Volume 172 — South Western Reporter

<p>1. Appeal and Eeeoe (§ 295*) — 'Questions Review able — Fundamental Eeeoe.</p> <p>The error in rendering judgment for the purchaser in an executory contract of sale, the vendor having no title at the time of the contract, for the difference between the contract price and the market value is fundamental and reviewable on appeal without motion for new trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1704; Dec. Dig. § 295.*]</p> <p>2. Vendos and Puechasee (§ 351*) — Execu-toey Conteaot — Breach by Vendor — Meas-UEE OP RECOVEEY.</p> <p>Where a vendor in an executory contract of sale has no title, the purchaser may not recover the difference between the contract price and the market value, but, where he has paid the purchase money, he may recover it back, with interest from date of payment and any special damages accruing from having been induced to enter into the contract when pleaded and proved.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1017, 1047-1058; Dec. Dig. §351.*]</p> <p>3. Limitation op Actions (§ 111*) — Action on Note — Injunction.</p> <p>Where a note given by plaintiff to defend ant was alleged by plaintiff to form a part of the contract of sale of real estate sued on, and plaintiff obtained an injunction restraining defendant from filing suit on the note, the note was not barred by limitations by lapse of time during the injunction.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 521; Dec. Dig. § 111.*]</p>

<p>Appeal from District Court, Potter County; J. N. Browning, Judge.</p> <p>Action by Carrie Sewell and others against H. P. Canode. Judgment for plaintiffs, and defendant appeals.</p>

<p>Chattel Mortgages (§ 144*)— Priorities.</p> <p>The agent of a seller of store fixtures incumbered by an unrecorded mortgage for the price permitted the buyer to remove the same-to a building in which he intended to engage in business. On the same day the buyer, to induce a third person to loan Mm money secured by a mortgage on the fixtures, represented that they were his own free from liens. The mortgage to the third person was first recorded. held that, under Rev. St. 1911, arts. 5654, 5655, providing for the recording of chattel mortgages to- be good against subsequent mortgagees, the mortgage to the third person was superior to the mortgage of the seller.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 241; Dec. Dig. § 144.*] ’</p>

<p>Appeal from Hill County Court; J. D. Stephenson, Judge.</p> <p>Action by J. E. Jeffries against C. D. Martin. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hall County; J. A. Nabers, Judge.</p> <p>Action by John Browder and others against the Memphis Independent School District and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Vendos and Purchaser (§ 308*)—Con-tracts—Action by Vendors—Defense—INSUFFICIENCY OF TENDEE — OUTSTANDING Liens.</p> <p>In an action by vendors for the price of land which the purchaser denied agreeing to pay for, defendant’s contention that he should not be required to accept the deed tendered by three plaintiffs because there were outstanding vendors’ liens in' favor of one such plaintiff presented no defense, where it appeared that the lien notes were long past due, and did not appear that any recorded transfer of the notes had been made or that defendant had actual notice of any such transfer, especially where defendant had a duly recorded title to the land at the time of the creation of the purported liens.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 862, 877-899; Dec. Dig. § 308.*]</p> <p>2. VENDOS AND PURCHASER (§ 80*) — CONTRACTS—FINDINGS—SUFFICIENCY of Evidence.</p> <p>Evidence, in an action by vendors for the price of land which the purchaser claimed to own, and which he denied was included in the contract, held to sustain finding that the land in controversy was pointed out to defendant; that he knew that plaintiffs were claiming same; that he agreed to pay for same in consideration of receiving a quitclaim deed thereto from plaintiffs; and that, though defendant’s title to the land was superior to that of plaintiffs, he made this agreement to preclude any further dispute relative thereto.</p> <p>[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 132-135; Dee. Dig. § SO.*]</p> <p>3. Vendor and Purchaser (§ 314*)— Contracts—Petition—Construction.</p> <p>In an action by vendors for the price of land, an allegation in the petition that defendants .agreed to accept a quitclaim deed from plaintiffs was equivalent to an allegation that he agreed to take chances on their title, and dispensed with the necessity of a specific allegation that defendant agreed to purchase with notice of defects in plaintiffs’ title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 920-927; Dec. Dig. 314.*]</p> <p>4. Appeal and EeRok (§ 1071*) — I-Iaemless Error — Findings.</p> <p>Where, in an action by vendors for the price of land, the evidence supported a finding that one plaintiff had possession of the land during a certain period, error in finding, without supporting evidence, that another plaintiff also had such possession was harmless, where possession, of the one plaintiff was sufficient to authorize the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234^4239; Dec. Dig. § 1071.*]</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Action by S. J. Rickards against the Alamo Oil & Refining Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Trusts (§ 153*) — Duration—Interest or Donor.</p> <p>S., in making sales of land, issued a pamphlet in which it was stated that he had agreed to pay $50,000 bonus for the first railroad through the land, and that he thereby contracted to pay this bonus when a road was located, or, if no railroad was running' trains before the farm and lot distribution, that he would turn over such sum to trustees to be chosen by the purchasers, to be by them given as a bonus to the first railroad running' trains through the land. These terms were made the basis of every contract of sale. S. delivered the fund to trustees under an agreement by which it was to revert to him unless a railroad was built within a specified time, and they refused to deliver the fund to trustees chosen by the purchasers until a bond was given to comply with this agreement. Held that, by the contract between S. and the purchasers, the donation was absolute and without time limit, and the trustees could not alter that contract nor ingraft conditions as to time thereon, and hence S.’s executor had no claim to the fund, even though no railroad was built within a reasonable time.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 198; Dec. Dig. § 153.*]</p> <p>2. Trusts (§ 61*) — Duration —Reasonable Time.</p> <p>A jury finding that a reasonable time for the building of a railroad had not expired, if material, was supported by the evidence, where it appeared that after the distribution of the land S. was engaged in promoting the building of a railroad, and caused all effort to obtain any one else to build a road to cease, and was still so engaged when he died leaving a line of railway 43 miles in length running towards the land; that the suit was filed about 14 months after his death; and that the period had been one of depression when money was not easily obtained for railroad building.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 83-87; Dec. Dig. § 61.*]</p> <p>3. Trusts (§ 61*) — Actions Involving Trust Fund — Parties.</p> <p>In a suit by the executor of S. to recover the bonus on the ground that a railroad had not been built within a reasonable time, purchasers of land in reliance on the offer of the bonus were proper parties to the suit, as they were the beneficiaries of the trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 83-87; Dec. Dig. § 61.*]</p> <p>4. Trusts (§ 227*) — Actions Involving Trust Fund — Costs and Fees.</p> <p>Where a trust fund is involved in litigation, a trustee is allowed out of the fund reasonable attorney’s fees for prosecuting or defending the suit, and, while it is the rule that a trustee who is an attorney and prosecutes or defends a suit connected with the trust fund cannot charge for his professional services, where there is more than one trustee, they may employ one of their number and pay him for his services out of the fund.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 324; Dec. Dig. § 227.*}</p> <p>5. Appeal and Error (§ 877*) — Review-Parties Entitled to Allege Error.</p> <p>In a suit involving a trust fund, parties who were adjudged to have no right, title, or interest in the fund could not complain of the allowance of attorney’s fees from the fund to the attorney for the trustees and the attorney for the beneficiaries.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3560-3572; Dec. Dig. § 877.*]</p> <p>6. Trusts (§ 153*) — Interest on Trust Fund — Persons Entitled to Interest.</p> <p>Where an owner of land, in advertising it for sale, issued a pamphlet stating that a specified bonus would be given for the first railroad through the land, and that, if no railroad was running- before the farm and lot distribution, the bonus would be turned over to trustees selected by the purchasers, to be by them given as a bonus to the first railroad, it was the trustees’ duty to place the bonus on interest, and the interest became a part thereof, and the donor had no right thereto.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 198; Dec. Dig. § 153.*]</p>

