Volume 166 — South Western Reporter

<p>Appeal from District Court, Calhoun County ; John M. Green Judge.</p> <p>Action by F. J. Smalley against Gus Vogt. From a judgment dismissing the cause, plaintiff appeals.</p>

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Action by John McAllen and others against Rafaela L. Crafts and others. From a judgment sustaining exceptions to a motion to reinstate the cause after a dismissal for want of prosecution, plaintiffs appeal.</p>

Hopkins, Judge. Injunction suit by John Ball and others against S. H. Woods and others. From an order granting the injunction, defendants appeal.

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by W. B. Thornton against J. C. Holbrook. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Jim Wells County; W. B. Hopkins, Judge.</p> <p>Action by A. F. Holmgreen against W. R. Perkins and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Evidence (§ 29*) — Judicial Notice.</p> <p>Sp. Laws 1909, pp. 601-611, will not be considered by the courts, in the absence of proof of its existence; there being no provision therein making- it a public act and requiring the courts to take judicial notice of it.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 36, 37, 39, 43-46, 48; Dec. Dig. § 29.*]</p> <p>2. Teial (§ 194*) — Instructions—Jury Question.</p> <p>In an action for damages for injury to plaintiff’s sailboat by defendants’ failure to lift a bridge, which they were operating under a contract with the owner, to a sufficient height to permit the vessel to pass, it was error to charge, as a matter of law, that a failure to lift the bridge to a perpendicular position was negligence; that being a jury question.-</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. 413, 436, 439-441, 446-454, 456-466 ; Dec. Dig. § 194.*]</p> <p>3. Navigable Waters (§ 20*) — Obstruction by Beidge — Actions—Evidence.</p> <p>In an action for injury to plaintiff’s sailboat by defendants’ failure to lift sufficiently high a lift bridge maintained by defendants over a part of Galveston Bay, the state of the wind and tide at the time, as well as the character of the vessel, should be considered in determining the questions of negligence and contributory negligence.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. •§§ 73-99; Dec. Dig. § 20.*]</p> <p>4. Evidence (§ 423*) — Pakol Evidence-Modifying Weiting.</p> <p>Evidence contradicting a written agreement with respect to whether the liability thereunder was joint or several was properly excluded.</p> <p>[Ed. Note. — For other eases, see Evidence, Dec. Dig. § 423.*]</p>

C. Buford, Judge. Action by L. H. Roberts against the Carthage Ice & Light Company and another and the Security Trust Company. Prom a judgment for plaintiff, the last-named defendant appeals.

<p>1. Appeal and Error (§ 547*) — Record — Matters Presented foe Review.</p> <p>Where, in trespass to try title, the case was submitted upon special issues, and the court also made and filed findings of fact, the findings of the jury and of the court were conclusive on appeal, in the absence of a statement of facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2427, 2429-2432; Dec. Dig. § 547.*]</p> <p>2. Compromise and Settlement (§ 17*) — Operation and Effect.</p> <p>Where, in a suit for the title and possession of land involving a controversy as to whether defendant was an innocent purchaser for value, one of the heirs of the deceased defendant, with authority from the other heirs, entered into an agreement with plaintiff for the settlement of the controversy,.and all of the heirs acquiesced therein, took the benefits thereof, and went into possession of the land which they thereby acquired, they were estopped by such agreement, whether or not the agreed judgment settling the action was valid.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 66-74; Dec. Dig. § 17.*]</p> <p>3. Judgment (§ 651*) — Conclusiveness—Persons Included — Consent Judgment.</p> <p>Where the heirs of a deceased defendant, in an action involving the title to land, entered into an agreement settling the controversy, and the administrator merely formally agreed to a judgment pursuant thereto, the heirs were bound by the judgment, even though the administrator had no power to enter an agreed judgment; there being no necessity for administration.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1163; Dec. Dig. § 651.*]</p> <p>4. Depositions (§ 99*) — Admissibility in Evidence — Admissibility in Other Suits.</p> <p>A deposition taken in a suit was not admissible in evidence in a suit other than the one in which it was taken.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 288-296; Dec. Dig. § 90.*]</p> <p>5. Appeal and Error (§ 1050*) — Harmless Error — Admission of Evidence.</p> <p>The erroneous admission of evidence was not ground for reversal, where any finding of fact or conclusion of law based thereon was only incidental and entirely immaterial to the legal rights of the parties.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p>

<p>1. Insurance (§ 365*) — Like Insurance — Lapse.</p> <p>Where a life policy provided for reinstatement upon payment of back premiums, but that the insurer should not be liable for death occurring within five weeks from reinstatement, the beneficiary cannot recover, where the insured died within five weeks after the payment of the back premiums; there being no showing of any waiver of conditions by the insurer.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 932, 933; Dec. Dig. § 365.*]</p> <p>2. Insurance (§ 536*) — Life Insurance — Proofs of Death.</p> <p>Where a life policy required proofs of death as a condition precedent to recovery, there can be no recovery, where no proofs were made, and there was no waiver of the condition.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1323; Dec. Dig. § 536.*]</p>

<p>1. Boundaries (§ 3*) — Description — Relative Importance of Conflicting Evidence.</p> <p>Where a description of a survey called for well-established surrounding surveys on all sides, such calls controlled the courses and distances, and the mere fact that by running courses and distances there was an excess was immaterial.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dee. Dig. § 3.*]</p> <p>2. Boundaries (§ 3*) — Description — Relative Importance oe Conflicting Elements.</p> <p>In locating land, recourse will be had: First, to natural objects; second, to artificial objects; and, third, to courses and distances.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3^tl; Dec. Dig. § 3.*]</p> <p>3. Boundaries (§ 6*) — Location oe Survey —Reversing Calls.</p> <p>In determining the boundary of a survey, the calls may be reversed only1 when the survey was actually made.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 47-57; Dec. Dig. § 6.*]</p> <p>4. Principal and Agent (§ 34*) — Termination — Revocation by Principal — Agency Coupled with Interest.</p> <p>A power of attorney, which merely empowered the agent to sell land and turn over the proceeds, the agent having no interest in the land, was not a power coupled with an interest, and hence was revocable.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 55; Dec. Dig. § 34.*]</p> <p>5. Vendor and Purchaser (§ 342*) — Liability oe Cotenant — Sale and Conveyances.</p> <p>Where a tenant in common contracts to convey a designated portion of an undivided tract of land, and is unable to do so by reason of such portion falling to another in partition, the remedy of the purchaser is a suit for damages.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1018, 1019; Dec. Dig. ~ 342.*]</p> <p>6. Compromise and Settlement (§ 6*) — Construction oe Agreement.</p> <p>Where plaintiff and defendant, two claimants for a tract of land, entered into a compromise agreement, whereby they agreed to sell the_ disputed tract and divide the proceeds, plaintiff could recover under the agreement, though it was afterwards determined that the tract belonged to defendant.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig'. 6.*]</p>

<p>Appeal from District Court, Reeves County; S. J. Isaacs, Judge.</p> <p>Action by J. B. Smith against A. L. Camp and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error (§ 1040*) — Review-Rulings on Pleadings — Prejudice.</p> <p>In an action for injuries to a railroad brakeman from defendant’s violation of the safety appliance law, defendant was not prejudiced by the sustaining of exceptions to the part of its answer applying the federal law concerning automatic couplers, and alleging that its couplers had to be adjusted at times in order to be coupled by impact, etc., since the federal and state statutes on that subject are practically the same; the court having submitted all the issues that could arise under either to the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error^ Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>2. MASTER AND SERVANT (§ 111*) — INJURIES to Servant — Railroads — Safety Appliance Acts — Automatic Couplers.</p> <p>The equipment of a railroad engine and cars with automatic couplers, requiring brakemen to go between the cars to adjust them so that they will couple by impact, is not a compliance with either the federal or state law (U. S. Comp. St. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710), making it unlawful for any railroad company engaged in interstate commerce in the one case, and intrastate commerce in the other, to haul or permit to be hauled on its railroad any engine or car not equipped with couplers “coupling automatically .by impact,” and which can be coupled and uncoupled without the necessity of men going between the ends of locomotives, tenders, or cars.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. § 111.*]</p> <p>3. Master and Servant '(§ 264*) — Injuries . to Servant — Railroads — Safety Appliance Acts — Violation—Pleading.</p> <p>In an action for injuries to a railroad brakeman by defendant’s violation of the safety appliance acts (U. S. Comp. St. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710), evidence that the automatic couplers with which the engine and car in question were equipped had to be adjusted at times in order to be coupled by impact, and that such adjustment could be made with safety if the cars were not in motion, but that plaintiff sought to adjust the coupling when the engine was moving toward the car to .be coupled, was admissible under defendant’s general denial.</p> <p>[Éd. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. § 264.*]</p> <p>4. Master and Servant (§§ 204, 228*) — Injuries to Servant — Brakemen—Safety Appliance Acts — Violation — Contributory Negligence — Assumed Risk.</p> <p>In an action for injuries to a railroad brakeman by defendant’s violation of the safety appliance- acts (U. S. Comp. St-. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710), neither assumed risk no? contributory negligence was a defense.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig."§§ 544-546, 670, 671; Dec. Dig. §§ 204, 228.*]</p> <p>5.- Evidence (§ 471*) — Conclusions—“Injuries to Servant — Railroads—Safety Appliance Acts.</p> <p>In an action for injuries to a railroad brakeman by his foot becoming caught between the couplers of an engine and ear as he was endeavoring to adjust the same in order that it might couple by impact, evidence that it was necessary to push the drawhead over so as to make the coupling was not objectionable, as a conclusion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>6. Evidence (§ 539%*) — Opinion Evidence-Experts.</p> <p>Plaintiff, a railroad brakeman, held qualified to testify, as an expert, that at the time of his injury, while coupling an engine to a car, it was necessary to push the drawhead over in order that the coupling might be made by impact.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2350-2352; Dec. Dig. § 539y2-*]</p> <p>7. Evidence (§ 546*) — Impeachment—Testimony in Other Cases.</p> <p>A stenographer’s transcript of the testimony of a physician in another case could not be used as a basis to attack the physician’s competency to testify in the case on trial.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2363; Dec. Dig. § 546.*]</p> <p>8. Trial (§ 125*) — Argument of Counsel.</p> <p>In an action for injuries to a railroad brakeman, argument of plaintiff’s counsel that the jury should give plaintiff every cent it possibly could “under the pleadings and evidence,” that they could not make a mistake in giving him too much “under the evidence,” for, if they did, the court would cut it down, but, if they made the verdict too low, it could not be raised, was prejudicial error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.*]</p> <p>9. Damages (§ 132*) — Excessiveness — Personal Injuries.</p> <p>Plaintiff, a railroad brakeman, was injured by getting his - foot caught- in an automatic coupler as he was endeavoring to push the drawhead over so as to make the coupling. He lost the toes on one foot, and received, other painful and permanent injuries. Held, that a verdict for more than $10,000 was excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]</p> <p>On Motion for Rehearing.</p> <p>10. Master and Servant (§ 111*) — Injuries to Servant — Railroads — Safety Appliance Acts — Failure to Comply.</p> <p>Failure of a railroad company to equip its engines and cars with couplers that will couple automatically by impact, without requiring brakemen to go between the cars to adjust the same, as required by safety appliance acts (U. S. Comp. St. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710), is negligence per se.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. §.111.*]</p> <p>11. Master and Servant (§ 256*) — Injuries to Servant — Railroads — Safety Appliance Acts — Interstate Commerce..</p> <p>Where, in an action for injuries to a railroad brakeman while adjusting an automatic coupler so that the same would couple by impact, the petition alleged that defendant was engaged in interstate and intrastate commerce, and that it used on its .railroad in such commerce an engine and car, and that it became the duty of plaintiff then and there to couple the engine and car together, such allegation was sufficient to show that defendant was engaged in interstate commerce.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. § 256.*]</p> <p>12. Master and Servant (§ 258*) — Injuries to Servant — Railroads—Brakeman—Safety Appliance Acts — Petition.</p> <p>A petition by a brakeman injured by catching his foot in an automatic coupler while endeavoring to adjust the same, alleged that the coupler attached to the engine and car to be coupled would not couple automatically by impact, as required by law, and that, to make the coupling, it was necessary to stand on the foot-board of the engine between the engine and the car, and push the drawbar on the engine over so as to make‘the coupling, sufficiently charged that the coupler on the engine was defective, and not a compliance with the safety appliance acts (U. S. Comp. St. 1901, p. 3174; Rev. St. Tex. 1911, art. 6710).</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 816^-836; Dec. Dig. § 258.*]</p>

Action by J. T. Elliott against the Jesse French Piano & Organ Company and Nida H. Hopkins. Judgment for plaintiff, and defendants bring error. The suit was by Elliott against Miss Nida H. Hopkins and the Jesse French Piano & Organ Company.

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Suit by City of Dallas against Sam P. Cochran and another. From a judgment for defendants, plaintiff appeals.</p> <p>The suit is brought by the city of Dallas for taxes claimed to be due for the year 1911 by appellee Cochran, as owner of certain real estate located in the city of Dallas, and to foreclose a tax lien. The United States Bond & Mortgage Company, Incorporated, was made a party defendant, upon the ground that such company held a mortgage lien on the premises, and a foreclosure of the tax lien as against it was prayed for. The property in suit, described by metes and bounds, is 100- by 90 feet in block 125/33 according to the official map of the city of Dallas. The petition alleges that appellee Cochran rendered the property for taxation to the proper officers of the city of Dallas, and that it was accepted and incorporated in the official rolls. The appellees each answered by denial, and specially averred to the effect that the lot was occupied by a ehurcbhouse; which was the First Presbyterian Church, and that he had, on May 31, 1910, executed" á lease or rental contract to the church, by' the terms of which the church was to pay a stipulated rental and was to occupy and use the house and the lot for the exclusive purpose of public worship, and that the church had, since said time, used, and is now so using, the entire premises and building thereon exclusively for public worship, and that the premises were by law exempt from taxation for the year 1911. The case was submitted to the court upon an agreed statement of facts,, and judgment was rendered in favor of the appellees. The agreed statement of facts, which the trial court adopts, is as follows:'</p> <p>“(1) That on, to wit, about May 31, 1910, the First Presbyterian Church conveyfed to Sam P. Cochran, defendant herein, the following described iand [description follows], reserving in said deed and notes express vendor’s lien to secure the payment of certain indebtedness, to wit, the sum of $60,000, therein mentioned as part of the purchase money of said lot, $10,000 of which has been paid, and the two notes remaining unpaid of $25,000 each, with vendor’s lien, having been conveyed by proper deed of conveyance to the United States Bond & Mortgage Company, Incorporated, and tha.t the said United States Bond & Mortgage. Company still owns and holds said notes; that subject to the express vendor’s lien above mentioned Sam P. Cochran owned said lot on the 1st day of January, 1911.</p> <p>“(2) That on the date when the said lot was conveyed to defendant it was occupied by a ehurchhouse, which the First Presbyterian Church has been using for years for the exclusive purpose of public worship; that it had used none of it, or the grounds attached thereto, for any other purpose.</p> <p>“(3) That on the date when the said lot was conveyed to said defendant, he immediately executed to the said First Presbyterian Church a lease or rental contract, which was accepted by the said First Presbyterian Church, by the terms of which they continued to occupy said lots and buildings thereon as they had previously occupied them for the exclusive purpose of public worship, for which they paid the said defendant a stipulated rental; that under the said lease contract said church has, ever since the date of the said conveyance to the present time, including the 1st day of January, 1911, occupied said lot and buildings thereon and used same exclusively for public worship.</p> <p>“(4) That all of the buildings thereon and furniture in said buildings and the grounds attached thereto are necessary and proper for such use.</p> <p>“(5) That no part of the said lots, buildings, or furniture has been leased or rented out by the said First Presbyterian Church, or otherwise used by it with a view to profit.</p> <p>“It is agreed by the parties hereto that if the exclusive use of this property by the said First Presbyterian Church for the purpose of public worship, and under all the circumstances above stated, and that it has not leased out any part of it, or rented it to any other person for profit, does not exempt same from taxation under the laws of Texas, the defendant is liable for taxes thereon due the plaintiff for the year 1911.</p> <p>“(6) It is agreed that the assessment by the city of Dallas was duly and regularly made, and that the amount of taxes due for the year 1911, exclusive of penalties and interest is $829.92.</p> <p>“It is contended by the plaintiff in this case that the fact that defendant has bought the property under the circumstances above stated, and leased it to the First Presbyterian Church, renders him liable for the taxes thereon; whereas defendant’s contention is that the ownership of the property might be construed to be in him is immaterial, as the exclusive use of the property by the church exempts it from taxation.”</p>

