Volume 169 — South Western Reporter

B. Muse, Judge. Suit by R. P. Baugh and others against Henry Strickland, Jr., and others. Judgment having been rendered for complainants, defendants appeal from an order denying their motion to set aside the judgment and-for a new trial.

<p>1. Master and Servant (§ TO*) — Actions for Compensation — Issues, Proof, and Variance.</p> <p>A petition alleging that defendant contracted to pay plaintiff ten cents per tree for all trees purchased by defendant on information by plaintiff of the location and name of the owner does not justify a recovery for trees cut and made into staves by defendant in the neighborhood where plaintiff resides, regardless of whether information as to location and name of owner was furnished by plaintiff to defendant or not.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 82-86; Dec. Dig. § 70.*]</p> <p>2. Judgment (§ 251*) — Conformity to Pleadings.</p> <p>Facts not alleged, though proved, cannot form the basis of a judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*]</p> <p>3. Trial (§ 144*) — Question for Court or. Jury — Attorney’s Fees.</p> <p>Under Rev. St. 1911, art. 2178, authorizing an allowance as costs of reasonable attorney’s fees to be determined by the court or-jury, the amount of attorney’s fees must be determined by the jury trying the case, and not by the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 344; Dec. Dig. § 144.*]</p>

<p>Appeal from District Court, Trinity County; S. W. Dean, Judge.</p> <p>Trespass to try title by the J. M. Thompson Lumber Company against George York. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Action by Carl Stevens against the City of Dublin and others. Judgment for defendants, and plaintiff appeals.</p>

T. Dashiell, Judge. Action by the Moore Grocery Company against J. L. McCan, John A. Marshall, and R. H. Sammon, with cross-actions by Marshall and Sammon. Judgment for defendants Marshall and Sammon denying any recovery to plaintiff, and plaintiff appeals.

<p>Appeal from District Court, Wichita County ; P. A. Martin, Judge.</p> <p>Action by Mrs. M. J. Owens against the Corsicana Petroleum Company and others. Judgment for defendant, Petroleum Company, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; R. E. Crawford, Special Judge.</p> <p>Action by Morris Geary against the Trinity & Brazos Valley Railway Company. Judgment for plaintiff:, and defendant</p>

<p>Appeal from Jack County Court; J. P. Simpson, Judge.</p> <p>Action by Raymond Reed against the Texas Building Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Pleading (§ 412*) — Special Matters of Defense — Failure to Answer — Waiver.</p> <p>Plaintiff’s failure to answer special matter of defense, as required by Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127, § 3, with the result, as there provided, that any fact so pleaded, and not denied by plaintiff, shall be taken as confessed was waived, where, without objection, there was a trial as though there were a denial, and defendant did not request an instruction that such allegations be taken as confessed, but requested instructions, submitting the matters thereby alleged as controverted issues for the jury.</p> <p>[Ed. Note. — For other cases, see Pleading,. Cent. Dig. §§ 1387-1394; Dec. Dig. § 412.*]</p> <p>2. Appeal and Error (§ 263*) — Necessity op Bill op Exceptions — Rulings on Instructions.</p> <p>In the absence of a bill of exceptions, rulings in giving, refusing, or qualifying instructions are to be regarded as approved, and an assignment of error, based thereon, is without merit; Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. c. 59, § 3, providing such rulings shall be regarded as approved “unless excepted to as provided in the foregoing articles,” and the foregoing articles of the chapter containing such article relating solely to hills of exceptions and the necessary requisites thereof.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.*]</p>

<p>1. Telegraphs and Telephones (§ 66*) — Failure to Transmit Telephone Call —Damages—Sufficiency of Evidence.</p> <p>Evidence, in an action for failure to transmit a telephone call., whereby attempt was made to notify plaintiff of the expected death of his sister, who died and was buried the next day, held insufficient to show whether the train, on which plaintiff testified he would have traveled had he received the message, would have arrived in time for him to attend the funeral.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent Dig. §§ 61-63; Dec. Dig. § 66.*]</p> <p>2. Telegraphs and Telephones (§ 68*) — Failure to Transmit — Mental Suffering —Half Sisters and Brothers.</p> <p>The relationship of half-brother and half-sister between plaintiff and one whose expected death was attempted to be communicated to him by telephone is sufficiently close to authorize recovery for mental suffering, from being prevented from attending her funeral, by reason of the telephone company’s negligent failure to transmit the call.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dee. Dig. § 68.*]</p> <p>3. TELEGRAPHS AND TELEPHONES (§ 68*) — Failure to Transmit — Mental Suffering —Notice.</p> <p>The notice to a telephone company being that it was desired to transmit to plaintiff a message that his “sister” was expected to die, though she was only his half-sister, yet his mental suffering from being prevented, by the company’s negligent failure to transmit the call, from attending the funeral, being as great as if she had been his sister, damages to that extent are recoverable.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.*]</p> <p>4. Trial (§ 232*) — Submission of Special Issues — Instructions.</p> <p>The giving, preliminary to the statement of the special issues, on which a trial is had, of instructions in the nature of a general charge on the material issues in the case, should be avoided, as tending to confuse and mislead the jury; but this does not apply to the giving of definitions entirely proper in connection with the special issues submitted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 524, '525; Dec. Dig. § 232.*]</p> <p>5. Trial (§ 352*) — Special Issues — Generality.</p> <p>A requested special issue, calling for all the information given to the agent of defendant telephone company when W. attempted to get in communication with plaintiff, is too general, and perhaps misleading to the jury, the only material fact sought being whether the agent was notified that W. expected to tell plaintiff that his sister was at the point of death.</p> <p>TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. § 352.*]</p> <p>6. Pleading (§ 412*) — Denial of Special Pleas — Waiver of Failure.</p> <p>Plaintiff’s failure to deny special pleas of contributory negligence, as required by Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127, providing that specially pleaded matters of defense not denied by plaintiff shall be taken as confessed, is waived, defendant not calling attention thereto, at the trial, by request that such pleas be taken as confessed, or otherwise, but only requesting an instruction for a verdict, without embodying such contention therein or in the objection to the refusal thereof.</p> <p>[Ed.' Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. § 412.*]</p> <p>7. Appeal and Error (§ 1040*) — Harmless Error — Failure to Paragraph Petition.</p> <p>The facts alleged in the petition being specifically and specially answered by defendant, any error in overruling an exception to the petition as not complying with Rev. St. 1911, art. 1827, as amended by Acts 33d Leg. c. 127, requiring a petition to plead by separate paragraphs, consecutively numbered, each fact going to make up the cause of action and other allegations, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.*]</p> <p>8. Telegraphs and Telephones (§ 66*) — Failure to Transmit — Mental Suffering —Notice to Company.</p> <p>Evidence, in an action for failure of a telephone company to transmit a call, whereby attempt was made to notify • plaintiff of the impending death of his half-sister, that she was dearer to plaintiff than his full sisters, is improper; defendant having been given no notice of such special affection.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent Dig. §§ 61-63; Dec. Dig. § 66.*]</p> <p>9. Telegraphs and Telephones (§ 65*) — Failure to Transmit — Action—variance.</p> <p>Variance between the allegation of the petition in an action for failure to transmit a telephone call, whereby attempt was made to notify plaintiff of the impending death of S., that S. was plaintiff’s sister, and proof that she was his half-sister, is not material, defendant having been told when the call was put in that S. was plaintiff’s sister.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. § 65.*]</p> <p>10. Telegraphs and Telephones (§ 65*) — Failure to Transmit — Action—Variance.</p> <p>Variance between the allegation of the petition and the proof as to the place of death and burial of S. is not material, in an action for failure to transmit a telephone call, in an attempt to notify plaintiff of the impending death of S., whereby plaintiff was prevented from attending her funeral.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec, Dig. § 65.*]”</p> <p>11. Trial (§ 125*) — Argument of Counsel-Damages from Mental Suffering.</p> <p>The remark of plaintiff’s counsel, in argument to the jury, in an action for failure to transmit a telephone call, whereby plaintiff was prevented from attending the funeral of his half-sister, that the jury should allow such damages as should compensate them for the grief that they would have suffered under the same circumstances, is improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig.. §§ 303-307; Dec. Dig. § 125.*]</p> <p>12. Telegraphs and Telephones (§ 66*) — Failure to Transmit — Action—Evidence.</p> <p>Testimony of plaintiff, in an action for failure to transmit a telephone call, put in at 8:30 p. m., by W. at P., for plaintiff at his home at H„ that at 9:30 that evening he, over his residence telephone, called up defendant’s operator, at H., and asked whether she had received a call from him, saying he had been absent from home a short while, and that his sister was sick, and he was expecting a call, is admissible, over , the objection of incompetency, irrelevancy, and immateriality; W. having testified that the operator at P. had stated to him that she was informed over the long-distance telephone that plaintiff was absent from home and so could not be reached, and that later in the evening, at 11 o’clock, she told him she had received a report from the operator at H. that plaintiff had no telephone in his house.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]</p> <p>13. Trial (§ 352*) — Special Issues — Double Question.</p> <p>The special issue, submitted to the jury, “If J., had gotten in telephone connection with * * * W., * * * could he and would he have attended the funeral?” embodies two questions, which should be submitted separately, as the same answer might not be given to' both.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. § 352.*]</p>

<p>1. Damages (§ 117*) — Breach of Contract— Measure of Damages.</p> <p>Damages are recoverable for a breach of contract, and the proper measure is pecuniary compensation for the injury suffered.</p> <p>[Ed. Note. — For other, cases, see Damages, Cent. Dig. §§ 285, 286, 2^8; Dec. Dig. § 117.*]</p> <p>2. Telegraphs and Telephones (§ 68*) — Delay in Transmission of Messages — Damages.</p> <p>In case of delay or negligence in the transmission of a telegram, damages for resulting mental anguish may, contrary to the rule of the common law, be recovered.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.*]</p> <p>3.Telegraphs and Telephones (§ 68*) — Delay in Transmission of Messages — “Mental Anguish.”</p> <p>Mental anguish is that keen and poignant suffering which results from some great grief; and hence mere disappointment because plaintiff’s grandchildren were prevented from visiting him on account of delay in the transmission of a telegram was not mental anguish for which damages might be recovered.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dee. Dig. & 68.*]</p> <p>For other definitions, see Words and Phrases, vol. 5, p. 4475.]</p> <p>4. Telegraphs and Telephones (§ 68*)— Actions For Delay in Transmission oe Messages.</p> <p>For the sender of a telegram to recover damages for mental anguish resulting from delay in its transmission, the facts must have been such that the sender would naturally suffer mental anguish in case of delay, and they must have been known to the agent of the telegraph company.</p> <p>[Ed. Note. — For other cases,, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. & 68.*]</p>