<p>1. Homestead (§ 12*) — Right of Wife in Homestead — “Vested Right.”</p> <p>A wife’s right in the homestead is a “vested right” in the land itself, of which she cannot be deprived, except as pointed out by the Constitution and statutes:</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 12, 13; Dec. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Vested Right.]</p> <p>2. Homestead (§ 118*) — Homestead—Conveyances by Husband — Rights of Wife.</p> <p>A covenant in a mortgage executed by a husband alone that the premises are not the homestead does not bind the wife, where the premises are the homestead, unless she made representations deceiving the mortgagee.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §| 192, 195, 203-209, 216, 217; Dec. Dig. § 118.*]</p> <p>3. Homestead (§ 118*) — Renunciation—Effect on Wife.</p> <p>Where, during a temporary removal from the homestead, a husband secretly renounces the same in a deed of trust thereon, the renunciation is not binding on. the wife.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent Dig. §§ 192, 195] 203-209, 216, 217; Dec. Dig. § 118.*]</p> <p>4. Homestead (§ 169*) — Abandonment—Effect.</p> <p>The act of a husband in abandoning in good faith the homestead deprives it of the constitutional protection of a homestead, but where the abandonment is in fraud of the rights of the wife and to evade the Constitution, prohibiting the giving of liens on the homestead, the property continues a homestead, and an attempted lien is void.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 335; Dec. Dig. § 169.*]</p> <p>5.Husband and Wife (§ 62*) — Property Rights of Married Women — Estoppel.</p> <p>A married woman is not estopped, unless her conduct has been intentional and, in contemplation of law, fraudulent.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 282-284, 363; Dec. Dig. § 62.*]</p> <p>6.Homestead (§ 56*) — Abandonment — Acquisition of Other Homestead — “Acquire.”</p> <p>A husband, to acquire a new homestead, so as to enable him to convey or mortgage the old homestead as abandoned, need not purchase other land for a new homestead, but it may be acquired in land owned by the husband at the time of the abandonment; for the word “acquire” means something vested or inherent in the subject, and a mere temporary possession is not expressed by the word.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 81, 82; Dec. Dig. § 56*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Acquire.]</p> <p>7.Homestead (§ 162*) — Abandonment—Acts Constituting.</p> <p>Where a husband and wife left real estate constituting their homestead without intent to abandon it, but intending to return and continue to occupy it as their home, it remained their homestead, though they moved temporarily on other land owned by him, and a mortgage given by the husband during the temporary absence is void.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 315-319; Dec. Dig. § 162.*]</p> <p>8. Homestead (§ 122*) — Incumbbances—Es-toppel.</p> <p>Where, during a temporary absence by a husband and wife sfrom their homestead, the husband executed a' mortgage reciting that the property was not the homestead, the wife was not bound thereby, unless she induced the mortgagee to accept the mortgage and believe at the time that the property was not a homestead, and her act to estop her must have been intentional and equivalent to fraud on the mortgagee.</p> <p>[lid. Note. — For other eases, see Homestead, Cent. Dig. §§ 220-222; Dec. Dig. § 122.*)</p> <p>9. Homestead (§ 164*) — “Abandonment”— New Homestead.</p> <p>The occupation by a husband and wife of a new homestead must, to constitute an abandonment of the old homestead, be with the intention of permanently residing thereon and making it the family home, and the act and intent must be concurrent, and, until a new homestead is acquired or the old one abandoned in good faith by the husband, the wife retains a vested right in the old homestead, notwithstanding any representations of the husband to his creditors to the contrary.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 327, 328; Dec. Dig. § 164.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Abandon.)</p> <p>10. Cancellation oe Instruments (§ 37*)— Fraud — Pleading.</p> <p>A general allegation that a mortgagor did not read the instrument, but relied on his friendship and business relations with the mortgagee, who prepared the instrument, and that he did not know that the mortgage recited that the property conveyed was not homestead, does not allege fraud under the rule that, to present the issue of fraud, the facts constituting it must be alleged.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-80; Dec. Dig. § 37.*]</p> <p>11. Conteacts (§ 94*) — Fbaud—Acts Constituting.</p> <p>The mere fact that one party drew up a contract containing certain stipulations which the other party did not know were in it does not justify the setting aside of the contract, unless by some conduct acceptance of the instrument without ascertaining its contents was induced.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164, 1165; Dec. Dig. § 94.*]</p> <p>12. Homestead (§ 118*) — Moetgages—Recit-als — Effect.</p> <p>A recital in a mortgage executed by a husband alone that the property mortgaged is not a homestead is admissible as a declaration made by him against his own interest, which must be weighed as any other fact in determining the character of the property, though the homestead rights of the wife are unaffected thereby, and though she may show the falsity of the recital.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 192, 195, 203-209, 216, 217; Dec. Dig. § 118.*]</p> <p>13. Juey (§131*)' — Examination oe Jurors— Hypothetical Questions.</p> <p>On the issue of whether property, not occupied by a husband and his family at the time he executed a mortgage thereon, was Ms homestead, a question, asked jurors as to their qualifications, whether the fact that the husband executed the mortgage would influence them in determining whether the property was a homestead at the time of the making of the mortgage, was erroneous, as requiring each juror in advance to declare what effect they would give to the testimony, including the recital in the mortgage that the property was not a homestead.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.*]</p> <p>14.Homestead (§ 181*) — Intent to Abandon —SELF-SERVING DECLARATIONS.</p> <p>A declaration by a husband, who, with his family, left the homestead and occupied another place, that he intended to move back was self-serving on the issue of whether there was an abandonment of the homestead.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 351-353; Dec. Dig. § 181.*]</p> <p>.15. Witnesses (§ 389*) — Impeachment — Proof oe Contradictory Statements.</p> <p>A witness who admits that he had made a contradictory statement while testifying on a former trial may not be impeached by introducing the former statement, especially where the witness on the former trial corrected his testimony so' that it substantially conformed to his testimony on the second trial.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1243-1245; Dec. Dig. § 389.*]</p> <p>On Motion for Rehearing.</p> <p>16. Homestead (§ 181*) — Abandonment—Evidence — Admissibility.</p> <p>On the issue of abandonment of a homestead by moving to another place, the owner may testify as to Ms intention to return to the property. -</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 351-353; Dec. Dig. § 181.*]</p> <p>17. Evidence (§ 311*) — Declarations—Res Geste.</p> <p>Where, on the issue of the abandonment of a homestead by the owner’s removal, it appeared that his declarations made to third persons were within the rule of res gestse, the third persons should be produced to prove them.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1163, 1164; Dec. Dig. § 311.*]</p> <p>18. Evidence (§ 385*) — Parol Evidence — Contradicting Written Instrument.</p> <p>Parol testimony is inadmissible to vary a written instrument, in the absence of fraud inducing the execution of the instrument.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1757, 1758; Dee. Dig. § 385.*]</p> <p>19. Evidence (§ 395*) — Conveyances—Validity — Evidence.</p> <p>A husband and wife, relying on the invalidity of a mortgage by the husband alone, on the ground that the property covered thereby was their homestead, may not, in the absence of proof of fraud, show that he did not know that the mortgage recited that the property was not a homestead.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1746-1753; Dec. Dig. § 395.*]</p> <p>20. Homestead (§ 122*) — Mortgages—Estop-' pel.</p> <p>A husband and wife, representing that property mortgaged by the husband alone was not homestead are estopped to assert the contrary, where the mortgagee; on the faith of the mortgage, .extended additional credit, and where he was induced to refrain from looking to other property of the husband in satisfaction of the debt.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 220-222; Dec. Dig. § 122.*]</p> <p>21. Witnesses (§ 888*) — Impeachment — Troop op " Contradictory Statements — Predígate.</p> <p>To impeach a witness by proof of contradictory statements, it is necessary to call the attention of the witness to the statements to enable him to explain them.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1233-1242, 1246; Dec. Dig. § 388.*]</p> <p>22.Trespass to. Try Title (§ 35*) — Issues— Evidence.</p> <p>A defendant in trespass to try title may, under pleas of the general denial, not guilty, and a special defense, prove any fact in rebuttal of plaintiff’s testimony, but cannot introduce evidence in confession and avoidance, except as specially pleaded.</p> <p>[Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. §§ 50-52; Dec. Dig. 35.*]</p> <p>23. Homestead (§ 213*) —</p> <p>Pleadings—Issues.</p> <p>In trespass to try title on the theory of the invalidity of a mortgage by a husband alone covering homestead, a general denial puts in issue every fact necessary to establish a homestead at the time of the execution of the mortgage, and the proof which may be introduced to establish any such fact may be combatted by proof of abandonment on the acquisition of a new homestead.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 394-396; Dec. Dig. § 213.*]</p> <p>24. Homestead (§ 214*) — Evidence.</p> <p>Proof that plaintiffs in trespass to try title resided on the premises established, at most, only a prima facie case as against defendant relying on a mortgage executed by the husband alone, and evidence rebutting the presumption is admissible under the general denial.</p> <p>[Ed. Note. — Eor other cases, see Homestead, Cent. Dig. §§ 397-399; Dec. Dig. § 214.*]</p> <p>25. Evidence (§ 121*) — Declarations—Res Gestíe.</p> <p>The testimony of' a wife that when land mortgaged by the husband alone was purchased he told her that the same would be used as a home, and that when they left the premises he stated that they would return as soon as she was able, was admissible as a part of the res gestíe and as explanatory of the cause of removal on the issue of abandonment of the homestead.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. § 121.*]</p> <p>26. Homestead (§ 110*) — Establishment — Abandonment.</p> <p>A husband, though entitled to select the home, may not defeat a home established and vested until, in good faith, he selects another, or in good faith abandons the old one.</p> <p>[Ed. Note. — Eor other cases, see Homestead, Cent. Dig. § 176; Dee. Dig. § 110.*]</p>

