Volume 170 — South Western Reporter

<p>Appeal from District Court, Callahan County; Thomas L. Blanton, Judge.</p> <p>Action by J. N. Porter and others against E. H. Brooks and others. From judgment</p> <p>for defendants, plaintiffs appeal.</p>

8. Anderson, Judge. Action by Louis Kopplin against Herman Ludwig. An application by Martin Coppard, trustee in bankruptcy of the estate of Herman Ludwig, to enjoin enforcement of judgment for plaintiff against defendant’s prop- erty was granted, and Kopplin appeals.

<p>1. Courts (§ 163*) — County Coubt — Jurisdiction — Suits Involving Title to Land.</p> <p>In an action for rent, in which plaintiff’s ownership of the land was denied, the county court had jurisdiction to determine incidentally whether he or a third person was the owner of the land, as the suit was primarily to recover an amount of money, to render judgment for which the county court had exclusive jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410-411, 443, 479, 1294; Dec. Dig. § 163.*]</p> <p>2. Evidence (§ 419*) —Parol Evidence to Vary Writing — Showing Consideration eor Deed.</p> <p>In an action for rent against a lessee and a person to whom the lessee had paid the rent and who claimed it under an assignment from M., plaintiff’s grantor, it appeared that M. was indebted to plaintiff, and that the land was incumbered, and that in an attempt to adjust the debt and incumbrance an agreement to convey the land was made. Plaintiff testified that he agreed to pay the amount of the incum-brance and cancel the debt, while M. testified that he agreed to assume the incumbrance, pay the interest past due thereon, and cancel a part of the indebtedness, and he executed and recorded a deed in accordance with this understanding. It appeared that plaintiff objected to this deed when presented, but in a suit between him and M. he recovered the land by a compromise decree. Held, that plaintiff was properly permitted to relate his version concerning the consideration agreed upon prior to the execution and recording of the deed; since, while parol evidence is inadmissible, except in cases of fraud, accident, or mistake, to contradict or vary the legal effect of a conveyance or prevent it operating to pass title, parol evidence is admissible to show the true consideration of a deed, though different from that recited in the conveyance.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.*]</p>

<p>Appeal from District Court, Dallas County; J. C. Roberts, Judge.</p> <p>Action by Henry Pemberton • against the Chicago, Rock Island & Gulf Railway Company. From a judgment for plaintiff, de-</p> <p>fendant appeals.</p>

<p>Appeal from District Court, Kerr County; R. H. Burney, Judge.</p> <p>Action by W. E. Green against the San Antonio &. Aransas Pass Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Divorce (§ 38%, New, vol. 19 Key-No. Series) — Actions—Defenses.</p> <p>Where a wife is legally entitled to a divorce, her right is not lost because she was induced by her mother to assert it.</p> <p>2. Divorce (§ 148*) — Actions—Instructions.</p> <p>In a suit for divorce, where there was testimony to establish the charges 'against defendant, an instruction that if plaintiff sought the divorce because of the influence of her mother, and not because of the wrongs of defendant, to find for defendant is erroneous in authorizing the finding of a verdict solely on the issue ot whether the mother had induced the bringing of the suit.'</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 494, 495; Dec. Dig. § 148.*]</p> <p>3. Divorce (§ 38%, New, vol. 19 Key-No. Series) — Actions—Defenses—‘ ‘Undue Influence.”</p> <p>Unless the influence of plaintiff’s mother was such as to deprive plaintiff of her free will and choice, the fact that the mother influenced plaintiff to sue for divorce is.no defense; mere persuasion or importunity not amounting to “undue influence.”</p> <p>[For other definitions, see Words and Phrases, First and Second Series, Undue Influence.]</p> <p>4. Divorce (§ 148*) — Actions—Ground.</p> <p>Since a single act of violence by a husband upon the person of his wife will warrant</p> <p>a divorce where it rendered the living together of the parties unsupportable, the refusal of a charge to that effect is error, even though there was evidence of a number of such acts.</p> <p>[Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 494, 495; Dec. Dig. § 148.*]</p> <p>5. Evidence (§ 94*) — Burden oe Prooe.</p> <p>The burden of proof never shifts from the plaintiff to establish the affirmative facts necessary to sustain his cause of action, nor from defendant to establish all affirmative defenses set up.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 116, 117; Dec. Dig. § 94.*]</p> <p>6. Appeal and Error (§§ 215, 216*) — Presentations oe Grounds oe Review in Court Below — Necessity.</p> <p>Error in a charge cannot be relied on upon appeal, where no objection was made below and no special charge was requested.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. §§ 215, 216;* Trial, Cent. Dig. §§ 627, 683.]</p>

_ Appeal from District Court, Tarrant County; Marvin H. Brown, Judge. . Injunction by Eugene Tipton and others against the Railway Postal Clerks’ Investment Association and others. From an order dissolving a temporary injunction and refusing to appoint a receiver, plaintiffs appeal and move for a temporary writ of injunction.

<p>Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.</p> <p>Action by Swift & Co. against the Continental Oil & Cotton Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and Error (§ 742*) — Assignment op Error — Supporting Statement — Coji-PLIANCE WITH RULE.</p> <p>An assignment of error followed by five propositions, after which appeared a statement of the evidence relied on to sustain such propositions, was insufficient to comply with rule 31 (142 S. W. xiii) of the Court of Civil Appeals, providing that to “each” proposition there shall be subjoined a brief statement of such proceedings as are necessary to support the proposition, with reference to the pages of the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.*]</p> <p>2. Carriers (§ 304*) — Injury to Person Assisting Departing Passenger — Notice — Defense.</p> <p>Where, in an action for injuries received by plaintiff while attempting to alight from a moving train after assisting his daughter on board, the evidence showed a general custom to delay trains at that point to permit persons to enter to assist passengers, the fact that the operatives of the particular train were without notice of plaintiff’s intention was no defense.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1104, 1110-1114, 1124, 1242; Dec. Dig. § 304.*]</p> <p>3. Carriers (§§ 318, 346*) — Injury to Person Assisting Departing Passenger — Negligence — Sufficiency of Evidence.</p> <p>Evidence, in an action for injuries received by plaintiff while alighting from a train after assisting a departing passenger to enter, held to sustain a finding that defendant was negligent in not delaying the train a reasonable time according to its custom, and that plaintiff was not negligent in attempting to alight while the train was moving.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314, 1401; Dec. Dig. §§ 318, 346.*]</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by A; H. Higginbotham against the Tabet Bros. Company. From the judgment, defendant appeals.</p>