<p>1. Damages (§ 132*) — Excessiveness — PERSONAL INJURIES.</p> <p>Plaintiff’s feet were caught in a cotton press and crushed in such a manner as to render him a cripple for life. It was necessary to amputate both feet at the junction of the instep with the heel, and one of plaintiff’s physicians testified that he would never be able to walk without crutches. He was about 43 years old at the time of the accident, in good health, industrious, of good character, and able to get manual labor at good wages, and was qualified for no other character of employment. Helé, that a verdict allowing him $10,000 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]</p> <p>2. Trial (§ 256*)— Instructions — Requested Charge — Duty to Make Request.</p> <p>In general, if a party desires to have inaccuracies in instructions given cured, it is his duty to ask properly prepared special instructions for "that purpose.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>3. Trial (§ 253*)— Instructions — Requested Charge — Elimination oe Issues.</p> <p>Where, in an action for injuries to a- servant, plaintiff alleged negligence in the employment of incompetent fellow servants, and also in the furnishing of defective and dangerous machinery, a requested charge that plaintiff could not recover on account of his fellow servant’s negligence if defendant exercised proper care in employing him, and concluding by instructing the jury that if they found-the facts to be as therein recited to return a verdict for defendant, were properly refused as eliminating plaintiff’s right to recover, based on the ground of defendant’s furnishing defective machinery.</p> <p>[Ed. Note — Eor other cases, see Trial, Cent Dig. §§ 613-623; Dee. Dig. § 253.*]</p> <p>4. Trial (§ 260*) — Requested Charge — Instructions Given — Contributory Negligence.</p> <p>The court having charged that, if the jury believed from the evidence that plaintiff was negligent in going on the block of a cotton press by which he was injured, or in not acting as an ordinarily prudent person would have acted under all the circumstances, then he was not entitled to recover, other requested instructions on the issue of contributory negligence were properly refused.</p> <p>TEd. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>5. Appeal and Error (§ 1058*) — Harmless Error — Reception oe Evidence — Curing Error.</p> <p>Error in excluding certain evidence is cured where the facts sought to be proved are otherwise shown before the end of the trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4195, 4200-4204, 4206; Dec. Dig. § 1058.*]</p>

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by C. H. Eldridge against the Citizens’ Railway Company and others. From a judgment for defendants, plaintiff appeals.</p>

McCullough, Jhidge. Action by Mrs. Eppie Pate, as administratrix, etc., of the estate of W. W. Pate, deceased, against the Rotan Grocery Company and others. Judgment for' plaintiff, and defendants appeal.

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by Edgar E. Witt, trustee, against E. Nelson and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Railroads (§ 227*) — Adequacy of Train Service — Orders of Railroad Commission.</p> <p>Where a railroad company stopped only two trains a day at a county seat town of 1,500 inhabitants, which practice caused many travelers desiring’ to leave or reach the town to make connections at other points, and the trains stopped did not carry Pullman accommodations, the railroad company did not furnish adequate service, and an order requiring it to stop through trains carrying Pullman cars was not unreasonable.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. § 741; Dec. Dig. § 227.*]</p> <p>2. Railroads (§ 227*) — Regulations as to Train Service — Duty to Stop Trains.</p> <p>Nor is such order invalid because the railroad company might be required to stop such trains at other stations; the law only requiring through trains to be stopped at county seats, unless a failure to stop at other points would amount to a clear abuse of the carrier’s duties to the public.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 741; Dec. Dig. § 227.*]</p> <p>3. Commerce (§ 58*) — Interstate Commerce —Interference with. .</p> <p>A state regulation which required a railroad company to stop through trains engaged in interstate commerce at a particular point was not invalid as an interference with interstate commerce where the railroad company, as a public carrier, owed the inhabitants of that locality the duty of stopping its trains there.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 77-86, 100; Dec. Dig. § 58.*]</p> <p>4. Commerce (§ 58*) — Regulation of Railroads — Railroad Commission — Authority of.</p> <p>Under Rev. St. 1911, art. 6676, subd. 2, providing that it shall be the duty of the Railroad Commission to see that every railroad shall run at least one train a day upon which passengers can be carried, and to regulate passenger train service by requiring trains to stop at designated stations, provided that four trains each day carrying passengers for hire, if so many are run, shall be required to stop at all county seat stations, the Railroad Commission has jurisdiction to order a railroad company to stop through trains engaged in interstate commerce at a county seat station, where the stopping of such trains is necessary to furnish the inhabitants of that locality with adequate train service.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 77-86, 100; Dec. Dig. § 58.*]</p> <p>6. RAILROADS (§ 254*)— Offenses — Continuing OFFENSE.</p> <p>Where a railroad company, for a considerable time, violated an order of the Railroad Commission requiring it to sto]D certain trains at a designated station, the railroad company was guilty of as many offenses as there were separate violations of the order.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 76^-772; Dec. Dig. § 254.*]</p> <p>6. Railroads (§ 254*) — Prosecution — Punishment.</p> <p>Under Rev. St. 1911, art. 6672, providing that, if any railroad company shall refuse to obey any order of the Railroad Commission, it shall pay to the state a penalty of not more than $5,000 for each violation, the imposition of a fine of $22,400 upon a railroad company, which 224 times violated an order requiring it to stop certain through trains at a designated station, was not excessive.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.*]</p>

<p>1. Insurance (§ 618*) — Accident Certificate — Action—Venue.</p> <p>Rev. St. art. 1830, subd. 30, provides that whenever, in any law authorizing or regulating any particular kind of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given. Article 4744 declares that suits on policies may be instituted and prosecuted against any life or accident insurance company in the county where the company’s home office is located, or in the county where loss has occurred or where the plaintiff policy holder or beneficiary resides. Held that, since parties cannot contract so as to deprive a court of jurisdiction when jurisdiction is fixed by statute, a provision in an accident certificate and in the by-laws of the company that all suits on the certificate should be instituted in Dallas county, Tex., did not prevent the beneficiary from instituting and maintaining the suit in the county where the insured died.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1536-1539: Dec. Dig. § 618.*]</p> <p>2. Insurance (§ 449*) — Accident Certificate — Accidental Death — Apoplexy.</p> <p>Decedent, while in a hotel, witnessed from his window a fire in a building on the opposite side of the street, in which a helpless man was accidentally burned to death. Decedent was greatly shocked and excited, so that he became insensible and fell, either by fainting from the excitement or from the rupture of a blood vessel in his brain, causing apoplexy, from which he died thre.e days later. He was but 40 years of age, of temperate habits, and in good health, but was very excitable and sympathetic. No other cause for the apoplexy was suggested, and the physicians testified that it was a very unusual occurrence for a man in good health and of decedent’s years .to have apoplexy, unless it was occasioned by some external, violent means, and that it could be produced by great excitement. Held, that decedent’s death was properly found to have been ■caused by external, violent, and accidental means, within the terms of his accident certificate, and not from disease.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. § 1162; Dec. Dig. § 449.*]</p> <p>3. Insurance (§ 152*) — Accident Certificate — Amount Recoverable.</p> <p>Where an accident certificate on its face provided for the payment of $5,000 in case of decedent’s accidental death, without qualification, and neither the certificate nor the application made any reference to a by-law providing that, for death from cerebral hemorrhage, cerebral paralysis, apoplexy, or heart failure caused by accident, the amount payable should be limited to $500, such by-law was unavailable to limit the amount recoverable under the certificate for apoplexy resulting from accident.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 312; Dec. Dig. § 152.*]</p> <p>4. Insurance (§ 152*) — Accident Certificate — Loss—Amount Payable — Statutes.</p> <p>Rev. St. art. 4807, provides that every policy or certificate, issued by an accident insurance corporation, shall specify the sum which it promises to pay on the contingency insured against, and the number of days after receipt of satisfactory proof of the happening of such contingency at which such payment shall be made, and upon the happening thereof the corporation shall be liable for the payment of the amount “in full” at the time so specified, subject to such legal defenses as it may have against the same. Held, that the amount required to be paid in full under such section is the amount specified in the certificate, which the company promises to pay on the contingency insured against; and hence such liability cannot be avoided by any by-law fixing aijy other or different amount on any contingency whatever.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 312; Dec. Dig. § 152.*]</p> <p>5. Insurance (§ 615*) — Accident Certificate — Amount Payable — “Legal Defense.”</p> <p>Under Rev. St. art. 4807, providing that accident insurance companies shall be liable for the payment of the amount specified in their policies in full at the time so specified, subject to any legal defenses which they may have against the same, the term “legal defenses” means those which defeat a recovery, as that the insured did not die as the result of accident, and not that, by reason of a by-law not referred to in the certificate, defendant is at most only liable for an amount less than that specified in the certificate.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1530, 1532-1534; Dec. Dig. § 615.*]</p> <p>6. Appeal and Error (§ 1073*) — Harmless Error — Accident Certificate — Payment — Installments — By-Laws.</p> <p>A by-law of an accident insurance association provided that the association should have the option of paying death losses in five equal annual installments, the first payment to be due 90 days after proofs of loss were filed. Held, that the association was bound to exercise its option to pay in installments, if at all, within 90 days after proofs of loss were filed; and hence, more than 90 days having expired pending appeal from a judgment in favor of a beneficiary on a certificate, it was not material that the trial court added a condition, to defendant’s right to pay the judgment in installments, that defendant should accept the decree as final and not appeal therefrom, and, in the event of an appeal, the judgment should stand without condition or qualification as to the manner or time of payment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. S 1073.*]</p> <p>7. Insurance (§ 659*) — Accident Certificate — Apoplexy—Evidence.</p> <p>Where, in an action on an accident certificate, it was claimed that decedent came to his death from apoplexy superinduced by excitement on seeing a person burned to death, evidence of a nurse, who cared for him, that at intervals he suffered great pain in his head, and that he talked about the fire, would get very much excited, would gesticulate with his arms, and on one occasion tried to get out of be'd, was relevant to show injury to the head, and that decedent was of an excitable nature.</p> <p>[Ed. Note. — For other cases, see Insurance. Cent. Dig. §§ 1691-1693; Dec. Dig. § 659.*]</p> <p>8. Appeal and Error (§ 1052*) — Right to Allege Error — Rulings on Evidence.</p> <p>Defendant may not assign error on the admission of testimony, the substance of which was otherwise given, by another witness without objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. § 1052.*]</p> <p>9. INSURANCE (§ 602*) — Loss — FAILURE TO Pat — Damages—Attorney's Fee.</p> <p>A casualty insurance company carrying on business on the assessment or annual premium plan under Rev. St. tit. 71, is nevertheless subject to article 4746, subjecting insurance companies to a liability of 12 per cent, damages for failure to pay a loss within 30 days after demand, together with a reasonable attorney’s fee, since article 4957, exempting such companies from the “provisions of this chapter,’’ refers to chapter 15, whereas article 4746 is a part of chapter 2.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.*]</p>

