>' One who undertakes to discover the truth of representations made to him is charged with knowledge of everything which a proper investigation would disclose, and would not be justified in acting upon fraudulent representations merely because they were made to him.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 19-23; Dec. Dig. § 22.*]</p>

V. Bell, Judge. Action between the Wells Fargo & Co. Express and J. W. Mitchell. From an adverse judgment, the express company appeals, and appellee moved to dismiss the appeal.

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action by Fred Stallings against J. R. Adair. ÍTom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Jones County; Jno. B. Thomas, Judge.</p> <p>Don Brewster was convicted of crime, and he appeals.</p>

<p>Ceiminal Law (§ 1090*) — Appeal—Statement of Facts — Bill oe Exceptions.</p> <p>Rulings on the admission and sufficiency of evidence cannot be reviewed, in the absence of a statement of facts or bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent.. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]</p>

<p>1. Taxation (§ 421*) — Action to Collect— Descbiption in Assessment Roll.</p> <p>The description of the land in an assessment roll containing all that Rev. St. 1911, art. 7563, requires, except the survey number, will, in an action to collect the tax, be held sufficient to identify the land assessed; there being no evidence that there was more than one survey in the county in the name of the original grantee of the survey in question.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 720-727, 729-735; Dec. Dig. § 421.*]</p> <p>2. Taxation (§ 593*) — Action to Collect— Order oe Commissioners’ Court.</p> <p>Under Rev. St. 1911, art. 7692, providing that the assessment rolls or the list furnished by the tax collector, and corrected by the commissioners’ court, shall in an action to collect taxes be prima facie evidence that all the requirements of the law have been complied with, plaintiff in an action to collect a tax need not allege or show the order of commissioners’ court making the levy.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 1214-1216; Dee. Dig. § 593.*]</p>

E. Davis, Judge. Trespass to try title by Lizzie W. L. Pate and others against Vick Emerson and others. Judgment for plaintiffs, and 'defendants appeal.

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Trespass to try title by Brooke Smith against G. L. Wood and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Sabine County; A. E. Davis, Judge.</p> <p>Action by Mrs. Berintha H. Rice and others against Vick Emerson and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.</p> <p>Action between Cleopatra Roberts and others and Fred Hart. From a judgment in favor of Fred Hart, Cleopatra Roberts and others appeal.</p>

<p>Appeal from Jefferson County Court; R. W. Wilson, Judge.</p> <p>Action by C. T. McGuire against C. E. Edwards. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Wharton County; Samuel J. Styles, Judge.</p> <p>Action by Margaret F. Higbee, as executrix of H. D. Brown, Sr., deceased, and others, against Louis Melcher and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Judgment (§ 656*) — What Constitutes Conclusive Judgment.</p> <p>On the sustaining of exceptions to the original petition, plaintiff filed an amended petition, containing some of the allegations to which exceptions were sustained, and defendants presented an exception in the nature of a plea of res judicata, asserting that the former ruling of the court was conclusive on the question of the sufficiency of the allegations oil the amended petition. RelH, that the order sustaining the exceptions being interlocutory, because it made no final disposition of the cause, it was not a conclusive judgment, and defendants, if dissatisfied with the second petition, should have urged exceptions thereto, and directly assigned the error of the court in overruling them.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 1167; Dec. Dig., § 656.*]</p> <p>2. Appeal and Error (§ 553*) — Record— Bill of-Exceptions.</p> <p>Under court rule 55 (142 S. W. xxi), providing that the rulings upon motions for continuance can be reviewed only when exception is reserved and presented in a proper bill, the overruling of a motion for a continuance cannot be considered, where it was only preserved in the minutes of the court.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error,-Cent. Dig. §§ 2461, 2462, 2465-2471; Dec. Dig. § 553.*]</p> <p>3. Appeal and Error (§ 742*) — Assignment op Error — Sufficiency.</p> <p>Where the statement subjoined to an assignment of error complaining of the admission of testimony did not refer to any bill of exceptions, or disclose what objections, if any, were urged to the admission of the testimony, it cannot be reviewed.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>4. Appeal and Error (§ 731*) — Assignments of Error — Sufficiency.</p> <p>An assignment of error complaining of the charge cannot be reviewed where neither the assignment nor the statement contained the charge excepted to, or its substance, or directed the appellate court as to the page in the record where it could be found.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.*]</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by C. E. Brothers against the St. Louis Southwestern Railway Company. From an adverse judgment, defendant appeals.</p>

<p>1. Pleading (§ 111*) — Plea of Privilege— Burden of Proof.</p> <p>Under Rev. St. 1911, art. 1830, providing that no person shall be sued out of the county of his domicile, except in cases of fraud, when suit may be instituted in the county in which the fraud was committed, a plaintiff, seeking to justify a suit in a county other than that of defendant’s residence on the ground that fraudulent misrepresentations upon which the caiise of action was based were made in the county wherein the venue was laid, has the burden of proving that they' were made in the county where suit was brought.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. § 111.*]</p> <p>2. Pleading (§ 111*) — Plea of Privilege-Evidence.</p> <p>In a suit in a county other than that of defendant’s residence, evidence held insufficient to show that the fraudulent misrepresentations upon which the action was based were made in the county wherein the venue was laid.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. § 111.*]</p>