<p>Appeal from Grayson County Court; J. O. Adamson, Judge.</p> <p>Action by William Browning and others against the Missouri, Oklahoma & Gulf Railway Company of Texas. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by D. K. Porter against the Chicago, Rock Island & Gulf Railway Company, which impleaded the city of Dallas. From judgment for plaintiff, which denied the defendant relief against the impleaded city, defendant appeals.</p> <p>This was a suit by appellee Porter against appellant to recover the value of a horse killed by a train operated over its line of railway. It was alleged that the horse was killed “through the negligence and want of ordinary care of defendant’s agents and em-ployés operating its said cars, and through the failure of said defendant to protect the railroad by proper fencing at this point.” Appellant in its answer alleged that its line of railway was properly fenced at the place where the animal was killed, but that em-ployés of the city of Dallas, while laying water mains for that city, “broke down and removed the fence” which inclosed its right of way, “and left the same open, so that horses and other animals could get through the same and upon the defendant’s track,-• and defendant charges that the plaintiff’s horse, which is alleged to have been killed, and for which he sues, got through the opening left by the servants and the employés of the said city of Dallas and upon the track of defendant and was killed.” Appellant asked that the city of Dallas, the other appellee,-be made a party to the suit, and that, in the event appellee Porter recovered against it, it. have a recovery over against said city. The city of 'Dallas,' having been made a party, filed an answer. The verdict and judgment were in favor of appellee Porter against appellant for the sum of $250 as the value of the horse, and in favor of the city as to appellant’s suit against it.</p>

<p>Brokers (§ 40*) — Compensation — Employment of Broker.</p> <p>Where the owner of land told a broker “to look around and find a purchaser,” she authorized him to perform a valuable service; and while it may have constituted merely an offer which might be withdrawn before a. purchaser was secured, where the offer was' not withdrawn, and the owner sold to a purchaser with whom she had been brought in touch through the broker, knowing that the broker had showed the land to such purchaser, the law will imply a promise to pay the broker’s commission.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 38-40; Dec. Dig. § 40.*]</p>

<p>1. Pleading (§ 8*) — Allegations—Conclusions.</p> <p>Where the petition in an action by a carrier for freight alleged that defendant bought corn of the consignor, f. o. b. cars, that the bills of lading stipulated that the owner or consignee should pay the freight, that defendant sold the corn, indorsed the bill.of lading, and delivered the same to the purchaser, to whom the carrier delivered the corn at the point of destination, an averment that defendant was the owner and the consignee named in the bill and an averment that defendant was the assignee of the shipper or person signing the bill were mere legal conclusions, and could not be considered in determining the sufficiency of the petition to state a cause of action.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%, 68; Dec. Dig. § 8.*]</p> <p>2. Carriers (§ 194*) — Carriage of Goods— Liability for Freight.</p> <p>One who is not the consignor or consignee of goods, and who does not receive the goods from the carrier at the point of destination, but who merely indorses the bill of lading, is not liable for the freight.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 870-872; Dec. Dig. § 194.*]</p> <p>3. Carriers (§ 194*) — Carriage of Goods— Liability for Freight.</p> <p>Where a consignee in a bill of lading stipulating that the owner or consignee should pay the freight assigned the bill of lading before delivery, and the carrier made delivery to the as-signee, who purchased the goods from the consignee, the consignee was not liable for the freight.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 870-872; Dec. Dig. § 194.*]</p>

<p>Appeal from District Court, Smith County; R. W. Simpson, Judge.</p> <p>Action by John Wadsaek against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

Denton, Judge. Suit by the Supreme Lodge of the Fraternal Union of America against David R. Ray and others. From a decree dismissing the petition on demurrer, complainant appeals.

B. Wade, Special Judge. Action by Ed. S. Briggs and others against T. H. Waggoner and wife. Judgment for plaintiffs, and defendants appeal. On November 12, 1910, T. H. Waggoner was arrested on a felony charge, and on the evening of the same day of his arrest he executed a bail bond, which was approved by the justice of the peace, in the sum of $500, with E. S. Briggs and L. A. Wilkie as sureties.

<p>Appeal, and Error (§ 773*) — Dismissal-Grounds.</p> <p>Under Court of Civil Appeal rule 39 (142 S. W. xiii), authorizing the dismissal on motion of an appeal where appellant fails to file briefs, as prescribed by law and the rules, unless good cause be shown for the failure, where appellant failed altogether to file briefs in the trial court, as required by Rev. St. 1911, art. 2115, did not file his brief in the appellate court until two days before the day set for submission, and, having withdrawn the transcript soon after filing it, retained it over four months until the day set for submission, upon motion to dismiss, of which notice was duly given, but to which no reply was made, the appeal must be dismissed, as appellee had a right to have the case submitted on the day set, and also to a reasonable time to reply to appellant’s brief, and, not having been afforded sufficient time, was entitled to submit the case without brief, ask for a postponement, or move to dismiss the appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. § 773.*]</p>

<p>Appeal from Van Zandt County Court; C. L. Stanford, Judge.</p> <p>Action by the First National Bank of Iowa City, Iowa, against A. J. Humphreys. From a judgment for defendant, plaintiff appeals.</p>

A Cooley, Judge. Action by the First National Bank of Iowa City, Iowa, against C. W. Dorsey. Judgment for defendant, and plaintiff appeals. The suit originated in the justice court, and is by appellant against the appellee on a promissory note for $175.

<p>1. Set-Off and Counterclaim (§ 22*) — Tort Actions — Disconnected Acts.</p> <p>In an action for the wrongful killing of a horse, the defendant cannot set off damages arising from trespass committed by the horse, and Ms keep after a former trespass, since the statute relating to set-off does not cover disconnected claims for damages arising in tort.</p> <p>[Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 26-37; Dec. Dig. § 22.*]</p> <p>2. Damages (§ 87*) — Punitive Damages — Necessity of Actual Damages.</p> <p>A verdict allowing punitive damages, without also allowing actual damages, is contrary to law.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 188-192; Dec. Dig. § 87.*]</p> <p>3. Appeal and Error (§ 1033*) — Harmless Error — Error Favorable to Appellant.</p> <p>One who sues for actual and punitive damages, and recovers judgment for punitive damages only, cannot, on appeal, raise the question that the jury could not allow punitive damages, without also allowing actual damages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]</p> <p>4. Highways (§ 68*) — Evidence as to Existence-Sufficiency.</p> <p>Proof that a road was indicated and named as a public road on a plat filed before the controversy arose, and that it was referred to several times in the testimony, is not sufficient to establish, as a matter of law, that it was a public road.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 226-233; Dec. Dig. § 68.*]</p> <p>5. Appeal and Error (§ 742*) — Assignment of Errors — Necessity of Propositions and Statements.</p> <p>Assignments of error, not supported by propositions and statements, as the rules require, need not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>6. Appeal and Error (§ 722*) — Assignments of Error — Conformity to Motion for New Trial — Statutory Provisions.</p> <p>The provision of Acts 33d Leg. c. 136, that assignments contained in a motion for a new trial shall constitute the assignments upon which the cause is presented on appeal is mandatory, where' a motion for a new trial was filed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.*]</p> <p>7. Appeal and Error (§§ 722, 758*) — Assignment of Error — Conformity to Motion for New Trial — Statutory Provisions.</p> <p>The statute does not change the former rule that assignments must be correctly copied in the briefs, and that it is not permissible to present assignments reconstructed as to either Eorm or substance.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2990-2996, 3093; Dec. Dig. §§ 722, 758.*]</p> <p>8. Appeal and Error (§ 301*) — Assignments of Error — Errors Not Requiring Assignment.</p> <p>The only errors which can be considered by the Court of Appeals, other than those ivhich may be passed upon without an assignment, are those called to the attention of the trial court in the motion for a new trial, and the appellate court will not attempt to construe reconstructed assignments in the briefs to determine whether the errors are the same as those assigned in the motion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.*]</p> <p>9. Appeal and Error (§ 722*) — Assignments of Error — Error Subsequent to Motion, for New Trial.</p> <p>As to errors arising subsequent to a motion for a new trial, and which cannot be raised in the motion, probably the proper practice is to file distinct assignments in relation thereto with the clerk of the lower court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dee. Dig. § 722.*]</p> <p>10. Appeal and Error (§ 282*) — Assignments of Error — Trial by tile Court.</p> <p>Acts 33d Leg. e. 136, making the assignments of error in the motion for a new trial the assignments on appeal, does not change the rule that no motion for a new trial need be filed in cases tried to the court, in which findings of fact and conclusions of law are filed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. § 282.*]</p> <p>11. Appeal and Error (§ 722*) — Assignments of Error — Trial by the Court.</p> <p>In such eases the assignments of error are still to be filed with the clerk of the court below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. § 722.*] -</p> <p>12. Appeal and Error (§ 1175*) — Disposition of the Case — Rendering Judgment.</p> <p>Where the court erroneously overruled exceptions to defendant’s cross-action, and, after verdict, rendered judgment on the cross-action in an amount equal to the judgment for plaintiff on his cause of action, the case need not be remanded for new trial, but judgment' will be rendered for the plaintiff in the amount due on his cause of action, under Rev. St. 1911, art. 1626, authorizing the Court of Civil Appeals to render such judgment as the court below should have rendered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]</p>

<p>1. Escrows (§ 1*) — Nature and Requisites in General.</p> <p>Before an instrument can become an escrow, the contracting parties must actually agree thereto, and an agreement between the grantors as to the distribution of the purchase price was not binding on the grantee, who was not a party thereto.</p> <p>[Ed. Note. — For other cases, see Escrows, Cent. Dig. §§ 1-3, 5; Dec. Dig. § 1.*]</p> <p>2. Trusts (§ 202*) — Conveyance—Application op Proceeds.</p> <p>Where a father and children executed a deed and also an agreement as to the distribution by the father of the purchase price, to which the grantee was not a party, and the father, who acted for the children as well as himself, delivered the deed to the grantee, the grantee was not bound to see that each of the children received his proportionate share of the purchase price, according to the agreement, and one of the children could not object that the delivery was unauthorized, because she did not receive her share.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 271, 272; Dec. Dig. § 202.*]</p> <p>3. Fraud (§ 30*) — Deception Constituting Fraud — Reliance on Representations— Persons Liable.</p> <p>One of several grantors was not entitled to object, as against the grantee,, that she had been misinformed as to her liability on a mortgage on the land, unless she was deceived and misled by the grantee.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 35; Dec. Dig. § 30.*]</p> <p>4. Appeal and Error (§§ 969, 1046*) — Trial (§ 25*) — Argument-Opening and Closing —Discretion op Court — Harmless Error-Review.</p> <p>Under district and county court rule 37 (142 S. W. xx), providing that counsel for an intervener shall occupy the position in the argument assigned him by the court, according to the nature of the claim, the matter is within the sound discretion of the court, which is not subject to review unless abused, and error could not be predicated on the refusal of the court to permit interveners to open and close the argument, where there was nothing to indicate any injury therefrom.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3845-3848, 4128-4131, 4134; Dec. Dig. §§ 969, 1046;* Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.*]</p> <p>5. Appeal and Error (§ 173*) — Reservation op Objections — Necessity op Presentation to Trial Court.</p> <p>An objection to the validity of a deed, which was not raised in the pleadings nor in any matter brought to the attention of the trial court, cannot be urged for the first time on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.*]</p>

<p>Appeal from Andrews County Court; N. P. Ross, Judge.</p> <p>Action by J. C. Ainsworth against A. W. Sears. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Boundaries (§ 3*) — Conflicting Elements — Calls fob Course and Distance-Calls for Monuments.</p> <p>Where there is a conflict between calls for course and distance in grants of adjacent lands and calls therein for the bank of an old bed of a river as the boundary between the grants, the latter must prevail.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.*]</p> <p>2. Boundaries (§ 37*) — Evidence — Sufficiency.</p> <p>In trespass to try title involving the location of a boundary between adjacent grants, evidence held to sustain the finding that the junction of two river beds forming the boundary was at a designated point as claimed by plaintiff.</p> <p>[Ed. Note. — For other eases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. § 37.*]</p> <p>3. Appeal and Error (§ 1002*) — Verdict-I CONCLUSIVENESS.</p> <p>A verdict on conflicting evidence will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>4. Boundaries (§ 32*) — Issues, Proof, and Variance.</p> <p>Where, in trespass to try title, the controlling issue was the location of an old bed of a river with reference to the lands in conti-o-versy, and not with reference to calls for course and distance, failure of plaintiff to prove that the course of the old bed was along the calls for course and distance given in his pleadings did not amount to a variance between the pleadings and the proof.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 145; Dec. Dig. § 32.*]</p> <p>5. Pleading (§ 374*) — Issues, Proof, and Variance.</p> <p>Though the pleadings and proof must correspond, the substance of the pleadings only need be proved.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent..Dig. §§ 1217-1223; Dec. Dig. § 374.*]</p> <p>¡6. Evidence (§ 353*) — Boundaries — Declaration of Former Owner — Admissibility.</p> <p>Where, in trespass to try title, the issue involved was the location of an old bed of a river, and defendant claimed under a town to which a grant was made, bounded by the old bed, a statement in a deed executed by the town with reference to the location of the old bed was admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1404-1428, 1430, 1431; Dec. Dig. § 353.*]</p> <p>7. Boundaries (§ 32*) — Pleadings—Amendments — Issues.</p> <p>Where, in trespass to try title involving the issue of the location of an old bed of a river forming the boundary between adjacent grants, the fact that plaintiff, by an amended petition, demanded less land than he was lawfully entitled to recover did not prevent him from proving the true boundaries of his grant as determined by the location of the bed.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 145; Dec. Dig. § 32.*]</p> <p>8. Trial (§ 260*) — Instructions—Refusal of Instructions Covered by Charge.</p> <p>It is not error to refuse a requested charge covered by a correct charge given.</p> <p>’[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>9. Trial (§ 191*) — Instructions — Comment on Evidence.</p> <p>Requested instructions assuming facts not in evidence are properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. § 191.*]</p> <p>10. Adverse Possession (§ 110*) — Pleading —Defenses.</p> <p>Where, in trespass to try title, defendant relied on the defense of limitations, and showed that he and his predecessors in title had claimed the land in controversy under deeds duly registered, and had paid the taxes thereon for about 19 years, and that the actual possession during that period was on land within the grant relied on by plaintiff, defendant could not be deprived of his right to rely on limitations by the fact that plaintiff filed an amended petition so describing his land as not to include the land so occupied.</p> <p>[Ed. Noté. — For other cases, see Adverse Possession, Cent. Dig. §§ 636-645; Dec. Dig. § 110.*]</p> <p>11. Adverse Possession (§ 100*) — Actual Possession — Constructive Possession.</p> <p>A grantee who takes actual possession of a part of land conveyed by his deed, duly recorded, acquires thereby constructive possession to the limits of the boundaries specified in the deed, though the deed includes land in a prior grant to another who has not taken actual possession of any part of the grant, and, where such possession continues undisturbed for the statutory period, he acquires title to' the entire tract described by the deed.</p> <p>[Ed. Note. — For other eases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. § 100.*]</p> <p>12. Evidence (§ 433*) — Public Records — Parol Evidence.</p> <p>A map which is an archive of the land office may be shown by parol evidence to be incorrect.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1990-2004; Dec. Dig. § 433.*]</p> <p>13. Appeal and Error (§ 719*) — Questions Review able — Instructions—Objections.</p> <p>The correctness of a charge will not be con.sidered on appeal, where no assignment of error relating thereto was filed in the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. 719.*]</p> <p>Higgins, J., dissenting in part.</p>