<p>On Motion for Rehearing.</p> <p>Sales (§ 442*) — Payment of Price — Shortage op Delivery — Measure op Damages.</p> <p>Where defendant contracted to deliver to plaintiff all bis cattle in a certain pasture, estimated at about 2,389 head, at $33 per head, and plaintiff paid defendant for a larger number of head than defendant delivered, plaintiff’s measure of damages was an amount sufficient to cover the shortage at the contract price per head, and not the market value of the cattle not delivered at the time and place they should have been delivered under the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1284-1301; Dec. Dig. § 442.*]</p>

<p>1. Appeal and Error (§ 80*) — Decisions Appealable — Final Judgment.</p> <p>A judgment which fails to dispose of all the issues raised by the pleadings is not a final judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.*]</p> <p>2. Appeal and Error (§ 742*) — Waiver op Errors — Jurisdictional Matters.</p> <p>Though the assignment raising the question that the judgment below was not final, and hence not appealable, because it did not dispose of all the issues raised, was not properly briefed, the question will be disposed of, being a jurisdictional one.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>3. Appeal and Error (§ 80*) —Decisions Appealable —Final Judgment —Construction op Verdict.</p> <p>In an action for several years’ rent and for money due for the sale of personal property, a judgment based on a directed verdict for a small amount, not in controversy, which did not dispose of the other issues, cannot be held a final judgment, on the theory that the verdict, being for only part of the amount in suit, was an implied finding against plaintiff’s other claims.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-509; Dec. Dig. § 80.*]</p>

<p>Appeal from Hays County Court; J. R. Wilhelm, Judge.</p> <p>Action by O. G. Parke against the International & Great Northern Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

Certified Question from Court of Civil Appeals, Third Supreme Judicial District. Action by C. W. Post against J. T. Robinson, as Commissioner of the General Land Office of State, in wbieb the State intervened. A judgment for plaintiff was reversed on appeal to the Court of Civil Appeals, which certifies a question to the Supreme Court.

<p>1. Continuance (§ 22*) — Denial of Application.</p> <p>Where the record on appeal contained an unverified application to continue the case because of the absence of certain witnesses, and the transcript showed that such witnesses appeared and testified, the denial of the application could not be held erroneous, especially where the record shows no exception to the ruling.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67; Dec. Dig. § 22.*]</p> <p>2. Trespass to Try Title (§ 47*) — Judgment-Sufficiency.</p> <p>In trespass to try title, a judgment establishing, as a boundary line between the property of plaintiffs and defendant, the fence then existing, and decreeing to plaintiffs title to all land north of the fence, sufficiently establishes the boundary.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. § 47.*]</p> <p>3. Judgment (§ 256*) — Verdict — Sufficiency.</p> <p>In trespass to try title to land which was inclosed by plaintiffs, a verdict for them, which did not accurately describe the land. in controversy, will sustain a judgment for plaintiffs for the land inclosed, where the verdict could be construed as a finding in plaintiff’s favor either on a question of boundary or adverse possession.</p> <p>LEd. Note — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dee. Dig. § 256.*]</p> <p>4. Appeal and Error (§ 230*) — Presentation of Grounds of Review in Court Below — Objections to Instructions.</p> <p>Assignments complaining of the giving and refusing of instructions cannot be considered, where appellant did not object before the instructions were read to the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 183-190, 680-682, 751, 819, 876; Dec. Dig. § 230.*]</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Action by the John Finnigan Company against John R. Sanford and another. Judgment for plaintiff, and defendant Sanford appeals.</p>

Green, Judge. Suit by J. W. Smith against J. W. Spauld-ing, for breach of contract for the sale of land. Judgment for plaintiff, and defendant appeals.

<p>1. Mechanics’ Liens (§ 199*) — Vendor’s Lien — Waiver in Favor oe “Mechanics’ Lien.”</p> <p>Where the holders of a vendor’s lien on certain unimproved lots, in order to assist the vendee to construct improvements, executed an instrument reciting that they waived the vendor’s lien in favor of the holders of a mechanic’s Jien so that the mechanic’s lien should be superior to the vendor’s lien, etc., the words “mechanic’s lien” were not used in their technical sense to mean a lien for labor only, but in the broad sense of a lien given by Rev. St. 1911, arts. 5621-5639, covering both material and labor.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Gent. Dig. §§ 371-374; Dec. Dig. § 199.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Mechanics’ Lien.]</p> <p>2.' Mechanics’ Liens (§ 199*) — Vendor’s Lien — Waiver in Favor oe Mechanics’ Lien.</p> <p>Where the holders of a vendor’s lien on certain unimproved property, in order to enable the vendee to improve the same, executed an instrument providing that, whereas it was desirable and beneficial to them that the improvements be made, they thereby waived their vendor’s lien in favor of the holders of a mechanic’s lien, such instrument was a written offer to waive the lien in favor of any person who would erect a house on the land and take as security therefor the statutory mechanic’s lien, and, such offer having been accepted and the house erected, the vendors were estopped to deny the validity of the waiver on the ground that the instrument was executed by them alone and bound no one to do anything on account of or in consideration of the waiver.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Gent. Dig. §§ 371-374; Dec. Dig. § 199.*]</p> <p>3. Mechanics’ Liens (§ 199*) — Vendor’s Lien — Waiver in Favor oe Mechanics’ Lien.</p> <p>Where vendors, to enable the vendee to erect a house on unimproved property, executed a written waiver of their vendor’s lien in favor of a mechanic’s lien, the waiver would be construed to cover the cost of material and labor necessary to complete the building, but could not be extended to cover taxes paid by virtue of a provision of the contract nor a penalty, consisting of the payment of attorney’s fees, for nonpayment of a note given for the contract price.</p> <p>[Ed. Note. — For Liens, Cent.. Dig. 199.*] other cases, see Mechanics’ §§ 371-374; Dec. Dig. §</p>

<p>Appeal from District Court, Brewster County; W. C. Douglas, Judge.</p> <p>Trespass to try title by the State against Spencer Elza and another. Judgment for the State, and defendant Elza appeals.</p>

<p>1. Insurance (§ 335*) — Forfeiture — Keeping Inventory — Entire or Severable Contract.</p> <p>In determining whether a clause in a policy insuring a building, fixtures, and a stock of merchandise, providing that the policy should be void unless an inventory and a set of books were kept, applied to the insurance on the building and fixtures, the policy would be construed as a whole to determine whether there was anything in its language indicating that it was understood by the parties, or should have been understood by them, that the clause would apply to property other than the stock of merchandise, and the policy would not be construed as entire, unless its express provisions compelled such construction.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. § 335.*]</p> <p>2. Insurance (§ 335*) — Forfeiture—Keeping Inventory — Entire or Severable Contract.</p> <p>A policy of insurance, specifying different amounts of insurance on a building, the furniture and fixtures therein, and a stock of merchandise, provided that the insurer should not be liable for the amount carried in excess of three-fourths of the actual value of each item; that insured would take an inventory at least once a year; and that unless such inventory, with a set of books showing the complete record of business transacted since the taking of the inventory, was on hand at the date of the policy, one should he taken within 30 days thereafter or the entire policy should be null and void, and that, in case of loss or damage to the personal property mentioned therein, the books must be delivered to the company. Held, that the policy was severable, and the failure to take an inventory and keep a set of books did not avoid the insurance on the building, furniture, and fixtures; it appearing that the' purpose of the provision, requiring an inventory and set of books, was to provide evidence to show the loss sustained, and the failure to take an inventory, would not .increase the hazard, nor would the taking thereof prevent fraud.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. § 335.*]</p>

<p>1. Partnership (§ 107*) — Termination of Firm — Action Between Partners.</p> <p>Where a partnership had been terminated, and the partnership profits had been divided, and such items as were not collected had been abandoned, with no hope of collection, one of the partners was entitled to maintain an action at law against his copartner for the settlement of a claim growing out of a single transaction during the existence of the partnership, which had not been settled.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 164-166, 170, 173; Dec. Dig. § 107.*)</p> <p>2. Appear and Error (§ 1001*) — Findings —Review.</p> <p>A jury’s finding on an issue of fact, based on sufficient evidence, cannot be questioned on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]</p> <p>3. Partnership (§ 111*) — Dissolution — Profits — Defenses—Illegal Partnership Agreement.</p> <p>Where plaintiff brought suit in Texas to recover one-half of the moneys received by defendant, his partner, as the proceeds of a sale of a one-tenth interest in a corporation organized in Ohio to operate certain mines in Mexico, the action was not to enforce any of the active provisions of the contract of partnership, but merely to compel a division of profits made and in defendant’s handss as to which it was no defense that the partnership contract was illegal and unenforceable under the laws of Mexico.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 174; Dec. Dig. § 111.*]</p>