<p>1. Master and Servant (§ 129*) — Injuries to Servant — “Proximate Cause.”</p> <p>Where a servant, in -attempting to place a belt on a pulley, high above the floor, had his clothing caught in a protruding set screw, so that he was hurled over the shaft and down upon the floor, the negligence of the master in permitting the existence of the set screw was the proximate cause of the injury; for it could be foreseen that employés would necessarily come close to the screw in replacing the belt on pulleys, and the primary negligence will be considered the proximate cause of the injury, when the injury was the natural and probable result of such primary negligence, even though another cause intervened, where a person of ordinary prudence, under the circumstances, ought reasonably to have foreseen such an injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*</p> <p>■For other definitions,, see Words and Phrases, First and Second Series, Proximate Cause.]</p> <p>2. Master and Servant (§ 217*) — Injuries to Servant — Assumption of Risk.</p> <p>An employé who did not know of the existence of a protruding set screw on the shaft turning the pulley on which he was trying to-replace a belt did not assume the risk of injury from having his clothing catch on the screw, though he brought himself closer to the shaft than necessary.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]</p> <p>3. Master and Servant (§ 234*) — Injuries-to Servant — Contributory Negligence.</p> <p>Nor in such case is he guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 684-686, 706-709; Dec.. Dig. § 234.*]</p> <p>4. Trial (§ 260*) — Instructions—Refusal.</p> <p>The -refusal of a charge covered by the-charges giveh is not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent.. Dig. §§ 651-659; Dec. Dig. '§ 260.*]</p> <p>5. Trial (§ 252*) — Instructions—Applicability to Evidence.</p> <p>A charge submitting a phase of the case in accordance with the testimony of the injured employs is not inapplicable to the facts because the defendant master offered much evidence in contradiction.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>6. Tbial (§ 256*) — Instructions—Additional Requests.</p> <p>In an action by a servant hurt by his clothing catching on a protruding set screw on a shaft, defendant cannot complain of a charge, that defendant was bound to maintain the shaft in a reasonably safe, condition, on the ground that it failed to submit to the jury all the circumstances bearing on how plaintiff’s clothing came in contact with the screw; for, the charge being the correct statement of law, defendant, if desiring amplification, should have requested additional charges.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>7. Trial (§ 194*) — Instructions—Weight of Evidence.</p> <p>In an action by a servant hurt when his clothing • caught on a set screw protruding from a rapidly revolving shaft, where the servant testified that he did not know of the existence of the screw because the place was dimly lighted and the shaft in motion, although he had several times replaced belts which had slipped off of pulleys, a charge on contributory negligence which informed the jury that, if the existence of the set' screw was unknown to the servant, and if it was not obvious, then the servant was not negligent in leaning close to the shaft in putting on the belt, is not bad as on the weight of the evidence.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. § 194.*]</p> <p>8. Master and Servant (§• 289*) — Injuries to Servant — Jury Question.</p> <p>In a personal injury action by a servant, whose clothing caught on a projecting set screw on a rapidly revolving shaft, the question whether the servant was guilty of negligence contributing to his injury in leaning close to the shaft, instead of holding to a board so that he could reach out and with one hand replace the belt which had slipped off of a pulley, held, under the evidence, for the jury.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]</p>

<p>1. Appeal and Error (§ 629*) — Defective Transcript — Correction and Filing.</p> <p>Sufficient excuse not being shown for failure of appellant to see that the transcript was properly prepared for appeal, in that it did not show, as was the fact, that he had given notice of appeal, which was entered of record, for which reason the clerk refused to file it, though seasonably presented, he may not, after the time for filing has elapsed, have it corrected and filed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2765; Dec. Dig. § 629.*]</p> <p>2. Appeal and Eeeoe (§ 56*) — Jurisdictional Amount.</p> <p>Neither the judgment appealed from nor the amount in .controversy exceeding. $109, exclusive of interest and costs, the Court of Civil Appeal has not jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 266; Dec. Dig. § 56.*]</p>

<p>Appeal from District Court, Tarrant County; J. W. Swayne, Judge.</p> <p>Action by J. H. Berry against the Ft. Worth & Denver City Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Bee County Court; T. M. Cox, Judge.</p> <p>Action by the .American Manufacturing Company against the Skidmore Drug & Furniture Company, a copartnership. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Evidence (§ 441*) — Parol Evidence — Written Contract — Notes.</p> <p>In an action on a premium note, parol evidence of an agreement between defendant and plaintiff’s general agent that defendant should not be called upon to pay the note if he would help the agent secure other insurance, which defendant did, was objectionable as contradicting the terms oí the note.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. § 441.*}</p> <p>2. Insurance (§ 184*) — Lue Policy — Premiums — N otes — Rebate.</p> <p>Where defendant executed a note for the first premium on a life policy issued to him, an agreement between defendant and the agent securing the policy that defendant should not be asked to pay the note if he would help the agent obtain other insurance, which he did, amounted to a contract to pay or allow a rebate on defendant^ policy in violation of Rev. St. 1911, art. 4954, and constituted no defense to the note.</p> <p>[Ed. Note. — For other cases, see Insurance, ■Dee. Dig. § 184.*]</p> <p>3. Insurance (§ 188*) — Notes for Premiums — Defenses — Fraud — Misrepresentation of Facts — Contractual Agreement.</p> <p>Where an insurance agent, after writing a policy on defendant’s life, agreed with him that he should not be called on to pay a note executed by defendant for the first premium in case he would assist the agent in writing other insurance, which he did, such agreement was contractual, and not a misrepresentation of fact, and was not therefore sufficient to sustain a defense that the note was obtained by fraud.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 245, 402-407; Dec. Dig. § 1S8.*J</p>

<p>Appeal from District Court, Parker County; F. O. McKinzie, Judge.</p> <p>Action by E. B. Smith against the Weath-erford, Mineral Wells & Northwestern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Falls County Oourt; W. E. Hunnieutt, Judge.</p> <p>Action by F. H. Feldman against tbe international & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Comanche County; J. H. Arnold, Judge.</p> <p>Action by Hoff & Harris against the City of Comanche. Prom a judgment for plaintiff, defendant' appeals.</p>

<p>Appeal and Error (§ 454*) — Jurisdiction— Withdrawal from Appeal Bond.</p> <p>Where jurisdiction has been vested in the appellate court by the filing of an appeal bond, pursuant to Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 20S4, 2099, which bond is signed by two defendants sued as partners, and against whom a joint and several judgment has been obtained, one defendant cannot thereafter, by erasing his name from the bond, defeat such jurisdiction.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 2215; Dec. Dig. § 454.*]</p>

<p>Appeal from 'Dallas County Court, at Law; W42P. Whitehurst, Judge.</p> <p>S. E. Boren was convicted of unlawfully carrying a pistol, and he appeals.</p>

<p>Appeal from District Court, Walker County; S. W. Dean, Judge.</p> <p>Arthur Wynne was convicted of stealing cattle and appeals.</p>

<p>Criminal Law (§ 1124*) — Appeal—Presentation for Review.</p> <p>Motions for new trial, based on" the insufficiency of the evidence to bring defendant within the indictment, could not be reviewed by the appellate court, where the evidence was not in the record.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.*]</p>

<p>Appeal from Hall County Court; John D. Bird, Judge.</p> <p>Jim Alexander was convicted of an offense, and he appeals.</p>

<p>Appeal from Hall County Court; John D. Bird, Judge.</p> <p>Jess Farley was convicted of an offense, and he appeals.</p>

<p>Appeal from Hall County Court; John D. Bird, Judge.</p> <p>Scott McCanne was convicted of an offense, and he appeals.</p>

<p>1. Judgment (§ 266*) — Verdict as Basis for Judgment.</p> <p>A verdict is the proper basis of a judgment, and on trial by jury the court has no power to enter judgment upon facts well pleaded and indisputably proven, unless the issue has been found by the verdict in favor of the party for whom the judgment is rendered.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 446-464; Dec. Dig. § 256.*]</p> <p>2. Judgment (§ 256*) — Conformity to Verdict or Findings.</p> <p>In an action for subrogation and to foreclose a lien, defendant’s failure to deny specifically under oath facts pleaded in support of the lien at most furnishes only a basis for dispensing with a specific finding in the verdict as to the lien, and a judgment of foreclosure is erroneous if the facts so pleaded do not sustain the lien.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.*]</p> <p>3. Subrogation (§ 23*) — When Allowed.</p> <p>Where defendant, who sold a one-half interest in a ranch, agreed with the purchaser that the cash payment should be applied in satisfaction of a mortgage, and the purchaser deposited the money to defendant’s credit, and it was by the bank, the mortgagee, applied to the satisfaction of the incumbrance, the purchaser, upon rescission of the contract on other grounds, is not entitled to be subrogatéd to the bank’s rights; it being the defendant’s money, and not his, that was applied to the debt.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. § 23.*]</p> <p>4. Subrogation (§ 23*) — When Allowed.</p> <p>Where the seller of an interest in a ranch agreed with the purchaser that the cash payment should be used to extinguish a mortgage, and it was so used, the purchaser, upon rescinding the contract on other grounds, is not entitled to subrogation to any rights in the mortgage, which had been discharged with his consent.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. § 23.*]</p>