<p>1. TRESPASS TO Try Title (§ 44*) — Sufficiency op Evidence — Ownership.</p> <p>Where, in trespass to try title, though defendants pleaded not guilty and a general denial, the ownership of the land was not really in issue, the controversy being as to damage for pasturing cattle on the land, and defendant did not claim the land, but, on the contrary, admitted that he leased it from plaintiff, and a deed from defendant to plaintiff was in evidence, there was sufficient evidence of plaintiff’s ownership to justify an instruction to find for plaintiff as to the title; it not being necessary to show a title from the state, where plaintiff’s title and possession, until the ouster, is not disputed.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 66; Dec. Dig. § 44.*]</p> <p>2. Trespass to Try Title (§ 46*) — Verdict— Suppiciency.</p> <p>Where the petition, in trespass to try title, alleged title, and that defendants ousted plaintiff from possession, thereby damaging him, and the real issue was as to damages for pasturing cattle on the land, a verdict finding defendants guilty as charged, and assessing damages, was not insufficient as failing to find as to the ownership, since a verdict defective in not finding expressly upon an issue may be aided by the pleadings, and defendants could not be guilty as trespassers unless plaintiff was the owner.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 68; Dec. Dig. § 46.*]</p>

<p>1. Exemptions (§ 45*) — “Trade or Profession.”</p> <p>One conducting a moving picture show is engaged in a “trade” or “profession” within Rev. St. 1911, art. 3785, subd. 5, exempting from execution the tools, apparatus, and books belonging to any trade or profession.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. § 45.*]</p> <p>2. Exemptions (§ 45*) — Property Exempt— Appliances for Moving Picture Show— “Tools.”</p> <p>Appliances used for producing moving pictures in a moving picture show are exempt from execution as “tools” or apparatus within Rev. St. 1911, art. 3785, subd. 5, but the chairs used by the audience are not exempt.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. § 45.*</p> <p>For other definitions, see Words and Phrases, vol. 8, pp. 7000-7005-.]</p> <p>3.' Exemptions (§ 4*) — Statutes — Construction.</p> <p>Exemption statutes must be liberally construed to affect their objects and promote justice.</p> <p>[Ed. Note. — For other eases, see Exemptions, Cent. Dig. § 4; Dec. Dig. § 4.*]</p> <p>4. Courts (§ 91*) — Controlling Decisions— Decisions op Supreme Court.</p> <p>The Courts of Civil Appeals must follow the decisions of the Supreme Court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313, 325, 326; Dec. Dig. § 91.*]</p> <p>5. Exemptions (§ 13*) — Tools op Trade or Profession — Abandonment.</p> <p>The mere fact that one who conducted a moving picture show in a leased building was removing his appliances therefrom at the expiration of the lease did not show an abandonment of the business so as to remove the appliances from the protection of the exemption statute. Rev. St. 1911, art. 3785, subd. 5.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. § 12; Dec. Dig. § 13.*)</p> <p>6.Exemptions (§ 45*) — Trade or Profession.</p> <p>That one was operating an opera house and a moving picture show at the same time in different parts of rented premises did not prevent him from claiming the appliances used to produce the moving pictures as exempt within Rev. St. 1911, art. 3785, subd. 5, exempting tools and apparatus belonging to any trade or profession.</p> <p>[Ed. Note. — For other cases, see Exemptions, Cent. Dig. §§ 56-61; Dec. Dig. § 45.*]</p>

<p>Appeal from District Court, Grayson County; W. M. Peck, Judge.</p> <p>Action by J. H. Boring against the Missouri, Oklahoma & Gulf Railway Company. From a judgment for plaintiff, defendant appeals.</p>

F. Whitehurst, Judge. Action by W. H. Howell against the Chicago, Rock Island & Gulf Railway Company, From a judgment for plaintiff, defendant appeals. This is an action brought by appellee against the railway company to recover damages for wrongful failure to furnish him with a round-trip ticket from Dallas, Tex., to Seattle, Wash., correctly stating the terms of the contract in respect to the date of the return limit.

<p>1. Commerce (§ 27*) — Power to Regulate— Interstate Commerce.</p> <p>A domestic corporation operating terminal facilities and depots within the state and controlling the operations of such facilities, whose service consisted entirely of switching and transferring cars between points in and near a city for other companies, in furnishing freight and passenger depots, and in loading and unloading ears for other railway companies, which, for an agreed toll or rental, used its terminal facilities, though it did not participate in the through rate, and was not a party to the bills of lading, and though its charges did not come from a shipper, and were made directly against the other railroad companies upon a wheelage basis, was engaged in interstate commerce.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. § 27.*]</p> <p>2. Commerce (§ 69*) — Power to Regulate— Interstate Commerce.</p> <p>Rev. St. 1911, art. 7384, providing that every individual or domestic or foreign corporation owning or controlling any terminal companies or railroads doing a terminal business within the state shall pay an occupation tax equal to 1 per cent, of its gross receipts from all sources whatever, is not invalid as imposing a burden upon interstate commerce, as applied to a terminal railway company engaged in domestic and interstate commerce, since it does not impose a direct tax upon the gross receipts, but an occupation tax, levied for the privilege of exercising a particular occupation, and such a tax is valid,, though its amount is determined from the gross receipts.</p> <p>>[Ed. Note. — For other eases, see Commerce, Cent. Dig. §§ 100, 113-119; Dec. Dig. § 69.*]</p> <p>3. Commerce (§ 69*) — Power to Regulate— Interstate Commerce.</p> <p>_ The state has power to levy a valid occupation tax upon the domestic business of a company owning and operating a terminal railway within the state and transacting both interstate and domestic business.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 100, 113-119; Dec. Dig. § 69.*]</p> <p>4. Statutes (§ 188*) — Rules of Construction-Meaning of Language.</p> <p>It is a cardinal rule of construction, incorporated into the statute law in the state, that the language of a statute must be given its usual and ordinary import, unless other language used by the. same Legislature indicates that another and different meaning was intended.</p> <p>[Ed. Note. — For other cases, 'see Statutes, Cent. Dig. §§ 266, 267, 276; Dee. Dig. § 188.*]</p>

<p>Appeal from Midland County Court; J. H. Knowles, Judge.</p> <p>Action by the Midland Furniture & Hardware Company and another against J. A. Underwood and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Eastland County Court; E. A. Hill, Judge.</p> <p>Action by S. E. Hilley against M. T. Eppler and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error (§§ 690, 757*) — Record —Matters Presented for Review.</p> <p>Error could not be predicated upon the admission of the testimony of witnesses claimed to be inadmissible under the pleadings, where neither the brief nor the bill of exceptions showed what the witnesses testified.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908, 3092; Dec. Dig. §§ 690, 757.*]</p> <p>2. Sales (§ 130*) — Actions for Rescission—Petition — Reliance on Representations.</p> <p>In an action by a purchaser of mares to rescind for false representations, a petition alleging- the representations that they were false, and that the purchaser gave faith and credit to them, and on account thereof was induced to enter into the contract, sufficiently alleged the purchaser’s reliance on the representations, and that they were a material inducement, to admit evidence as to the making of the representations.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 322-324; Dec. Dig. § 130.*],</p> <p>3. Trial (§ 260*) — Instructions—Repetition.</p> <p>It was not error to refuse a special charge which, so far as applicable, was covered by the main charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>4. Sales (§ 38*) — Rescission—Grounds—Misrepresentations .</p> <p>A buyer of horses induced to make the contract by reason of false representations was entitled to recover, in an action for a rescission, irrespective of any effort on his part to ascertain the truth of the representations.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. § 38.*]</p> <p>5. Sales (§ 130*) — Actions por Rescission-Instructions.</p> <p>An instruction that, if defendant sold plaintiff two horses, and, as an inducement for plaintiff to purchase them, made false and fraudulent representations as to their qualities, if such representations were material, if plaintiff believed them and did not know, and could not by the exercise of ordinary care have known, whether they were true or false, and if they were made for the purpose of inducing the purchase, to return a verdict for plaintiff for a rescission and the amount of the purchase price was not objectionable as failing to charge that plaintiff must have relied upon the representations and have been damaged thereby.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 322-324; Dec. Dig. § 130.*]</p> <p>6. Trial (§ 235*) — Instructions—Effect op Presumptions.</p> <p>In an action to rescind a contract for fraud, an instruction that contracts are presumed to be fair, and not unlawful or fraudulent, and that the party who attacks them as fraudulent had the burden of proving the fraud by ' positive or circumstantial evidence, was properly refused, as it is improper to charge as to the effect of such presumption.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 539-541, 543-548, 551; Dec. Dig. § 235.*]</p> <p>7. Trial (§ 240*) — Instructions — Argumentative Instructions.</p> <p>Such charge was properly refused as argumentative, where the court had properly charged on the burden of proof.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.*]</p> <p>8. Principal and Agent (§ 136*) — Fraudulent Representations — Personal Liability op Agent.</p> <p>A seller of horses was not absolved from liability for fraudulent representations made by him, though he was acting as agent for another party.</p> <p>[Ed. Note.- — For other cases, see Principal and Agent, Cent. Dig. §§ 447-450, 476-491; Dec. Dig. § 136.*]</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by W. J. McNatt against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

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

<p>Appeal from District Court, Limestone County; H. B. Daviss, Judge.</p> <p>Action by S. S. Briggs against The Homesteaders. Judgment for the plaintiff, and defendant appeals.</p>

S. Shipp, Judge. Action by Miles F. Bixler against P. W. Rinn. From a judgment in the county court upon appeal from a justice of the peace in favor of the defendant, plaintiff appeals.

<p>1. Limitation of Actions (§ 19*) — Equitable Actions — Reformation of INSTRUMENTS.</p> <p>An answer seeking affirmative relief, which was indorsed as directed for suits in trespass to try title, and which alleged that the land in controversy had been partitioned by agreement between the heirs of a former owner, but that, by mistake, the deed to plaintiff’s grantor had included more land than was agreed upon and that defendant received less than he should, and that the plaintiff’s grantor had agreed to a repartition, of which fact plaintiff had knowledge, shows merely an equity to reform the'partition deed, and not title to the land, and therefore was, within the contemplation of the statute of limitation, a suit for the reformation of a deed, which was barred in four years by Rev. St. 1911, art. 5690, and not a suit to recover the shortage in land.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 73-S5; Dec. Dig. § 19*]</p> <p>2. Trespass to Try Title (§ 32*) — Action-Title.</p> <p>The facts alleged did not support a suit in trespass to try title; since, if true, they did not amount to an allegation of title.</p> <p>[Ed. Note. — For other cases, see Trespass to Try ^ Title, Cent. Dig. §§ 39-41; Dec. Dig. § 32 *]</p> <p>3. Limitation of Actions (§ 170*) — Effect on Other Remedy.</p> <p>While a suit to reform a deed and one in trespass to try title may be determined in one proceeding, yet if the title depends upon the reformation of the deed, and the right to such reformation is barred by the statute of limitations, the right to proceed with the suit in trespass to try title also fails.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 656; Dee. Dig. § 170.*]</p>

<p>1. Evidence (§ 417*) — Parol Evidence — Admissibility.</p> <p>Where a grantor sues on notes given for the price and for a foreclosure of the vendor’s lien retained in the deed, the notes and deed evidence a completed written contract, and all prior negotiations and agreements are merged therein, so that they cannot be proved by parol.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1899; Dec. Dig. § 417.*]</p> <p>2. Vendob and Purchaser (§ 274*) — Foreclosure of Vendor's Lien — Defenses.</p> <p>A grantee resisting the payment of notes for the price and the foreclosure of a vendor’s lien retained by the deed cannot go behind the notes and deed; and a pleading relying on the omission of a stipulation in the prior contract of sale is insufficient.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 769-771; Dec. Dig. § 274.*]</p> <p>3. Reformation of Instruments (§ 16*)— Grounds — Fraud—Accident—Mistake.</p> <p>A deed cannot be reformed by the addition of a stipulation therein, unless the stipulation was omitted by fraud, accident, or mistake.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. § 68; Dec. Dig. § 16.*]</p> <p>4. Evidence (§ 419*) — Pabol Evidence — Consideration.</p> <p>Where a guaranty of a vendor that water was obtainable on the land was part of the consideration for the purchase-money notes executed by the purchaser, the guaranty was a contractual one, and could not be proved by parol in a suit on the notes and for the foreclosure of the vendor’s lien retained in the deed.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 1912-1928; Dee. Dig. § 419.*]</p> <p>5. Reformation of Instruments (§ 18*)— Mistake of Law.</p> <p>Where the parties to a contract discovered before its execution that a stipulation was omitted therefrom, but they believed, on the advice of an attorney,- that the stipulation was, nevertheless, binding, the .contract would not be reformed so as to include the stipulation, unless either party was misled by the other or by the intentional misrepresentation of the attorney.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. §§ 72, 73 ; Dec. Dig. § 18.*]</p> <p>6. Vendor and Purchaser (§ 110*) — Contracts — Executed Contracts — Effect.</p> <p>Where there was a breach of warranty contained in a contract of sale before the delivery of the deed, the purchaser, accepting the deed containing the warranty with knowledge of the breach, could not rescind, but could merely recover damages for the breach.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 196, 197; Dee. Dig. § 110.*]</p> <p>7. Fraud (§ 23*) — Acts Constituting.</p> <p>Where a purchaser could determine the facts of sufficiency of a water supply for irrigation as well as the vendor, and he refused to buy from an agent because he would not guarantee the water supply and he investigated the water supply in the county before the purchase, he did not rely on the vendor’s representations as to the permanency of the water supply, and could not recover on the theory that the vendor’s representations were fraudulent.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 20, 23; Dec. Dig. § 23.*]</p> <p>8. Vendor and Purchaser (§ 114*) — Fraud-Rescission.</p> <p>Where a purchaser, with knowledge that a well, guaranteed by the vendor to supply the necessary water for irrigation, flowed so poorly that irrigation on all but a small part of the land had to be abandoned, made improvements on the premises and partial payments of the price and interest without objections, he elected not to repudiate the sale, and he could not compel a rescission.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 202-204; Dec. Dig. § 114.*]</p> <p>9. Vendor and Purchaser (§ 284*) — Fraud —Rescission—Delay—Instructions.</p> <p>In an action on purchase-money notes and for the foreclosure of a vendor’s lien retained in the deed, .defended on the ground of fraud and breach of warranty, an instruction submitting the .issue of unreasonable delay in complaining of the fraud or the breach as a defense, and stating that a finding of unreasonable delay would not prevent a finding for the purchaser, if otherwise entitled to recover, and an instruction that, if the jury found for a rescission, and found the facts presented in the instruction submitting the issue of fraud, the jury should allow such damages as were sustained by the purchaser, were objectionable, as failing to make the jury understand that unreasonable delay in complaining of the fraud was an absolute defense to a demand for .rescission.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 796-799; Dec. Dig. § 284.*]</p> <p>10. Cancellation of Instruments .(§ 50*)— Repudiation of Contract Within Reasonable Time After Discovery of Fraud —Question for Jury.</p> <p>Whether one complaining of fraud inducing a contract repudiated the contract within a reasonable time after discovery of the fraud, so as to justify rescission, is frequently for the jury, and in such cases the court must submit the issue.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 105, 106; Dec. Dig. § 50.*]</p> <p>11. Appeal and Error (§ 237*) — Questions Reviewable — Instructions—Objections.</p> <p>Where a party did not challenge the sufficiency of the evidence to raise an issue by asking a peremptory instruction, he could not, on appeal, complain of a charge submitting the issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1302%; Dec. Dig. § 237.*]</p> <p>12. Covenants (§ 130*) — Fraud—Damages.</p> <p>The rule that the measure of damages which a purchaser may recover is the difference between the consideration given for the land and the value thereof applies only in cases where the vendor was guilty of fraud inducing the purchase, and does not apply in cases of the vendor’s breach of a warranty.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 245-253, 255, 256, 257; Dec. Dig- § 130.*]</p> <p>13. Appeal and Error (§ 1068*) — Harmless Error — Omission in Instructions.</p> <p>Where the jury found that a purchaser was entitled to rescind on the ground of the vendor’s fraud, the failure to submit any measure of damages for fraudulent representations, in the event the purchaser had delayed for an unreasonable time before complaining of the fraud, or had approved the purchase after knowledge of the fraud, was not reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p> <p>14. Vendor and Purchaser (§ 127*) — Rescission — Recovery.</p> <p>A purchaser cannot, after repudiating the purchase on the ground of the fraud of the vendor, continue to make improvements and recover therefor in a suit to rescind the purchase.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 231; Dec. Dig. § 127.*]</p> <p>15. Fraud (§ 52*) — Reputation eor Truth and Veracity — Admissibility.</p> <p>Where the issue of fraudulent representations, made by a vendor to a purchaser, could only be determined by virtue of the credit to be given to the testimony of the parties as to whether representations were made and whether they were true or false, evidence of the general reputation of the vendor for truth and veracity was inadmissible.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 48; Dec. Dig. § 52.*]</p> <p>16. Trial (§ 25*) — Right to Open and Close —Admissions by Defendant.</p> <p>Where, in a suit on purchase-money notes and to foreclose a vendor’s lien retained in the deed, the purchaser admitted the execution of the notes and liability thereon, but did not admit the execution and delivery of the deed, the vendor had the right to open and close the case.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.*]</p>