<p>1. Carriers (§ 401*) — Baggage—Personal Effects.</p> <p>Railroad companies are not insurers of baggage not checked but carried by and retained in the control of passengers upon the cars; the carrier being liable in such case only when the' loss is caused by its negligence.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. § 1529; Dec. Dig. § 401.*]</p> <p>2. Carriers (§ 408*) — Baggage—Loss—Burden oe Proof.</p> <p>The burden is on a passenger to show that personal effects taken by him into the coach and not checked as baggage were lost by the carrier’s negligence.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.*]</p> <p>3. Carriers (§ 403*) — Baggage—Loss—Contributory Negligence.</p> <p>A passenger who, on inquiry, was told by trainmen that the car in which lie left his baggage would go on through and not be switched off, was justified in relying upon the correctness of such information and in assuming that it would not be switched off so as to endanger losing his baggage in such car.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1536, 1537; Dec. Dig. § 403.*]</p> <p>4. Carriers (§ 397%*) — Baggage—Negligence.</p> <p>Trainmen were negligent in -informing a passenger that a car attached to the train, in which the ^passenger’s baggage was, would go on through' with the train, when as a matter of fact the car was switched onto another line and the baggage was lost.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1519-1528; Dec. Dig. § 397%.*]</p> <p>5. Carriers (§ 408*) — Loss of Baggage-Value.</p> <p>In determining the value of a railroad passenger’s wearing apparel at the time of its loss, its cost and the extent of its use and its condition at the time of its loss may all be considered.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. § 408.*]</p> <p>6. Appeal and Error (§ 1171*) — Harmless Error.</p> <p>The maxim, “De minimis non curat lex,” is applicable to the allowance of $2.50 excessive damages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent.' Dig. §§ 4546-4554; Dee. Dig. § 1171.*]</p>

Q. Adamson, Judge. Action by Florence F. Shaw and another against} Walter S. Faires, in which defendant filed a counterclaim. From a judgment for defendant on the counterclaim, plaintiffs appeal.

<p>Appeal from District Court, Jefferson County; W. H. Davidson, Judge.</p> <p>Suit by I. Block against Sam Fertitta and others. From an order denying a temporary injunction, plaintiff appeals.</p>

<p>Appeal from District Court, Sabine County; A. E. Davis, Judge.</p> <p>Action by John H. Broocks against the Temple Lumber Company and others. Judgment for plaintiff, and defendants appeal.</p>

R. Jackson, in which defendant filed a cross-action. From a judgment for defendant on his cross-action, plaintiff appeals.

<p>Drains (§ 2*) — Abolition op District — Statutes — Validity.</p> <p>Acts 33d Leg. 1st Called Sess., c. 28, authorizing an election to determine whether a drainage district once established may be abolished, is not void or unconstitutional.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. § 17; Dec. Dig. § 2.*]</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by Steve Vacarezza against the Realty Investment Company and others. From a judgment for part of defendants, plaintiff appeals.</p>

<p>Appeal and Ebkob (§ 14*) — Ekrob Pending Appeal.</p> <p>A cause in error being but another mode of appeal, the petition in error, by which, pending appeal, the same cause is brought up, will, there having been a reversal and remand on the appeal, be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 48-57; Dec. Dig. § 14.*]</p>

<p>Appeal from District Court, Pecos County; W. G. Douglas, Judge.</p> <p>Action by defendant W. S. Blair against H. M. and O. B. Jackson. ' Judgment for plaintiff, and defendants appeal.</p>

<p>Damages (§ 228*) — Harmless Eekob — Admission oe Evidence.</p> <p>Any error in admitting testimony and refusing charges as to an item of $21.50 were harmless, where such item was remitted by ap-pellee.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 576-579; Dec. Dig. § 228.*]</p>

<p>Intoxicating Liquors (§ 108*) — Licenses— Action to Reinstate — Evidence.</p> <p>The trial of a suit in the district court against the State Comptroller to reinstate a liquor license canceled by him on evidence taken before a notary public is de novo, so that evidence in addition to that taken before the notary is admissible.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 116-118; Dec. Dig. § 108.*]</p>

<p>On second motion for rehearing.</p>

<p>1. Trial (§ 340*)—Verdict—Direction.</p> <p>Where, in an action for damages to a shipment of cattle, the jury’s findings showed that the verdict had been rendered for too great an amount only by a mistake in computation, the court was not required to either set the verdict aside or render judgment for the amount returned, but, the facts as to the number of cattle damaged and the amount of depreciation having been agreed on, it was proper to render judgment for the correct amount.</p> <p>[Ed. Note.—Por other cases, see Trial, Cent. Dig. §§ 795-799; Dec. Dig. § 340.*]</p> <p>2. Carriers (§ 218*)—Transportation op Animals—Notice of Injuries—Waives.</p> <p>Where defendant carrier had notice of plaintiff’s claim for damages to a shipment of cattle, and, through its agent, conferred with plaintiff with reference to the claim, the agent promising to help plaintiff collect it, a provision in the vjritten contract of shipment for notice in writing of any damages sustained, within 91 days after delivery of the cattle was waived.</p> <p>[Ed. Note.—Por other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. § 218.*)</p> <p>3. Trial (§ 357*)—Special .Findings—Correction.</p> <p>In an action for damages to a shipment of cattle, an answer to a special interrogatory asking whether there was a written contract between plaintiff and defendant on the shipment in question and whether it was the one introduced in evidence by defendant, that “there was a contract considered for transportation,” was not fatally defective, as unresponsive and evasive, where the jury’s answers to previous interrogatories propounded plainly stated that there was a written contract between the parties.</p> <p>[Ed. Note.—Por other cases, see Trial, Cent. Dig. § 855; Dec. Dig. § 357.*]</p> <p>4. Trial (§ 216*)—Instructions—Damages.</p> <p>Acts 33d Leg; c. 59, art. 1984—a, amending Rev. St. 1911, c. 14, tit. 37, provides that, in submitting special issues, the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues. Reid that, under such section, where a case is submitted to the jury on special issues, it is not necessary that the court charge on the measure of damages.</p> <p>[Ed. Note.—Por other cases, see Trial, Cent. Dig. § 484; Dec. Dig. § 216.*]</p> <p>5.Pleading (§ 422*) — Verification — Failure to Verify—Waiver.</p> <p>Failure to verify a plea of failure of consideration is waived, unless objected to in the trial court before.going to trial.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1414^-1417; Dec. Dig. § 422.*]</p>