<p>1. Garnishment (§ 56*) — Persons aNd Property Subject — Bank Deposits.</p> <p>Where Y. kept his bank account in the name of Y. Engineering Co., and the money was his own property, and was checked out for his personal and individual uses, no one else having any interest in it, his account was subject to garnishment.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 110, 111; Dec. Dig. § 56.*]</p> <p>2. Appeal and Error (§ 1043*) — Review-Harmless Error.</p> <p>Where the number of the case in which the judgment was rendered was incorrectly given in the application for garnishment, though correctly given in the transfer of the judgment to plaintiff, and there was no question about the identity of the judgment and no other judgment against the debtor, the error was not reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4115-4121; Dec. Dig. § 1043.*]</p> <p>3. Appeal and Error (§ 909*) — Review-Presumptions.</p> <p>In a garnishment proceeding, where all the execution dockets during- the life of the judgment against the debtor were not offered in evidence, it would be presumed that an execution on the judgment had been issued, so that the judgment would not be dormant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3675; Dee. Dig. J 909.*]</p> <p>4. Garnishment (§ 144*) — Proceedings — Pleading.</p> <p>The want of a valid judgment on which to base the garnishment must be pleaded by the garnishee in order to be available.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 270; Dec. Dig. § 144.*]</p>

B. Hill, Judge. Action between W. B. Slaughter and others and A. G. Boyce and others. Prom a judgment in favor of the latter, the former appeal.

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Action by J. W. Howard and others against E. R. Oliver, tax collector, to restrain the collection of a school tax. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal and Error (§ 59*) — Court oj? Civil Appeals — Jurisdiction—“Amount in Controversy.”</p> <p>Rev. St. 1911, arts. 1589, 2078, give to Courts of Civil Appeals jurisdiction of cases of which the county courts have appellate jurisdiction when the “amount in controversy” exceeds $100, exclusive of interest and costs. Article 2178 provides that if a claim for injury to stock is not paid within 30 days after presentation, the claimant may sue therefor, and if he shall finally establish his claim and obtain judgment for the full amount as presented for payment, he may recover the amount of the claim and all costs of suit, and in addition thereto a reasonable amount as attorney’s fees, provided he has employed an attorney, not to exceed $20. Held, that such $20 attorney’s fees is not a part of the costs, but rather a part of the damages ; and hence, where plaintiff sued for $100 for injuries to a mule and also for reasonable attorney’s fees not to exceed $20 under such act, the attorney’s fees constituted a part of the amount in controversy so as to'confer appellate jurisdiction on the Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 270-274; Dec. Dig. § 59.* For other definitions, see Words and Phrases, First and Second Series, Amount in Controversy.]</p>

<p>Appeal from District Court, Potter County; Jas. N. Browning, Judge.</p> <p>Action by Elta Welshimer, administratrix, against the Pecos & Northern Texas Railway Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Robertson. County; J. C. Scott, Judge.</p> <p>Action by Lora Norton and others against P. J. Lea and others. From judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Potter. County; Jas. N. Browning, Judge.</p> <p>Action between H. P. Canode and Mrs. Carrie Sewell and others. From the judgment, Canod^ appeals. On motion to strike out statement of facts.</p>

L. Lockett, Judge. Proceeding between Mrs. Lelia Scott and ' George A. Scott. From a judgment of district court, on appeal from the county court, for said Lelia, said George appeals.

<p>1. Statutes (§ 47*) — 'Validity—Certainty— Statutory Provisions.</p> <p>Rev. St. 1911, art. 6713, forbidding common carriers to use locomotives or cars not provided with sufficient and secure grabirons, handholds, and foot stirrups, is not invalid on the ground that the legislative intent cannot be ascertained because of the failure to designate the number, dimensions, location, and manner of application of the appliances provided for, as the language used is plain and no difficulty can be experienced in meeting the simple requirements of the statute.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. § 47.*]</p> <p>2. Master and Servant (§ 111*) — Railroad Companies — Safety Appliances — Statutory Provisions — “Sufficient”—“Secure.”</p> <p>The word “sufficient” as used in Rev. St. 1911, art. 6713, requiring railroad locomotives and cars to be provided with sufficient and secure grabirons, handholds, and foot stirrups, is not synonymous with “secure” which as used in the statute means “safe,” nor does it refer to the number of appliances, but is used in the sense of adequacy and adaptation to the end desired, and means fitness to answer the purpose for which the appliance is intended.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dee. Dig. § 111.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Secure; Sufficient.]</p> <p>3. Master and Servant (§ 111*) — Railroad Companies — Safety Appliances.</p> <p>The rule of strict construction applied in construing penal statutes does not apply to the construction of Rev. St. 1911, art. 6713, relative to providing grabirons, handholds, and foot stirrups on locomotives and cars, when sought to be enforced in a civil action.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. § 111.*]</p> <p>4. Master and Servant (§ 286*) — Actions for Injurjes — Questions for Jury.</p> <p>Whether a handhold on a railroad car which gave way and precipitated an employs to the ground when his weight or a part thereof was placed on it was sufficient and secure, within Rev. St. 1911, art. 6713, was a question of fact for the jury, and not a question for the court.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]</p> <p>5. Trial (§ 256*) — Instructions—Necessity of Requests.</p> <p>In an action for injuries to a railway employs caused by a handhold giving way, the court’s failure to define the terms “sufficient” and “secure” as applied to handholds was an error of omission, and the party complaining should have asked a special charge to remedy the omission.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>6. Master and Servant (§§ 101, 102*) — Railroad Companies — Safety Appliances — Statutory Provisions.</p> <p>Under Rev. St. 1911, art. 6713, it is the duty of railway companies to furnish sufficient and secure handholds on cars, and not merely to exercise ordinary care.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*]</p>

<p>Appeal from District Court, Bexar County; W. E. Ezell, Judge.</p> <p>Suit by the Royal Amusement Company against the Columbia Piano Company. Prom an order denying a motion for temporary injunction, complainant appeals.</p>

<p>Weapons (§ 6*) — Carrying Weapons — Elements 02T OFFENSE.</p> <p>Where defendant and two other boys were riding along together, and one of the others handed defendant a pistol and told him to fire it, which defendant did, and thereafter immediately dropped the pistol, the defendant was not guilty of unlawfully carrying a pistol.</p> <p>[Ed. Note. — Eor other cases, see Weapons, Cent. Dig. § 5 ; Dec. Dig. § 6.*]</p>

P. Greever, Judge. J. N. Burton, under a complaint charging him with murder, was remanded to jail without bond on habeas corpus hearing, and he appeals.

<p>1. Appeal and Error (§ 719*) — Review— Assignments — SumrioiENCT.</p> <p>Where there was no assignment raising the question of the preponderance of the evidence, the appellate court can only look to the facts to see if there was sufficient evidence to support the judgments.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.*]</p> <p>2. Navigable Waters (§ 45*) — Change of Bed op Stream — Effect.</p> <p>Where the Rio Grande changed its course by avulsion, shifting lands, from Texas into Mexico, the ownership, did not shift as in the case of erosion, and on the subsequent return of the land by avulsion to Texas, the ownership remained in the original owner.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 279, 280; Dec. Dig. § 45.*]</p> <p>3. Navigable Waters (§ 44*)— Overflow op Band — Effect.</p> <p>Though land abutting on a river is overflowed and remains submerged for some time, the owner does not lose his rights therein.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 266-278, 281, 282; Dec. Dig. § 44.*]</p>

<p>Appeal from Wheeler County Court; M. M. Miller, Judge.</p> <p>R. L. Brown was convicted of a misdemeanor, and he appeals.</p>

<p>Appeal from Throckmorton County Court; T. J. Wright, Judge.</p> <p>A. Stephens was convicted of an offense, and he appeals.</p>

<p>Appeal from Throckmorton County Court; T. J. Wright, Judge.</p> <p>J. Bolander was convicted of an offense, and he appeals.</p>

Appeals from District Court, El Paso County; A. M. 'Walthall, Judge. Actions by C. F. Morse, for himself and as agent and attorney in fact for Rosa Campo de Zabalgoitio and others, one against the El Paso & Southwestern Railway Company, and the other against the El Paso Southern Railway Company, in each of which Charles Ginther intervened. • From orders granting temporary writs of injunction, the intervener appeals.