M. Milam, Judge. Action by the Uvalde National Bank against F. E. Seawell and others. From a judgment for plaintiff against all defendants, and in favor of defendant M. Connor against defendant J. PI. Patterson on the latter’s plea of contribution, defendant M. Connor appeals.

<p>Appeal and Error (§ 830*) — Motion fob Rehearing — Delay.</p> <p>The Court of Civil Appeals, delaying disposition of a motion for rehearing for nearly three years, awaiting an opinion of the Supreme Court in another case in which a writ of error has been granted, will dispose of the motion, though the Supreme Court has not rendered its opinion, and will overrule it, when satisfied of the correctness of the original opinion.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3209-3211, 3214; Dec. Dig. § 830.*]</p>

<p>1. Teiai, (§ 260*) — Instructions — Issues Covered by Other Instructions.</p> <p>Issues presented by the general charge and in special charges need not be again given in other charges requested.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>2. Carriers (§ 318*) — Injuries to Passenger — Negligence—Evidence.</p> <p>In an action by a husband for injuries to the wife, evidence held, sufficient to sustain a finding that defendant railroad company negligently permitted fruit to lie on a wet platform,' whereby the wife slipped and fell, causing injury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.*)</p> <p>3. Carriers (§ 290*) — Injuries to Passenger — ICnowledge.</p> <p>To leave fruit on a wet platform of a passenger car while running a distance of 25 or 30 miles, is sufficient to show knowledge of the existence of the fruit, under the rule that the thing causing the accident must have been known to defendant or have been in existence long enough to justify an inference that the failure to obtain knowledge was negligence.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §S 1168, 1169, 1177, 1178, 1180, 1182-1184; Dec. Dig. § 290.*]</p> <p>4. Carriers (§ 280*) — Injuries to Passenger-Degree oe Care.</p> <p>The highest care is required by a carrier of passengers.</p> <p>[Ed. Note.' — For other cases, see Carriers, Cent. Dig. §§ 1085-1092, 1098-1103, 1105, 1106, 1109, 1117; Dec. Dig. § 280.*]</p> <p>5. Carriers (§ 321*) — Instructions—Applicability to Evidence.</p> <p>Where, in an action by a husband for injuries to his wife, the only evidence that the wife had suffered a miscarriage at the hands of a doctor, rather than from the injury, was the doctor’s admission that he was under indictment for soliciting practice as an abortionist, an in-structon on that issue was properly refused.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*]</p> <p>6. Carriers (§ 321*) — Injuries to Passen- . ger — Instructions—Damages.</p> <p>In an action by a husband for injuries to the wife, in which the wife claimed that she had suffered a miscarriage, a charge that defendant was not liable if a physician had caused the miscarriage is too broad, since it might have been necessary in order to save her life.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*]</p> <p>7. Damages (§ 95*) — Injury to Wiee.</p> <p>A husband, suing for injuries to the wife, can recover damages directly resulting from the injury and its subsequent consequences, whether permanent or temporary, for pain, suffering, and wounded feelings, the cost of nursing, medical attendance, and medicines, and the loss of the wife’s services in the household.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 222-229; Dec. Dig. § 95.*]</p> <p>8. Damages (§ 132*) — Excessive Damages— Injuries to Wife.</p> <p>$10,000 is not excessive damages for injuries to a young, robust married woman 17 years of age, causing her to lose consciousness for hours, and causing a miscarriage, where she could not walk without assistance and could not retain her urine, which condition would probably be permanent.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*]</p> <p>9. Damages (§ 208*) — Loss -of Services — Earning 'Capacity — Evidence.</p> <p>Where, in an action by a husband for injuries to the wife, he testifies that she did the housework and 'assisted him in his office, but since her injury a nurse was required for her, there is sufficient evidence on which to submit the question of earning capacity, as the jury could pass upon the worth of her services, in the absence of direct testimony as to value.</p> <p>[Ed.. Note. — For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. § 208.*]</p>

<p>Appeal from District Court, El Paso County; Dan M. Jackson, Judge.</p> <p>Action by W. T. Kellogg against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Montgomery County; J. Llewellyn, Judge.</p> <p>Action by Charles Gest against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

Chas. E. Ashe, Judge. Action by Susan S. Simmons and others-against F. F. Arnim and others. There was a judgment for defendants, and plaintiffs bring error.