<p>1. Commerce (§ 27*) — Railroads — Federal Employers’ Liability Act.</p> <p>An employs engaged in repairing in railroad shops a car which had been and which was intended to be used indiscriminately in interstate and intrastate commerce is within the .federal Employers’ Liability Act (Act April 22, 1908, c. 149, 85 Stat. 65 [ü. S. Comp. St. Supp. 1911, p. 1322]).</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>2. Master and Servant (§ 297*) — Injury to Servano^Special Verdict.</p> <p>In an action for injuries to an employs, a finding that the employer used ordinary care to adopt reasonably safe methods, and a finding that the employer was negligent in failing to use ordinary care to adopt a reasonably safe method to do the work, were contradictory and did not justify a judgment for the employs.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.*]</p> <p>3. Trial (§ 350*) — Issues to be Submitted— Injury to Servant — Negligence.</p> <p>Where, in an action for injuries to a car repairer by metal flying off the chisel and hammer used in cutting bolts, the negligence relied on was failure to exercise ordinary care to adopt a reasonably safe method of doing the work, to furnish a reasonably safe place, and to provide reasonably safe appliances, and the employer relied on the fact that the employe was experienced and knew the dangers and assumed the risks, the court should submit the issues whether in doing the work the employés chose the method they would use and whether the injury was the result of an accident, and charge that an accident was a thing occurring without fault of any one, and that if neither the employer nor employs was negligent the jury must answer the issues affirmatively.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.*]</p>

<p>Appeal from District Court, Reeves County ; S. J. Isaacs, Judge.</p> <p>Action by Ira M. Cobe against Elizabeth-Ruth and others. Judgment for plaintiff,, and defendants appeal.</p>

<p>1. Evidence (§ 472*) — Opinion Evidence— Conclusions.</p> <p>Evidence was not admissible, in garnishment proceedings, that garnishee did not have “actual possession” of the live stock garnished, especially where that was the principal question in issue.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. § 472.*]</p> <p>2. Evidence (§ 472*) — Opinion Evidence— Conclusions.</p> <p>A party cannot testify that he. owned certain property the ownership of which is in issue.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2186-2195, 2248; Dec. Dig. § 472.*]</p> <p>3. Appeal and Eeeoe (§ 742*) — Assignments op Eeeoe — Sufficiency.</p> <p>Where a proposition under an assignment of error suggests the specific objection to the admission of evidence which is made in the bill of exceptions, which is full and complete on the question, the question will be regarded as being suificiently raised.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*)</p> <p>4. Gabnishment (§ 25*) — Pbopeety Subject - "Effects."</p> <p>In view of Rev. St. 1911, art. 5502, providing that the singular and plural number shall each include the other, etc., and article 5504, providing that the word “effects” includes all personal property and all interest therein the word “effects,” as used in the garnishment statutes (Rev. St. 1911, arts. 273, 274), would include live stock in the hands of a bailee, so as to make such stock subject to garnishment.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 41, 42; Dec. Dig. § 25.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2320-2323.]</p> <p>5. Gabnishment (§ 54*) — Peopeety Subject —Possession by Bailee.</p> <p>The fact that the debtor had the right to resume possession of live stock which was pastured in another’s field at the time they were garnished by the creditor would not prevent them from being garnished while in the field of the .bailee.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 105-107, 109, 112; Dec. Dig. § 54.*]</p> <p>6. Gabnishment (§ 191*) — Gabnishment op Live Stock — Cost of Keeping.</p> <p>Under Rev. St. 1911, art. 307, providing that, where a garnishee is discharged upon his answer, the cost of the proceeding, including a reasonable compensation to the garnishee, shall be taxed against plaintiff, the garnishee would be entitled, in a proper case, to reasonable compensation for the cost of keeping horses garnished pending the suit.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 372-379; Dec. Dig. § 191.*]</p> <p>7. Costs (§ 146*) — Expenses op Litigation.</p> <p>Expenses incident to litigation, which are properly attributable thereto, are always considered as costs.</p> <p>[Ed. .Note. — For other eases, see Costs, Cent. Dig. §§ 567-569, 572-574; Dec. Dig. § 146.*]</p> <p>8. GARNISHMENT (§ 112*) — DELIVERY OF Goods.</p> <p>The act of a garnishee, in whose pasture the garnished horses were, in agreeing to their sale by the debtor was a constructive delivery of the horses to the debtor and thence to his purchaser, contrary to the garnishment statute, and constituted a conversion of the property by the garnishee when considered in connection with the resale of the horses to the garnishee by prearrangement.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 235; Dec. Dig. § 112.*]</p>

<p>Appeal from Hale County Court; W. B. Lewis, Judge.</p> <p>Action by the Citizens’ National Bank against C. E. Lock and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge..</p> <p>Action by the Tyler Building & Loan Association against Baird & Scales. From a judgment dismissing the petition, plaintiff appeals.</p>