<p>1. Criminal Law (§ 1056*) — Appeal—Reservation of Grounds of Review — Excep- . TIONS.</p> <p>Errors in the charge cannot be reviewed on appeal in a criminal case, where no exception was reserved to the charge before it was read to the jury, or at all.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. 1056.*]</p> <p>2. Criminal Law (§§ 1121, 1122*) — Appeal-Record — Matters Presented for Review.</p> <p>The sufficiency of the evidence to sustain a conviction and the refusal to give instructions cannot be reviewed, where the evidence is not in the record on appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 293.8, 2939, 2940-2945; Dec. Dig. §§ 1121, 1122.*]</p>

<p>Schools and School Districts (§ 79*) — Contracts — Right to Enforce — Existence of Fund for Payment.</p> <p>A contract by the officers of an independent school district to pay for architect’s plans for a schoolhouse for which bonds had not yet been voted was unenforceable, where the bond issue was defeated, and there were no other funds from which the payment could be made, although an issue of bonds was subsequently authorized and sold, and the proceeds were invested in a different plan of house from the one originally desired; it being contemplated by Rev. ¡át. 1911, arts. 2837-2839, providing for elections, to determine whether schoolhouse bonds shall be issued and for a sale of bonds, that contracts involving an expenditure of the proceeds shall be made only after the bonds have been sold, and article 2853, which invests the trustees of independent school districts with the powers held by a council or board of aider-men in respect to certain school matters, not giving them control of any moneys except those raised in a specified way to be used for specified purposes.</p> <p>(Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 188-191; Dec. Dig. § 79.*]</p>

<p>1. Deeds (§ 110*) — Construction—Questions oe Law ob Eaot.</p> <p>The construction of a deed is a matter of law for the court.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 255, 293; Dec. Dig. § 110.*]</p> <p>2. Deeds (§ 38*) — Description—Sufficiency.</p> <p>If the land intended to be conveyed by a deed be so inaccurately described that it appears on an inspection thereof that the identity of the land is altogether uncertain and cannot be determined, the court should pronounce the deed void.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 65-79; Dec. Dig. § 38.*]</p> <p>3. Evidence (§ 452*) — Parol Evidence — Description in Deed.</p> <p>When the uncertainty in the description in a deed does not appear upon the face of the deed, but arises from extraneous facts, parol evidence is admissible to explain or remove it, and the deed should not be excluded from the jury, but should go-to them along with the parol evidence.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2093-2101; Dec. Dig. § 452.*]</p> <p>4. Deeds (§ 110*) — Description—Questions for Jury.</p> <p>Where the uncertainty in the description of a deed does not appear upon the face of the deed, but arises from extraneous facts and parol evidence is admitted to explain or remove the ambiguity, the identity of the land is a mixed question of law and fact, to be determined under appropriate instructions.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 255, 293; Dec. Dig. § 110.*]</p> <p>6. Evidence (§383*) — Admissibility of Deed in Evidence — Conclusiveness.</p> <p>Where a deed under which plaintiff claimed in trespass to try title described the land as 4.13 acres out of the W. C. G. 320-acre survey, situated about 2 miles northwest of the courthouse in D., and being block No. 35 of the D. Guaranty & Investment Co.’s Manufacturing Plat of N., and also described it by metes and bounds, which showed that it was 600 feet long and 300 feet wide, the starting point beginning at the intersection of the northeast line of G. avenue with the northwest line of Tenth street, 1,285 feet from the south corner of Forest Park, there was no ambiguity in the description apparent upon the face of the deed, and it was error to exclude the deed on the assertion of counsel, in objecting to its introduction, that there was no survey in the county known as the W. C. G. survey, no such map as the D. Guaranty & Investment Co.’s Manufacturing Plat of N., and no street known as G. avenue or Tenth street, as if these facts were true, and the deed therefore insufficient to put subsequent purchasers for value on notice, the burden of proving such facts was on persons claiming to be such purchasers, and not on plaintiff, as a predicate for the admission of the deed.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1660-1677; Dec. Dig. § 383.*]</p> <p>6. Evidence (§ 460*) — Description in Deed —Admissibility.</p> <p>To aid in the identification of the land described in such deed, a deed purporting to convey 250 acres of land to the city of D., and the testimony of a witness that the tract so conveyed was generally known in the community as the Forest Park tract, should 'have been admitted.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.*]</p> <p>7. Deeds (§ 118*) — Description—Sufficiency of Evidence.</p> <p>In trespass to try title, evidence to identify the land described in the deed under which plaintiff claimed held sufficient to make a question for the jury, and to support a finding identifying the tract as the land in controversy.</p> <p>[Ed. Note. — For other eases, see Deeds, Dec. Dig. § 118.*]</p>

Masterson, Judge. Receivership proceedings by the National Surety Company against the David Castle Construction Company, in which J. B. Cochran was appointed receiver. From an order in chambers, upon motion of the receiver, which directed E. A. Laughlin to return lumber, he appeals.

<p>1. Railroads (§ 461*) — Negligent Hikes — Contributory Negligence.</p> <p>To leave open a window in the loft of a barn, in which there was loose straw, is not contributory negligence defeating recovery for fire set by sparks from defendant’s locomotive, though the fire would not have occurred if the window had been closed.</p> <p>[Ed. Note. — Por other cases, see Railroads, Cent. Dig. § 1682; Dec. Dig. § 461.*]</p> <p>2. Railroads (§ 481*) — Negligent Fires — Evidence.</p> <p>Where, in an action for fire set by sparks from defendant’s locomotive, the pleadings and proof did not point out any particular locomotive, but showed that two trains passed at about the time of the fire, evidence that the morning after the fire plaintiff found large coal cinders along the track is admissible to show that the locomotives were not properly equipped with spark arresters.</p> <p>[Ed. Note. — Por other cases, see Railroads, .Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]</p> <p>3. Evidence (§ 471*) — Witnesses (§ 240*)— Opinion oe Witness — Negligent Pires.</p> <p>In an action for fire set by sparks from defendant’s locomotive, a question to a witness, “Was there any other means known to you by which the fire could have caught,, except from that passing train?” was proper.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 2149-2185; Dec. Dig. § 471; Witnesses, Cent. Dig. §§ 795, 837-839,841-845; Dec. Dig. § 240.*]</p> <p>4. Railroads (§ 481*) — Negligent Fires— Evidence.</p> <p>In an action for fire set by sparks from defendant’s locomotive, evidence that, from the time of the fire until plaintiff found large coal cinders along the track, no other trains than the ones alleged to have caused the fire had passed there was admissible.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]</p> <p>5. Railroads (§ 481*) — Negligent FIres— Evidence — Other Pire.</p> <p>In an action for fire set by sparks from defendant’s locomotive, evidence of other fires is inadmissible, unless on or about the same time as the fire in question.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dec. Dig. § 481.*]</p>

<p>1. Covenants (§ 47*)—Warranty—Effect.</p> <p>A general covenant of warranty does not include a warranty of the quantity of land conveyed, unless the property is sold by the acre and the quantity warranted.</p> <p>[Ed. Note.—For other cases, see Covenants, Cent. Dig. § 47; Dec. Dig. • § 47.*]</p> <p>2. Vendor and Puroixaser (§ 176*)—Convey-ances—Deficiency.</p> <p>In the absence of a warranty of quantity, there can be no reduction of the purchase price for a deficiency in the quantity unless there is proof of fraud or mistake; but, where there has been fraud or mistake in the representations as to quantity made by the vendor and they have been relied on, reduction for deficiency-must be allowed.</p> <p>[Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. § 176.*]</p> <p>3. Vendor and Purchaser (§ 44*) — Remedies oe Purchaser — Actions—Evidence.</p> <p>Where purchasers of land claimed to have relied upon the grantor’s representations as to the quantity conveyed, evidence held to show such representations and reliance thereon by the purchasers.</p> <p>[Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 69-76; Dec. Dig. § 44.*]</p> <p>4. Evidence (§ 238*) — Admissions—Eeeéct. _</p> <p>_ Where a purchaser of land sold all of his interest to defendants, who assumed payment of the unpaid purchase money, the purchaser’s admissions that he did not rely upon his grantor’s representations as to the quantity of land conveyed, etc., are binding only upon himself and not upon defendants.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 883; Dec.- Dig. § 238.*]</p> <p>On Motion for Rehearing.</p> <p>5. Principal and Agent (§ 94*) — Representations op Agent.</p> <p>Where two united in purchasing a tract of land, representations as to quantity by the vendor’s agent to one of the purchasers, who was acting for both, are representations to both.</p> <p>[Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 248, 249; Dec. Dig. § 94.*]</p>