<p>1. Appeal and Error (§ 544*) — Bill op Exceptions — Necessity—Instructions.</p> <p>Where no bill of exceptions was taken to the court’s action on instructions, assignments of error thereon could not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dee. Dig. § 544.*]</p> <p>2.New Trial (§ 104*) — Newly Discovered Evidence — Cumulative Evidence.</p> <p>In an action for injuries to a child caused by the jerking of a train, witnesses having testified as to the jerking and its effect, and of hearing a child crying, and of remarks of passengers, it was not an abuse of discretion to refuse a new trial for testimony of a witness that the jerk woke him up, and he asked what was the matter, and some one said they came near having a wreck, and that he heard a child crying.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 218-220; Dec. Dig. § 104.*]</p>

<p>1. Usury (§ 111*) — Action foe Usury — Petition — Sufficiency.</p> <p>A petition, in an action for usurious interest paid, which alleges that defendant contracted to loan to plaintiff $8,000 for a year at 10 per cent, interest; that plaintiff gave a note for $8,000; that defendant was paid $1,200, which was $400 in excess of lawful interest; that he did not deliver the full face of the note to plaintiff, but withdrew $800, only advancing $7,200, for which, by means of a subterfuge, he exacted and received the further sum of $400, alleged a payment by plaintiff to defendant of $1,200 and stated a cause of action, within Vernon’s Say les’ Ann. Civ. St. 1914, art. 4982, providing that it is necessary to allege and show that the usurious interest was in fact actually received by and paid to defendant.</p> <p>[Ed. Note. — For other cases, see Usury, Cent. Dig. 272-306; Dec. Dig. § 111.*]</p> <p>2. Appeal and Error (§ 501*) — Assignments of Error — Exceptions—Objections.</p> <p>Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 50, providing that objections shall be made to the charge before the same is read to the jury, and all objections not so made shall be considered waived, assignments of error, complaining of the charge, the submission of issues, and the failure to give special charges requested, cannot be considered, where the record fails to show that exceptions were reserved at time of trial.</p> <p>OEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dee. Dig. § 501.*]</p> <p>3. Exceptions, Bill of (§ 31*) — Approval by Trial Judge — Necessity.</p> <p>A paper, in the record on appeal, which purports to be exceptions to instructions given and refused, cannot be considered as á bill of exceptions when not approved or certified to by the trial judge.</p> <p>[Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 36; Dec. Dig. § 31.*]</p> <p>On Motion for Rehearing.</p> <p>4. Bills and Notf.s (§ 534*) — Attorneys’ Fees — Right to Recover.</p> <p>A payee of a note, stipulating for 10 per cent, attorney’s fees, may not recover attorney’s fees, where he does not place the note in the hands of an attorney for collection, but only for foreclosure of a trust deed.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. § 534.*]</p>

<p>1. Appeal and Error (§ 499*) — Questions Review able — Instructions—Exceptions.</p> <p>Under Acts 33d Leg. c. 59, requiring the presentation of objections to the instruction's before they are read to the jury, and providing for the presentation of requested instructions before the argument is begun, and that the ruling in giving, refusing, or qualifying instructions shall be deemed approved unless excepted to, a bill of exceptions complaining of the refusal of a special charge, which fails to show that the charge was presented at the proper time and submitted to opposing counsel for examination, is defective, and the ruling complained of will not be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.*]</p> <p>2. Witnesses (§ 248*) — Examination — Responsiveness.</p> <p>An answer to a question asked a party as to what he thought he was signing when he signed an instrument, “I was full,” is responsive, and shows that he was not likely to remember that he signed any instrument.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec. Dig. § 248.*]</p> <p>3. Appeal and Error (8 .1050*) — Harmless Error — Erroneous Admission op Evidence.</p> <p>The error, if any, in permitting a witness to prove a fact was not reversible, where several other witnesses testified to the same fact without objection.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1068,'1Ó69, 4153-4157, 4166; Dec. Dig. § 1050.*]</p>

Robinson, Judge. Action by the Texas Packing Company against the Gulf, Colorado & Santa PS Railway Company, in which defendant impleaded the Wabash Railroad Company, and sought to recover over against it. Prom a judgment for plaintiff against defendant named, and in favor of the Wabash Railroad Company as a'gainst defendant named, it appeals.

<p>1. Conteacts (§ 335*) — Performance — Actions — Pleading—Sufficiency.</p> <p>A petition, in an action for compensation for. plans for fixtures for a part of a business building, which alleges that defendant accepted the plans drawn by plaintiff, that the plans were satisfactory and complied with the contract, and that defendant found no fault therewith nor made any objection thereto, but failed to install the improvements, states a cause of action as against a demurrer, though the contract required that the services should be to the entire satisfaction of defendant before he should be required to pay therefor.</p> <p>[Ed. Note. — Por other cases, see Contracts, Cent. Dig. '§§ 1664-1676; Dec. Dig. § 335.*]</p> <p>2. Work and Labor (§ 9*)~Contract — Performance.</p> <p>One who furnishes plans for fixtures and furniture for a part of a business building in compliance with the contract therefor may recover on a quantum meruit for the services rendered on an arbitrary refusal to accept and pay for the plans.</p> <p>[Ed. Note. — Por other cases, see Work and Labor, Cent. Dig. §§ 23-24; Dec. Dig. § 9.*]</p> <p>3. Appeal and Error (§ 263*) — Questions Reviewable — Assignments of Error — Instructions.</p> <p>Under Rev. St. 1911, art. 1974, as amended by Acts 33d Leg. c. 59, providing that objections to instructions not made before they are read shall be considered waived, and article 2061, as amended by the same act, providing that the rulings of the court on instructions shall be deemed approved unless excepted to, errors predicated on the refusal of special charges requested will not be considered, where the record fails to show that any exceptions were reserved to the refusal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dee. Dig. § 263.*]</p> <p>4. Trial (§ 349*) — Instructions — Special Issues — Disceetion of Court.</p> <p>Where the evidence authorizes the submission of the case to the jury, the court may submit it either in a general charge or by special issues.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.*]</p> <p>5. Trial (§ 256*) — Instructions — Requests —Necessity.</p> <p>Errors of omission in a charge must be cured by special requested instructions, or a party cannot complain.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p> <p>6. Appeal and Error (§ 1033*) — Harmless Error — Instructions.</p> <p>A party cannot complain of an explanation made by the court of a charge where the explanation is to his advantage.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*]</p> <p>7. Appeal and Error (§ 1001*) — Verdict— Conclusiveness.</p> <p>A verdict sustained by evidence will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. Í 1001.*]</p> <p>8. Contracts (§ 305*) — Settlement—Fraud —Mistake.</p> <p>A party who pays for services rendered may not, without proving that the settlement was induced by fraud, accident, or mistake, recover damages for defective services.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 1398, 1399, 1400, 1463, 1464, 1467-1475; Dec. Dig. § 305.*]</p>