<p>1. Limitation op Actions (§ 127*) — Commencement op Actions — Amendment op Pleadings.</p> <p>Where, in an action brought by one partner or joint owner, the petition was amended so as to make the other partner a party plaintiff, limitations did not run against the cause of action up to the date of such amendment, since the injection of the other partner as a party plaintiff was not the assertion of a new cause of action.</p> <p>[Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dee. Dig. § 127.*]</p> <p>2. Appeal and Error (§ 591*) — Record—Presentation op Grounds op Review — Instructions — Objections.</p> <p>Under Acts 33d Leg. c. 59, § 3, amending Rev. St. 1911, arts. 1970, 1971, 1973, 1974, relating to the time and manner of submitting instructions to the jury, and article 2061, declaring that the ruling of the court in the giving, refusing, or qualifying of instructions shall be regarded as approved, unless excepted to in the manner provided, the ruling of the trial court in refusing a request will not. be reviewed on appeal, where the record does not show any exception thereto at the trial; a general exception to tile overruling of a motion for a new trial being insufficient.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. " 501.*]</p> <p>3. Appeal and Error (§§ 262, 549*) — Presentation and Reservation in Lower Court of Grounds op Review — Submission op Special Issues.</p> <p>The action of the trial court in refusing to submit a case upon special issues will not be reviewed on appeal, unless such ruling is excepted to and a bill of exceptions taken, since such a request is neither a charge given nor a request refused, but stands upon a different footing.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1582-1589, 1593-1595, 2441-2451; Dec. Dig. §§ 262, 549.*] .</p> <p>4.Appeal and Error (§ 501*) — Matters to be Shown by Records — Exceptions.</p> <p>Though the record showed an objection purporting to have been made by appellant to the general charge of the court, yet, as the record did not show any ruling on the exception, and appellant’s statement did not show any such objection, it could not be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.*]</p> <p>5. Appeal and Error (§ 501*) —Presentation and Reservation in Lower Court op Grounds of Review — Requests to Charge.</p> <p>Where the record on appeal did not show an exception to the refusal of the trial court to give a request, the appellate court must consider such ruling approved under the express provisions of Acts 33d Leg. c. 59, § 3, amending Rev. St. 1911, art. 2061.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.*]</p> <p>6. Trial (§ 284*) — Waiver of Errors — Instructions to Jury.</p> <p>In an action against connecting carriers for injury to cattle, the failure of defendants to except to the refusal to give a request to apportion the damages was a waiver of an objection to the general charge on the same point, since, there being no exception to the refusal to give the special charge, it stood approved, under the express provisions of Acts 33d Leg. c. 59, § 3, amending Rev. St. 1911, art. 2061.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. § 284.*]</p> <p>7. Appeal and Error (§ 263*) — Presentation and Reservation in Lower Court of Grounds of Review — Requests.</p> <p>Though. Rev. St. 1911, art. 1974, as amended by Acts 33d Leg. c. 59, § 3, provides that, when a request is given, the court shall note the same, subscribe his name thereto, and it shall be filed with the clerk and constitute a part of the record of the cause, yet, under the express provisions of article 2061, it must be excepted to, or it will be regarded as approved.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.*]</p>

<p>1. Appeal and Eeeoe (§ 681*) — Record—Review — Amendment oe Petition.</p> <p>It cannot be said that there was, what is not allowed, an amendment of the petition, ■on appeal from a justice to the district court, equivalent to bringing a new action, on the theory of the original petition stating no cause of action, it merely appearing that in the district •court, to meet a special exception, that the petition did not allege which of defendant’s trains killed plaintiff’s cow, or the time of day it was killed, an amendment was made.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2883, 2884; Dee. Dig. § '681.*]</p> <p>2. Pleading (§ 34*) — Constbuction—Geneeal and Specific Allegations.</p> <p>The general allegation of negligence in a petition is referable to, and controlled by, the ■specific acts of negligence charged.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. § 34.*]</p> <p>3. Railboads (§ 439*) — Killing Stock — Failtjee to Observe and Warn — Pleading.</p> <p>Failure to observe, as an element of failure to warn, is sufficiently alleged, as against a general demurrer, by the allegation, in a petition for the killing of a cow by a train, that the engineer negligently failed to warn the cow from the track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1551-1569; Dec. Dig. § 439.*]</p> <p>4. Appeal and Eeeoe (§ 230*) — Review — Waived Objections to Charge.</p> <p>Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, providing that objections to the charge not presented to the court before it is read to the jury shall be considered waived, objections so waived cannot be urged on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 230.*]</p>

<p>1. Appeal and Error (§§ 499, 500*) — Record —Presentation op Matters por Review.</p> <p>Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, requiring the charge to be submitted to the parties for inspection, and requiring objections thereto to be presented before the charge is read to the jury, and' providing that all objections not so made and presented shall.be considered as waived, where the record does not show that objections to' the charge were presented before the charge was read, or show the court’s ruling on such objections, they will not be considered on appeal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and’ Error, Cent. Dig. §§ 2295-2298; Dec. Dig. §§ 499, 500.*]</p> <p>2. Appeal and Error (§ 501*) — Reservation of Grounds op Review — Exceptions.</p> <p>Under Acts 33d Leg. c. 59, providing that the ruling of. the court in giving, refusing, or qualifying instructions shall be regarded as approved, unless excepted to, the refusal of special instructions would not be reviewed, where the record contained no exception to the ruling.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. §. 501.*]</p> <p>3. Brokers (§ 82*) — Actions—Evidence Admissible Under Pleadings.</p> <p>Where the petition alleged that defendant listed land with plaintiff to be leased, and listed cattle for sale, that plaintiff brought about a sale and leasing, and that he was entitled to a reasonable compensation of 25 cents per head for the sale of the cattle, and 5 cents per acre for the leasing of the land, evidence as to the usual or customary commission charged for such services was in conformity with the pleading ; the basis of recovery being upon the quantum meruit.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. § 82.*]</p> <p>4. Appeal and Error (§ 215*) — Record — Presentation of Matters for Review.</p> <p>In an action for commissions for leasing land and selling cattle, where there was evidence that plaintiff procured W. as a purchaser and lessee, though defendant claimed that the' real purchaser and lessee was B., any error in an instruction to find for plaintiff if he procured W. or both or either of them as purchaser and lessee could not be reviewed, where there was-no objection to the charge which could be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. §■ 215.*]</p> <p>5. Evidence (§ 314*) — Actions—Evidence-Hearsay.</p> <p>In an action for commissions for procuring a purchaser of cattle and a lessee of land, evidence as to the negotiations between plaintiff and the purchaser and lessee was admissible, over the objection that it was hearsay, since, though not competent to show plaintiff’s authority, it was competent to show that he was the procuring cause of the sale; there being no request to limit its effect.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 1168-1173; Dec. Dig. § 314.*]</p>

<p>Error to Kaufman County Court; James A. Cooley, Judge.</p> <p>Action by Guy Stewart against the Texas & Pacific Railway Company. From a judgment for defendant, plaintiff brings error.</p>