<p>Appeal from District Court, Navarra County ; H. B. Daviss, Judge.</p> <p>Action by C. A. Putman and others against the Murray Gin Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Harris County Court; Clark C. Wren, Judge.</p> <p>Action by Jeanette and Rose Bergere against B. J. Parker. From a judgment for defendant, plaintiffs appeal. .</p>

<p>1. Appeal and Eeroe (§ 273*)—Assignment op Eeeoe—Exception Below—Suppiciency.</p> <p>An exception complaining that an instruction on the duty of the master to exercise ordinary care to furnish a servant reasonably safe tools and appliances, and to keep them in a reasonably safe condition, “does not charge the law as applicable to the facts shown by the testimony in this case” is too general to sustain an assignment of error based thereon.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. § 273.*]</p> <p>2. Appeal and Eeeoe (§ 232*)—Assignment op Eeeoe—Exception to Instbtjctions.</p> <p>An assignment of error, complaining of an instruction on a ground not presented below, could not be considered on appeal.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dee. Dig. § 232.*]</p> <p>3. Trial (§ 296*)—Instructions—Construc-tion—“Simple Tool.’?</p> <p>In an employé’s action for injuries due to defective tongs an instruction placing on defendant the burden of inspecting the tongs, weighing 35 pounds, and used to lift rails weighing 900 pounds, from a ship, before furnishing them to employés, and of making such further inspection thereafter as would be required in the exercise of ordinary care, was not erroneous, especially where the question whether the tongs were a simple tool was submitted in another instruction, and it clearly appeared that the tongs were not a simple tool, as a matter of law'.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*</p> <p>For other definitions see Words and Phrases, Second Series, Simple Tool.]</p> <p>4. Master and Servant (§ 291*)—Injuries to Servant—Failure to Inspect.</p> <p>Where, in a foreman’s action for injuries due to defective tongs used in unloading steel rails from a ship, there was evidence that an inspection made after the tongs had been in use would have disclosed the defect, it was not error to give an instruction authorizing- a recovery because of defendant’s failure to inspect the tongs, though they became defective while the work was being done.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.*]</p> <p>5. Teial (§ 296*) — Instructions—Construction.</p> <p>In an action for injuries to a foreman due to defective tongs used in unloading steel rails from a ship, an instruction that plaintiff was chargeable with notice of such defects as “in the ordinary discharge of his duties must have come to his knowledge” was not objectionable as requiring actual knowledge, where the court further charged that he was chargeable with'notice of defects “which were obvious and open to him in the doing of his work, which ordinarily prudent persons would have learned under like circumstances.”</p> <p>[Ed. Note. — E'or other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]</p> <p>6. Appeal and Error (§ 263*) — Assignment oe Error — Exception Below.</p> <p>An assignment of error complaining of an instruction not excepted to below, cannot be considered on appeal.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.*]</p> <p>7. Master and Servant (§ 293*) — Injuries to Servant — Refusal oe Instructions.</p> <p>In an employe’s action for injuries due to defective tongs used in unloading steel rails from a ship, an instruction calculated to mislead the jury into believing that plaintiff could not recover if the tongs became defective during the three days that the ship was being unloaded, being erroneous in that it ignored the question whether it was defendant’s duty in the exercise of ordinary care to inspect the tools during such time, was properly refused.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1148-1156, 1158-1160; Dec. Dig. § 293.*]</p> <p>8. Trial (§ 260*) — Right to Special Instructions.</p> <p>The defendant, in a negligence case, may demand a special charge grouping the specific facts on which he relies, although the court has made a general and abstractly correct presentation of such issues.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>9. Trial (§ 260*) — Refusal oe Instructions Covered.</p> <p>In a foreman’s action for injuries due to defective tongs used in unloading steel rails from a ship, a requested instruction that plaintiff could not recover if he knew of the defects, or if a person of ordinary prudence could have discovered same, being covered by an instruction that plaintiff could not recover if the defects were known to him, or must necessarily have come to his knowledge, was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>10. Appeal and Error (§ 1050*) — Harmless Error — Admission oe Evidence.</p> <p>Error, if any, in admitting certain testimony over objection was harmless, where practically the same testimony was admitted without objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]</p> <p>On Motion for Rehearing.</p> <p>11. Appeal and Error (§ 274*) — Exception to Instructions — Sufficiency.</p> <p>An exception complaining that an instruction that the plaintiff could not recover by reason of the defects in the tools furnished him, if, by ordinary care, he could have discovered the defects, but that he must be'held to have assumed the risks, was erroneous for failure to charge the law on “assumed risk as developed by the evidence, as fully appears from special charges requested by defendant,” was insufficient to present an objection that the court failed to more specifically instruct on plaintiff’s duty to inspect the tools, and on the issue of assumed risk.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1591, 1592, 1605-1607, 1624, 1631-1645; Dec. Dig. § 274.*]</p> <p>12. Appeal and Error (§ 1171*) — Decision on Appeal — Misconduct oe Jury — Excessive Recovery — Remittitur.</p> <p>Where it appears on appeal that the verdict though for the proper party, is excessive by reason of consideration given by the jury to matters improper to consider, the appellate court will reverse the judgment, unless a remittitur be entered in such amount as wül cúre the harm.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4546 — 4554; Dec. Dig. § 1171.*]</p>

N. Browning, Judge. Action by the State, on relation of Jerry Cavanaugh and others, against A. V. Nelson and others. From a judgment in favor of defendants, relators appeal.

<p>1. Wills (§ 616*) — Construction—Interest or Devisee oe Legatee — '“Remainder.”</p> <p>A will gave the residue of the estate to the wife for life, with remainder to the testator’s children. It provided that the property should be managed by the wife during her life, and that, if she deemed it to the best interest of the estate, she might, with the written consent of a majority of the children of age oi married, sell or incumber any part thereof, and on the death of the wife all of the estate should be divided equally between the children, the descendants of any deceased child to have that portion to which their ancestor, if living, would have been entitled. Held, that the will created a “remainder” in the children, which is what is left of an entire estate in lands after a preceding part of the same estate has been disposed of, whose regular termination the remainder must await.</p> <p>[Ed. Note. — Eor other cases, see Wills, Cent. Dig. §§ 1418-1430; Dec. Dig. § 616.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Remainder.]</p> <p>2. Wills (§ 634*) — Construction—Interest op Devisee or Legatee — "Vested Remainder” — “Contingent Remainder.”</p> <p>Under such will a child took a present fixed right of future enjoyment, and therefore had a “vested remainder,” as distinguished from a “contingent remainder," which arises when it is uncertain whether a use or estate limited in futuro will ever vest; it being the present capacity of taking effect in possession which distinguishes a vested from a contingent remainder.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Contingent Remainder; Vested Remainder.].</p> <p>3. Execution (§ 45*) — Interests Subject to Execution — Vested Remainder apteb Life Estate with Power to Sell.</p> <p>The interest of a child in land constituting a part of the residuary estate was subject to execution, though the rights of the execution creditor or purchaser could not go beyond the rights of such child, as, to render property subject to levy and sale, it is only necessary that it be owned by the execution debtor at the time of the levy.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 141, 142; Dec. Dig. § 45.*]</p> <p>4. Execution (§ 41*) — Property Subject to —“Trust.”</p> <p>The will created no trust relation with respect to the residuary estate which would prevent a sale of the interest of a child under execution, as a “trust” is an obligation in which the person holding the legal title is bound in equity to hold for the benefit of another, and the wife did not hold for any of the children, and was not charged with any duty to them in the management of the real property, but was sole ow'ner of the rents and revenues during her lifetime, while each of the children held a separate estate given in his or her own right.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 49, 89-94; Dec. Dig. § 41.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Trust.]</p> <p>5. Execution (§ 171*) — Enjoining Execution-Creating Cloud on Title.</p> <p>A sale of the interest of a child under execution could not he enjoined, on the ground that such sale would cast a cloud on the title of the wife or the other children, as, the will being of record, such sale would cast no cloud on their title.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 794, 795, 813, 825; Dec. Dig. § 171.*]</p>

Conley, Judge. Action by the Central Bank & Trust Company of Houston against Byron Wiess and others, as administrators of Mark Wiess, deceased. Judgment for defendants, and plaintiff brings error.