<p>Appeal from District Court, Potter County; X N. Browning, Judge.</p> <p>Action by W. M. Rice against H. D. Watson. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Contracts (§ 5*) — Constructive Contract —Attorney’s Fees.</p> <p>A bank to which notes were indorsed agreed with plaintiff, an attorney, that he should sue on the notes and have for his services the 10 per cent, attorney’s fees stipulated therein, and the bank afterwards transferred the notes pending the suit thereon under an agreement that the transferee should carry out the agreement with plaintiff, who agreed to look to the transferee for payment for his services. The notes were afterwards transferred to defendant, who became a party to the suit; but, before he became a party thereto, he knew that plaintiff had sued on the notes, and of the agreement under which he did so. Defendant procured another attorney to intervene in the suit for him before judgment was rendered, agreeing to credit him with $50 for his services, and the judgment was taken in defendant’s name, instead of in the name of the bank. Held, that defendant was bound, as on a constructive or quasi contract, to pay to plaintiff the attorney’s fees recovered, after allowing defendant a credit for the $50 paid by him to the other attorney.</p> <p>[Ed. Note. — Eor other cases, see Contracts, Cent. Dig. § 7; Dec. Dig. § 5.*]</p> <p>On Motion for Rehearing.</p> <p>2. Assignments (§ 48*) — Equitable Assignment.</p> <p>An agreement between plaintiff, an attorney, and the owners of notes by which plaintiff was authorized to bring suit on the notes in consideration of the 10 per cent, attorney’s fees stipulated for therein operated as an equitable assignment of such attorney’s fees to plaintiff.</p> <p>[Ed. Note. — For other cases, see Assignments,Cent. Dig. § 183; Dec. Dig. § 48.*]</p>

<p>1. Husband and Wins (§ 119*) — Conveyances— Separate Estate.</p> <p>A conveyance .by a husband to his wife by a deed reciting' a valuable consideration and duly recorded vested title in the wife as her separate property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 424-429, 447; Dec. Dig. § 119.*]</p> <p>2. Specific Performance (§ 116%*) —Proceedings — Pleading—Petition.</p> <p>A petition for specific performance and for damages if specific performance is impossible, which showed on its face that the vendor did not own the land at the time he contracted to sell, was subject to general demurrer as to the portion seeking specific performance.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. § 376; Dec. Dig. § 116%.*]</p> <p>3. VENDOR AND PURCHASER (§ 349*) — CONTRACT — BREACH by Vendor — Damages Recoverable-Purchaser.</p> <p>A petition seeking damages to the amount of the difference between the contract price and market value, for failure to convey land that defendant did not own when he contracted to sell it, which did not allege fraud or a willful refusal to convey, was subject to general demurrer, as plaintiff was not entitled to recover such damages.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1033, 1039-1042; Dec. Dig. § 349.*]</p>

<p>Appeal from District Court, Erath County ; W. J. Oxford, Judge.</p> <p>Action by J. N. Thompson against the Dublin Electric & Gas Company. From a Judgment for plaintiff, defendant appeals.</p>

F. O’Neal, Judge. Action by C. W. Carter against the Kansas City Southern Railway Company for damages for personal injuries. From a judgment for plaintiff, the defendant appeals.

<p>Vendor and Purchaser (§ 285*) — Lien—Enforcement — Rights of Guarantor of Notes — Prorating Security.</p> <p>Where defendant guaranteed part of a series of vendor’s lien notes, the whole of which plaintiff declared due upon nonpayment of the second, the judgment foreclosing the lien and finding against defendant on his guaranty need not prorate the proceeds of the sale of the land between the notes guaranteed and the others; plaintiff being entitled to judgment upon the guaranty without resorting to his security, and defendant being protected by the provision requiring the security upon the land to be exhausted before issuance of execution against him.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 800-807; Dee. Dig. §, 285.*]</p>

<p>1. Appeal and Error (§ 1040*) — Harmless Error — Erroneous Rulings on Pleadings.</p> <p>Where plaintiff, suing a railroad company for injuries to animals frightened by a train, testified that the accident happened on a designated date and on the road alleged- in the petition, and the company procured the testimony of its engineers running trains on that date, who all testified that they knew nothing of the accident, the error in overruling exceptions to the petition for failure to specify the date of the injury or identify the train and place of injury was not prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>2. Damages (§ 113*) — Injuries to Animals— Measure oe Damages.</p> <p>Where animals negligently injured have a market value after the injury, the measure of damages is the difference between their value immediately before and immediately after the injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. § 113.*]</p> <p>3. Damages (§ 113*) — Injuries to Animals— Measure op Damages.</p> <p>Where one suing for injuries to animals showed that the animals died soon after the accident, and testified that he thought that at the time of the injury they had some value, the amount of which he would not estimate, he was entitled to recover the full market value of the animals before the injury.</p> <p>[Ed.' Note. — For other cases, see Damages, Cent. Dig. §§ 279, 280; Dec. Dig. § 113.*]</p> <p>4.Damages (§ 116*) — Injuries to Animals— Measure op Damages.</p> <p>One negligently injuring animals, resulting in their death soon afterwards, is properly charged with the cost of hay and medicine used by the owner in a good-faith effort to prevent their death.</p> <p>[Ed. Note. — For other cases, see Damages, Dec. Dig. § 116.*]</p>

<p>1. Master and Servant (§ 286*) — Actions for Injuries — Questions for Jury.</p> <p>In a railroad engineer’s action tor injuries caused by slipping on the running board, evidence that there was water, dirt, and grease on the running board before the engine was taken to the shops shortly before the accident, and that it was the duty of the employés in the shops to remove oil from the running board, made a question for the jury as to the company’s negligence in permitting oil to be on the running board at the time of the accident.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]</p> <p>2. Trial (f 253*) — Actions for Personal Injuries — Instructions—Ignoring Issues.</p> <p>In a railway engineer’s action for injuries caused by slipping on the running board, where plaintiff alleged negligence in permitting oil to be on the running board and in failing to install an equipment for opening the blow-off cock from the cab without going on the running board, an instruction that, if plaintiff was negligent in failing to discover the oil on the running board before he slipped and fell, he could not recover was properly refused, as it would have excluded a recovery upon the other issue of negligence in the petition.</p> <p>LEd. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>3. Master and Servant (§ 228*) — Liability for Injuries — Contributory Negligence.</p> <p>Under Rev. St. 1911, art. 6649, providing that, in actions brought under the provisions of the preceding articles for personal injuries to a railroad employé, his negligence shall not bar a recovery, but that the damages shall be diminished in proportion to the negligence attributable to him, the negligence of a railway engineer in failing to discover oil upon the running board before he slipped and fell, co-operating with the company’s negligence in permitting the oil to be on the running board,- was not a complete bar to a recovery, and an instruction that if he was negligent he could not recover was properly refused.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 670, 671; Dec. Dig. § 228.*]</p> <p>4. Master and Servant (§ 278*) — Actions for Injuries — Sufficiency of Evidence.</p> <p>Evidence, in a railway engineer’s action for injuries caused by slipping on the running-board, that it was the custom of many railway companies to use engines equipped with an appliance for operating the blow-off cock from the cab without going on the running board, that such appliance could be installed at a cost not exceeding $1.50, and that plaintiff had requested the roundhouse foreman to have such equipment installed supported a finding of negligence in failing to equip the engine with such appliance, though there was evidence that many well-regulated and prudently managed railroads used engines without such equipment.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]</p> <p>5. Master, and Servant (§ 291*) — Actions for Injuries — Questions for Jury.</p> <p>In a railroad engineer’s action for injuries caused by slipping on the running board, testimony that there was oil on the running board at the time of the accident, that there was no oil thereon when the engine left the roundhouse shortly before, and that, if the packing around the piston of the air pump had been in proper condition, no appreciable amount of oil would have leaked therefrom during the interval justified the submission of- the issue as to a defec-t in the air pump, permitting oil to escape therefrom.</p> <p>■ [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.*]</p> <p>6. Master and Servant (§ 289*) — Actions for Injuries — Questions for Jury.</p> <p>Under Rev. St. 1911, art. 6645, providing that, in actions for personal injuries to any railroad employé caused by negligence, assumed risk, where the ground of the plea, is knowledge or means of the knowledge of the defect or danger, shall not be available, where the employé had an opportunity before being injured and did notify the employer within a reasonable time, where there was evidence that engines equipped for operating the blow-off cock from the cab were in common use, that such equipment could be installed at a trifling cost, and that the roundhouse foreman had promised an engineer that such equipment would be furnished, whether the engineer assumed the risk of injury in operating the blow-off cock from the running board was a question of his contributory negligence within the province of the jury, and the court properly refused to charge that the engineer assumed the risk.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]</p>

<p>Appeal from Bell County Court; W. S. Shipp, Judge.</p> <p>Action by W. I. Melton against the Southwestern Traction Company. There was verdict for plaintiff, and defendant appeals.</p>

<p>1. Chattel Mortgages (§ 114*) — Future Indebtedness.</p> <p>A chattel mortgage will secure a future indebtedness of the mortgagor if that be the intention of the parties.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 191; Dec. Dig. § 114.*]</p> <p>2. Chattel Mortgages (§ 114*) — Indebtedness Covered.</p> <p>Defendant, a farmer, executed a chattel mortgage to plaintiff, the W. Hardware Company, for the purpose of securing the payment of certain promissory notes named in the mortgage and to secure a line of credit with the mortgagee, and the mortgage provided, after reciting the notes secured, that it was to be for “all other amounts I may now be due, or hereafter become due to' the W. Company or their assigns, such as book accounts, notes, or in any manner whatsoever, it being the intention of this mortgage to not only secure the debt created by me this day, but also to serve as a basis of credit with the grantees herein, or their assigns.” Held, that the mortgage did not cover a judgment rendered against the defendant in favor of a third party which plaintiff purchased, so that plaintiff could not foreclose the mortgage to secure payment of such judgment.</p> <p>[Ed. Note. — For other .cases, see Chattel Mortgages, Cent. Dig. § 191; Dec. Dig. § 114.*]</p>

<p>Error to District Court, Tarrant County; R. H. Buck, judge.</p> <p>Action by the Bering Manufacturing Company against O. R. Menefee. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by George W. Armstrong against the St. Louis, San Francisco & Texas Railway Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Attorney and Client (§ 145*) — Breach-Forfeiture.</p> <p>A judgment debtor pledged notes of third persons with defendant, the attorney of the judgment creditor, to secure the judgment, and thereafter transferred his equity to secure a debt which he owed plaintiffs, and subsequently transferred the notes to the judgment creditor, under an agreement between plaintiffs and the attorney that the latter should collect the notes and, after retaining his compensation, divide the balance between the judgment creditor and plaintiffs. The attorney sued in the name of the judgment creditor on the notes, and judgment was obtained on the original pleadings. Held, that the failure of plaintiffs to serve process in the action on request of the attorney did not justify the attorney in claiming a forfeiture of plaintiffs’ rights under the contract, especially where proper service was procured in due time.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 334, 335; Dec. Dig. § 145.*] .</p> <p>2. Attorney and Client (§ 129*) — Contract of Employment — Breach—Forfeiture.</p> <p>Where an attorney contracted to collect notes transferred to his client to secure a judgment in her favor, and divide the proceeds between his client and plaintiffs after deducting his compensation, and the attorney collected the notes by action in the name of the client, but failed to pay to plaintiffs their share of the proceeds, an action by plaintiff's was properly brought against the attorney, and not against his client.</p> <p>[Ed. Note. — For other cases,, see Attorney and Client, Cent. Dig. §§ 284-291; Dec. Dig. § 129.*]</p>

<p>Evidence (§ 459*) — Parol Evidence Affecting Weitings — Construction of Instrument — Identification of Parties.</p> <p>Where a contract for the sale of a bank was signed by two-thirds of the stockholders in order to bind the bank, reciting that it was executed by M. and others acting for the bank, “and hereinafter called second party,” and it was evident that the term “second party” was sometimes used therein to refer to the bank and sometimes to the stockholders, there was such an ambiguity in the instrument as. to authorize the admission of parol evidence to show whether the term “second party” in .a provision requiring the “second party” to redeem the real estate, furniture and fixtures, was intended to refer to and bind the stockholders or, only the bank.</p> <p>[Ed. Note. — For other cases, see Evidence Cent. Dig. §§ 1722, 1906-1910, 2109-2114; Dec. Dig. § 459.*]</p>

Browning, Judge. Suit by L. T. Lester against W. W. Gate-wood and others. From an order of the district court granting a change of venue, the plaintiff appeals.