<p>1. Eminent Domain (§ 303*) — Construction op Railroad — Measure op Damages.</p> <p>The measure of damages for permanent injury to land by the construction of a railroad near it is the difference between its market value immediately before construction and operation of the railroad and immediately thereafter.</p> <p>[Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 816-817; Dec. Dig. § 303.*]</p> <p>2. Eminent Domain (§ 303*) — Construction oe Railroad — Injury to Realty — Evidence.</p> <p>In determining the amount of damages from injury to realty by constructing a railroad adjacent thereto, all elements causing depreciation in the value of the land may be considered, including probable or contemplated increase of operations, though the measure of damages is the difference between the value of the land before and after the construction and operation of the railroad.</p> <p>[Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 815-817; Dec. Dig. § 303.*]</p> <p>3. Eminent Domain (§ 303*) — Construction op Railroad — Injury to Land — Damages.</p> <p>In forming their opinion as to the difference between the value of land before and after the construction of a railroad adjacent thereto for the purpose of testifying as to the damage sustained, witnesses may take into consideration the past and present effect of the construetion and operation, as well as probable future constructions and operations.</p> <p>[Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 816-817; Dec. Dig. § 303.*]</p> <p>4. Eminent Domain • (§ 303*) — Construction op Railroad — Injury to Land — Damages.</p> <p>In an action for damage to land by the construction of a railroad terminal system near it, the jury could not allow, in addition to the depreciation in value immediately after the railroad was constructed, damages which might result from further operations which plaintiff might, in reasonable probability, sustain in the future, if such probable operations were not a part of the causes which produced the diminution just after the commission of the original acts.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 815-817; Dec. Dig. § 303.*]</p> <p>5. Eminent Domain (§ 307*) — Construction op Railroad — Injuries prom Operation— Actions — Instructions.</p> <p>In an action for damage to realty by the construction of a terminal railroad adjacent thereto, the court instructed that plaintiff sued for permanent damages to her property, that is, damages which have flowed, or which will in the future flow, fz-om the use of the constructions complained of, and the jury should not consider any previous constructions except those which were permanent, but should consider, not only the use of the tracks immediately after the construction and operation thereof, but all the uses to which they have been subsequently put, and which, in reasonable contemplation, will be made of the tracks and constructions in the future, since plaintiff is only entitled to one recovery for all damages which have accrued and will, in reasonable probability, accrue in the future. It further instructed that whether defendant would put in switches to the property at any future time was entirely within its option, and that question should be considered only upon passing upon the question of present damages or future reduction or increase in the value of the property. Held, that the instruction was erroneous and misleading, as permitting the jury to allow plaintiff, in addition to the amount allowed for depreciation in value, a further amount for damages which she might suffer in the future.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig.' §§ 820-824; Dec. Dig. § 307.*]</p> <p>6. Eminent Domain (§ 307*) — Construction of Railroad — Injury to Realty — Instructions.</p> <p>In an action for damage to realty by constructing railroad terminal yards adjacent thereto, a requested charge that, if the market value of the land for any use to which it might be put, or to which it was adapted, immediately after the construction of the tracks and beginning of operations was equal to its market value for any use to which it might be put or was adapted immediately before such construction, plaintiff could not recover should have been given, being supported by evidence.</p> <p>[Ed. Note. — Eor othey cases, see Eminent Domain, Cent. Dig. §§ 820-824; Dec. Dig. § 307.*]</p> <p>7. Eminent Domain (§ 293*) — Construction of Railroad — Evidence—General Issue.</p> <p>In an action for damage to land by the construction of railroad terminal yards adjacent thereto, defendant could show under the general denial that the market value of the property for any use to which it might be put immediately after construction of the tracks was equal to or greater than its market value before such construction.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 797-802; Dec. Dig. § 293.*]</p> <p>8. Trial (§ 194*) — Instructions—Weight of Evidence.</p> <p>In an action for damage to realty by, the construction of railroad terminal yards adjacent thereto, a charge was requested that, if the market value of the property for any use to which it might be put, or to which it was adapted, immediately after the construction of the tracks and the beginning of operations was greater than or equal to the market value for any use to which it might be put before the construction of the tracks and beginning of operations, the jury should find for defendant. Held, that the requested charge was not upon the weight of the evidence, in that it singled out one phase of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p> <p>9. Trial (§ 260*) — Instructions—Requests— Instructions Already Given.</p> <p>The requested charge was not defective for not stating that, in arriving at the market value, the jury should consider, not only those uses of the property presently occurring, but those which might, in reasonable probability, in the future occur; that having been sufficiently instructed in the main charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>10. Eminent Domain (§ 293*) — Construction of Railroad — Injuries from Operation— Actions — Admission of Evidence.</p> <p>In an action for damage to realty by the construction and operation of railroad terminal yards adjacent thereto, in which plaintiff alleged that the acts alleged had materially impaired the comfortable use and enjoyment of the premises, and done unreasonable harm to occupants of ordinary sensibilities, and that the passing trains interfered with conversation, etc., and threw out smoke and dust, evidence was. admissible whether persons living on the .premises experienced or complained of annoyance from the operation of the trains.</p> <p>[Ed. Note. — Eor other cases, see Eminent Domain, Cent. Dig. §§ 797-802; Dec. Dig. § 293.*]</p> <p>11. Evidence (§ 155*) — Pari oe Conversation.</p> <p>In an action for injury to realty by the construction and operation of railroad yards adjacent thereto, in which a witness for plaintiff was asked why the house was vacant, and replied that he was told that they wanted too much rent for it, defendant’s counsel could ask whether the witness was told why they wanted too much rent for it, to which witness would have answered that his informant stated that plaintiff wanted too much rent in view of the bad repair of the house; the remainder of the conversation being admissible after plaintiff had put in a part of it.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445-458; Dec. Dig. § 155.*]</p> <p>12. Appeal and Eeeoe (§ 1058*) — Haemless</p> <p>EeRoe — Evidence.</p> <p>Any error in sustaining objections to evidence was harmless, where the substance of the evidence was afterwards admitted.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*]</p>