<p>Appeal from District Court, Llano County; Clarence Martin, Judge.</p> <p>Action by the Wakefield Iron & Coal Land Improvement Company against James Ratliff. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bexar County ; W. F. Ezell, Judge.</p> <p>Action by Emily Whitaker and others against Amanda Shenault and another. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, McLennan County; Tom D. McCullough, Judge.</p> <p>Action by Sid Post against J. W. Riggins. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Rusk County; W. R. Stephen, Judge.</p> <p>Trespass to try title by D. A. Buie and R. W. Simpson, against D. W. Penn and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Coleman County; John W. Goodwin, Judge.</p> <p>Action by J. B. Dibrell, Jr., against the City of Coleman and others. From a judgment dissolving a temporary injunction, plaintiff appeals.</p>

<p>1. Accord and Satisfaction (§ 7*) — Liquidated Demands — Payment of Less Sum than Due — Effect.</p> <p>Payment of a less sum on the date fixed for payment of a liquidated demand, or after default, is not in satisfaction for the whole, though it was agreed that the payment should satisfy the -whole, because there is no consideration for the discharge of the demand.</p> <p>[Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 46-58, 66, 94, 95; Dec. Dig. § 7;* Payment, Cent. Dig. § 183.]</p> <p>2. Accord and Satisfaction (| 1*) — Agreement Constituting.</p> <p>An accord and satisfaction is the result of an agreement between creditor and debtor, and, where the creditor abates the claim against the debtor, it must appear that he understood, or should have understood, that he was so doing when receiving the consideration claimed, and an accord and satisfaction, to be enforceable, must be supported by a good or valuable consideration, however slight.</p> <p>[Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 1-13; Dec. Dig. § 1.* For other definitions, see Words and Phrases, First and Second Series, Accord and Satisfaction.]</p> <p>3. Accord and Satisfaction (§ 10*) — Compromise and Settlement (§ 6*) — Disputed ■ Claims — Payment—Consideration.</p> <p>Where there was a bona fide dispute as to the amount due on an account, a payment by the debtor of a less sum than that demanded by the creditor as a payment in full, and so accepted by the creditor, amounted to an accord and satisfaction supported by a consideration, barring recovery of any balance claimed by the creditor.</p> <p>[Ed. Note. — For other eases, see Accord and Satisfaction, Cent. Dig. J§ 67-74; Dec. Dig. § 10;* Compromise and Settlement, Cent. Dig. §§ 35-50; Dee. Dig. § 6.*]</p> <p>4. Accord and Satisfaction (§ 10*) — Compromise and Settlement (§ 6*) — Disputed Claims — Payment—Consideration.</p> <p>Where there was a bona fide dispute as to the amount due on an account, and the debtor delivered to the creditor a check for a less sum than the amount demanded by the creditor, with the statement indorsed on it that it was in full payment, and the creditor accepted the check and cashed it, there was an accord and satisfaction.</p> <p>[Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. J§ 67-74; Dec. Dig. § 10;* Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.*]</p> <p>5. Appeal and Error (§ 934*) — Findings— Presumptions.</p> <p>Where the evidence on an issue not submitted was practically undisputed, the facts in support of the judgment will, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, be deemed as found by the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. § 934.*]</p> <p>6. Accord and Satisfaction (§ 10*) — Compromise and Settlement (§ 6*) — Disputed Claims — Payment.</p> <p>Where an agent of a creditor, while in the discharge of his authority with reference to 'a demand of his principal, learned that the debtor disputed the amount due, and with such knowledge accepted a check stating that it was in full payment of the amount due, and the principal cashed the check and appropriated the proceeds, there was an accord and satisfaction barring a further recovery by the principal.</p> <p>[Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. J§ 67-74; Dec. Dig. § 10 ;* Compromise and Settlement, Cent. Dig. §§ 35-50; Dec. Dig. § 6.*]</p> <p>7. Principal and Agent (§ 178*) — Knowledge of Agent — Knowledge of Principal.</p> <p>Knowledge of an agent obtained in the business of his principal, and while acting within the scope of his apparent authority, is notice to the principal.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 680-684; Dec. Dig. § 178.*]</p>

Cooley, Judge. Action by C. J. Fogleman against the Texas Midland Railroad and others. From a judgment for plaintiff against certain of the defendants, they appeal.

<p>1. Sales (§ 39*) — Kbaud—Subsequent Agreements — Defect.</p> <p>Where a purchaser of a half interest in a business, conducted by the seller as sole owner, on learning of the owner’s fraudulent concealment of a mortgage on the property agreed to assume the mortgage debt in consideration of the owner surrendering his interest in the business, the agreement was lawful, and the original concealment was immaterial.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 78; Dec. Dig. § 39.*]</p> <p>2. Appeal and Error (§ 1092*) — 'Veedico>— Conclusiveness.</p> <p>A verdict on conflicting evidence is conclusive on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]</p> <p>3. Appeal and Error (§ 499*) — Questions Review able — Rulings on Instructions— Record.</p> <p>Where the record fails to show by bill of exceptions that objections to the charge were presented before the charge was read, or fails to disclose that the objections were preserved by bill of exceptions, assignments of error complaining of the charge cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.*]</p>

<p>1. Landlord and Tenant (§ 331*) — :Renting on Shakes — Re-entky by Landlord.</p> <p>Where a landlord orders a tenant of premises rented on shares to vacate before the end of his term, and the tenant does so, the lease is terminated; but the tenant’s right to recover for the wrongful breach by the landlord is not thereby defeated.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. § 331.*]</p> <p>2. Landlord and Tenant (§ 329*) — Renting on Shares — Re-entry by Landlord.</p> <p>The fact that a tenant on shares vacated the premises upon receiving a written notice from the landlord, stating that he considered that the tenant had violated his contract and notifying him to leave the farm, was not an admission by the tenant that he had violated the lease.</p> <p>[Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. §§ 1364-1366; Dec. Dig. § 329.*]</p> <p>3. Landlord and Tenant (§ 331*) — Renting on Shares — Breach by Landlord — Sufficiency oe Evidence — Damages.</p> <p>In an action by a tenant, who rented on shares as much of a tract of 500 acres of land as he could use, to recover damages for his eviction from the premises three years before the expiration of his term, evidence held sufficient to support a verdict for.$1,500.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. § 331.*]</p> <p>4. Trial (§ 252*) — Requested Instructions —Applicability to Evidence.</p> <p>In an action by a tenant on shares for damages caused by his eviction from the premises, a requested charge, that if the jury found that the tenant couid by ordinary diligence on his part have procured a similar lease, which would have produced equal crops, he could not recover for those years, was properly refused, where there was no evidence that the tenant could have procured another lease for as much, land, or one giving him the use of a team and tools equal to those he had the use of under his lease.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]</p> <p>5. Landlord and Tenant (§ 331*) — Renting on Shares — Re-entry by Landlord — Burden oe Prooi^-Minimizing Damages.</p> <p>The burden was on the landlord to show that the tenant could have procured such a lease.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. § 331.*]</p> <p>6. Trial (§ 260*) — Requested Instructions —Repetition oe Charge Given.</p> <p>Even if a requested charge that a tenant on shares, evicted by the landlord during the term, could not recover for the eviction if, by reasonable diligence, he could have found a similar lease, was proper under the evidence, it was covered by the charge of the court that it was the duty of the tenant to exercise ordinary care to lease other premises or seek other employment to minimize the damages, and that the jury should deduct from the amount the tenant would have received under the lease any amount that he had earned, or by the use of ordinary care could have earned, during that time.</p> <p>[Ed. Note. — For other cases, see Trial. Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]</p> <p>7. Landlord and Tenant (§ 331*) — Renting on Shares — Re-entry by Landlord — Damages.</p> <p>Where a landlord wrongfully evicted a tenant from land which he had rented on shares, the measure of damages was the market value of the crops which the tenant in reasonable probability would have grown on the premises during the remainder of .the term, less the expenses, other than the labor of the tenant, incurred in raising the crops, and less such sums as the tenant did earn, or by the exercise of ordinary care could have earned, during the time after the eviction.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. § 331.*]</p>