<p>Carbides (§ 135*) — Delay and Misdelivery —Elements of Damages — Loss of Profits.</p> <p>■Where, in an action against certain carriers for delay and misdelivery of a private tank car; it was not shown that the carrier was informed that the car was to be loaded with oil at the place to which it was consigned, when it was delivered for ‘ transportation, plaintiff could not recover for profits alleged to have been lost because of failure to receive the oil with which the car was intended to be loaded.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent Dig. §§ 557-559, '599-602, 603y2)-604y2; Dec. Dig. § 135.*]</p>

<p>Criminal Law (§§ 1095, 1102*) — Appeal— Statement of Facts and Bills of Exception-Time for Filing.</p> <p>On appeal from a conviction in the county court of simple assault, a statement of facts and bills of exception, filed more than 20 days after adjournment, will be stricken on motion.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. §§ 1095, 1102.*]</p>

<p>1. Principal and Agent (§ 23*) — Existence of Relation — Sufficiency of Evidence.</p> <p>In a suit to rescind the purchase of an automobile because of false representations, evidence held to show that the purchaser did not know that a dealer in automobiles was not defendant’s agent, but, on the contrary, to show that defendant, by its conduct, led him to believe that such agency existed.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 41; Dee. Dig. § 23.*]</p> <p>2. Principal and Agent (§ 25*) — Estoppel to Deny Agency — Fraud.</p> <p>Where, upon the sale of an automobile, defendant failed to inform plaintiff that a dealer was not its agent, but an independent dealer buying and reselling cars, and participated in the sale of the car, guaranteed that it would give satisfaction, and made false representations relative thereto, knowing that the dealer did not want the car for himself, but only for the purpose of selling it to plaintiff, and, if there was in fact a sale by defendant to the dealer, this was but a step in the sale of the car, and the title at once passed to plaintiff, and plaintiff did not know of the sale to the dealer, defendant could not deny that the dealer was its agent, and the rule that rescission cannot be invoked against a third party, upon whose fraudulent representation a purchase was induced, has no application.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 42-45; Dec. Dig. § 25.*]</p> <p>3. Sales (§ 202*) — Operation and Effect— When Title Passes.</p> <p>Where a sale is a cash transaction, and neither party intends that title shall pass until inspection and acceptance and payment of the purchase price, the title does not pass until such payment.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 542-551; Dec. Dig. § 202.*]</p> <p>4. Appeal and Error (§ 1054*) — Harmless Error — Admission of Evidence.</p> <p>The admission of evidence, if error, was harmless, where appellant proved substantially the same fact by its own witnesses, especially where the case was tried before the court without a jury, and such evidence was not necessary to support the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4185, 4186; Dec. Dig. § 1054.*]</p> <p>5. Sales (§ 38*) — Rescission for False Representations — Effect of Good Faith.</p> <p>Where the seller of an automobile represented that it was first class in all respects, that it was a 30 horse power automobile, and that it would develop as much or more power than any other 30 horse power car on the market, and that, if it would not go to plaintiff’s home on high gear, it would not be his car, and the trade might be rescinded, such representations being false, the fact that they were made in good faith in the belief that they were true did not prevent a rescission.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 65-77, 85 ; Dec. Dig. § 38.*]</p> <p>6. Sales (§ 38*) — Rescission — Grounds — Worthlessness for Known Purposes.</p> <p>Where an automobile was defective, and practically worthless for operation over the roads over which the purchaser, to the seller’s knowledge, intended to operate it, he was entitled to rescind and recover back the purchase price.</p> <p>[Ed. Note. — For other cases, see Sales, Gent. Dig. §§ 65-77, 85; Dec. Dig. § 38.*]</p> <p>7. Sales (§ 279*) — Warranty to Give Satisfaction — Determination by Purchaser —Conclusiveness.</p> <p>Where the seller of an automobile guaranteed that it would give satisfaction, the purchaser’s determination that the guaranty was not complied with, made in good faith, was conclusive, since the sale was but a sale on approval.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 783-792; Dec. Dig. § 279.*]</p> <p>8. Sales (§ 391*) — Rescission—Recovery of Purchase Price.</p> <p>Upon a purchaser’s rescission, of the purchase of an automobile, for false representations, he was entitled to recover the entire consideration from the seller, though the difference between such consideration and the factory price of the car was paid to agents as commissions, and though the seller may not have actually received any of the purchase price.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1110-1127; Dee. Dig. § 391.*]</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by J. W. Paschal and wife against T. P. Hudson and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Evidence (§ 471*) — Admissibility—-Facts ob Conclusions.</p> <p>In a suit to recover the title and possession of a certificate of stock, pledged by plaintiff to secure a debt, and transferred by the pledgee, plaintiff’s testimony that he did not authorize the plé'dgee to transfer or deal with the certificate in any other way than as collateral security for a loan was as to a fact and not a mere conclusion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*J</p> <p>2. Corporations C§ 123*) — Pledge oe Stock —Evidence—Relevancy—Notice oe Plaintiff's Claim.</p> <p>In a suit to recover the title and possession of a certificate of stock, pledged by plaintiff to secure a debt and transferred by the pledgee without authority, the admission in evidence of a letter written defendant, by plaintiff', stating that the indorsement on the certificate was a forgery, that the plaintiff had not parted with the ownership of the stock, but had placed it with the pledgee as collateral to secure a loan, and that the loan had not been made, was not error, as the letter merely informed defendant of plaintiff’s claim and its admission could not have injured defendant [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 481, 491, 507-512, 537, 539-54(5, 569, 618; Dec. Dig. § 123.*]</p> <p>3. Corporations (§ 123*) — Certificates of Stock — Transfer on Forged Indorsement.</p> <p>Where a plaintiff pledged stock to secure a loan, placing an indorsement that it was deposited as collateral to secure a loan, and the pledgee, alter some one had erased such in-dorsement, and had forged plaintiff’s signature to the power of attorney thereon, transferred the certificate, no title passed to the transferee, as a forged indorsement does not pass title to commercial paper, negotiable only by indorsement.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 481, 491, 507-512, 537, 539-546, 569, 618; Dec. Dig. § 123.*]</p> <p>4. Corporations (§ 123*) — Pledge oe Stock —Authority of Pledgee to Sell.</p> <p>Where plaintiff pledged a certificate for 100 shares of stock in a corporation to secure a loan of $1,000, the execution of a contract at the same time, by which the pledgee gave plaintiff the option, after two years from that date, to purchase from the pledgee 100 shares of the stock of such corporation for $1,000 and interest, did not show that the pledgee had authority to sell the pledged stock or estop plaintiff from showing lack of authority.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §S 481, 491, 507-512, 537, 539-540, 569, 618; Dec. Dig. § 123.*]</p>

<p>Error to Grayson County Court; J. Q. Adamson, Judge.</p> <p>Action by Pearl Copeland against D. W. Porter and wife. There was a judgment for defendants, and plaintiff brings error.</p>

<p>Master and Servant (§ 88*) — Existence oe Relation — Volunteer.</p> <p>That a railroad employé to repair cars and assist the depot agent in attending to baggage, but without authority to hire help, needed assistance to load a trunk into a -car of a passenger train was not such an emergency as authorized him to employ a third person to assist, and the third person rendering assistance at the request of the employé was but a volunteer, and could not recover from the railroad company for an injury sustained, where the employé could have secured the needed assistance by calling on other employes who at the particular moment were busy at other duties.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 144-151; Dec. Dig. § 88.*]</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by James Coultress against the city of San Antonio. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Trial (§ 253*) — Instructions—Request to Charge.</p> <p>Where, in an action for injuries to a brakeman, plaintiff’s right to recover was predicated on defendant’s negligence in improperly constructing its track, and also in operating an engine at a high speed, and the evidence was sufficient to carry both questions to the jury, an instruction that the undisputed evidence showed that plaintiff knew that defendant’s roadbed and track were comparatively new, and that there were defective places therein, and that, having elected to work on the road with such knowledge, he assumed the risk and could not recover, was objectionable as eliminating the issue of negligent speed, and was therefore properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]</p> <p>2. Appeal and Error (§ 263*) — Instructions —Exceptions—Necessity at Trial.</p> <p>Rev. St. 1911, art. 1974, as amended by Act 33d Leg. c. 59, provides that, when instructions are refused, the judge shall note those refused and subscribe his name thereto, when the instructions shall be filed and .shall constitute a part of the record and be subject to revision for error. Article 2061, as amended, declares that the ruling giving, refusing, or qualifying instructions shall be regarded as approved unless' excepted to as provided by the previous article. Held that, where the appellate record failed to show that the refusal of a request to charge was excepted to as provided by section 1974, as amended, it was not reviewable for error, though defendant’s motion for new trial specified error in such refusal, and the overruling of such motion was duly excepted to.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.*]</p> <p>3. Evidence (§ 271*) — Declarations to Physician-Complaints op Pain.</p> <p>Evidence that plaintiff complained of suffering a good deal more when on his side was admissible as involuntary expressions of present pain or suffering, and not objectionable as hearsay and self-serving statements.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.*]</p> <p>4. Appeal and Error (§ 961*) — Review — Matters op Discretion — Deposition—Motion to Suppress — Review.</p> <p>Denial of a motion to suppress a deposition, in the exercise of the trial court’s discretion, will not be reversed on appeal, in the absence of a showing of abuse.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3839, 3840; Dec. Dig. §</p> <p>5. Evidence (§ 155*) — Relevancy—Evidence Admissible by Reason op the Admission op Other Evidence. .</p> <p>Where, in an action for injuries to a brakeman, defendant introduced evidence that plaintiff drank too much whisky and was discharged from the service of another railroad, prior to his employment by plaintiff, for being drunk while on duty, plaintiff was entitled to offer in evidence in rebuttal a service letter signed by the superintendent of such other railroad reciting that plaintiff resigned from the service and-that his services were generally satisfactory.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445-458; Dec. Dig. § 155.*]</p> <p>6. Evidence (§ 471*) — Relevancy—Opinion or Fact.</p> <p>Where certain witness had testified for defendant that plaintiff had been discharged by his former employer for intoxication while on duty, evidence by plaintiff in rebuttal that there had been friction between himself and such witness was a statement of a fact and not objectionable as an expression of an opinion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]</p> <p>7. Appeal and Error (§ 1004*) — Review — Verdict — Excessiveness.</p> <p>Where, in an action for injuries to a servant, the evidence was conflicting as to the seriousness of the injuries and whether they or some of them were permanent, but was amply sufficient to justify the conclusion that they were serious and permanent, a verdict for $5,-000 would not be set aside on appeal as excessive.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. § 1004.*]</p>