<p>1. Costs (§ 231*) — On Appeal — Recovery of MORE Favorable Judgment.</p> <p>While Rev. St. 1911, art. 2046, provides that if the losing party appeals, and the judgment in the court above be against him, but for a less amount, such party shall recover his costs in the court above, yet, as article 2048 declares that the court may, for good cause, to be stated on the record, adjudge the costs otherwise, the county court could, on appeal from the justice court, adjudge all the costs to appellee, though the judgment rendered was less than that of the justice court, where the difference in amount was due to a miscalculation of interest by the justice, and the error was not called to his attention.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 847, 852, 853, 855, 872-875; Dec. Dig. § 231. *1</p> <p>2. Insurance (§ 507*) — Policy — Construction — Property Covered by Insurance against Fire.</p> <p>An insurance policy, indemnifying against loss of rents caused by fire or lightning, actually sustained on rented premises, for such period as may be reasonably necessary to restore the premises to the same tenantable condition as before the fire, covers the period needed to place the contract for repairs, and was not limited to thi time actually spent in the mating of the repairs.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1283; Dec. Dig. § 507.*]</p> <p>3. Insurance (§ 669*) — Action on Policy-Instructions.</p> <p>In an action upon an insurance policy, indemnifying against the loss of rents on premises for such period as was reasonably necessary to restore the premises to the same tenantable condition as before the fire, the evidence being undisputed that from the date of the fire to the restoration of the building the rents were $175, the insurance company contesting alone the amount of recovery, the court properly charged that, if the time actually spent was no more than was reasonably necessary, they should find for the insured for the sum of $175.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. § 669.*]</p> <p>4. Insurance (§ 665*) — Action upon Policy —Sufficiency of Evidence.</p> <p>In an action upon an insurance policy indemnifying insured against the loss of rents on property for the period reasonably necessary to restore the property to the same tenantable condition as before the fire, evidence held, to sustain a finding that the time consumed was reasonably necessary to restore the building.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.*]</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>Minnie McClary was convicted of arson, and she appeals.</p>

<p>Appeal from District Court, Collin. County; F. E. Wilcox, Special Judge.</p> <p>Otis Smith was convicted of statutory rape, and he appeals.</p>

<p>Criminal Law (§ 1097*) — Appeal — Statement op Facts — Necessity.</p> <p>Where defendant was arrested six months before trial, an objection that he was forced to trial without an attorney to represent him cannot be considered, in the absence of a statement of facts.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.*]</p>

<p>Appeal from District Court, Walker County ; S. W. Dean, Judge.</p> <p>Earnest Sewall was convicted of murder, and he appeals.</p>

<p>1. Trusts (§ 373*) — Parol Trust —Existence — Question fob Jury.</p> <p>Whether plaintiff, who contracted with O. to purchase certain school lands, agreed to furnish half of the price, O. to take title to one-half the land as trustee for E., held for the jury.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 604-606; Dec. Dig. § 373.*]</p> <p>2. Trusts (§ 44*) — Parol Trust — Weight of Evidence.</p> <p>A parol trust in lands may be established by the evidence of one witness, if it is such as to satisfy the conscience of the court that equitable relief should be administered.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68;, Dec. Dig. § 44.*]</p> <p>3. Mortgages (§ 497*) — Mortgagee as Bona Fide Purchaser.</p> <p>Plaintiff contracted with O. to share with him in the purchase of school lands which were purchased in the name of O., after which plaintiff leased the land to tenants, who were in possession at the time it was examined by others, who accepted a mortgage thereon from O., in which plaintiff did not join. Held, that the mortgagees were charged with notice of plaintiffs’ interest, which they could have ascertained by inquiry from the tenants, and hence the foreclosure of the mortgage was effective to pass only O.’s interest in the land.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1469, 1471-1473; Dec. Dig. § 497.*]</p> <p>4. Contracts (§ 142*) — School Land — Agreement Not to Bid — Question for Jury.</p> <p>Plaintiff E. and O., being prospective purchasers of certain school land to be sold at public sale, after examining the land, agreed to purchase together, and that O. should bid in the land for both at $7 an acre, which was its reasonable value. This bid was filed and accepted, but before acceptance the county judge and commissioners were informed that plaintiff would not bid, and that O. would purchase for both. Held, that whether such agreement was unenforceable as a fraudulent combination to prevent bidding was for the jury.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1826; Dec. Dig. § 142.*]</p> <p>5. Judgment (§ 736*) — Foreclose,!*—Oon-CLUSIVENESS.</p> <p>Where, in a suit to foreclose a mortgage on land of which plaintiffs claimed to own a half interest, plaintiffs were not parties, and were refused the right to intervene to set up their alleged right and claim that the mortgage only covered the half interest of the mortgagor, and plaintiffs’ interest was not in issue, a decree foreclosing the mortgage was not res ju-dicata of plaintiffs’ claim to the land.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1264, 1265; Dec. Dig. § 736.*]</p> <p>6. Judgment (§ 728*) — Conclusiveness.</p> <p>A judgment is only conclusive on the issues tendered by the complaint, and does not conclude collateral issues or matters of inference arising in the course of the proceeding.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1258; Dec. Dig. § 728.*]</p> <p>7. Estoppel (§ 63*) — Deed—Dealings with Third Persons.</p> <p>Where plaintiffs claimed a half interest in land purchased by O. under an agreement that he was to purchase for both, and he subsequently executed a mortgage on the land in 1 which plaintiffs did not join, they were not es-topped to subsequently claim their rights in -the land by subsequent dealings with third parties, nor by a deed to them from O., wherein they covenanted, that the deed was subject to the mortgage debt.</p> <p>[Ed. Note. — For other cases, see Estoppel, Dec. Dig. § 63.*]</p>