<p>1. Wills (§ 100*) — Joint and MuTUAn Winns —Right of Husband and Wife to Execute.</p> <p>A husband and wife may make a joint and mutual will containing reciprocal obligations.</p> <p>[Ed. Note. — For other cases, see Wills, Cent, Dig. § 238; Dee. Dig. § 100.*]</p> <p>2. Wills (§ 188*) — Joint and Mutual Wills —Revocation.</p> <p>A joint and mutual will, executed by husband and wife pursuant to a contract between them, which gives to the survivor a life estate in the entire property with remainder to their daughters, is executed on' a valid consideration consisting of the reciprocal devise of the one to the other, and where on the death of the wife, acquiescing in the will, the husband probates it and goes into possession, he cannot revoke the will.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 449; Dec. Dig. § 188.*]</p> <p>3. Wills (§ 108*) — Joint and Mutual Wills —Execution by Husband and Wife — Acknowledgment by Wife.</p> <p>A joint and mutual will, executed by husband and wife pursuant to a contract between them, which gives to the survivor a life estate in all their property, with remainder to their daughters, is not a conveyance and need not be separately acknowledged by the wife, but merely declares a trust in favor of the children to become effective after the death of the survivor.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 249-258; Dec. Dig. § 108.*]</p> <p>4. Trusts (§§ 17, 18*) — Creation of Trusts— Necessity of Writing.</p> <p>The statute of frauds does not require that trusts shall be evidenced by writing, but they may be established by parol.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 15-24; Dec. Dig. §§ 17, 18.*]</p> <p>5. Wills (§ 100*) — Joint and Mutual Wills —Validity.</p> <p>A joint and mutual will, executed by husband and wife in consummation of an oral agreement between them for the equitable disposition of their property, which gives to the survivor their property for life with remainder to their daughters, is not void if regarded as a contract between husband and wife, but is enforceable on principles of equity.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. % 238; Dec. Dig. § 100.*]</p> <p>6. Appeal and Error (§ 173*) — Defenses Not Urged Below — Statute op Frauds.</p> <p>The statute of frauds is not available as a defense when not invoked in the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.*]</p> <p>7. Frauds, Statute op (§ 129*) — Part Performance of Parol Contract.</p> <p>A joint and mutual will, executed by husband and wife and a deed executed by them, as a part of the same transaction, in consummation of a parol contract between them for the equitable disposition of their property between their children, constitute part performance of the parol agreement to take it out of the statute of frauds.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 287-292, 303, 306-308, 311. 314, 318-320, 322, 325, 326; Dec. Dig. § 129.*]</p> <p>8. Wills (§ 100*) — Joint and Mutual Wills —Revocation—Estoppel.</p> <p>Where a joint and mutual will executed by husband and wife, which gave to the survivor their property for life with remainder to their daughters, was executed in consummation of a parol agreement between them to make an equitable disposition of their property to their children, and the husband, on the death of the wife, probated the will and took possession of the property devised thereby, he was estopped from thereafter disregarding the will.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 238; Dee. Dig. § 100.*]</p> <p>9. Husband and Wipe (§ 31*) — Marriage Agreements — Construction—Wipe as Bona Fide Purchaser — Notice.</p> <p>Where a joint and mutual will executed by husband and wife was probated by the husband on the death of the wife, and he took possession of the property under the will, which devised the entire property of the parties to the survivor for life with remainder to their daughters, a woman subsequently marrying the husband pursuant to an agreement that if she would marry him, keep house, and -care for him in his old age, he would convey to her his interest in the estate, was not an innocent purchaser for value without notice and acquired no greater rights against the daughters than the husband had.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 178-195, 883; 884; Dec. Dig. § 31.*]</p> <p>10. Evidence (§ 171*) — Best Evidence — Pa-rol Evidence.</p> <p>A conveyance not forming the basis of plaintiff’s cause of action, .but which is merely a collateral matter, may ,be proved by parol notwithstanding the best evidence rule.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 460, 528; Dec. Dig. § 171.*]</p> <p>11. Appeal and Error (§ 1033*) — Harmless Error — Erroneous Instructions.</p> <p>Where, in a suit by children to recover real estate as beneficiaries under the will of their deceased father and mother, who executed a joint and mutual will devising all their property to the survivor for life with remainder to the children, brought against the second wife of the father, claiming under a subsequent will and deed, which could not operate to revoke; the joint will, the inventory filed by the husband probating the joint will was introduced in evidence and disclosed that lands were scheduled thereunder as the separate property of the first wife, an instruction directing the jury not to consider the inventory as any evidence of interest in the first wife or as any evidence of title in the community estate of the husband and the first wife was not prejudicial to the second wife.'</p> <p>’ [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. $ 1033.*]</p> <p>12. Trial (§ 260*) — Instructions — Refusal to Give Instructions Covered by the Charge Given.</p> <p>It is not error to refuse a charge covered by the charge given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>13. Husband and Wife (§ 235*) — Trial— Findings.</p> <p>Where the jury, in response to the question whether a husband gave to his wife a note as a gift or to reimburse her for money of hers that had been used, found that it was to reimburse her for her money and land used, the finding was a direct finding that the entire note was turned over to her to reimburse her for her land and money used, and not that it was intended to reimburse her only to the extent of her property used by him.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 589, 849-852, 982; Dec. Dig. § 235.*]</p>

<p>Error to District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Action between Lena M. Evans and the San Antonio Traction Company. From a judgment in favor of the traction company, Lena M. Evans brings error.</p>

<p>Appeal from District Court, Lampasas County; John D. Robinson, Judge.</p> <p>Action by W. B. Abney against P. Z. Davis, Ingham S. Roberts, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Action by Ose Owens against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Young County Court; E. W. Fry, Judge.</p> <p>Action by Mary S. Taylor against G. W. Jackson. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Wharton County Court; J. R. Bowen, Judge.</p> <p>Action by Otto Foetche against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintitf, defendant appeals.</p>

<p>Trial (§ 260*) — Instructions.</p> <p>Where the charge given did not clearly and specifically present a defense, the denial of two special charges, either of which would have supplied the omission, is erroneous, though only one of them need have been given.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. § 260.*]</p>

<p>Appeal and Error (§ 1127*) — Affirmance— Motion.</p> <p>A motion to affirm on certificate must be denied, where the transcript accompanying- the motion does not contain a copy of the judgment which» the motion seeks to have affirmed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4432 — 1410; Dec. Dig. § 1127.*]</p>

<p>Appeal from District Court, Williamson County; O. A. Wilcox, Judge.</p> <p>Action for injunction by the Old Settlers’ Association against W. W. Edwards. Judgment for plaintiff, and defendant appeals.</p>

H. Buck, Judge. Action by the Gamer Company against Sagerton Hardware & Furniture Company, the Waggoner Bank & Trust Company, and others, in which the Waggoner Bank & Trust Company filed a cross-action against the City National Bank of Dallas. From a judgment for plaintiff against the Hardware Company, and for the City National Bank on the cross-action, plaintiff and defendant hardware company appeal.

<p>Appeal from District Court! Taylor County; Thomas L. Blanton, Judge.</p> <p>Action by the City of Abilene, joined by the Texas Bitulithic Company, against the Abilene Street Railway Company. From a judgment of dismissal, plaintiffs appeal.</p>

' Randel, Judge. Action by the Switzer Lumber Company against B. E. and M. T. Clements. From a judgment against the defendant M. T. Clements and in favor of the- defendant B. E. Clements, plaintiff appeals.

<p>1. Trial (§ 356*) — Verdict—Failure to Answer Interrogatories or Make Findings.</p> <p>Where, in a negligence case, special issues of negligence, contributory negligence, and assumption of risk were submitted, the failure of the jury to find upon the issues of contributory negligence and assumption of risk was in direct violation of Rev. St. 1911, art. 1988, providing that the verdict shall comprehend the whole issue or all the issues submitted to the jury, and no final judgment could be rendered; article 1985, providing that upon appeal or writ of error an issue not requested shall be deemed as found by the court in such manner as to support the verdict, being inapplicable.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 849-854; Dee. Dig. § 356.*]</p> <p>2. Appeal and Error (§ 719*) — Assignment op Errors — Necessity — Fundamental Error.</p> <p>Error in rendering judgment in a negligence case upon a verdict which failed to find upon special issues of contributory negligence and assumption of risk submitted being fundamental, an assignment of errors was unnecessary.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.*]</p> <p>3. Courts (§ 170*) — Pleading—Jurisdiction ■ —Plea to Jurisdiction — Amount in Controversy — Allegations—Time to Plead.</p> <p>The allegations of the petition as to the amount in controversy determine the jurisdiction of the court, unless the defendant specially plead and show by evidence that such amount so alleged was for the fraudulent purpose of giving the court jurisdiction, and the time to file such a plea is prior to the beginning of the trial.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 427; Dec. Dig. § 170.*]</p> <p>4. Evidence (§ 14*) — Judicial Notice.</p> <p>The court, in a negligence case, could not take judicial notice that plaintiff, a young man, had such a life expectancy that if $10 per month be allowed for the remainder of his life for permanently diminished capacity to labor the amount so claimed would give an aggregate of more than $1,000.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 19; Dec. Dig. § 14.*]</p> <p>5. Damages (§ 153*) — Amount oe Damages— Allegations in Pleadings.</p> <p>A petition in a personal injury action was subject to special exception for failure to itemize the amount of damages claimed so as to show the amount claimed for loss of time, doctor’s bills, drug bills, etc.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 422-425; Dee. Dig. § 153.*]</p> <p>6. Master and Servant (§ 217*) — Bisks Assumed by Servant — Defective or Dangerous Place to Work.</p> <p>Where an employé of a gin company knew that a ginhouse was so constructed as to cause excessive vibrations of the machinery and gins while in operation, and also knew of the risk incident to such condition, he assumed any risk of injury due to such condition.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574 — 600; Dee. Dig. § 217.*]</p> <p>7. Trial (§ 350*) — Submission of Issues.</p> <p>In an action for an injury to an employé of a gin company, caused by an alleged defective lever, where the court submitted the issue of defendant’s negligence in furnishing the gin stand with the defective lever, it was improper to submit, as independent grounds of recovery, defendant’s failure to warn of the defect, that the employe’s work had been negligently changed with the assurance that the machinery would be looked after and repaired, and that defendant failed to employ an experienced mechanic to keep such machinery in repair, since such issues were included in the main issue first submitted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.*]</p> <p>8. Master and Servant (§ 217*) — Bisks Assumed ' by Servant — Defective Appliances.</p> <p>If it was the duty of an employé of a gin company to inspect the machinery and to repair any defects before operating it, he assumed the risk of any defect and could not recover for an injury caused by any such defect.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]</p>

<p>1. Trover and Conversion (§ 10*) — What Constitutes — Rights or Creditor.</p> <p>Though a debtor agreed to apply the proceeds of a sale of property to the discharge of a debt, his creditor, who had no lien, is guilty of a conversion by seizing the property, without the debtor’s consent, and selling it to discharge his debt; such conversion rendering the creditor liable, although reasonable care was used in disposing of the property.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 84r-94; Dec. Dig. § 10. *]</p> <p>2.Trover and Conversion (§ 22*) — Right to Recover.</p> <p>In a suit for the conversion of property, the proceeds of which plaintiff had agreed to apply to the debt due defendant, plaintiff’s right to recover is not dependent upon whether he would have continued to apply the proceeds to the discharge of his debt.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 152-162, 167-169; Dec. Dig. § 22.*]</p> <p>3.Trover and Conversion (§ 10*) — Actions —Right or Recovery.</p> <p>Where a debtor claimed that a creditor seized his property without his consent, and did not use reasonable care in its disposition, and the creditor claimed that the debtor consented to its taking possession and disposing of the property, the debtor is entitled to recover at all events if the creditor did not exercise reasonable care in disposing of the property.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 84-94; Dec. Dig. § 10.*]</p>

<p>Appeal from Young County Court; E. W-. Fry, Judge.</p> <p>Action by G. C. Thedford and another against J. G. McKinney. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Stephens County Court; N. N. Rosenquest, Judge.</p> <p>Action by J. E. Tomlinson against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Action by S. A. Pitzer against J. E. Cope. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from El Paso County Court; J. M. Deaver, Special Judge.</p> <p>Action by Victor C. Moore and another against Isaac Alderete. From a judgmént for plaintiffs, defendant appeals.</p>

M. Braekmon, Judge. Action by J. C. Eaves against the Houston & Texas Central Railroad Company, in which one, Allen was made a defendant by said railroad company. From a judgment in favor of the plaintiff and of the defendant Allen against the said company, the company appeals.

<p>Appeal from District Court, Clay County; P. A. Martin, Judge.</p> <p>Action by Mrs. A. P. Cook against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for the plaintiff, and defendant appeals.</p>

<p>1. LANDLORD AND TENANT (§ 330*) — RENTING on Shakes — Purchasers from Tenant — Liability to Landlord.</p> <p>If the lease from B. to A. provided B. should receive as rent, not one-fourth of the cotton raised, but one-fourth of the proceeds of the cotton, neither B. nor M., who, during the life of the lease, bought the land, has any claim against W. because of his buying the cotton of A.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1394 — 1399; Dec. Dig. § 330.*]</p> <p>2. Landlord and Tenant (§ 330*) — Renting on Shares — Purchasers from Tenant — Liability to Landlord.</p> <p>If the lease from B. to A. provided that B. should receive as rent one-fourth of the cotton raised, then title to such part of the cotton raised and gathered vested in B., making W. liable to B. because of buying B.’s share of A., unless A. had an unrevoked agency from B. to sell his share.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1394-1399; Dec. Dig. § 330.*]</p> <p>3. Principal and Agent (§ 8*) — Creation of Relation.</p> <p>If the lease of B. to A. provided B. was to receive as rent one-fourth of the cotton raised, so that title to one-fourth of the cotton raised and gathered vested in B., then an agreement by B. or M., successor in title to the land, with A., to sell the landlord’s part of the cotton, would be merely an appointment of A. to do so as agent of the landlord.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 16, 18; Dec. Dig. § 8.*]</p> <p>4. Principal and Agent (§ 33*) — Revocation oe Agency.</p> <p>Agency of a tenant to sell the landlord’s share of the cotton raised, not inuring to the financial benefit of the agent, can be revoked.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 54; Dec. Dig. § 33.*]</p> <p>5. Principal and Agent (§ 193*) — Revocation — Peremptory Instruction.</p> <p>There being testimony of a revocation of an agency, which revocation, if made, would make defendant liable to plaintiff, it was error to instruct peremptorily for defendant.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 721*4-726; Dec. Dig. § 193.*]</p>

<p>Appeal from Taylor County Court; E. M. Ourshiner, Judge.</p> <p>Action by W. R. McElroy against G. C. Spires and another. From a judgment for plaintiff, the named defendant appeals.</p>

<p>Appeal from District Court, Kimble County ; Clarence Martin, Judge.</p> <p>Action by J. W. Fussell against G. W. Beaton and another. Judgment for the plaintiff, and defendants appeal.</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Action by J. H. Baxter and others against P. R. Henson. Judgment for plaintiffs, and defendant appeals.</p>

Mann, Judge. Action by E. B. Kenner against the Amicable Life Insurance Company and others, in which defendant named filed a cross-action. From a judgment for plaintiff against the defendant named and another, it appeals.

<p>1. Carriers (§ 321*) — Injuries to Passengers — Actions—Instructions — “Jerk” — “Lurch.”</p> <p>Where plaintiff testified that after the train had come to a stop, and he had arisen to alight, it was either backed up or jerked in some way, and that he was thrown against a seat and injured, the use in a charge on negligence of the terms “suddenly moved, lurched, and jerked,” used by the petition, was not erroneous, as any jerk is a sudden movement, and the word “lurch,” though it has specific reference to sidewise movements, is commonly used with, reference to any sudden movement, and the jury, in view of the common knowledge of the movement of trains, could not have been misled by the charge, although plaintiff did not testify in the precise language of the petition.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*</p> <p>For other definitions, see Words and Phrases, vol. 4, p. 3811.]</p> <p>2. Appeal and Error (§ 1064*) — Review— Habmless Error:</p> <p>Where a charge submitting to the jury the question of a railroad company’s negligence in suddenly moving its train,, which had stopped to allow passengers to alight, could not have misled the jury, its inexact use of language was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]</p>

<p>Appeal from District Court, Uvalde County; R. H. Burney, Judge.</p> <p>Action by Mrs. Ola Pennington and others against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

B. Hill, Judge. Application by F. X. Adams for the probate of certain papers as the will of E. Van,law, deceased, opposed by C. H. Maris. From a judgment admitting such papers to probate, the contestant appeals.