<p>Appeal from District Court, Delta County; Wi. Pierson, Judge.</p> <p>Action by J. W. Hargrove, Jr., against the Texas Midland Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by A. W. Childress and others against George W. Crow. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Schools and School Districts (§ 37*)— Enlargement — Survey—Field Notes — Entry.</p> <p>Rev. St. 1911, art. 2276, provides that the commissioners’ court shall cause to be kept in the clerk’s office suitable books in which shall be recorded the proceedings of each term of the court which record shall be read over and signed by the county judge, or the member of the court presiding, at the end of each term and attested by the clerk. Held,, that where it was desired to enlarge ,a school district, and after the the survey thereof, the field notes of the enlarged district were filed and adopted by the court, and a vote taken in the enlarged district, the proceedings were not void because the order adopting the field notes and enlarging the district was not formally entered bn the court’s minutes as provided by such section.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 60-65, 67; Dec. Dig. § 37.*]</p> <p>2. Schools and School Districts (§ 37*)— Enlargement — Commissioners’ Action — Nunc Pro Tunc Order.</p> <p>Where an order of county commissioners adopting the field notes of a survey of an enlarged school district and creating the district in accordance therewith was inadvertently omitted from the court’s minutes, the defect could be cured by a nunc pro tunc order.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 60-65, 67; Dee. Dig. § 37.*]</p> <p>3. Schools and School Districts (§ 97*)— Enlargement — Bond Issue — Petition for Election.</p> <p>Where a petition for an election to determine whether bonds should be issued by an enlarged school district was not presented to the county judge, whose duty it was to call the election, until after the new district had been created, it was immaterial that it was signed prior to that time.</p> <p>[Ed. Note. — For other eases, see Schools and School Districts, Cent. Dig. §§ 224-232; Dec. Dig. § 97.*]</p> <p>4. Appeal and Error (§ 692*) — Rulings on Evidence — Exclusion — Bill of Exceptions.</p> <p>A bill of exceptions to the exclusion of evidence must show what the witness would have testified if permitted to do so.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2905-2909; Dec. Dig. § 692.*]</p>

<p>1. Limitation of Actions (§ 100*) — Running ojt Statute — Action Based on Fkaud.</p> <p>Where the grantor fraudulently misrepresented the number of acres conveyed, neither the two nor the four years statute of limitations will begin to run against an action for damages for shortage, until the fraud is discovered, or until by the use of reasonable diligence it could have been discovered.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. ’Dig. § 100.*]</p> <p>2. Limitation of Actions .(§ 177*) — Pleading — Avoidance of Limitations.</p> <p>Where one seeks to avoid the bar of limitations, on the ground of fraud, he must allege the facts upon which he relies, so that the court may determine from the pleadings whether the statute has been tolled.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 663-666; Dec. Dig. § 177.*]</p> <p>3. Limitation of Actions (§ 199*) — Pleading— Question for Court.</p> <p>Where a plaintiff seeks to avoid the bar of limitations on the ground of defendant’s fraud, and his petition shows a failure to avail himself of means of information, the question whether the statute was tolled is one for law of the court.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 727-730; Dec. Dig. § 199.*]</p> <p>4. Limitation off Actions (§ 100*) — Running Off Statute — Fraud.</p> <p>.Where a grantor fraudulently misrepresented the number of acres conveyed, a purchaser from his grantee cannot toll the running of limitations against his action for deficiency by claiming that he relied upon the representations of the original grantor that the property had been surveyed and contained the number of acres claimed, there being no such peculiar relation of confidence and trust between the parties as would bring them within the rule that where a seller possesses information concerning the property, and fails to disclose it to the buyer, the failure to disclose his exclusive knowledge affords ground for relief.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.*]</p> <p>5. Limitation of Actions (§ 182*) — Pleading —Necessity.</p> <p>In an action by the ultimate purchaser of land against his immediate grantor and the original grantor for damages for shortage, the immediate grantor, who did not plead limitations and admitted the truth of the allegations of the petition, seeking by cross-action judgment agajnst the original grantor, cannot take advantage of the bar of limitations relied upon by the original grantor.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 676-680, 682, 695, 705; Dec. Dig. § 182.*]</p>

<p>CARRIERS (§ 180*) — Interstate Shipment — Contract Exemption prom Liability.</p> <p>Where a contract for the transportation of an interstate shipment was made with the initial carrier, stipulations of a contract, made by an intermediate carrier while the shipment was in the course of transportation, purporting to exempt the carriers from liability unless the shippers should file a claim for damages within 30 days after the happening of the injuries complained of, being violative of Interstate Commerce Act Feb. 4, 1887, c. 104. § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), as amended by Act June 29. 1906, c. 3591, § 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1911, p. 1307), restricting a carrier’s right to exempt itself from liability, were not enforceable.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.*]</p>

<p>Appeal from Grayson County Court; J. Q. Adamson, Judge.</p> <p>Action by J. W. Ross and others against J. W. Aycock. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Travis County; C. A. Wilcox, Judge.</p> <p>Suit by the Crosbyton-Southplains Railroad Company against the Railroad Commission of Texas and others. Judgment for defendants, and complainant appeals.</p>

<p>Appeal from District Court, Travis County ; George Calhoun, Judge.</p> <p>Action by the State of Texas against the North Texas Transfer & Warehouse Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Lampasas County; John D. Robinson, Judge.</p> <p>Action by W. W. Battle against the Gulf, Colorado & Santa Fé Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

F. Odem, Judge. Action by J. W. Beaird against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. The appellee had purchased from the appellant’s agent a ticket entitling him to passage from Grand Saline to Mineóla, paying therefor the sum of 40 cents. The ticket became misplaced in some way about the person of appellee, and he paid the conductor of the passenger train the cash fare and took a receipt therefor.

M. Bowen, Judge. Action by Will Mathews and others against the Ft. Worth & Rio Grande Railroad Company and another. . From a judgment for plaintiffs, defendant named appeals.

<p>Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.</p> <p>Suit by Wells Fargo & Co. against Chas. S. Guilheim and others. From an order dissolving a temporary injunction, complainants appeal.</p>

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by Harvey B. Ross against the Southern Surety Company. From judgment for defendant, plaintiff appeals.</p>

<p>1. Railroads (§ 350*) — Crossing Accidents —Questions foe Juey.</p> <p>In an action for the death of a person struck by the train at a crossing, evidence held to make questions for the jury as to whether the statutory signals were given and as to contributory negligence.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p> <p>2. Appeal and Error (§ 501*) — Reservation of Grounds of Review — Exceptions.</p> <p>The refusal to give requested charges will not be reviewed, where the record contains no bill of exceptions to such refusal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305;" Dec. Dig. § 501.*]</p> <p>3. Railroads (§ 350*) — Crossing Accidents —Contributory Negligence — Failure to Look and Listen.</p> <p>The failure of a person to look and listen for an approaching train at a highway crossing is not negligence per se.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]</p> <p>4. Appeal and Error (§ 1060*) — Harmless Error — Argument of Counsel — Improper Remarks.</p> <p>In an action for death in a crossing accident, though the petition alleged negligence in having an engine and train of cars standing upon a side track near the crossing and in permitting steam to escape with a loud noise from the engine, the court submitted only the issue of whether the statutory signals were given. Defendant’s attorney, referring to the testimony of witnesses that they did not hear the bell or whistle, stated that, according to their testimony, the engine was emitting steam, and the noise was so loud that they were unable to hear the bell or whistle, and that no witness had said that .such signals were not given. In reply plaintiff’s attorney referred to the engineer’s testimony that the standing engine and train completely cut off his view from the south, and said that, taking into consideration the fact that he was running at a high rate of speed and had not blown any whistle and was not ringing, the bell and could not see any one approaching the crossing from the south, it seemed to him almost like criminal negligence. Held, that, even though the language was unwarranted, it was not such an impropriety as required a reversal; it not being likely that it caused the rendition of an unmerited verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*]</p>

<p>Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action by John Hubbard against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Corporations (§ 80*)— Stock Subscription — Fraud.</p> <p>Where, in a suit to set aside a subscription to the stock of a bonding and casualty insurance company for fraud, plaintiff alleged that the officers and agents of the corporation to induce him to subscribe, falsely represented that $200,000 of the corporation’s capital stock had been paid in in cash, and that the corporation had made arrangements to obtain all the money it wanted at 5 per cent., and would lend plaintiff as much as he might desire, provided he furnished good security, while in fact not more than $20,000 had been received in cash by the corporation for such stock, such allegation sufficiently showed that plaintiff was.damaged by the false representations made to induce him to subscribe, and this regardless of the fact that the representation that it would lend plaintiff money would not of itself-have been actionable.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407%; Dec. Dig. § 80.*]</p> <p>2. Corporations (§ 80*) — Stock Subscription-Fraud.</p> <p>Where plaintiff was induced to subscribe for stock in an insurance company on a misrepresentation that it then had $200,000 capital stock actually paid in in cash, the injury to plaintiff growing out of his signature by reason of the fact that the corporation in fact had only $20,000 capital stock paid in was suffered at the time of the subscription; and hence it would not be presumed against plaintiff that defendant had remedied the injury, so as to render plaintiff’s petition for rescission fatally defective because it did not charge that the whole amount of the stock had never been actually paid for.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 244, 246-264, 1407, 1407%; Dec. Dig. § 80.*]</p> <p>3. Evidence (§ 434*) — Parol Evidence — Written Contract — Variance—Fraud.</p> <p>Where a stock subscription contract recited that no conditions, representations, or agreements other than those printed therein should be binding on the corporation, parol evidence that the contract had been obtained from plaintiff on false representations as to the amount of the corporation’s capital stock that had been actually paid in was admissible to show that the contract, by reason of the fraud, never in fact came into existence and was not objectionable as varying the terms of the written subscription.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2005-2020; Dec. Dig. § 434 *]</p> <p>4. Indemnity (§ 13*) — Corporations—Fraud of Agent — Ratification—Agent’s Liability.</p> <p>Where an agent of a corporation, who was also one of its officers, induced plaintiff to subscribe to the corporation’s stock by fraudulent representations, and such agent was in constant communication with the other officers of the corporation, and after plaintiff’s subscription had been secured the corporation, with knowledge of the fraud, refused to rescind and place plaintiff in statu quo, but retained plaintiff’s money and notes given for the subscription, it thereby became an active participant in the fraud; and hence, on plaintiff being permitted to recover against it, was not entitled to recover over against the agent.</p> <p>[Ed. Note. — For other cases, see Indemnity, Gent. Dig. §§ 29-35; Dec. Dig. § 13.*].</p>

H. Buck, Judge. Action by David S. Hagler and others against the New York Life Insurance Company. Judgment for plaintiffs, and defendant brings error. November 30, 1909, John S. Hagler, in consideration of the surrender value thereof then paid to him, delivered to plaintiff in error for cancellation four policies, insuring his life for the benefit of his estate. One of the policies was for $10,000, and the other three were for $5,000 each.