<p>1. Mortgages (§ 32*) — Mortgage or Sale.</p> <p>That an instrument is an absolute deed in form would not prevent a showing that it was intended as a mortgage; the test for determining whether it is a deed or mortage being whether the relation of debtor and creditor existed between the parties after the execution of the instrument.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. § 32.*]</p> <p>2. Attorney and Client (§ 104*) — Knowledge oe Attorney — Imputation to Client.</p> <p>If the attorney representing the mortgagee in the execution of an instrument claimed to be a mortgage had notice that the property was homestead property, such notice would be imputed to the mortgagee.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 92, 93, 1020; Dec. Dig. § 104.*]</p> <p>3. Mortgages (§ 38*) — Absolute Deed as Mortgage — Sueeiciency oe Evidence.</p> <p>In an action to cancel a deed on the ground that it was intended as a mortgage and conveyed the homestead property, evidence held to sustain a finding that the conveyance was intended as a mortgage, and not as a conditional sale."</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dee. Dig. § 38.*] .</p> <p>4. Homestead (§ 214*) — Mortgage—Notice oe Homestead Character — Sueeiciency oe Evidence.</p> <p>In an action to -cancel a deed claimed to have been intended as a mortgage, on the ground that it covered homestead property, evidence held to sustain a finding of notice to the mortgagee that the property was homestead property.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ £97-399; Dec. Dig. § 214.*]</p>

<p>Appeal from District Court, El Paso County; Dan M. Jackson, Judge.</p> <p>Action by Nellie Araughn against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Carson County ; C. E. Gustavus, Special Judge.</p> <p>Action by J. A. Whittenberg against R. F. Groves. From a judgment for plaintiff, defendant appeals.</p>

Ashe, Judge. Suit by the State, to. recover a penalty for the violation of Act 32d Leg. requiring those engaged in constructing or repairing railroad cars to furnish shelter for workmen. From an order sustaining the demurrer and dismissing the petition, the State appeals.

Appeal^ from District Court, Culberson County; Dan M. Jackson, Judge. Action between Myrtle B. James and another and B. A. Golson. Prom an adverse judgment, the first-named parties appeal.

O. Rouse, Judge. Action by the Dimmit County State Bank against G. W. Yaughn, the Carla Land & Irrigation Company, and another, in which Vaughn and another, filed a cross-bill against the company. From a judgment for plaintiff, and in favor of Yaughn against the company, the latter appeals.

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by J. R. Carter against the St. Louis Southwestern Railway Company of Texas. From a judgment on demurrer for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action by Hooyer & Lyons against J. F. Johnson. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Appeal and Error (§ 938*) — Presumptions — Extension op Time poe Filing Bill op Exceptions — Existence op Good Cause.</p> <p>Where the trial court, authorized on good cause shown to extend the time for the filing of bills of exception, extended the time, the court on appeal, in the absence of a contrary showing, will presume that good cause was shown, and bills of exception, filed within the time as extended, must be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3795-3803; Dec. Dig. § 938.*)</p> <p>2. Pleading (§ 279*) — Supplemental Petition-New Cause op Action.</p> <p>Where insured, in a fire policy, sought a recovery only for the destruction of a concrete building covered by the policy, and made no claim for injury by fire .to an iron building, and insured sought to avoid liability by reason of additional insurance on the iron building, a supplemental petition, alleging that the policy was intended not to cover the iron building, and that, if it did cover it, it was a fraud, did not set up a new cause of action, but was an answer which, if supported by evidence, prevented insurer from defeating a recovery by setting up a contract which was never made, or, if made, was fraudulent.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 836-841; Dec. Dig. § 279.*]</p> <p>3. INSUEANCE (§ 669*) — FlEE INSURANCE — EVIDENCE — INSTRUCTIONS.</p> <p>Where, in an action on a fire policy covering a concrete building, insured’s evidence showed that the standing walls could not be utilized for reconstruction, and insurer showed that certain portions could be used, but did not show what it would cost to put them in a condition on which to place a building, or the value of the walls, or the extent of the depreciation in the building, a charge that a building is not a total loss so long as its identity is left, and so long as the remnant may be reasonably adapted for use on which to restore the building, but a building is a total loss unless the remnant is of that substantial character that, if the same was restored or repaired, it would be considered the old structure and not a new building, was sufficiently favorable to insurer in defining total loss.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. § 669.*]</p> <p>4. Insurance (§ 598*) — Fire Insurance — Liability — Interest.</p> <p>Where an insured building is destroyed, the amount of the policy is due when the loss occurred, and it will bear interest from that date, though the policy provides that any sum for which insurer may be liable will not be due until 60 days after proof of loss.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. § 1494; Dec. Dig. § 598.*]</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by W. F. Ort and others against the Galveston Commercial Association and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. VENDOR AND PURCHASER (§ 242*) — BONA Fide Purchaser — Burden of Proof.</p> <p>One asserting an equity in land against the purchasers of the legal title has the burden of showing that such purchasers are not bona fide purchasers without notice.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 603-605; Dec. Dig. § 242.*]</p> <p>2. Vendor and Purchaser (§ 244*) — Bona Fide Purchaser — Evidence—Sufficiency.</p> <p>In an action by one who asserted an equitable interest in land, the legal title to which defendants had acquired, evidence held insufficient to show that defendants were not bona fide purchasers without notice.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dee. Dig. § 244.*]</p> <p>3. Vendor and Purchaser (§ 229*) — Bona Fide Purchaser —Notice—What Constitutes.</p> <p>A statement by one engaged in the land and abstract business to a purchaser of land that he thought the sale would not be good unless the vendor’s wife joined was not a sufficient communication to apprize the purchaser of an equitable interest of the vendor’s wife, for, if it was not the statement of an erroneous legal opinion, it was-at most the utterance of a mere suspicion, and not a fact which would give the purchaser constructive notice of the wife’s interest.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 477 — 494; Dee. Dig. § 229.*]</p> <p>4. Vendor and Purchaser (§ 226*) — Bona Fide Purchaser — Who is.</p> <p>Where purchasers of land paid the purchase price to a bank as the vendor’s agent, and the deed to them was deposited with the bank before they had notice of plaintiff’s equitable interest, the bank’s retention of the funds and the deed until after the purchasers acquired notice of plaintiff’s claim does not deprive them of the defense of bona fide purchase, for the transaction was completed upon the delivery of the purchase price and the deed to the bank.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 475, 476; Dec. Dig. § 226.*]</p> <p>5. Lis Pendens (§ 8*) — Notice—Citation.</p> <p>Until service of citation upon the defendant husband, the commencement of an action. for divorce, in which the wife prayed for adjudication of their property rights, was not notice ’ to purchasers of land from the husband of her interest therein.</p> <p>[Ed. Note. — For other eases, see Lis Pendens, Cent. Dig. §§ 13-19, 25; Dec. Dig. § 8.*]</p> <p>6. Evidence (§ 317*) — Hearsay.</p> <p>Where there was no evidence that defendants, who purchased land in which plaintiff had an equitable interest, were parties to a scheme to defraud her, evidence of communications between the holder of the legal title and his ag;ent, showing a fraudulent scheme, was inadmissible as against defendants.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]:</p> <p>7. Vendor and Purchaser (§ 243*) — Bona Fide Purchaser — Evidence — Admissibility.</p> <p>After defendants had entered into a contract for the purchase of land, and had sent the purchase price to the bank with which the vendor was to deposit the conveyance, plaintiff, wB'o had an equitable interest in'the land, wired defendants to assist her in establishing her title, and that, she would protect them. At the time of the telegram both parties had carried out their agreement, but the bank had not transmitted the deed to defendants or the purchase price to the vendor. Meld, that in a suit by plaintiff against defendants, the telegram was inadmissible, not showing that defendants were not bona -fide purchasers, and necessarily being prejudicial.</p> <p>■ [Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 606-608; Dec. Dig. § 243.*] •</p> <p>8. Taxation (§ 832*) — Payment of Taxes— Volunteer.</p> <p>A person who, in good faith and under color of title, claims to be the owner of real estate may pay taxes assessed thereon; and, if his title is afterwards defeated, he is entitled to be reimbursed by the true owner.</p> <p>[Ed. Note. — For other cases, see Taxation, Cent. Dig. § 1645; Dec. Dig. § 832.*]</p>