<p>1. Trespass to Try Title (§ 88*) — Burden oe Proof — Common Source of Title.</p> <p>In trespass to try title it was admitted that H. at one time, had title, and that plaintiffs were the heirs of the only child of M. To show that the parties claimed from a common source of title, plaintiffs introduced a deed from M.’s temporary administrator, which was admittedly void, and subsequent deeds showing an unbroken chain of title to defendant. Defendant introduced a deed from H.’s administrator and an order of the probate court, directing its execution, both of which recited that H. had agreed to convey to M., and had been fully paid for the land, and that M.’s grantee had become the owner of M.’s interest; and it was also shown that defendant had acquired the interest of the heirs of H., and that the records of the county failed to show that M. ever had title. Held, that when defendant showed his claim of legal title through the heirs of H., it devolved upon plaintiff to establish that M. had the equitable title from H., and upon plaintiffs’ failure to establish this fact the court properly gave a peremptory instruction in defendant’s favor, since, though parties claim from a common source of title, one of the parties may establish an outstanding title superior to that claimed from the common source.</p> <p>[Ed. Note. — Por other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. § 38.*]</p> <p>2. Trespass to Try Title (§ 41*) — Evidence — Recitals in Void Deed — In Order oe Probate Court.</p> <p>The recitals in the probate order, and the deed from H.’s administrator were not proof that M. had acquired the equitable title from H., it not appearing that such recitals were introduced as evidence of the truth of the facts recited, and plaintiffs not claiming under such order or deed, especially as the recitals were nothing more than an assertion that the court had found, upon hearing, that such were the facts.</p> <p>[Ed. Note. — Por other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dee. Dig. § 41.*]</p>

<p>1. Highways (§ 113*) — Liability of County for Services Performed on Highway.</p> <p>Under section 4 of the special road law of 1903 (Sp. Acts 28th Leg. c. 39) for Nacogdoches county, providing that private donations are thereby solicited to be expended upon public roads of the county, and that, when a private donation is made for any .road precinct, the commissioners’ court shall immediately set aside from the county treasury, out of the road and bridge fund, an amount equal to the donation which, together with the donation, shall be expended upon the road designated by the donors, where citizens of a road precinct donated $1,-200, to be expended on a road, and paid it to the proper authorities, and there were sufficient funds available from which the county could appropriate an equal amount, but the commissioners’ court appropriated only $800, it could authorize the commissioner, having charge of the improvement in such road precinct, to employ men to perform services on said road, and to incur liability therefor in a sum not in excess of the part of the $1,200 for which it failed to make a direct appropriation, and the county was liable for services so performed.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 348-352, 355; Dec. Dig. § 113.*]</p> <p>2. Highways (§ 113*) — Actions fob Services Performed on Highway — Petition.</p> <p>Where a petition, in an action against Nac-ogdoches county, alleged that, pursuant to section 4 of the special road law of 1903 (Sp. Acts 28th Leg. c. 39) for such county, citizens interested in a particular road precinct donated $1,-200, to be expended on a particular road, and paid the donations to the proper authorities, that M. was the duly elected county commissioner of the commissioner’s precinct which included such road, and had authority to employ labor for the improvement of such road, that the amount so donated, and a like amount to come out of the road and bridge fund of the county, was available to be expended upon the road, that the county paid on the work done §800, that such commissioner employed plaintiff and his assignors to perform work on such road, that their claims for services had been rejected by the commissioners’ court, that if the commissioners’ court had set aside an amount equal to the amount donated, to be expended upon the road, there would be sufficient remaining to pay such claims, and that M. had authority to contract and expend on such road such donation, together with an equal amount out of the road and bridge fund, it was good as against a general demurrer, but it was subject to a special exception for failure to allege the particular order or act of the commissioners’ court which authorized M. to contract for services and to incur liability of the county therefor.</p> <p>[Ed. Note. — For other eases, see Highways, Cent. Dig. §§ 348-352, 355; Dec. Dig. § 113.*]</p> <p>3. Pleading (§ 34*) — Demubp.er—Construction of Pleading of Demubbeb.</p> <p>On a general demurrer to a petition, all reasonable intendments must be resolved in favor of the pleading.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. || 5%, 66-74; Dec. Dig. § 34.*]</p> <p>4. Pleading (§ 228*) — Demubeeb — Special</p> <p>Exceptions.</p> <p>It was error to sustain a so-called exception to the petition, which was in fact not an exception at all but a defensive pleading.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. § 228.*]</p>

<p>Appeal from Wilbarger County Court; J. A. Copeland, Judge.</p> <p>Action by J. A. Puckett against F. C. Fletcher. From a judgment for plaintiff, defendant appeals.</p>

Masterson, Judge. Action for libel and slander by W. L. Dickson against F. L. Lights and others. From a judgment entered on a directed verdict, plaintiff appeals.

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by C. W. Dickens against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1.Schools and School Districts (§ 111*)— Enjoining Collection op Taxes — Parties —“Municipal Corporation.”</p> <p>A school district is a necessary party to a suit to enjoin the collection of taxes assessed in the district, since, under Rev. St. 1911, art. 2853, a school district is a municipal corporation, and under Rev. St. 1911, art. 1835, all</p> <p>suits against such corporations must be against it in its corporate name.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 265-268; Dec. Dig. .§ 111.*</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Municipal Corporation.]</p> <p>2. Schools and School Districts (§ 103*)— Taxation — Adopting Finding op County Board op Equalization.</p> <p>Under Rev. St. 1911, art. 2853, charging independent school districts with all the duties of city councils in respect to taxation, and article 945 providing that cities shall have a board of equalization, an independent school district, not having appointed a board of equalization, could not adopt the finding of the county board.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.*]</p> <p>On Rehearing.</p> <p>3. Schools and School Districts (§ 103*)— Taxation — Board op Equalization — Necessity.</p> <p>Acts 29th Leg, c. 124, § 165, providing that the property of an independent school district shall not be assessed at a greater value than that assessed for county and state purposes, does not by implication permit a school district to adopt the equalization of the county board of equalization, since the assessed valuation in the district may be less than that in the county.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 114, 115, 117, 240-245, 252; Dec. Dig. § 103.*]</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Suit by A. D. Zucht against the San Antonio School Board. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Sutton County; J. W. Timmins, Judge.</p> <p>Action by the Bank of Menard against T. ,D. Word. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, HaR County; J. A. Nabers, Judge.</p> <p>Action by M. E. Hughes against W. G. Hughes. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Navarra County Court; R. R. Owen, Judge.</p> <p>Action by. the Corsicana Fruit Company against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Judgment (§ 682*) — Conclusiveness—Persons Concluded.</p> <p>A. agreed with L. in 1895 that, if L. would take possession and hold 509 acres of land as his tenant for five years, he would convey to L. 50 acres of the tract. In pursuance of such agreement, L. took and held possession until 1899, when he conveyed his title and interest by a quitclaim deed to plaintiff’s grantor, who held possession until 1900, when he conveyed to plaintiff, who then took possession. In 1899 a third party filed suit against A. and L. to recover the 500-acre tract, and recovered judgment in May, 1901, after plaintiff and his predecessors in title had fully performed the contract with A. Meld, that this judgment was not conclusive in favor of one claiming under such third party as against plaintiff, who was not, and whose grantor was not, a party to the suit, especially where it appeared probable that the third party was claiming under a title acquired subsequent to the contract, with constructive notice of the rights of those in possession.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1203-1205; Dec. Dig. § 682.*]</p> <p>2. Vendor and Purchaser (§ 232*) — Bona Fide Purchaser — Notice—Possession!</p> <p>Where an owner of land agreed that, if L. would take possession and hold it as tenant for five years, he would convey a part of the tract to L., the possession of L. and those claiming under him was constructive notice of their title or claim; there being nothing in the fact that they were in possession as tenants under a contract of purchase to change the general rule that possession of land gives constructive notice of the title or claim of the person in possession.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. § 232.*]</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Action by Jennie Raley against John A. Bitter, Tax Collector. From a judgment for defendant, plaintiff appeals.</p>