<p>1. Death (§ 13*) — Action fob Death of Child — Right to Recover.</p> <p>A parent cannot recover for the death of a child -unless defendant was guilty of a breach of duty.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 48; Dec. Dig. § 13.*]</p> <p>2. Negligence (§ 39*) — Care of Premises— Invitation to Children.</p> <p>An owner of premises ,who invites or allures a child into a place of danger and negligently injures it while there may be liable therefor, in the absence of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. § 39.*]</p> <p>3. Negligence (§ 32*) — Care of Premises— Invitation to Enter.</p> <p>Where a person enters on the private property of another by invitation of the latter, a lawful relation is established, and the law imposes on the latter a duty to exercise reasonable care for the safety of the former.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 42-44; Dec. Dig. § 32.*]</p> <p>4. Negligence (§ 39*) — Care of Premises— Invitation to Children.</p> <p>A railroad company which maintains a reservoir occupying a block and located' on ground higher than the surrounding ground and filled with water pumped into it through a pipe, and which permits grass to grow on a strip between the fence surrounding the reservoir and the reservoir, which grass is greener than the grass outside the fence, does not maintain an unusually attractive place for children, and is not liable for the death of a child drowned in the reservoir after passing through a defect in the fence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. § 39.*]</p> <p>5. Negligence (§ 39*) — Care of Premises— Invitation to Children.</p> <p>Where a child passed through a defective fence surrounding a reservoir maintained by a railroad company, to get grass between the fence and the reservoir, and fell into the reservoir, there could be no recovery for the death of the child by drowning, on the theory that the reservoir was unusually attractive to children, and that the company failed to exercise reasonable care for the safety of children.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 55; Dec. Dig. § 39.*]</p> <p>6. Appeal and Error (§ 1175*) — Disposition of Case on Appeal.</p> <p>Where a ease was fully developed on the trial, the court, on appeal from an erroneous judgment, will render a proper judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. § 1175.*]</p>

<p>1. Appeal and Error (§ 916*) — Review— Presumptions.</p> <p>Where the original answer, which alone set up defendant’s plea of privilege, was not in the record, it will be presumed that the plea was properly denied.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. § 916.*]</p> <p>2. Continuance (§ 24*) — Right to — Cumulative Testimony.</p> <p>A party’s first application for continuance cannot be denied because the evidence of the absent witness was cumulative.</p> <p>[Ed. Note. — Eor other cases, see Continuance, Cent. Dig. § 72; Dec. Dig. § 24.*]</p> <p>3. Continuance (§ 47*) — Application—Opposition.</p> <p>Testimony that the absent witness had stated that he would not swear to the facts set forth in the first application for continuance was not admissible.</p> <p>[Ed. Note. — Eor other eases, see Continuance, Cent. Dig. § 141; Dec. Dig. § 47.*]</p> <p>4. Trusts (§ 43*) — Parol Evidence — Admis-SIBIILTY.</p> <p>Where it was sought to ingraft a parol trust on a conveyance of land, evidence of declarations of the deceased grantor is not inadmissible because the witness could neither state the exact language of the grantor, nor give the exact dates.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec.'Dig. § 43.*]</p> <p>5. Trusts (§ 43*) — Declarations—Hearsay.</p> <p>The grantor being dead, such evidence was not hearsay.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>6. Evidence (§ 155*) —Admissibility — Admission Because of Admission of Other Evidence.</p> <p>Where the question of a parol trust was in issue, one party, having introduced evidence of declaration of the deceased grantor, cannot complain that the other introduced similar evidence.</p> <p>[Ed. Note. — Eor other cases, see Evidence. Cent. Dig. §§ 444-458, 2148; Dec. Dig. § 155.*]</p> <p>7. Trusts (§ 43*) — Establishment of Trust —Evidence—Admissibility.</p> <p>Evidence of the feelings of the grantor to her granddaughters is admissible, where it is sought to establish a parol trust for their benefit upon land conveyed to a daughter.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dee. Dig. § 43.*]</p> <p>8. Trusts (§ 44*) — Parol Trusts — Establishment.</p> <p>While a parol trust may be ingrafted upon a deed, absolute on its face, the evidence must be clear and satisfactory.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.*]</p> <p>9. Trusts (§ 44*) — Parol Trusts — Evidence —Insufficiency.</p> <p>Evidence held insufficient to establish a parol trust in favor of appellees upon land conveyed to another.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.*]</p> <p>10. Trusts (§ 43*) — Evidence—Admissibility.</p> <p>In a suit to establish a parol trust upon land apparently conveyed absolutely, evidence of declarations of the grantor not made in the grantee’s presence is admissible.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>11. Trusts (§ 43*) — Parol Trusts — Evidence.</p> <p>Evidence of the grantor’s intention, at a time many years before conveyance of land, is admissible to show that a conveyance absolute on its face was subject to parol trust.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>12. Witnesses (§ 248*) — Responsiveness of Testimony.</p> <p>Testimony not responsive to the questions should be excluded.</p> <p>[Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 861-863; Dec. Dig. § 248.*]</p> <p>13. Trusts (§ 43*) — Parol Trusts — Evidence.</p> <p>Evidence of what a grantee said she would do with land is not admissible to charge the property with a parol trust.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>14. Trusts (§ 43*) — Parol Trusts — Evidence.</p> <p>Testimony of the payment of bills of the grantee in New York and Hot Springs is not relevant to claim that the land was subject to a parol trust. ,</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>15. Trusts (§ 43*) — Parol Trusts — Evidence.</p> <p>Evidence of the property of the alleged beneficiaries is inadmissible in a proceeding to establish a parol trust.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>16. Trusts (§ 43*) — Parol Trusts — Evidence.</p> <p>While evidence of declarations by the grantor before conveyance is admissible to establish a parol trust, declarations after conveyance should be excluded.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>17. Trusts (§ 43*) — Parol Trusts — Evidence.</p> <p>.Evidence that a grantor had supported the grantee is immaterial in a proceeding to charge the property conveyed with parol trust in favor of other objects of the grantor’s bounty.</p> <p>[Ed. Note. — Eor other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>18. Evidence (§ 471*) — Parol Trusts — Opinion Evidence.</p> <p>In a suit to establish a parol trust, where a medical expert testified as to the feebleness of the grantor after the conveyance, and that the grantee took charge of everything, testimony by another witness that the grantor had control of the property up to the time of her death is inadmissible, being the mere conclusion of the witness.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. § 471;* Witnesses, Cent. Dig. § 835.]</p> <p>19. Trusts (§ 43*) — Parol Trusts — Evidence.</p> <p>Evidence that the grantor made presents to one of the alleged beneficiaries is inadmissible to establish a parol trust upon a conveyance to another absolute on its face.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>20. Trusts (§ 43*) — Evidence to Establish —Parol Trust.</p> <p>Where the father of one of the alleged beneficiaries, who was managing her interests, wrote a letter showing that she asserted no parol trust in her behalf, such letter is admissible to rebut her claim of a trust.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p> <p>21. Trial (§ 120*) — Argument oe Counsel. It is improper for counsel to claim that a</p> <p>witness made statements which he did not in fact make.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. § 120.*]</p> <p>22. Trial (§ 25*) — Right to Open and Close.</p> <p>The burden of proof is upon one seeking to establish a parol trust upon land conveyed by deed, absolute on its face, so that such party was entitled to open and close.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 44-75; Dec. Dig. § 25.*]</p> <p>On Motion for Rehearing.</p> <p>23. Trusts (§ 43*) — Parol Trusts — Establishment.</p> <p>Whether a conveyance was incumbered by a parol trust depends upon the intention of the grantor at the time of the conveyance.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 62-65; Dec. Dig. § 43.*]</p>