<p>1. Railroads (§ 440*) — Trial (§ 255*) — Action for Value of Animals Killed — Burden of Proof — Instructions—Requests.</p> <p>In an action for the value of cattle, which went upon railroad tracks through an open gate and were killed or injured, the burden was upon the railroad company to exhibit the defense by its pleading, evidence, and a special charge that it was the duty of the adjoining landowner to maintain the gate in a proper condition, or that the open condition of the gate was due to some other agency.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §_§ 1570-3574; Dec. Dig. § 440;* Trial, Cent. big. §§ 627-641; Dec. Dig. § 255.*)</p> <p>2. Railroads (§ 447*) — Actions for Value of Animals Killed — Instructions.</p> <p>In an action for the value of cattle, which went upon railroad tracks through a gate and were struck by a train, where, though there was evidence in the nature of a conclusion that the gate was at a private crossing, there was no evidence that it was constructed for the benefit of any adjoining landowner, nor that it was the landowner’s duty to maintain the gate in a proper condition, and there was evidence that the gate fastening was defective, an instruction authorizing a recovery if the right of way was not fenced in such a manner as under ordinary circumstances to effectually turn live stock of an ord'nary disposition was properly given.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. § 447.*]</p> <p>3. Railroads (§ 447*) — Actions fob Value of Animals Killed — Instructions.</p> <p>There was no conflict between an instruction authorizing a recovery if the right of way was not fenced in such a manner as under ordinary circumstances to effectually turn live stock of an_ ordinary disposition, and an instruction that if the gates at the crossing were kept in proper repair it was not the railroad company’s duty to keep them shut, and that if the cattle entered upon the right of way through the gates while they were open, and were killed, to find for defendant, as such instructions were in conformity with the issues affirmatively and negatively presented.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. § 447.*]</p> <p>4. Railroads (§ 442*) — Actions for Value of Animals Killed — Evidence.</p> <p>In such action, evidence as to the condition of the fence and of the gate was material and relevant, and properly admitted.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1596-1607; Dec. Dig. § 442.*]</p> <p>5. Railroads (§ 447*) — Actions for Value of Animals Killed — Instructions.</p> <p>In an action for the value of cattle, which went upon railroad tracks through a gate and were killed by a train, where there was evidence that the gate fastenings were insecure, that it had no regular latches, but was merely fastened with a piece of wire too short to make a complete hook, and that it could be opened by a touch of the hand, an instruction that it was not the company’s duty to remedy trivial defects, but only to repair substantial defects, was properly refused.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1642-1650; Dec. Dig. § 447.*]</p>

<p>Appeal from Liberty County Court; I. B. Simmons, Judge.</p> <p>• Action by M. P. Daniel against L. Gos-horn. Judgment for plaintiff, and defend•ant appeals.</p>

<p>1. Elections (§ 305*) — Election Contests— Appeals — Appellate Jurisdiction — “State Office.”</p> <p>Under Rev. St. 1911, art. 3154, providing that in state, district; county, etc., offices the certificate of nomination, issued by the president or chairman of the nominating convention, or chairman of the county executive committee, shall be subject to review, upon allegations of fraud or illegality, by the district court of the county, article 3156, providing that the decision of such court or judge shall be final as to all district, county, precinct, or municipal offices, and article 3158, providing that in all contests for state offices before the district court, either party may appeal to the Court of Civil Appeals, no appeal lies to the Court of Civil Appeals in a proceeding to contest the nomination for the office of congressman at large; as a congressman, whether elected from a district or from the state at large is not a state officer, but a federal officer, and the office of congressman is not a “state office,” which term does not refer to the territorial extent of the office to be filled, especially in view of article 3084, providing that on primary election day candidates for Governor and all other state offices to be chosen by a vote of the entire state, and candidates for Congress and all district offices shall be nominated at primary elections.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 317-332; Dec. Dig. § 305*</p> <p>For other definitions, see Words and Phrases, Second Series, State Office.]</p> <p>2. Elections (§ 305*) — Election Contests— Appeals — Appellate Jurisdiction — “Civil Case.”</p> <p>The Court of Civil Appeals has no jurisdiction of an appeal in a proceeding to contest a nomination for congressman at large by reason of its general jurisdiction of appeals in civil cases tried in the district courts, since a contested election case is not a “civil case,” as that term is used in conferring appellate jurisdiction upon the Courts of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 317-332; Dec. Dig. § 305.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Civil.]</p>

<p>1. Garnishment (§ 241*) — Replevin Bond— Liability of Surety.</p> <p>A surety upon a garnishment bond which recited that, in order to release from the garnishment writs any and all debts and claims in the possession of the garnishees, and belonging to the defendant, the defendant and the sureties bound themselves to pay, etc., is es-topped from asserting that moneys paid to one of the garnishees as attorney for the defendant were subject to a lien in his favor; the bond admitting that the property, if any, was that of defendant.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 457; Dec. Dig. § 241.*]</p> <p>On Motion for Rehearing.</p> <p>2. Estoppel (§ 119*) — Equitable Estoppel —Question for Court.</p> <p>The question of the existence of an estoppel which precludes the person bound from contradicting a recital or admission is one of law for the court.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 309; Dec. Dig. § 119.*]</p>

P. Greever, Special Judge. Action by A. A. Hogan against F. J. Vannerson, who cross-petitioned against D. A. McSpadden and others. From a judgment for plaintiff and the original defendant, the impleaded defendants appeal.

<p>1. Partnership (§ 227*) — Manner of Becoming.</p> <p>Where three persons entered into an agreement to purchase a tract of land /for resale and to share the expenses and profits, if any, in proportion to their respective shares, defendant, who purchased the interest of one of the three original parties, became a partner, where he acquiesced in the arrangement, and so was liable for his share of the expenses, for a partnership need not be created by express contract.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 143, 473-475; Dec. Dig. § 227.*]</p> <p>2. Partnership (§ 52*) — ¡Relation — Prima Facie Evidence.</p> <p>An agreement to share profits and losses of a venture is merely prima facie evidence of partnership, and may be rebutted by proof of another agreement.</p> <p>[Ed. Note — For other cases,.see Partnership, Cent. Dig. §§ 75, 79; Dec. Dig. § 52.*]</p> <p>3. Partnership (§ 58*) — Dissolution.</p> <p>A partnership is at an end when the particular transaction or venture for which it was organized is concluded.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 83; Dec. Dig. § 58.*]</p> <p>4. Partnership (§ 243*) — Dissolution — Death of Partner.</p> <p>The death of one member of a firm dissolves the partnership and casts upon the survivors the duty to wind up its affairs.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 509, 510, 512, 513; Dee. Dig. § 243.*]</p> <p>5. Partnership (§ 321*) — Accounting —Accrual of Right of Action.</p> <p>Plaintiff, who was a member of a firm, engaged to deal in land, paid off a firm debt two years after the last of the land had been sold, which sale occurred shortly after the dissolution of the firm by the death of one of the partners. Rev. St. 1911, art. 5688, subd. 3, imposes a four-year limitation upon actions by one partner against his copartner for settlement of partnership accounts. Held, that plaintiff could, at any time within four years after payment, sue his copartner to compel him to pay his proportionate share, for the firm, though dissolved by the death of one of the partners and the closing out of its business, continued in legal contemplation until payment of debts, and plaintiff’s right of action to compel a settlement did not accrue until his payment.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 742-745; Dec. Dig. § 321.*]</p>

N. Browning, Judge. Action by the Amarillo National Bank against the Panhandle Telephone & Telegraph Company and others, garnishees. From an order holding the debt garnished not subject, the bank appeals.

T. Allen, Judge. Action by M. W. Boger against the Gulf, Colorado & Santa Fé Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed in part and reversed in part.