B. Hall, Judge. Action by H. Ryan against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for the plaintiff in the county court, on appeal from a justice of the peace, the defendant appeals.

<p>•CARRIERS (§ 94*) — CONVERSION—Measure of Damages.</p> <p>The measure of damages for the conver•sion of a car of coal is the reasonable market value of the coal per ton at the place where it was taken.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 367-395, 456; Dec. Dig. § 94.*]</p>

R. Sinks, Judge. Action by Rudolph Prazak and wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals. Motion to strike out statement of facts.

<p>Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.</p> <p>Action by the First State Bank & Trust Company of Hereford, Tex., against the Southwestern Engineéring & Construction Company, in which an attachment was issued against land claimed by F. M. Barden.</p>

<p>Pleading (§ 279*) — Amendment—1Time—Announcement oe Ready eor Trial.</p> <p>Where a wife as community survivor sued for breach of contract for sale of land to her husband and the answer set up a written cancellation of the contract and a forfeiture by reason of nonpayment, leave granted to plaintiff over two months from answer and after announcement of ready for trial to file a supplemental petition, consisting of a plea non est factum, is an abuse of discretion, though Rev. St. 1911, art. 1824, requiring all pleadings to be filed before announcement of ready for trial, is not mandatory.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 836-841; Dec. Dig. § 279.*]</p>

<p>Appeal from San Patricio County Court; P. A. Hunter, Judge.</p> <p>Action by J. W. King against Frank Andrews, as receiver of the St. Louis, Brownsville & Mexico Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Fbauds, Statute of (§ 158*) — Actions— Evidence — Sufficiency.</p> <p>In an action to recover the purchase price of coal ordered by another, evidence held to warrant a finding that the coal was sold to defendants, and that they agreed to pay for it.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 373-376; Dec. Dig. § 158.*]</p> <p>2. Fbauds, Statute of (§ 23*) — Pbomise to Pat Debt oe Anotheb. ■</p> <p>The fact that coal was ordered by another does not make defendants’ agreement to pay for it a promise to discharge the debt of another, where plaintiff refused to deliver the coal until defendants agreed themselves to pay for it.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.*]</p>

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Action by Lena Parsons against the National Life Association. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hardin County ; L. B. Hightower, Judge.</p> <p>Mandamus by W. M. Busby and others against W. S. Parker. Judgment in favor of plaintiffs, and defendant appeals.</p>

<p>Appeal from Atascosa County Court; Walter E. Jones, Judge.</p> <p>Action by T. G. Dickerson and others against the San Antonio, Uvalde & Gulf Railway Company and others. Judgment for defendants, and plaintiffs' appeal.</p>

<p>Appeal from District Court, Harris County; A. E. Amerman, Special Judge.</p> <p>Action by Evelyn K. Hartley and others against Horton & Horton. Judgment for plaintiffs, and defendant appeals.</p>

<p>Chattel Mortgages (§ 173*) — Claims oe Third Persons — Attachment — Right oe Action.</p> <p>A mortgagee, who has, by the terms of his mortgage, the right to take immediate possession of the mortgage chattels on default of payment, has the right to prosecute an action for the trial of the right of property against one who attaches the mortgage chattels.</p> <p>[Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 307, 309, 316-326; Dec. Dig. § 173.*]</p>

<p>Appeal from Harris County Court; Clarlc O. Wren, Judge.</p> <p>Action between the Buffalo Bayou Company, Inc., and H. Lorentz. Judgment for Lorentz, and the Buffalo Bayou Company, Inc., appeals. The statement of facts filed by appellant was stricken on motion, and appellant moves for a rehearing and reinstatement.</p>

M. White, Judge. Action by T. J. Hufstutler against the Western Union Telegraph Company. Prom a judgment of the county court, on certiorari from the justice court, overruling a general demurrer and dismissing the case, plaintiff appeals.

<p>Error from District Court, Grayson County; W. J. Mathis, Judge.</p> <p>Action by R. A. O’Bannon against the Insurance Company of North America. Judgment for plaintiff, and defendant brings error.</p>

Masterson, Judge. Suit by James Johnson and others against W. H. Irvin to set aside a judgment and cancel a deed and recover certain real property. Decree for complainants, and defendant appeals.

<p>1. Appeal and Error (§ 500*) — Record — Matters Presented for Review.</p> <p>The giving and refusing of instructions cannot be reviewed, where there is no bill of exceptions relating to the action of the court in thes& matters.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 2295-2298; Dec. Dig. § 500.*]</p> <p>2. Appeal and Error (§ 544*) — Exceptions, Bill op — Necessity op Allowance or Settlement.</p> <p>Under Rev. Oiv. St. art. 2003, providing that it shall bo the duty of the party taking any bill of exceptions to reduce it to writing and to present it to the judge for his allowance and signature, objections to the court’s charge appearing in the record could not be treated as a bill of exceptions, where they did not appear to have been presented to the judge and there was nothing to show that the court’s attention was ever called thereto.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. § 544.*]</p>

<p>Error to District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by Harvey B. Ross against the Oklahoma Eire Insurance Company and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. CORPORATIONS (§ 376*) — POWERS — PURCHASE op Own Stock.</p> <p>A corporation, when not forbidden by statute and when acting in good faith and without objection from its stockholders or prejudice to creditors, may purchase shares of its own stock, regardless of the purpose for which it is bought.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1530; Dec. Dig. § 376.*]</p> <p>2. Appeal and Eeeoe (§ 525*) — -Bill op Exceptions — INSTRUCTIONS.</p> <p>Under Rev. St. 1911, § 1973, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1973), giving parties the right to request special charges and have the giving or refusing of them reviewed, and providing that the trial court’s action thereon may be reviewed only when such instructions shall be presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the court’s charge is given to parties for examination, and in view of article 1971, relating to the general charge, and article 2061, relating to special charges, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1971, 2061), requiring that all objections to the general charge or to specially requested charges shall be submitted to the trial judge before reading them to the jury, that he may correct them, and that, failing to do so, all objections to the general charge shall be waived, and the court’s action on the special charges shall be approved, a bill of exceptions to the refusal of a specially requested charge indorsed by the signature of the trial judge under the word “refused” could not be considered, because not affirmatively showing-that it had been presented to the court and to opposing counsel within a reasonable time after the general charge was given to counsel for examination.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2376-2378; 'Dec. Dig. § 525.*]</p> <p>3. Appeal and Eeeoe (§ 499*) — Instructions — Necessity op Objection.</p> <p>An assignment of error to part of the court’s general charge could not be considered, where the bill of exceptions did not show that appellant presented the objections relied upon to the trial judge before the charge complained of was read to the jury, since, under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. C'iv. St. 1914, art. 1971), all objections not so presented are waived.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.*]</p> <p>4. TRial (§ 340*) — 'Verdict—Amendment.</p> <p>Under Rev. St. 1911, art. 1980, authorizing the court to direct a verdict to be reformed at the bar if it is informal or defective, the trial court, after receiving a verdict for the plaintiff and after polling the jury and being informed that they had found against defendant on his cross-action, properly amended the verdict by inserting the words “and against the defendant on its counterclaim.”</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 795-799; Dec. Dig. § 340.*]</p> <p>5. Appeal and Eeeoe (§ 1060*) — Misconduct op Counsel — Argument to Juey — Harmless Eeeoe.</p> <p>In an action for the unpaid balance on defendant’s own stock purchased from plaintiff, in which the defense was that the agreement, if any, to purchase the stock, was ultra vires and void, argument of plaintiff’s counsel that “ultra vires is a dead issue in Texas,” that it stinks to heaven, and is never resorted to except when a crooked corporation, such as the defendant, wanted to defeat honest debts, erroneous because ultra vires, in certain instances may be invoked as a just rule and misleading when asserted by counsel in the presence of jurors likely to be influenced thereby, was inflammatory, calculated to and probably arousing the prejudice of the jurors, and hence reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*]</p> <p>6. Evidence (§ 352*) — Records op Corporation.</p> <p>In such action the records of the corporation in respect to any written authority of its president to purchase the stock from plaintiff were admissible to show that the authority was or was not given, but not as a conclusive circumstance on that issue.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1398-1403; Dec. Dig. § 352.*]</p> <p>7. Evidence (§ 508*) — Opinion Evidence-Powers op Corporation,</p> <p>In such ease the opinion of counsel for defendant corporation, that it was without authority to purchase the stock, was inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence Cent. Dig. § 2311; Dec. Dig. § 508.*]</p>