<p>Appeal from District Court, Floyd County; R. C. Joiner, Special Judge.</p> <p>Action by Dallas Huskey against the Pecos & Northern Texas Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Galveston County Court; George E. Mann, Judge.</p> <p>Action by Duleie Dorsett against Draug-hon’s Practical Business College. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Pecos County Court; R. D. Wright, Special Judge.</p> <p>Proceedings by the Imperial Irrigation Company against T. N. McKenzie to condemn land for a right of way. From a judgment awarding compensation, T. N. McKenzie appeals.</p>

<p>1. Master and Servant (§ 198*) — Liability por Injuries — Negligence op Eellow Servants.</p> <p>An employs of a smelting and refining company, engaged in sweeping pieces of ore off a car track, and the motorman in charge of small ore cars used to haul ores from the roaster to the reverberatory, who had nothing to do with the other men, and was charged with no duties making him a vice principal, were fellow servants.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 493-514; Dec. Dig. § 198.*]</p> <p>2. Master and Servant (§ 180*) — Liability por Injuries — Negligence op Pellow Servants.</p> <p>An employs of a smelting and refining company operating ore' cars to haul ores from the roaster to the reverberatory, engaged in sweeping pieces of ore from the car track, was not a railway employe; and hence the common-law rule as to nonliability for the negligence of a fellow servant applied.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 359-361, 363-368; Dec. Dig. § ISO.*]</p>

<p>1. Chattel Mortgages (§ 87*) — Record — Place — “Shall Then be Situated.”</p> <p>Under Rev. St. 1911, art. 5655, providing that every chattel mortgage not accompanied by an immediate delivery and an actual change of possession shall be void as against creditors of the mortgagor and subsequent purchasers, mortgagees, or lienholders in good faith, unless the mortgage or a copy thereof is forthwith filed in the office of the county clerk of the county where the property shall then be situated, or, if the mortgagor resides in this state, then of the county in which he then' resides, the term where the property “shall then be situated,” means where the property is situated when the mortgage is executed, and not when it is recorded.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 162-165; Dec. Dig. § 87.*]</p> <p>2. Chattel Mortgages (§ 150*) — Record — Time —“Forthwith.”</p> <p>Under such statute a filing of the mortgage seven days after its execution, when it might have been filed immediately without inconvenience, was not a filing “forthwith,” which means immediately, at once, without inexcusable delay, and hence was void as to mortgages subsequent to its filing.</p> <p>[Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 246-252; Dec. Dig. § 150.*</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2916-2925; vol. 8, p. 7665.]</p> <p>3. Chattel Mortgages (§ 153*) — Record — Effect — “Good Faith.”</p> <p>Under such statute, the expression “good faith” is synonymous with conscience, and embraces those obligations which are imposed on one dealing with property by the circumstances surrounding it at the time, and a mortgage in “good faith” means a mortgage for a valuable consideration without notice, and not lacking in that caution or diligence which a man of ordinary prudence is accustomed to exercise in making purchases — quoting Words and Phrases, vol. 4. pp. 3117, 3121; vol. 8, p. 7672.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 255-262, 267, 268; Dec. Dig. § 153.*]</p> <p>4. Chattel Mortgages (§ 48*) — Description oe Property — Certainty.</p> <p>A chattel mortgage of cotton described as 10 bales of cotton crop of 1910 then being picked, and to be ginned in F. county, owned by the mortgagor free from all liens, was not void for uncertainty, since it could be identified by showing what cotton the mortgagor was having picked when it was executed.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 93-95;. Dec. Dig. § 48.*]</p> <p>5. Chattel Mortgages (§ 117*) — Construction — Property Conveyed.</p> <p>A chattel mortgage of 10 bales of cotton of the crop of 1910 then being picked and to be ginned in a certain county would not convey any specific bales, but in equity would be sufficient to convey an interest in the cotton described in the proportion of 10 bales to the entire amount then being picked by the mortgagor.</p> <p>[Ed. Note. — For other cases, see Chattel Mortr gages, Cent. Dig. § 202; Dec. Dig. § 117.*]</p> <p>6. Chattel Mortgages (§ 138*) — Priority-Evidence.</p> <p>Where a tenant on October 7th mortgaged 10 bales of cotton of the crop of 1910 then being picked in a certain county, a showing by the landlord that he purchased 12 bales of the tenant after October 13th did not support a judgment in favor of the mortgagee against the landlord for the excess over the landlord’s lien, since all of the 10 bales mortgaged may have been picked before the landlord’s purchase.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 228-236; Dec. Dig. § 138.*]</p> <p>7. Appeal and Error (§ 901*) — Review-Burden oe Proof.</p> <p>A party appealing from the judgment has the burden of showing that it is erroneous.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1771, 3670; Dec. Dig. § 901.*]</p> <p>8. Chattel Mortgages (§ 49*) — Form and Contents — Description—Certainty.</p> <p>A chattel mortgage mentioning seven horses and mules, but not describing them except by color, age, and height, and not stating that the mortgagor was the owner of the property,, or where it was situated, was void for uncertainty as to two of the mortgagor’s mules which had been covered by a previous mortgage.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 90-92; Dee. Dig. § 49.*]</p>

<p>Appeal from Childress County Court; Frank W. Freeman, Judge.</p> <p>Action by L. Witherspoon against the Ft. Worth Stockyards Company and others. From a judgment for the plaintiff, the named defendant appeals.</p>

<p>Appeal from Criminal District Court, Harris County; G. W. Robinson, Judge.</p> <p>Reeves Bolden was convicted of murder, and he appeals.</p>

Wells, Judge. H. L. A. Holman was convicted in the county court, on appeal from the recorder’s court, and again appeals.

<p>1. Insurance (§ 665*) — Life Insurance — Action — Sufficiency of Evidence — Payment of Premiums.</p> <p>In an action on a life policy, defended on the ground that the first premium was not paid, so as to put the policy into effect, evidence held to sustain a finding that the company intended to extend credit for the premium to its general agent and to permit him to extend credit therefor to insured.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.*]</p> <p>2. Insurance (§ 291*) — Life Insurance — Health of Insured — Forfeiture of Policy.</p> <p>If insured was given credit for the first premium before he became in bad health, so as to operate as a constructive delivery of the policy, his subsequent illness would not defeat a recovery on the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. § 291.*]</p> <p>3. Insurance (§ 136*) — Life Insurance — Delivery.</p> <p>The retention of the policy by the local agent receiving it for delivery, at insured’s request, was some evidence on the question of delivery to insured.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 219-230; Dec. Dig. § 136.*]</p> <p>4. Insurance (§ 109*) — Life Insurance — Custody of Policy.</p> <p>The local agent of a life insurance company could become the custodian of the policy for insured, notwithstanding his agency for the company.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 133; Dec. Dig. § 109.*]</p> <p>5. Insurance (§ 93*) — Life Insurance — Unauthorized Act of Agent.</p> <p>Though insurance agents violate the instructions of the company in taking policies; the company is liable if the act is performed within the apparent scope of the agent’s authority. •</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 123; Dec. Dig. § 93.*]</p> <p>6. Insurance (§ 141*) — Life Insurance — Application by Insured — Estoppel to Deny.</p> <p>An application for a 15-year endowment policy was rejected, but the general office prepared and forwarded to the general agent an application, with a corresponding policy, identical with that rejected, except that the term of the policy was 10 years and the premiums were greater. After holding the policy for some time, the general agent directed the local agent, who had an office with him, to ask insured if hé wanted the policy, and the local agent called insured on the telephone and stated that the reason they had not sent the policy to him by mail was because it was for 10 years, instead of 15 years, and would cost somewhat more, when insured said, “That is all right; keep it for me until I come down,” and stated that he would make the additional premium all right, after which the agent placed the policy with his private papers at a bank. Nothing was said in the conversation about insured signing any other application. Insured never signed the application for the second policy, and never had the second policy in his possession, and died shortly thereafter. Held, that the company, as well as the local agent, was estopped from claiming in a suit on the policy that the 10-year policy was ineffectual, because no application was made therefor.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 75, 253-262; Dec. Dig. § 141.*]</p> <p>7. Insurance (§ 87*) — Life Insurance — Acts of Agent — Responsibility of Company.</p> <p>An insurance company is responsible for the acts and declarations of their local agents within the scope of their employment.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 116, 121; Dec. Dig. § 87.*]</p> <p>8. Insurance (§ 602*) —Life Insurance — Payment of Policy — Penalties for Nonpayment.</p> <p>The statute providing for damages and attorneys’ fees for refusal to pay an insurance policy within the time specified in the statute if liability thereon be established, is constitutional.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.*]</p> <p>9. Appeal and Error (§ 1068*) — Harmless Error — Instructions.</p> <p>An instruction in an action on a life policy that the jury should find as “attorney’s fees 8-” was harmless to defendant, though irregular, in absence of a showing that the jury found improperly on the item of attorneys’ fees.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]</p> <p>10. Appeal and Error (§ 1051*) — Harmless Error — Admission of Evidence.</p> <p>Error in admitting evidence of a telephone conversation between a witness and decedent was harmless, where another witness testified for appellant that the former witness told him the same thing after decedent’s death.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]</p> <p>11. Insurance (§ 654%*) — Life Insurance-Actions — Admission of Evidence.</p> <p>In an action on a life policy, claimed by the company not to have became effectual because of failure to pay the premium while insured was in good health, evidence that insured was a man of considerable wealth was material on the question whether the agent extended credit to Ijim for the premium as claimed by plaintiff.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1674, 1686; Dec. Dig. § 654%.*]</p> <p>12. Insurance (§ 187*) — Life Insurance — Payment of Premiums — Credit—Note.</p> <p>Rev. St. 1911, art. 4741, prohibits the issuance of life policies, unless the contract provides that all premiums shall be payable in advance to the home office, or an agent, on delivery of the receipt signed by one or more of the officers designated in the policy, and provides that the policy and application shall constitute the entire contract. Article 4954 prohibits discrimination between persons insured of equal life expectation in the amount of premiums charged, and prohibits companies or their agents from making any agreement other than expressed in the policy, under the penalty of criminal prosecution and a forfeiture of authority to do business. Held, that the statutes did not make a policy void, where the company extended credit and received another’s obligation as payment of the first premium due, instead of cash payment.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 399-401; Dec. Dig. § 187.*]</p>

D. Hawkins, Judge. Action in attachment by P. P. Smith against Acklin Brothers, in which the State Exchange Bank appeared and claimed the property, under a mortgage. From a judgment for plaintiff, the State Exchange Bank appeals.

J. Isaacs, Judge. Action by E. C. Good against the Texas & Pacific Railway Company, the Houston & Texas Central Railroad Company, and another. From a judgment for the defendants named, plaintiff appeals.

<p>Error to District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Trespass to try title by Nathan Harle against Bruff Harle, Freeman Slaughter, and John Harle, in which Wash McGriff, Nathan Slaughter, and others intervened. Judgment for Nathan Slaughter and others, interveners, for John Harle, and for plaintiff, for certain amounts of land, and Bruff Harle and others bring error.</p>

<p>1. Master and Servant (§ 278*) — Injury to Sebvant — Negligence—Evidence.</p> <p>In an action for injuries to an employé while assisting in setting an electric light pole, evidence held to support a finding of actionable negligence for the failure of the employer to furnish reasonably safe appliances and a sufficient number of competent employés to do the work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. § 278.*]</p> <p>2. Masteb and Sebvant (§ 296*) — Injury to Servant — Contributory Negligence.</p> <p>Where an employé, acting under orders of the vice principal, who directed the work, neither did nor omitted to do anything which could contribute to an accident resulting in injury to him, the issue of contributory negligence was not in the case.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. 296.*]</p> <p>3. Master and Servant (§ 185*) — Injury to Servano^-Negligence oe Fellow Servant.</p> <p>Where plaintiff and his coemployés worked under the direct orders of the foreman and the coemployés did what the foreman directed them to do, an injury sustained by plaintiff in consequence thereof was caused by an act of the employer, who could not escape liability on the ground that the negligence was that of a fellow servant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. .Dig. §§ 385-421; Dec. Dig. § 185.*]</p> <p>4. Trial (§ 145*)1 — Issues—Withdrawal.</p> <p>The failure of the court to submit to the jury an issue raised by the pleadings amounts to a withdrawal thereof.</p> <p>[Ed. Note. — For other cases, see Trial,-Gent. Dig. §§ 328, 341; Dec. Dig. § 145.*] ■</p> <p>5. Master and Servant (§ 298*) — Injury to Servant — Evidence.</p> <p>An employé, sustaining a personal injury negligently inflicted, cannot recover for inju-¡ ries sustained in a prior accident; and, unless the jury can determine what portion of the injuries were occasioned by the negligence complained óf, and what portion was occasioned by the prior accident, there can be no recovery.</p> <p>[Ed. Noté. — For other cases, see Master and .Servant, Dec. Dig. § 298.*]</p> <p>6. Master and Servant (§ 293*) — Injury to Servant — Negligence—Instructions.</p> <p>Where, in an action for injuries to plaintiff while assisting his coemployés in setting an electric light pole, the court made the test of actionable negligence to depend on whether the employer had exercised reasonable care in selecting the tools and instrumentalities, and not whether he should have selected and used another system of placing the pole in position, refusal to charge that the jury could not consider, as a ground of negligence, the fact that another system was not used was not erroneous.</p> <p>[Ed. Note. — For other eases, see Master and' Servant, Cent. Dig. §§ 1148-1156, 1158-1160;. Dec. Dig. § 293.*]</p> <p>7. Master and Servant (§§ 101, 102*) — Injury to Servant — Defective Appliances.</p> <p>The right of an employer to conduct his own business in his own way is limited by his-duty to exercise reasonable care to furnish reasonably safe appliances and place in which to-work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184,. 192; Dec. Dig. §§ 101, 102.*]</p> <p>8. Trial (§ '.105*)— Instructions— Submission of Incompetent Testimony.</p> <p>Where inadmissible testimony was received without objection, and there was no motion to strike it out, refusal to charge that the jury should not consider the testimony was not erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. §§ 260-266; Dec. Dig. § 105.*]</p> <p>9. Appeal and ■ Error (§ 690*) — Record-Matters to be Shown — Materiality of-Excluded Evidence.</p> <p>Where, in an action for personal injuries, in which it was in issue whether plaintiff had" fully recovered from a prior accident, and evidence of statements of physicians advising an-operation was excluded, the record on appeal does not disclose whether the advice was based on necessity created by the prior injury or by the injury suéd for, the materiality of the evidence not being shown, its admissibility cannot be decided.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897-2899, 2902-2904, 2906, 2908; Dec. Dig. § 690.*]</p> <p>10. Evidence (§ 317*) — Hearsay Evidence.</p> <p>The testimony of one as to what physicians had stated to him or in his presence as-to the advisability of an operation on him was-inadmissible as hearsay.</p> <p>[Ed. Note. — For other cases, see Evidence,. Gent. Dig. §§ 1174-1192; Dec. Dig. § 317.*]</p>

<p>Appeal from District Court, Collin. County; F. E. Wilcox, Special Judge.</p> <p>Action by J. F. Coleman against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Galveston County Court; George E. Mann, Judge.</p> <p>Action by V. Leggio against the Galveston, Houston & Henderson Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error (§ 219*) — Review-Proceedings in Trial Court.</p> <p>Where findings of fact and conclusions of law are filed, but there are no exceptions to the findings or request for additional findings, the court of appeals will only inquire whether the pleadings sustain the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1315, 1317-1320, 1322, 1323; Dec. Dig. § 219.*]</p> <p>2. Statutes (§ 267*) — Constructions—Remedies and Procedure.</p> <p>Acts 33d Leg. c. 127, amending Rev. St. 1911, arts. 1827, 1829, 1902, providing for judgment as by confession in case a paragraph of an answer alleging matter in bar is not denied or excepted to, had no application to an amended answer filed prior to the date when the act took effect.</p> <p>[Ed. Note. — For other cases, see ’Statutes, Cent. Dig. §§ 350-359; Dec. Dig. § 267.*]</p>

<p>Appeal from District Court, Galveston County ; Clay S. Briggs, Judge.</p> <p>Action by James B. & Charles J. Stubbs against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Appeal and Error (§ 1001*) — Review-Verdicts and Findings — Conclusiveness.</p> <p>Where the issues of negligence and contributory negligence were fully and fairly submitted, and it could not be said that the jury’s findings in relation thereto were without substantial evidence to support them, the appellate court was not warranted in disturbing the verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]</p> <p>2. Railroads (§ 326*) — Accidents at Crossings — Contributory Negligence.</p> <p>The issue raised by the action of the driver of a horse and buggy in attempting to cross a railroad crossing, which was torn up for repairs, at the invitation of the foreman in charge, was one of contributory negligence, and not assumption of risk.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1037-1042; Dec. Dig. § 326.*]</p> <p>3. Railroads (§ 303*) — Accidents at Crossings — Defects in Crossings — Changing Location op Highway.</p> <p>The failure of a railroad to construct a temporary crossing, while the regular crossing upon which plaintiff was injured was torn up for repairs, constituted negligence, if such a temporary crossing might easily have been constructed on either side of the regular crossing.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 959-963, 966, 967; Dec. Dig. § 303.*]</p> <p>4. Railroads (§ 350*) — Accidents at Crossings — Questions for Jury.</p> <p>Whether a railroad company was guilty of negligence proximately resulting in injuries to the driver of a horse, which ran away at a crossing which was torn up for repairs, and whether the driver was guilty of contributory negligence or assumed the risk, held, on the evidence, questions for the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p> <p>5. Railroads (§ 340*)— Injuries to Third Persons — Accidents at Crossings — Statements of Railroad Foreman.</p> <p>A railroad foreman, in charge of repair work at a highway crossing, was the representative of the company, to give notice of its condition to travelers ignorant thereof; and the company was liable for injuries to a traveler, if due to negligence of the foreman in stating that he could cross.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1102-1104; Dee. Dig. § 340.*]</p> <p>6. Trial (§ 296*) — Actions for Injuries— Instructions — Cure of Error.</p> <p>A charge that plaintiff could recover for injuries sustained from his horse running away at a railroad crossing, which was torn up, if defendant’s foreman represented that a wagon had crossed and he could cross over, was not erroneous, because such statements were a mere expression of opinion, as they could hardly be so considered, and it was further charged that he could not recover if they were mere expressions of opinion.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]</p> <p>7. Railroads (§ 351*) — Accidents at Crossings — Actions for Injuries — Instructions.</p> <p>A charge permitting recovery for injuries sustained from plaintiff’s horse running away at a railroad crossing, which was torn up, if plaintiff relied upon the representations of defendant’s foreman that he could cross, was not defective, because not submitting knowledge of facts putting plaintiff on inquiry, particularly as it was merely an omission, which could have been supplied, if requested.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. § 351.*]</p>