<p>Appeal from Hale County Court; W. B. Lewis, Judge.</p> <p>Action by T. W. Morrison against the Pecos & Northern Texas Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Carriers (§ 348*) — Injuries to Passengers — Falling from Train — Defenses— Intoxication.</p> <p>In an action for injuries to a passenger, by falling from an open vestibule, there being evidence that he went to the vestibule to drink liquor, and that he was intoxicated at the time, defendant .was entitled to the giving of a request to charge that the verdict should be for it, if, when plaintiff was injured, he was under the influence of liquor, and had he not been so, he would not have fallen from the platform; since, while intoxication is not negligence per se, that condition, when voluntarily brought on, does not relieve the individual from the duty to exercise the same degree of care for his own safety that is exacted of persons not so affected.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1405; Dec. Dig. § 348.*].</p> <p>2. Carriers (§ 348*) — Injuries to Passenger — Contributory Negligence — Instructions.</p> <p>In an action for injuries to a passenger, while intoxicated, by falling from the open vestibule of a railroad coach, the court charged that if an ordinarily prudent person would not have gone on the platform under similar circumstances, and if in attempting to go into the coach plaintiff fell through the vestibule trap and door, or if plaintiff was intoxicated and such condition contributed to cause him to fall from the train, and an ordinarily prudent person would not, under the circumstances, have gone on the platform in such condition, then, in either event, he was negligent and could not recover, though defendant was negligent in leaving the trap and door open. At defendant’s request, the court also charged that, if plaintiff was under the influence of liquor, such fact would not relieve him of the duty to exercise the same care for his own safety that would be exercised by an ordinarily prudent person under similar circumstances, and that defendant was not required to use a higher degree of care for his safety than it was required to use for other passengers, and that, if the jury believed that had plaintiff exercised the required care he would not. have been injured, then he could not recover. Held, that neither of such instructions presented the isolated question of plaintiff’s intoxication, as a contributing cause, as explicitly as defendant had a right to demand.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1403-1405; Dec. Dig. § 348.*]</p> <p>3. Trial (§ 260*) — Request to Charge — Instructions Given.</p> <p>Where the court charged that, if the jury believed that plaintiff, when he fell from the open vestibule of defendant’s coach in which he was riding, was intoxicated, that fact would not relieve him from the duty of exercising the same care for his own safety that would be exercised by an ordinarily prudent person under similar circumstances, nor was defendant required to use greater care to provide for his safety than for other passengers, and that, if plaintiff had used the required care for his own safety, he would not have been injured, then he could not recover, such instruction sufficiently covered a request to charge that plaintiff was negligent if he went on the platform to drink liquor, or drank liquor there, based on a statute prohibiting the drinking of liquors on railroad trains.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>4. Trial (§ 194*) — Instructions—Weight of Evidence.</p> <p>In an action for injuries to an intoxicated passenger by a fall from the open vestibule of defendant’s coach, an instruction that the doors of the vestibule should have been closed and that it was negligence on defendant’s part not to use a high degree of care to accomplish that end, was erroneous as on the weight of the evidence; there being no duty on the carrier, as a matter of law, either to provide passenger coaches with vestibules or to keep the doors thereof closed.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p>

<p>Appeal from District Court, Smith County; R. W. Simpson, Judge.</p> <p>Action by James Caswell, as guardian of Addie Daniels and another, against Julia Yates. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Tarrant County Court; Charles T. Prewett, Judge.</p> <p>Action by S. T. Meadors against the Houston & Texas Central Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Cottle County Court; W. E. Prescott, Judge.</p> <p>Action by J. M. Chumbley and others against the Quanah, Acme & Pacific Railway Company and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Appeal and Error (§ 395*) — Perfection— Bonds.</p> <p>Where appellants, special agents for the' commissioner of insurance and banking, were enjoined from realizing upon the liability of stockholders of an insolvent state bank, the fact that appellants, who were personally enjoined, filed a personal bond, although, as agents of the commissioner, they could appeal under Rev. St. 1911, art. 2105, without bond, is no ground for dismissal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2058, 2064-2070, 2085, 2086, 3127; Dec. Dig. § 395.*]</p> <p>2. Injunction (§ 145*) — Proceedings—Affidavits — Sufficiency.</p> <p>Under Rev. St. 1911, art. 4649, providing that no injunction shall be granted unless the applicant shall present his petition verified by his affidavit, an affidavit attached to a petition for an injunction reciting that the affiant on oath stated he believed the facts alleged in the petition to be true, is not sufficient, where the grounds of belief were not stated, and the facts alleged were not sworn to in such an unequivocal manner that an indictment • for perjury would lie.</p> <p>[Ed. Note. — For other eases, see Injunction, Cent. Dig. §§ 318, 321; Dee. Dig. § 145.*]</p> <p>3. Injunction (§ 145*) — Proceedings —Amendment.</p> <p>The affidavit attached to a petition for an injunction may be amended so as to cure defects.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 318, 321; Dec. Dig. § 145.*]</p> <p>4. Appeal and Error (§ 100*) — Decisions Reviewable—Construction of Orders.</p> <p>Where the first order granting plaintiff a temporary writ restrained defendants from suing plaintiff or other stockholders of an insolvent bank to recover upon their stockholders’ liability, an order entered upon motion to dissolve the temporary injunction which restrained defendants from levying and collecting upon the individual liability of stockholders until it should appear to the court that such procedure was reasonably necessary to discharge the liabilities of the bank is a distinct order, and may be appealed from, even though no appeal will lie from an order denying a motion to dissolve a temporary injunction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 670-680; Dec. Dig. § 100.*]</p> <p>5. Banks and Banking (§ 49*) — Power of Banking Commissioner — Statute.</p> <p>In view of the National Banking Act (Act June S, 1864, c. 106, § 50, 13 Stat. 114 [U. S. Comp. St. 1901, p. 3507]), Acts 31st Leg. 2d Ex. Sess. c. 15, § 9 (Rev. St. 1911, art.. 459), authorizing the commissioner of banking, if necessary to pay off the debts of an insolvent state bank, to enforce the liability of stockholders, confers upon the commissioner the power to enforce the individual liability of stockholders, and the courts cannot compel him to first show in a judicial proceeding that such recovery is necessary to discharge the bank’s liabilities.</p> <p>[Ed. Note. — Eor other eases, see Banks and Banking, Cent. Dig. §§ 71-81%, 513, 534, 535; Dec. Dig. § 49.*]</p> <p>6. Statutes (§ 226*) — Construction—Adoption of Foreign Statute.</p> <p>Where a foreign statute which has already been construed by the courts of that country is adopted, the construction is also adopted.</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. §307; Dec. Dig. § 226.*]</p> <p>On Motion for Rehearing.</p> <p>7. Statutes (§ 226*) — Construction—Prior Construction.</p> <p>Where a foreign statute which has already been construed is adopted, the courts of the forum should, only where the most cogent reason exists, depart from that construction.</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. § 307; Dec. Dig. § 226.*]</p>

<p>Appeal from District Court, Polk County; L. B. Hightower, Judge.</p> <p>Suit by W. T. Carter & Bro. and others against I-I. P. Weir and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Special District Court, Liberty County; J. Llewellyn, Judge.</p> <p>Trespass to try title by Mattie B. Phillips and husband against W. S. Swilley and another. From a judgment for plaintiffs, the defendant named appeals.</p>

<p>1. Sales (§ 273*) — Implied Warranty of Fitness — Sales by Manufacturer.</p> <p>Where a manufacturer sells an article for a particular purpose, so that the buyer necessarily trusts to his judgment, the law implies a promise that the article is reasonably fit and proper for such purpose, but such promise depends upon its use upon the conditions prescribed by the manufacturer, and, when not so used, is not implied.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 772-776; Dee. Dig. § 273.*]</p> <p>2. Sales (§ 279*) — Implied Warranty of Fitness — Knowledge, of Buyer.</p> <p>Where the buyer’s general manager knew that the seller claimed that at least two applications of its secret preparation were necessary to destroy grass and weeds, and did not so inform the buyer’s representative charged with its actual purchase, there could be no implied warranty that one application would suffice.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 783-792; Dec. Dig. § 279.*] .</p> <p>3. Sales (§ 358*) — Action for Price — Evidence.</p> <p>In an action for the price of a secret preparation manufactured by the seller, where it appeared that the buyer’s general manager was told by the seller that it would take two applications to kill grass and weeds, evidence that the buyer’s subordinate was not so informed, and would not have purchased it had he known that two applications were necessary, was not material.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1049-1055; Dec. Dig. § 358.*]</p> <p>4. Sales (§ 440*) — Warranty—Documentary Evidence — Photographs.</p> <p>In an action for the purchase price of a secret manufactured preparation to kill grass and weeds, defended on the ground of an implied warranty that one application would be sufficient, photographs shown by the seller to the buyer prior to the sale, labeled to show that more than one application had been made to cause the destruction of the grass and weeds therein shown, were admissible.</p> <p>[Ed. Note. — For other cases, see Sales, Oent. Dig. §§ 1261-1276; Dec. Dig. § 440.*]</p> <p>5. Appeal and Error (§ 1071*) — Harmless Error — Findings.</p> <p>The trial court’s findings of fact, not material in the view taken of the law of the case, if erroneous, constituted no reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4234-4239; Dec. Dig. § 1071.*]</p> <p>6. Appeal and Error (§ 1050*) — Harmless Error — Admission of Evidence.</p> <p>Error, if any, in the admission of evidence, not material in the view taken of the law of the case, was not reversible error.</p> <p>[Ed. Noté. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p>

<p>Appeal from District Court, Anderson County; John S. Prince, Judge.</p> <p>Suit by Mrs. Fredonia Mellville and another against Della M. T. Wickham and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Action by Robert Lindsey and others against the City of Nacogdoches and others. From a judgment for the City, plaintiffs appeal.</p>

Llewellyn, Judge. Trespass to try title by E. C. Collins and another against Mrs. C. G. Davis and others. Judgment for plaintiffs, and defendants appeal.