<p>Appeal from Hamilton County Court; J. L. Lewis, Judge.</p> <p>Action by Joe E. Williams and others against the St. iLouis Southwestern Railway Company of Tex^s. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Appeal and Error (§ 12*) — Abandonment oe Akpead — Writ oe Error — Juris-diotion.</p> <p>A party to a judgment, foreclosing a vendor’s lien on real estate, might abandon an attempted appeal and bring the judgment to the Court of Civil Appeals b'y writ of error; no motion to affirm on a certificate having been made in the meantime.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 39-46; Dec. Dig. § 12.*]</p> <p>2. New Trial (§ 117*) — Time—After Term.</p> <p>A losing litigant may obtain a rehearing after the term, when it is shown that the judgment was obtained by fraud, mistake, or accident, that the complaining litigant has a meritorious cause of action or defense, that he was not negligent in failing to present his case or in asking for a new trial during the term, that there is reason to believe that a different result will be attained, and that, unless the judgment be set aside, he will sustain substantial and irreparable injury.</p> <p>TEd. Note. — For other cases, see New Trial, Cent. Dig. §§ 238-241; Dec. Dig. § 117.*]</p> <p>3. Pleading (§ 34*) —General Demurrer — Construction.</p> <p>As against a general demurrer, a pleading is to be liberally construed, and all reasonable inferences are to be indulged in its favor.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. § 34.*] .</p> <p>4. Vendor and Purchaser (§ 285*) — Proceedings to Set Aside Foreclosure Sale-—Sufficiency of Motion.</p> <p>A motion to set aside a judgment foreclosing a vendor’s lien and the sale thereunder, alleging that the purchaser had never executed the notes sued on and did not owe the debt upon which the plaintiff sued, had been prevented by sickness from appearing at the trial, and making her defense, and that such disability continued until she was dispossessed under the order of sale issued upon the judgment, and that , she had no knowledge of the fact that judgment had been rendered against her until she was dispossessed, as against a general demurrer, stated a cause of action entitling her to have the judgment set aside.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 800-807; Dec. Dig. § 285.*]</p> <p>5. Appeal and Error (§ 1074*) — Matters Rbviewable — Ruling on Motion.</p> <p>Any error in the action of the trial court in refusing to enter a nunc pro tunc order for the entry of notice of appeal was immaterial and would not be reviewed, where the moving party obtained by writ of error all the relief that an appeal would have afforded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4248-4252; Dec. Dig. § 1074.*] ’</p>

<p>Appeal fropa District Court, Navarro County ; H. B. Daviss, Judge.</p> <p>Proceeding by Emma A. Hart against Ira E. Hart and others for appointment of petitioner as administratrix. From an adverse judgment of the district court; on appeal from a refusal of the petition, petitioner again appeals.</p>

E. Johnson, Judge. Condemnation proceeding by the Temple Northwestern Railway Company against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant’s motion in the original proceeding for judgment of forfeiture' or reversion denied for want of jurisdiction, and defendant appeals.

<p>1. Continuance (§ 51*) — Grounds—Intoxication of Defendant.</p> <p>Where a ease had been continued several times because of the intoxication of defendant, it was not an abuse of the court’s discretion to refuse a further continuance on the same ground, especially where defendant became sober long enough to testify in his own behalf in chief, but was too intoxicated to testify in surrebuttal.</p> <p>[Ed. Note. — For other eases, see Continuance, Cent. Dig. §§ 69, 79, 85, 87, 88, 118, 128, 130, 132, 135, 141, 147; Dec. Dig. § 51.*]</p> <p>2. Appeal and Error (§ 1170*) — Presenting Questions in Lower Court — Bequest for Submission of Special Issue.</p> <p>In an action for an accounting between partners who were wrecking a house, where one partner claimed damages for breach by the other of an agreement to sell a portion of the house to the former partner, who had contracted to sell it to a third person, and remove it to such person’s land, tiie failure of the court in submitting special issues as to the damages for such breach to submit the question of the cost of removing it, upon which there was substantially no conflicting evidence, was not reversible error, in the absence of a request for such submission, under Rev. St 1911, art. 1985, providing that the failure to submit an issue shall not be deemed a ground for reversal, unless its submission was requested, and that an issue not submitted and not requested shall be deemed to have been found by the court, provided there be evidence to sustain such finding.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]</p> <p>3. Evidence (§ 419*) — Parol Evidence — Consideration for Contract.</p> <p>In an action for a partnership accounting, where the written partnership agreement stated the consideration to be furnished by the defendant, but not that to be furnished by the plaintiff,_ parol evidence was admissible, on behalf of plaintiff, to show the consideration furnished by him, even though that question was not raised by the defendant.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dee. Dig. § 419.*]</p> <p>4. Damages (§ 182*) — Mitigation—Breach of Contract.</p> <p>Where plaintiff sought to recover damages for a breach of an agreement to sell him a certain portion of a house which he and defendant were wrecking, and which plaintiff had agreed to sell to another and remove onto the land of the other at a certain time, evidence that the receiver of the property, who was appointed after the action commenced and more than six months after the expiration of the time fixed for the removal, offered to sell the property to plaintiff at the agreed price was inadmissible to mitigate the damages, in the absence of testimony that the plaintiff could purchase at that time, and that his buyer was still willing to accept the property at the agreed price.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 473, 500; Dec. Dig. § 182.*]</p>

<p>Appeal from Randall County Court; C. E. Coss, Judge.</p> <p>Action by J. L. Prichard against Joe Foster. From a judgment for defendant, plaintiff appeals.</p>

P. Greever, Judge. Action by A. M. Jines and another against William Astle and others. Judgment for defendant Astle for cancellation of the note sued on and for certain damages, and plaintiffs appeal.

<p>Appeal from District Court, Gonzales County ; M. Kennon, Judge.</p> <p>Emil Price was convicted of crime, and lie appeals.</p>

<p>Appeal from Houston County Court; C. M. Ellis, Judge. Mose Dickerson was convicted of violating the prohibition law, and he appeals.</p>

<p>Appeal from District Court, Grayson County; M. H. Garnett, Judge. M. O. Harrison was convicted of theft from the person, and he appeals.</p>

C. Scott, Judge. Habeas corpus by J. E. Hickman for the purpose of obtaining bail. Prom a judgment denying the application for bail, the relator appeals.