<p>Appeal from Uvalde County Court; T. M. Milam, Judge.</p> <p>Action by John T. Wilson against O. L. Ware and others. Prom a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from District Court, Hardeman County; J. A. Nabers, Judge.</p> <p>Action by Gilliam & Jackson against the St. Louis, San Francisco & Texas Railway Company and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by Lola Bell Stone against the Dallas Consolidated Electric Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.</p> <p>Action by Annie Ryman and others against Thomas Petruka. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Appeal and Error (§ 742*)—Briefs—Assignments of Error—Propositions.</p> <p>Under Court of Civil Appeals Rule 30 (142 S. W. xiii), requiring that each point under each assignment of error shall be stated as a proposition unless the assignment itself sufficiently discloses the same, assignments that the verdict is contrary to law and that the verdict and judgment are not supported by the evidence fail to show wherein the verdict and judgment are so defective, and, not being presented with appropriate subjoined propositions, are insufficient to present any question for review.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Insurance (§ 813*)—Benefit Certificate —Actions—Parties.</p> <p>Where defendant issued a benefit certificate insuring the life of deceased in favor of her husband, from whom deceased was divorced, the husband was a proper, but not a necessary or indispensable, party in a suit by deceased’s children to recover the amount of the certificate; and hence plaintiffs were entitled to dismiss as to the husband if they so desired.</p> <p>[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1994; Dec. Dig. § 813.*]</p> <p>3. Appeal and Error (§ 544*)—Review-Record— Bill of Exceptions—Necessity.</p> <p>An order overruling a plea of privilege, though noting an exception, is not reviewable in the absence of a bill of exceptions disclosing the facts on which the court acted.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.*]</p> <p>4. Appeal and Error (§ 500*)—Scope of Review-Rulings.</p> <p>An assignment to the overruling of a plea setting up the pendency of a suit in another county on the same cause cannot be sustained, where it does not appear that any action was taken by the trial court on the plea, and the transcript does not show any exception with relation thereto.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 500.*]</p>

<p>Appeal from District Court, Austin County ; Frank S. Roberts, Judge.</p> <p>Action by Z. W. Cathey against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Colorado County; M. Kennon, Judge.</p> <p>Suit by John H. Kirby against the Lakeside Irrigation Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Frauds, Statute of (§ 60*) — Creation of Easement.</p> <p>A perpetual easement in land liable to be divested only if the use of the dominent tenement be changed must be created by deed; a parol license being insufficient.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 94, 95; Dec. Dig. § 60.*]</p> <p>2. Easements (§ 61*) — Pleading—Proof.</p> <p>A party claiming an easement against the owner of the fee is bound to plead and prove it.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 102, 130-144, 148; Dec. Dig. § 61.*]</p> <p>3. Easements (§§ 1, 18*) — Acquisition — Mode.</p> <p>An easement over the land of another may be acquired when it is necessary for an outlet to the county road, or by verbal agreement in the nature of estoppel.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 1, 2, 5-7, 50-55; Dec. Dig. §§ 1, 18.*]</p> <p>4. Easements (§ 61*) — Easements oe Necessity — Peksons Entitled to Claim.</p> <p>The way of necessity reserved to a vendor who sells land surrounding other land which he retains, and to which he can have access only through the granted premises, cannot be asserted by the vendor for the benefit of subsequent grantees to whom he sold the inaccessible tract.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 102, 130-144, 148; Dec. Dig. § 61.*]</p> <p>5. Frauds, Statute op (§ 139*) — Parol Gbant of Easement — Eppect.</p> <p>Where a parol grant of a way has been acted upon by the expenditure of moneys which would be lost if the right of way be revoked, an easement arises by estoppel.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 334-341; Dec. Dig. § 139.*]</p> <p>6. Easements (§ 35*) — Actions—Pleading— Sufficiency.</p> <p>A pleading that defendant acquired a way by parol agreement upon the conveyance to plaintiff of the land over which he asserted it is not good as a plea of an easement by estoppel, because alleging no fact showing the injustice of a revocation of the way.</p> <p>[Ed. Note. — For other cases, see Easements, Dec. Dig. § 35.*]</p> <p>7. Easements (§ 61*) — Reservation—Epfect.</p> <p>Where an owner of land verbally reserved a way over the land conveyed so as to have access to a parcel retained, the right is personal to him, and cannot inure to the benefit of subsequent grantees to whom he conveyed his remaining parcel.</p> <p>[Ed. Note. — For other eases, see Easements, Cent. Dig. §§ 102, 130-144, 148; Dee. Dig. § 61.*]</p>

<p>1. CARRIERS (§ 318*) — Injury to Passenger— Unsaite Flag Station — Negligence—Evidence.</p> <p>Evidence in an action for injury to one about to lake passage on defendant’s car at a flag station, at a highway crossing, through falling, because of the rough condition of the crossing, in front of the car, held suflicient to authorize a finding of negligence in not using proper care to keep the station premises in proper condition.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dee. Dig. § 318.*]</p> <p>2. Carriers (§ 318*) — Injury to Passenger-Proximate Cause — Evidence.</p> <p>As respects the question whether such an accident should have been reasonably anticipated, evidence as to condition of the highway crossing. where a railroad had a flag station, held to authorize a finding that its negligence, in not having it in proper condition, was the proximate cause of injury to one waiting to take passage, who fell before an approaching car.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent? Dig. §§ 1270, 1307-1314; Dee. Dig. § 318.*]</p> <p>3. Carriers (§ 346*) — Injury to Passenger-Contributory Negligence — Evidence.</p> <p>Evidence in an action for, injury to one about to take passage at a railroad’s flag station, at a highway crossing, by being hit by the car, having, when crossing in front of it, fallen, owing to the rough surface, held to authorize a finding of freedom from contributory negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1401; Dec. Dig. § 346.*]</p> <p>4. Negligence (§ Í36*) — Contributory Negligence-Question for Jury.</p> <p>The evidence not being such that reasonable minds would necessarily reach but one conclusion, the question of contributory negligence is for the jury.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]</p>

<p>Appeal from District Court, Dallas County ; J. C. Roberts, Judge.</p> <p>Action by G. C. Addison against the Hesse Envelope Company of Texas. Judgment for plaintiff, and defendant appeals:</p>

'Appeal from Jefferson County Court; R. W. Wilson, Judge. Action by W. D. Gordon against the Pickering Manufacturing Company, in which a writ of garnishment was sued out against the Gulf National Bank of Beaumont, Tex. from a judgment for plaintiff in the garnishment proceedings, defendant appealed.

<p>1. Sales (§ 168*) — Delivery — Executory Sale.</p> <p>One who ordered an automobile of a certain make and color, with certain equipment, and with the buyer’s initials thereon, has the right to inspect the car before accepting it, and delivery thereof could not be made until after the buyer or her authorized agent had had reasonable opportunity to make such inspection, and a charge that an unconditional tender of delivery at defendant’s residence woud be sufficient, whether she or anyone authorized by her were present to receive the car or not, was erroneous.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 403-408; Dec. Dig. § 168.*]</p> <p>2. Evidence (§ 237*) — Declarations of Agent — Pboof.</p> <p>Declarations by the children of the buyer of an automobile showing a delivery of the cai-to them as their mother’s agents are inadmissible in an action against the buyer for the purchase price, in the absence of proof of the agency aside from the relationship and the declarations of the children.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 883-886; Dec. Dig. § 237.*]</p> <p>3. Tbial (§ 244*) — Instructions—Comment on Evidence — Unjjue Prominence of Particular Matters.</p> <p>In An action for*the purchase price of an automobile, which defendant denied had been delivered, it was improper for the court to single out and weaken or destroy testimony as to the furnishing of a demonstrator to run the car and as to the housing of the car, by explaining to the jury the effect-of such testimony.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]</p> <p>4. Sales (§ 358*) — Actions by Seller — Admissibility of Evidence — Materiality.</p> <p>In an action for the purchase price of an, automobile, where the plaintiff claimed delivery to the children of defendant as her agents, tes-ti.mony as to the anxiety of the children to obtain possession of the car had no probative value and was improperly admitted.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §■§ 1049-1055; Dec. Dig. § 358.*)</p>

<p>1. Adverse Possession (§ 115*) — Question for Jury — Notice to Former Owner.</p> <p>The inclosure and cultivation of a small field of 1 acre on a tract of 160 acres made the question .whether such possession and use of the. land was sufficient to put the owner upon notice that the person in possession was claiming the 160-acre tract upon which it was actually situated, or any larger portion than that actually inclosed, one for the jury.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 314, 69Í-701; Dec. Dig. § 115.*]</p> <p>2. Infants (§ 24*) — Emancipated Minor — Adverse Possession.</p> <p>A minor, who, with the consent of his father( claimed and occupied, as his own, land adjoining that of his father, the father at no time asserting any claim thereto, could not be regarded as holding under his father, and hence his minority did not prevent him from acquiring title by limitation, the consent of the father having the effect of emancipating him in so far as the right to acquire the land was concerned.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 25; Dec. Dig. § 24.*]</p> <p>3. Adverse Possession (§ 46*) — Continuity of Possession — Disability of Owner.</p> <p>Under Rev. St. 1911, art. 5711, providing that, when the law of limitation shall begin to run, it shall continue to run notwithstanding any supervening disability of the party entitled to sue, the appointment of a receiver of the owner of land did not stop the running of limitations in favor of an adverse claimant.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 232-254; Dec. Dig. § 46.*]</p>

<p>1. Appeal and Error (§ 500*) — Rulings on Pleadings — Record.</p> <p>Where the appeal record fails to show any ruling on any of the pleadings, assignments of error with reference to alleged rulings on the pleadings will not be considered, except that' an objection that the petition is fatally defective may be urged for the 'first time on appeal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 500.*]</p> <p>2. Frauds, Statute of (§ 144*) — Waiver — Pleading.</p> <p>Where an answer is subject to general demurrer because showing on its face that the defense pleaded is within the statute of frauds, such defect may be waived so that, if the general demurrer is waived, the answer will be as effective as though no demurrer had ever been filed.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 351; Dec. Dig. § 144.*]</p> <p>3. Appeal and Eeroe (§ 173*) — Defenses— Questions Not Raised at Trial — Statute of Frauds.</p> <p>Where the statute of frauds was not urged below until in the motion for new trial, it could not be relied on, on appeal.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.*]</p> <p>4. Trial (§ 420*) — Motion foe Instructed Verdict — Denial—Waivee of Error.</p> <p>Where a motion for an instructed verdict is overruled and the moving pdrty thereafter introduced evidence in his own behalf, he waives his right to assign error on denial of the motion.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. § 420.*]</p> <p>5. Trial (§§ 251, 252*) — Instructions—Request to Charge — Issues.</p> <p>Where, in a suit on certain notes given for the rent of land, a pumping plant and canal, defendant pleaded that an agreement had been made in consideration of his foregoing his right to rescind on discovery of the falsity of plaintiff’s representations concerning the saline character of the water, by which plaintiff bound himself to forego his rent and cancel the notes if salt water appeared in the river at the pumping plant in sufficient quantity to injure defendant’s crops, and defendant testified that salt water appeared in the river in 190>9, but not in sufficient quantity to injure the crops for that yeax-, and in 1910 the water again became salty and badly damaged the crop, while plaintiff denied making such agreement, a request to charge that if plaintiff promised to forego his rents if salt water appeared in the x-iver, and the jury found that salt water did appear, and defendant continued to use and cultivate the premises without electing to rescind, then he ratified the conti'aet, was propei'ly refused as not within -the issues or testimony.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 587-612; Dec. Dig. §§ 251, 252.*]</p> <p>6. Landlord and Tenant (§ 233*) — Action foe Rent — Modification of Contract — Instructions.</p> <p>Where, in an action on notes given for the rent of land, a pumping plant, and canal, defendant pleaded and proved an agreement subsequent to the lease that, in consideration of defendant’s foregoing his l'ight to rescind on discovery of the falsity of plaintiff’s representations concerning the saline character of the water, he agreed to forego his rent and cancel the notes if salt water appeared in the river at the plant in sufficient quantity to injure defendant’s crops, and it appeared that during the third year of the lease the water became so salty as to cause defendant a heavy loss for that year, defendant was entitled to cancel the notes on that ground, and hence an instruction to award plaintiff a verdict at the rate of 8500 a year for three years, during which it was claimed that defendant used the property without complaint, was erroneous and properly i*efused.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 49, 940-944; Dec. Dig. § 233.*]</p> <p>7. Landlord and Tenant (§ 34*) — Lease-Modification — Rescission.</p> <p>Where, after a contract for the renting of land,'a pumping plant, and canal for a term of years had been modified by parol, so that plaintiff agreed to forego his x-ight to rent and cancel his rent notes if salt water appeared at the pumping plant in sufficient quantity to injure defendant’s crops, defendant expended considerable money, and had contracted to deliver water to persons who had rented land' on the strength of such contracts, defendant was under no obligation to accept plaintiff’s subsequent offer to rescind, and hence defendant’s declining to accept such offer did not constitute a ratification of the contract so as to. preclude his demanding a cancellation of the-notes on salt water subsequently appearing in quantity sufficient to endanger the crops.</p> <p>[Ed. Note. — For other cases, see .Landlord and Tenant, Cent. Dig. § 97; Dec. Dig. § 34.*]</p> <p>8. Appeal and Eeroe (§ 742*) —Assignments-of Error — Instructions—Propositions.</p> <p>A proposition, under an assignment of error to the giving of a charge, that it was on-the weight of the evidence, failing however to-point out in what respect, would not be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and-Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>9. Landlord and Tenant (§ 193*) — Lease-Rescission — Effect.</p> <p>Where, after a lease of land, a pumping plant and a canal for five years, and the execution of notes for the rent, defendant objected' because of the saline condition of, the water, whereupon plaintiff bound himself to forego his rent and cancel the notes if salt water appeared in the river at the pumping plant in sufficient quantity to injure defendant’s crops, and such condition occurred in June, 1910, the court properly held that defendant’s election to tei-minate the conti'aet for that reason released him from payment of the rent remaining unpaid for 1909 as well as the notes not due at the time the salt water appeared in 1910.</p> <p>[Ed. Note. — For other cases, see Landlord, and Tenant, Cent. Dig. § 787; Dec. Dig. §• 193.*]</p>