<p>1. Bills and Notes (§ 106*) — Validity—Consideration — Commissions yob Sale of Corporate Stock.</p> <p>Where a corporation had sold all its stock to S. & Co., who employed salesmen, including R., to resell the stock, and It. made a sale to defendant, receiving a note for $3,750 payable to S. & Co. for the stock and a note for $1,250 payable to defendant’s order and indorsed by him at the time of delivery, to cover R.’s commissions for making the sale, such note was not illegal as in violation of the statute providing that no corporation shall issue its stock except for money paid, labor done, or property actually received.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 219, 225-232; Dec. Dig. § 106.*]</p> <p>2. Bills and Notes (§ 343*) — Transfer—Notice.</p> <p>Where R. had received the note in controversy from defendant as part of the price of corporate stock sold to him, representing R.’s commissions on the sale, the fact that R. informed plaintiff, when transferring the note to him, that he had sold stock to defendant did not put plaintiff on inquiry as to the terms of the sale or charge him with notice that the par value of the stock had not boon paid for .in some of the ways required by law.</p> <p>[Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 853-855, 864, 865; Dec. Dig. § 343.*]</p> <p>3. Bills and Notes (§ 375*) — Validity — Consideration — Transfer — Bona Fide Purchaser.</p> <p>A note given for commissions on a sale of corporate stock is not void ab initio, and hence such nóte is within the doctrine of bona fide purchaser.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. § 375.*]</p>

<p>1. Husband and Wife (§ 85*) — Married Woman — Liability on Note.</p> <p>Prior to the amendment by the Act of the 33d Leg. c. 32, of Rev. St. 1911, art. 4624, providing when a married woman may contract debts,- a married woman was not liable on a note executed by her where there was no allegation or proof that the note was created for necessaries furnished her or her children or for the benefit of her Separate estate.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 333, 336-341; Dec. Dig. § 85.*]</p> <p>2. Attachment (§ 357*) — Recovery for Wrongful Attachment — Defense.</p> <p>It is no defense to a claim for actual damages from wrongful attachment that the plaintiff in attachment had probable cause to believe that ground for attachment existed; the question of probable cause being pertinent only to a claim for exemplary damages.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1307, 1309, 1310; Dec. Dig. § 357.*]</p> <p>3. Attachment (§ 375*) — Wrongful Attachment-Measure of Damages.</p> <p>The measure of damages for wrongful attachment is ordinarily the value of the goods attached, with interest from the date of seizure.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1378-1385, 1387,1393,1394, 1398, 1399; Dec. Dig. § 375.*]</p> <p>4. Trial (§ 25*) — Argument—Right to Open and Close.</p> <p>Where, in an attachment suit, defendant filed an admission of plaintiff’s right to recover the amount of the note sued on, but filed a plea in reconvention asking damages for wrongful attachment, he was entitled to open and close the argument.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.*] ■</p>

<p>Courts (§ 155*)—Texas—District Courts— Jurisdiction.</p> <p>Under Const, art. 5, § 8, giving the district court jurisdiction of suits for the trial of title to land and for the enforcement of liens thereon, the district court has jurisdiction of a suit to set aside a void assessment upon land, claimed to be a cloud on plaintiff’s title, even though the amount of the assessment was not sufficient in itself to give the district court jurisdiction.</p> <p>[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 378, 402% ; Dec. Dig. § 155.*]</p>

<p>1. Appeal and Error (§ 1040’*’) — Haemless Eeeoe — Rulings on Pleadings.</p> <p>In an action by a firm for wrongful attachment, an assignment of error complaining of the overruling of an exception to allegations as to damages to the good reputation and credit of one of the partners, on the ground that such damages were recoverable by him alone, and not by the firm partnership, was without merit, where no exemplary damages were recovered, as such allegations were intended as a basis for exemplary damages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig, § 1040.*]</p> <p>2. Attachment (§ 373*) — Wrongful Attachment — Actions—Petition.</p> <p>In an action for wrongful attachment of a stock of merchandise, the petition alleged that plaintiffs had no later inventory than one taken about two weeks before the attachment, and had not been able to obtain one since the attachment ; that no other inventory was ever made by any one; that in the suit in which the attachment was issued the property was not described by items, nor in the return of the writ of- attachment nor the order of sale; that, if the officers made an inventory, it was incorrect and incomplete, and made after a great deal of the property attached had been wrongfully removed from the store; and that it was made by incompetent persons under defendant’s direction or by interested persons not acquainted with the value of the goods. It also showed that part of the goods had been lost by a burglary, and theré was attached thereto an itemized statement of the goods in the store two weeks before the attachment, alleged to be correct, except that certain goods had been added and sold. It appeared that defendant made an inventory, the constable not being present, but never filed it in court. Held, that an exception for failure to show the articles removed from the store and their value, or those remaining in the- store and their value, was properly over-, ruled, as one party is never required to allege facts peculiarly within the knowledge of the adverse party, and the fact of the burglary relieved plaintiffs from making more specific allegations.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1356-1362, 1395-1397; Dee. Dig. § 373.*]</p> <p>3. Attachment (§ 374*) — Wrongful Attachment — Actions—Petition.</p> <p>In an action for wrongfully suing out an attachment on the ground that plaintiffs were about to dispose of their property to defraud creditors, allegations in the petition that plaintiffs were indebted to defendant for part of the purchase price of the stock of goods -attached to the amount of $1,400, that they had entered into an agreement that such sum should not be paid until a certain date, that they were to execute notes and a mortgage to secure them, covering furniture, fixtures, tools, and property having a total value of approximately $1,900, and convey certain lands, to be credited at an' agreed price in part payment for the goods, and that these agreements constituted one entire contract, were not subject to an objection that they were immaterial, irrelevant, and prejudicial, as they were proper to show the existence of malice and to rebut the grounds of attachment set up.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. § 374.*]</p> <p>4. Set-Off and Counterclaim (§ 29*) — Availability in Action foe Unliquidated Damages.</p> <p>Under Rev. St. 1911, art. 1330, providing that the preceding article relative to set-offs in actions for unliquidated or uncertain damages founded on a tort or breach of covenant shall not prevent defendant from pleading in set-off any counterclaim founded on a cause of action arising out of, incident to, or connected with plaintiff’s cause of action, in an action for wrongful attachment of a stock of goods, a judgment in favor of the attaching creditor in the attachment suit for the purchase price of the goods was a proper set-off.</p> <p>[Ed. Note. — For other cases, see, Set-Off and Counterclaim, Cent. Dig. §§ 49-51;' Dec. Dig. § 290.*]</p> <p>5. Judgment (§ 883*) — Set-Off of Judgments — Alleging Credits in Defendant’s Favor.</p> <p>In an action for wrongful attachment of a stock of goods, plaintiffs had a right to plead a judgment recovered by defendant in the attachment suit for the purchase price of the goods, and ask that it be credited against their claim; this not being a plea of counterclaim and set-off, but merely an allegation of facts entitling defendant to a credit.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1669-1688; Dee. Dig. § 883.*]</p> <p>6. Appeal and Error (§ 1040*) — Harmless Error — Ruling on Demurrer.</p> <p>In an action for wrongful attachment, any error in overruling exceptions to allegations of the petition that the judgment recovered in the attachment suit was rendered on a debt not due was cured by the court’s instruction that the former judgment was res judicata of that issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4089^4105; Dec. Dig. § 1040.*]</p> <p>7. Attachment (§ 21*) — Grounds—Necessity of Existence When Attachment is Issued.</p> <p>An attachment must stand or fall according to the facts existing at the date of its issuance, and cannot be cured by a subsequent event.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 54^60; Dec. Dig. § 21.*]</p> <p>8. Attachment (§ 380*) — Wrongful Attachment — Instructions — Conformity to Pleading and Evidence.</p> <p>Where, in an action for attaching a stock of merchandise, plaintiffs alleged that defendant, its agents and officers, used the writ in an oppressive and harsh manner,, and that it could nave collected its debt without closing plaintiffs’ store, and there was evidence that the debt amounted to $1,400, that goods to the value of $3,200 were taken under the writ, and that after a burglary, and after the sale of perishable goods, the goods remaining were worth $2,685 and were actually sold for $1,755, the issue as to an excessive levy was properly submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1373-1375; Dee. Dig. § 380.*]</p> <p>9. Appeal and Error (§ 216*) — Reservation of Grounds of Review — Instructions— Necessity of Requesting.</p> <p>In an action for wrongful attachment, any error in failing to charge that plaintiffs could not recover if either of the grounds of attachment set out in the affidavit were true was waived by failing to request a special charge.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216;* Trial, Cent. Dig. § 627.]</p> <p>10. Attachment (§ 374*) — Wrongful Attachment-Attachment Wrongful as to One of the Attachment Debtors.</p> <p>In an action for wrongfully attaching a stock of goods owned by a firm, where there was sufficient evidence to sustain a finding that the managing partner, who was the only partner who at that time had invested any money in the business, was not trying to defraud the firm’s creditors by holding a discount sale, a verdict for plaintiffs was supported by the evidence, though the other partner did not testify as to his intention in making the sale, since one partner could not make an unlawful or fraudulent disposition of the firm assets without the consent of the other, and, if the attachment was wrongful as to the one partner, the verdict and judgment should be sustained.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. § 374.*]</p> <p>11. Attachment (§ 381*) — 'Wrongful Attachment — Verdict — Form and Suffi-cienct.</p> <p>In an action for wrongful attachment, in which plaintiffs pleaded a judgment recovered by defendant in the action in which the attachment was issued, and asked that it be credited against their claim, a verdict for plaintiffs “in the sum of $930, with interest, * * * as actual damages over and above the principal and interest of the judgment,” was a sufficient finding to warrant the court in decreeing the cancellation of the former judgment in defendant’s favor.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1401; Dec. Dig. § 381.*]</p> <p>12. Attachment (§ 374*) — Wrongful Attachment — Admissibility ox Evidence.</p> <p>In an action for wrongful attachment of a stock of merchandise purchased by plaintiffs from defendant, evidence as to the particulars of the trade between the parties, and as to the agreement showing how payments had been made, and in what way the balance due was to have been paid, was properly admitted.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dee. Dig. § 374.*]</p> <p>13. Attachment (§ 374*) — Wrongful At-tachmentAdmissibility of Evidence.</p> <p>In an action for wrongfully attaching a stock of merchandise, where defendant had insisted that the act of one of the plaintiffs in taking money from a cash drawer in their store immediately before the attachment tended to show an intent to dispose of the goods for the purpose of defrauding creditors, he was properly permitted to testify that he used the money to pay bills owing by plaintiffs when the attachment was levied.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dee. Dig. § 374.*]</p>

<p>Appeal from District Court, Tyler County; A. E. Davis, Judge.</p> <p>Action by A. W. Williford and others against C. W. Richards and wife. From judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Montgomery County; L. B. Hightower, Special Judge.</p> <p>Action by Montgomery County against Robert Lee Talley and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by the Southern Gas & Gasoline Engine Company against Adams & Peters, with cross-action by defendant. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Newton County; A. E. Davis, Judge.</p> <p>Cal Heidelberg was convicted of murder, and he appeals.</p>

H. Garnett, Judge. Abe Johnson was convicted of the offense of pursuing the occupation of selling intoxicating liquors in prohibition territory, and he appeals.