N. Browning, Judge. Action by the First National Bank of Claude against Thomas J. David and J. C. Esohle and another. From a judgment for plaintiff, the named defendants appeal.

<p>Appeal from El Paso County Court; A. S. Eylar, Judge.</p> <p>Action by A. Schwartz against the Royal Indemnity Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Cdurt, Reeves County; S. J. Isaacks, Judge.</p> <p>Suit by Ira M. Cobe against Daniel P. Sanford. From a judgment for plaintiff, defendant appeals.</p>

<p>MONOPOLIES (§ 12*) — Cointracts—Restraint of Trade — “Trust.”</p> <p>A contract binding a party thereto to prevent the use for two years of a building for a lunch counter in competition with the lunch business of the other party conducted in the vicinity is void as in restraint of trade, within? Rev. St. 1911, art. 7796, defining a trust as a combination of capital, skill, or acts by two or more persons to create restrictions in the pursuit of any business permitted by law, etc.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Trust.]</p>

<p>1. Railboads (§ 345*) — Accidents at Crossings — Variance.</p> <p>In an actiqp for the negligent killing of a pedestrian at a railroad crossing, proof that the deceased was crossing from, the north to the south is not a material variance from the allegation that he was crossing in the opposite direction ; since it could not possibly surprise or mislead the defendant so as to deprive it of its defense to the real cause of action.</p> <p>[Ed. Note — Eor other cases, see Railroads, Cent. Dig. §§ 1113-1116; Dec. Dig. § 345.*]</p> <p>2. Railroads (§ 337*) — Accidents at Crossings — Warning Signals — Proximate Cause.</p> <p>The failure of railroad enginemen to sound warnings on approaching a highway crossing does not render the company liable for the death of a pedestrian killed at the crossing, unless it was the proximate cause of such death.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1090-1095; Dec. Dig. § 337.*]</p> <p>3. Appeal and Error (§ 1001*) — Review-Verdict — Proximate Cause.</p> <p>Where there is sufficient evidence to take to the jury the question whether the negligence of defendant was the proximate cause of the injury, the jury’s verdict on that issue cannot be disturbed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.*]</p> <p>4. Railroads (§-337*) — Accidents at Crossings — Warning Signals — Proximate Cause.</p> <p>Where the testimony showed that deceased stepped on a railroad track at a highway crossing, where the view was unobstructed, only 25 feet in front of a freight train consisting of 22 cars, which necessarily made considerable noise, and whose headlight lighted up the track for a quarter of a mile, it cannot be said that the blowing of the whistle or ringing of the bell would have been effective to warn him, and the failure to sound such signals was therefore not the proximate cause of his death.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 1090-1095; Dec. Dig. § 337.*]</p>

<p>1. Wins (§ 88*) — Wills Distinguished from Deeds.</p> <p>An instrument executed and acknowledged by a husband as a deed, whereby he gave, granted, and conveyed to his wife and children all his property on conditions and limitations prescribed, and whereby he declared that he did not intend to convey a present interest, but intended to retain control for life, and, in case of his death, gave, granted, and conveyed a life estate to the wife, to terminate on her remarriage, and, when the title vested in the children, he gave, granted, and conveyed described parts to each child, was a deed within Rev. St. 1911, art. 1111, providing that an estate of freehold may be made to commence in future by deed, and not a will.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 208-217; Dec. Dig. § 88.*]</p> <p>2. Wills (§ 88*) — Wills Distinguished from Deeds — Instruments—Intention of Parties.</p> <p>The court, in determining whether an instrument disposing of property is a deed or will, will give effect to the intention of the maker, clea-rly indicated by the language used.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 208-217; Dec. Dig. § 88.*]</p> <p>3. Wills (§ 93*) — Deed or Wili^-Paeol Evidence.</p> <p>Where the language of an instrument disposing of property does not clearly express the intention of the maker as to whether the instrument is a deed or a will, parol evidence is admissible to determine intention.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 222-224; Dec. Dig. § 93.*]</p>

<p>Appeal from District Court, Presidio County ; W. O. Douglas, Judge.</p> <p>Trespass to try title by C. O. Thomas against T. C. Mitchell and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Counties (§ 43*) — Officers—Teem— Constitutional and Statutory Provisions — “Vacancy.”</p> <p>Const, art. 5, § IS, directs the division of each county in the four precincts, in each of which there shall be elected one county commissioner to hold office for two years, and until his successor is elected and qualified, which provision is re-enacted by Rev. St. 1911, art. 2236; and Const, art. 16, § 17, provides that all officers shall perform the duties of their office until their successors are duly qualified. Rev. St. 1911, art. 2240, provides that upon vacancy in the office of commissioner the county judge shall appoint a suitable person to serve until the next general election; section 3030 provides that on Monday following election the county commissioners’ court shall open the election returns and declare the results; and section 3032 requires the county judge to thereafter deliver a certificate' of election. Plaintiff was elected a county commissioner at a general election November 5, 1912, and duly qualified November 3, 1912. Held, that his term -expired on the Monday following an election November 3, 1914, and that on failure to elect a commissioner he was not entitled to hold over, but there was a “vacancy” in the office, so that defendant’s appointment and' qualification thereafter were not premature, and would not be enjoined.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 51; Dec. Dig. § 43.*</p> <p>For other definitions, see Words and Phrases, First and Second Series, Vacancy.]</p>

B. Hopkins, Judge. Proceedings by S. O. Navarro for the probate of the will of Virginia G. De Caro, deceased, contested by Euuardo G. Garcia and another. From a judgment in the district court, on appeal from the county court, in favor of contestants, the proponent appeals.