<p>1. Appeal and Error (§ 622*) — Filing Transcript — Time.</p> <p>The 90 days from the time of giving notice of appeal, within which the transcript must be filed, should be computed from the giving of the notice of appeal recited in the order overruling a motion for new trial, instead of from the notice recited in the judgment theretofore entered.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2732-2735; Dec. Dig. § 622.*]</p> <p>2. Appeal and Eeeoe (§ 564*) — Statement op Facts — Time op Filing.</p> <p>A statement of facts, which was filed in the trial court September 10, 1913, and in the Court of Civil Appeals on September 17, 1913, was filed too late, and will not be considered, where judgment was rendered May 24, 1913, and the order overruling the motion for new trial was made on May 30, 1913.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. § 564.*]</p> <p>3. Teespass to Try Title (§ 19*) — Defenses —Equitable Title.</p> <p>An equitable title can be sued upon or set up as a defense in an action of trespass to try title.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 22; Dec. Dig. § 19.*]</p> <p>4. Trusts (§ 44*)— Evidence.</p> <p>Evidence held not to sufficiently show that land conveyed was taken under a parol trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.*]</p> <p>5. Trusts (§ 44*) — Constructive Trust.</p> <p>Where the trustee is dead, a parol trust should not be ingrafted on a deed to land without clear and satisfactory evidence thereof, and such evidence is not satisfactory where the party suing to establish a trust withholds the best on the question.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dee. Dig. § 44.*]</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and Eeeor (§ 345*) — Notice op Appeal.</p> <p>A notice of appeal given in the term in connection with the order overruling a motion for new trial, after notice of appeal had been given when judgment was rendered, was valid; the trial court having control of the judgment during the term.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896; Dec. Dig. § 345.*]</p> <p>7. Appeal and Eeeoe (§ 937*) — Presumption.</p> <p>Where a transcript was filed during vacation, it cannot be presumed that the clerk filed it by order of the court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3788-3794; Dec. Dig. § 937.*]</p> <p>8. Appeal and Eeeoe (§ 628*) — Filing or Transcript — Delay—'Waiver.</p> <p>Where appellee received notice of the filing of the transcript pursuant to Court of Civil Appeals rule 7b (142 S. W. xi), and did not move-to dismiss the appeal because the transcript was filed too late until more' than seven months thereafter, he waived the delay in filing the-transcript, and cannot excuse his own delay on the ground that he called attention to the time of filing the transcript as soon as he could after appellant’s brief had been filed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2750-2764; Dec. Dig. § 628.*]</p>

<p>1. Venue (§ 17*) — Privilege to be Sued in County of Residence — Waiver.</p> <p>A defendant who invokes the jurisdiction of the trial court by a cross-action thereby waives his plea of privilege to be sued in the county and precinct of his residence.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 28-31; Dec. Dig. § 17.*]</p> <p>2. Justices of the Peace (§ 174*) — Appeal-Amendments to Pleadings.</p> <p>A plaintiff suing in justice’s court may on appeal to the county court amend his petition so as to conform to the evidence at the trial.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-693; Dec. Dig. § 174.*]</p> <p>3. Justices of the Peace (§ 174*) — Actions —Pleadings.</p> <p>A petition, in an action in justice’s court, which states a cause of action on a written contract and in addition thereto a cause of action based on a subsequent oral contract, is not subject to exceptions in the county court on appeal.</p> <p>[Ed. Note. — For other .eases, see Justices of the Peace, Gent. Dig. §§ 665-693; Dee. Dig. § 174.*]</p> <p>4. Evidence (§ 445*) — Paeol Evidence — Admissibility.</p> <p>Where an action -was founded on a written contract and on a subsequent oral contract, proof of the oral contract not contradicting the written contract was admissible.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2052-2065; Dec. Dig. § 445.*]</p> <p>5. Appeal and Ekboe (§ 1050*) — Haemless Eeeoe — Eeboneous Admission op Evidence.</p> <p>Where, in an action for pasturing cattle, defendant reconvened for the conversion of cattle, and it was shown without objection that two of the cattle had died and that others had escaped through the fault of third persons, the error, if any, in admitting evidence of the custom of the country that parties taking cattle for pasturage were not responsible for the loss thereof, was not prejudicial, since plaintiff was only required to exercise ordinary care.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p>

<p>Principal and Agent (§ 137*) — Powers op Agent — Estoppel to Dent Authority.</p> <p>Plaintiff was not estopped to deny that its agent, a traveling salesman, had authority to allow defendants a discount on goods sold to them when defendant knew nothing of the agent’s authority and did not attempt to ascertain anything about it and was in no way misled by any act of plaintiff.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 492-494; Dec. Dig. § 137.*]</p>

<p>Appeal from District Court, San Jacinto County; L, B. Hightower, Judge.</p> <p>Action by Turner Ross and others against R. E. Blunt and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Partition by Alexander Perkins against Laura R. Perkins. Judgment for plaintiff, subject to defendant’s homestead, and defendant appeals.</p>

D. Guinn, Judge. Action by James W. Due, by his next friend, S. T. Due, against the Angelina & Neches River Railroad Company and the Angelina County Lumber Company. Judgment for plaintiff against both defendants, and both defendants appeál.

<p>Appeal from Fisher County Court; L. C. Miller, Judge.</p> <p>Action by J. S. McCall against the Texas Central Railroad Company and another. From a judgment for plaintiff, defendant named appeals.</p>

<p>1. Specific Performance (§ 105*) — Diligence — Excuse.</p> <p>Plaintiff in 1904 entered into a written agreement, whereby in consideration that plaintiff and W., who were brokers, would obtain land at a low price, defendants agreed to purchase it and to give plaintiff and W. an undivided one-half interest therein for $1,500 ox-, when the proceeds of the timber cut or land sold to others amounted to $1,500, a deed of their interest would be executed to plaintiff and W. Defendants settled with W. and sold a part of the land to him for a price in excess of $1,500, and plaintiff on discovering- the fact, in 1910, sued for specific performance, and tendered $750 in payment for his one-fourth interest. Held that, as it necessarily required time to establish sawmills and to cut and sell the timber, plaintiff was excused from not sooner seeking a performance of the contract.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 325-341; Dec. Dig. § 105.*]</p> <p>2. Specific Performance (§ 97*) — Action-Tender.</p> <p>In such case, plaintiff, on a showing that defendant had settled with W. and sold land to him for a price in excess of $1,500, had the right to maintain a suit for specific perfoi-mance as to his undivided interest without any tender; and, even if a tender was necessary, his "tender of $750 at the trial was sufficient both as to time and amount to entitle him to maintain •a suit.</p> <p>[Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 286-298; Dec. Dig. § 97.*]</p> <p>8. Specific Performance (§ 12*) — Right of Action — Joint Interest.</p> <p>In such case, plaintiff did not lose his right to the specific enforcement of a conveyance to the extent of his interest under the contract, merely because W. by accepting a settlement from defendant could not he properly joined as •a party plaintiff.</p> <p>[Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 26-28, 37; Dee. Dig. 12.*]</p> <p>■4. Evidence (§ 444*) — Parol Evidence-Consideration of Conveyance.</p> <p>An obligation to convey lands, independent •on its face, may be shown by parol evidence to be dependent upon a consideration not expressed in the obligation or instrument declared on.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1929-1944, 2049; Dec. Dig. § 444.*]</p> <p>5. Contracts (§ 212*) — Time foe Perform- ' ance — Reasonable Time.</p> <p>Under an agreement, whereby, in consideration that plaintiff would obtain land at a low price, defendants were to purchase it and to convey an interest to plaintiff and another for $1,500, or when sales of timber and land equaled that amount, but not providing any time in which it should be performed,, a reasonable time was implied, to be determined under all the facts and circumstances.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 944-955; Dee. Dig. § 212.*]</p> <p>6. Specific Performance (§ 6*) — Right of Action — Mutuality of Obligation.</p> <p>In such case, it was not essential to the validity of the contract or to plaintiff’s right to enforce specific performance thereof that there should be a reciprocal obligation or mutuality of remedy; plaintiff having performed his part by procuring the land at the price set.</p> <p>[Ed. Note. — Eor other cases, see Specific Performance, Cent. Dig. §§ 9-11; Dec. Dig. § 6.*] ■</p>

<p>Death (§ 33*) — Action tor Death — Liability.</p> <p>Under the statute authorizing an action for death 'by negligent act, .a municipal corporation is not liable for the death of a person caused by its negligence in maintaining its streets.</p> <p>[Ed. Note. — Por other cases, see Death, Cent. Dig. § 49; Dee. Dig. § 33.*]</p> <p>Purman, J., dissenting.</p>

Certified Questions from Court of Civil Appeals of Pifth Supreme Judicial District. Action by Jessie Logan against the American Bonding Company of Baltimore. There was a judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, and it certified a question to the Supreme Court. Question answered in the negative.

Supreme Judicial District. Contest of the will of Winfield Scott, deceased, by Mrs. Georgia Scott Townsend and another against Mrs. Elizabeth Scott and others. Judgment in the district court for contestants, on appeal from the county court, was affirmed by the Court of Civil Appeals (159 S. W. 342), and contestees bring error.

<p>Appeal from San Jacinto County Court; E. W. Love, Judge.</p> <p>Jiles Fields was convicted of unlawfully carrying a pistol, and he appeals.</p>

P. Simpson, Judge. Action by W. V. Allen against A. J. Birdsong & Son and another begun in justice court. From a judgment for plaintiff, the named defendants appeal.

<p>Appeal from District Court, Jefferson County; W. H. Davidson, Judge.</p> <p>Action by Frank W. Godsey against C. A. Elmen & Co. and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Clay County; P. A. Martin, Judge.</p> <p>Action by A. W. Clarke against Ludwig Klein. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Appeal from Brazos County Court; J. T. Maloney, Judge.</p> <p>Action by the First National Bank of Bryan against Frank Tardio. From a judgment for plaintiff, defendant appeals.</p>

G. Krueger, Judge. Action by J. E. Miller against the Sealy Oil Mill & Manufacturing Company. Judgment for plaintiff for less than the relief demanded, and he appeals.

<p>1. Vendor and Purchaser (§ 16*)—Offer and Acceptance—Acceptance by Mail.</p> <p>One receiving by mail a proposition of purchase or sale has the right, within a reasonable time, and before it is withdrawn, to accept by a writing, deposited in the post office, duly stamped for delivery, and such acceptance is binding from the time it is so deposited, whether delivered or not; but, if the offeror limits the time for acceptance, it may be accepted at any time within such limit, unless during that time, and before acceptance, the offer is withdrawn, and notice thereof given.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 17, 20; Dec. Dig. § 16.*]</p> <p>2. Vendor and Purchaser (§ 351*) — Vendor’s Breach op Contract—Measure oe Damages.</p> <p>The measure of damages for the vendor’s breach of his offer to sell after its acceptance is the difference between the market value of the property at the time o£ the breach and the price at which it was offered.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. §§ 1017, 1047-1058; Dee. Dig. § 351.*]</p> <p>3. Vendor and Purchaser (§ 16*) — Offer ■ and Acceptance — Sufficiency of Acceptance.</p> <p>Where the owner of a lot offered to take $500 net cash, provided he could have the money in hand by May 28th, an unconditional acceptance by mail, by which the owner, by simply executing a deed waiting for him at a bank, could have the money in his hands by the 28th, was sufficient.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 17, 20; Dec. Dig. § 16.*]</p> <p>4. Vendor and Purchaser (§ 343*) — Vendor’s Breach of Contract — Diability for Damages.</p> <p>A vendor who, after the acceptance of his offer to sell, sold the land to others, thereby placing it out of the purchaser’s power to enforce specific performance, was liable to the purchaser for damages sustained by such a breach of the contract.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1023-1029; Dec. Dig. § 343.*]</p> <p>5. Torts (§ 12*) — Interference with Contractual Relations.</p> <p>One who knew of an offer to sell land, and of its acceptance, and of the condition that the money should be in the vendor’s hands by May 28th, and who, for his bank, loaned the purchaser the money to pay for it, and who also knew that the purchase price would be paid within such time on the owner’s tender of his deed, and who two days before such date induced the owner to sell the land to him, was liable to the purchaser for damages resulting from the breach of the contract of sale.</p> <p>[Ed. Note. — For other cases, see Torts, Cent. Dig. § 13; Dec. Dig. § 12.*] .</p>

<p>1. Death (§ 103*) — Questions fob Jury — Resulting Loss of Injury.</p> <p>In an action by the parents of a young man of 23 killed in a wreck due to defendant’s negligence, held, on the evidence, that the question whether plaintiffs had any reasonable expectation Of pecuniary benefit from him was for the jury.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 141; Dec. Dig. § 103.*]</p> <p>2. Death (§ 86*) — Eight of Action — Loss or Injury.</p> <p>In an action under tie statute by the surviving wife, parents, etc., for damages from injury resulting in death, there can be no recovery, unless plaintiffs had a reasonable expectation of pecuniary benefit from deceased.</p> <p>[Ed. Note. — For other cases, see Death, Gent. Dig. §§ 108, 109, 112-114, 117, 119; Dec. Dig. i 86.*]</p> <p>3. Death (§ 99*) — Damages—Excessive Damages.</p> <p>In an action by surviving parents about 65 years of age for damages from the death of a son 23 years of age, where it appeared that plaintiffs were engaged in farming and stocjt raising, and were worth about $30,000, that deceased was skilled in such business, and when at home assisted therein and in household work, that he was considerate of their health, and had on occasions called a physician to see them, and that he had stated that he intended to remain unmarried while his mother lived, in which the jury, under Rev. St. 1911, art. 4704, might allow such damages as they thought proportionate to the resulting injury, a verdict of $5,500 was excessive and would be reversed, unless a remittitur of $4,400 was filed.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*]</p> <p>Willson, O. J., dissenting in part.</p>

<p>Appeal and Eeeoe (§ 742*) — Review—Harmless Error.</p> <p>An assignment of error, complaining of the refusal of the court which rendered a default judgment against defendants to file findings of fact and conclusions of law, must be overruled where the statement thereunder did not show the ground of the motion for new trial, excuse defendants’ default, or show that they had a good defense; it not appearing defendants were in any way harnied.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. § 742.*]</p>

<p>Homestead (§ 154*) — Abandonment—Segregation.</p> <p>Complainants purchased a triangular piece of ground containing a half acre or less in an unincorporated town, built a house and outbuildings thereon, using it as their home. After the town was incorporated, complainants constructed another house on another portion of the lot and divided the two by a high board fence. The second house was rented from month to month with the intention of removing it to another place thereafter. The lot was never platted or cut into two separate lots, and complainants always reserved the particular premises on which the second house was located for use of himself and' family. Held, that the division of the property by the fence and the construction of the second house did not constitute an abandonment of the homestead character of that portion of the premises so as to render it subject to execution.</p> <p>[Ed. Note. — For other cases, see Homestead, Gent. Dig. § 307; Dec. Dig. § 154.*]</p>

<p>Appeal and Error (§ 387*) — Perfection op Appeal — Bond.</p> <p>Where a judgment appealed from was rendered at a term of the district court ending April 5th, and the motion for new trial was overruled April 4th, but appellant did not file an appeal bond until June 12th, there was no compliance with Rev. St. 1911, art. 20S4, requiring an appeal bond to be filed within 20 days after the expiration of the term, and the appeal would be dismissed.</p> <p>[Ed. 'Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064r-2070; Dec. Dig. g 387.*]</p>

H. Buck, Judge. Action to cancel an accident and health policy by the Commonwealth Bonding & Casualty Company against Francis M. Pope, who, by cross-action, sought a recovery on the policy for an accidental injury. From a judgment canceling the policy and denying, relief on the cross-action, defendant appeals.

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by D. B. Smith against H. M. Maple. Judgment for plaintiff, and defendant appeals.</p>

W. Swayne, Judge. Action by the Gamer Company against Burke & Reilly and A. & L. August. From a judgment for plaintiff foreclosing a mate-rialman’s lien on the land of A. August, he appeals.

<p>Appeal from Special District Court, Liberty County; J. Llewellyn, Judge. Habeas corpus by J. T. Phelps. Relator was remanded to custody, and appeals.</p>

<p>Appeal from Hill County Court; Horton B. Porter, Judge. Pomp Cunningham was convicted of crime, and he appeals.</p>

<p>Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge. Henry Davis was convicted of aggravated assault, and he appeals.</p>

<p>Appeal from Galveston County Court; George E. Mann, Judge. Action by Harold Hansen against John Christensen & Co. Erom a judgment for plaintiff, defendants appeal.</p>