<p>1. Bills and Notes (§§ 129, 130*) — Demand and Sight Bills — “Payable after Sight.”</p> <p>A bill payable on demand is due, and action may be brought thereon, at once, without grace, and is payable on the day of its date, or within a reasonable time, while a bill payable at sight must be presented for acceptance before it can be enforced against parties collaterally liable, and is entitled to grace, since “payable after sight” means after acceptance or protest for nonacceptance, and not from a mere private exhibition to the drawee.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 283-292, 297-309; Dec. Dig. §§ 129, 130.*]</p> <p>2. Guaranty (§ 42*) — Drafts on Third Person-Conditions.</p> <p>Defendant bank wired plaintiff bank that defendant would pay drafts on T. Grain Company, with bill of lading attached, drawn by R., and in confirmation thereof wrote a letter to the same effect, stating, however, that the drafts should be sent direct to defendant for payment or credit, and that defendant could not handle the drafts through other banks. Plaintiff thereafter cashed drafts drawn by R. on the grain company, but . these were presented through other banks direct to the grain company and paid by it without any claim against defendant. The draft in suit was presented to the grain company, and payment refused after it had obtained possession of the grain represented thereby by means of authority obtained from R., after which the draft was presented to defendant for payment under the guaranty without bill of lading attached. Held, that the conditions attached to the guaranty were not waived by the previous method of transmitting drafts, and that, the conditions of the guaranty not having been complied with in the transmission of the draft in question, defendant was not liable.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 51, 52; Dec. Dig. § 42.*]</p> <p>3. Guaranty (§ 27*) — Liability of Guarantor.</p> <p>The liability of a guarantor cannot be extended by implication beyond the actual terms of his engagement.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 28; Dec. Dig. § 27.*]</p>

<p>Error to District Court, Cherokee County; Jas. I. Perkins, Judge.</p> <p>Action by J. B. Weems and others against the Texas & New 'Orleans Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Appeal and Error (§ 773*) — Dismissal — Failure to File Briefs.</p> <p>Where a case on appeal was set for submission on April 1st, and appellant did not file its brief until March 23d, nor deliver a copy to appellee until March 24th, appellee was not required to .brief the case within the limited time, but could have the appeal dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]</p>

<p>1. Appeal and Error (§ 1002*) — 'Verdict— Conclusiveness.</p> <p>A verdict on conflicting evidence, and supported by evidence, and rendered under proper instructions, will not be disturbed on appeal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dee. Dig. § 1002.*]</p> <p>2. Homestead (§ 128*) — Contracts for Sale of Homestead — Breach—Damages.</p> <p>A contract executed by a husband alone to convey the homestead is not unlawful, notwithstanding the Constitution declares that a married man shall not sell the homestead without the consent of the wife, evidenced by the wife joining in the conveyance arid by her separate acknowledgment thereof, and an action lies for damages against the husband for breach of the contract where he assured the purchaser that the wife would join in the deed, and she subsequently refused so to do,</p> <p>[Ed. Note. — Eor other cases, see Homestead, Cent. Dig. §§ 224-232; Dec. Dig. § 128.*]</p>

<p>Brokers (§ 86*) —Actions — Commissions — Sufficiency of Evidence.</p> <p>Evidence, in an action for commissions for procuring a purchaser for cattle, held not to sustain a judgment against one of defendants, in that it did not show that he had any interest in the cattle or authorized the employment of plaintiff to sell them.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action between J. T. Cowart and the State Fair of Texas. From a judgment for the former, the latter appeals.</p>

Porter, Judge. W. A. Mann was convicted of pursuing the business and occupation of selling intoxicating liquors in prohibition territory, and he appeals.

<p>Appeal from Tarrant County Oourt; Jesse M. Brown, Judge. Luther Sims was convicted of misdemeanor, and he appeals.</p>

<p>Appeal from Tarrant Oounty Court; Jesse M. Brown, Judge.</p> <p>Abe Singer, alias Joe Burke, was convicted of a misdemeanor, and he appeals.</p>

<p>Appeal from District Court, Smith County; R. W. Simpson, Judge.</p> <p>Action by W. H. Marsh against H. F. Bass and others. Judgment for plaintiff, and defendants appeal.</p>