<p>Appeal from District Court, Panola County; W. C. Buford, Judge.</p> <p>Suit by A. M. Crawford against T. T. Crawford. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error (§ 1170*) — Reversible Error — Repetition op Csarge — Rule op Court.</p> <p>Under rule 62a for Courts of Civil Appeals (149 S. W. x), forbidding reversal on the ground of error of law in the trial, unless the appellate court believes that it was such a denial of appellant’s rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment, or prevented the appellant from making a proper presentation to the appellate court, the giving of defendant’s special charges, which were repetitions of the general charge and alleged to have emphasized the defenses of assumed risk and contributory negligence, was not reversible error.</p> <p>LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*]</p> <p>2. Appeal and Error (§ 1170*) — Reversible ■Error — Charges—Rule op Court.</p> <p>Under such rule, a charge authorizing a verdict for defendant on a finding that the condition of the footboard and hose was not due to defendant’s negligence in failing to inspect and repair them, in view of the alleged negligence in allowing them to become and remain out of repair, was not reversible error, since the jury might understand that they were to base their finding on allowing them to become and remain out of repair, and not on defendant’s failure to furnish in the first instance reasonably safe instrumentalities.</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>1. Trial (§ 356*) — Special Verdicts — Answer to Interrogatory.</p> <p>Where the jury disagreed as to one special question, although answering another question which in different terms submitted the same matter, the question answered will not support a judgment, for evidently the jury did not understand one question.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 84.9-854; Dec. Dig. § 356.*]</p> <p>2. Bills and Notes (§ 373*) — Validity.</p> <p>A note obtained by false and fraudulent representations is valid in the hands of an innocent purchaser for value without notice.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 966-970; Dec. Dig. § 373.*]</p>

<p>Appeal from District Court, Grayson County; W. J. Mathis, Judge.</p> <p>Trespass to try title by F. E. Gardenhire against C. M. Gardenhire and others. Judgment for the plaintiff, and defendant C. M. Gardenhire appeals.</p>

C. Buford, Judge. Trespass to try title by Joe Cariker and others against A. W. Davis, Jr., and others. Judgment for defendants, and plaintiffs bring error.

<p>Appeal from District Court, Bowie County; H. F. O’Neal, Judge.</p> <p>Action by Mrs. Lillie B. Casey, as admin-istratrix, against the Texarkana & Ft. Smith Railway Company. From a judgment for plaintiff, defendant appeals.</p>

T. Armstead, Judge. Action by Pridgen & Congleton against the Jefferson Cotton Oil & Fertilizer Company. Judgment for plaintiffs, and defendant appeals. Appellees were the plaintiffs In the court below. They claimed that appellant was due them $3,368.97 on account of work done by them for it under a contract in writing whereby they undertook to construct for appellant certain brick and wooden buildings to be used by it in its business as an oil and fertilizer company.

T. Armstead, Judge. Action by I-Iomer Terrell, a minor, by his mother as next friend, against the Texarkana & Ft. Smith Railway Company, consolidated with action by Mrs. Emma Terrell, the mother, against same defendant. Verdict for each of the plaintiffs, and defendant appeals.

Junell, Judge. Action by .the Cumby Mercantile & Lumber Company against the Shippers’ Compress & Warehouse Company and others. Judgment for plaintiff against Shippers’ Compress & Warehouse Company, and it appeals. This was a suit by the Cumby Mercantile & Lumber Company against its coappellees M. H. Wolfe & Co. and the Missouri, Kansas & Texas Railway Company of Texas and the appellant the Shippers’ Compress & Warehouse Company.

T. Lyttleton, Judge. Suit by C. Smith against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for $50,000, defendant appeals. This was a suit by appellee against appellant for damages for personal injuries, in which judgment was rendered for appellee for $50,000.

<p>Appeal from District Court, Fannin County; Ben H. Denton, Judge.</p> <p>Action by G. W. Huff against the St. Paul Fire & Marine Insurance Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, I-Iill County; Horton B. Porter, Judge.</p> <p>Action by Charlie Rose against the Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Sales (§ 220*) — Contract to Sell-Assign-ability.</p> <p>A contract to sell to a certain retailer such gasoline as he shall need for his business, within certain limits, for a year, on 30 days’ credit from date of invoices, involves personal credit, trust, and confidence, and s<j.is not assignable by the buyer without the consent of the seller.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. § 606; Dec. Dig. § 220.*]</p>

<p>1. Limitation on Actions (§§ 13, 100*) — Plead in g- as Defense — -Estoppel.</p> <p>Where a surety on a contractor’s bond, who was not liable thereunder to materialmen, told a materialman in good faith that he was liable for all materials furnished the contractor, he was not thereby estopped from pleading limitations in answer to an amended petition stating a cause of action for such false representations, in an action in which the original petition sought to recover on the bond, and limitations ran against such cause of action from the time that the materialman saw the bond, or by the use of reasonable diligence might have seen it, as the materialman was presumed to know the law, and, when he became familiar with the provisions of the bond, was not entitled to rely on the surety’s misrepresentation as to a matter of law.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 56-58, 323, 480-493; Dec. Dig. §§ 13, 100.*]</p> <p>2. Sales (§ 358*) — Actioin fob Pbice — Evidence — Relevancy—Value.</p> <p>In an action against a contractor for the value of lumber furnished for use in the construction of a school building, where the contractor by sworn plea denied some of the items and amounts shown on the account, and testified that the price paid was the wholesale price, plus $2.50 per thousand feet, an estimate by the superintendent of the building, showing the amount and value of the material used to a certain date in the construction of the building, practically all of the data for which estimate was obtained from the contractor, was properly admitted upon the issue of value.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1049-1055; Dec. Dig. § 358.*]</p>

F. Ezell, Judge. Action by W. E. Vasbinder against the Gulf, Colorado & Santa Fé Railway Company and others. From a judgment for plaintiff against the named defendant, it appeals.

<p>Appeal from District Court, Webb County; J. F. Mullally, Judge.</p> <p>Action by tbe beirs of Bias Ma. Gutierrez against Eudoxio Martinez and others. Judgment for plaintiffs, and defendants' appeal.</p>

<p>1. Vendor and Purchaser (§ 232*) — Bona Fide Pdrohasek> — Notice—Possession.</p> <p>Where plaintiff purchased from a lessor, after ascertaining from the records that the lessor’s title was unincumbered, except by a lease to defendant, who was in possession, and after the lessor had denied making any other conveyance, plaintiff was not chargeable with notice of the lessor’s deed to the lessee, which was- not recorded till after plaintiff’s.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. § 232.*]</p> <p>2. Adverse Possession (§ 60*) — Requisites.</p> <p>Where one takes possession of the land of another under license, his holding will not become adverse to the owner without some open and hostile act on his part to evidence his claim of adverse possession.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 282-312, 323, 328; Dec. Dig. § 60.*]</p>

<p>Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge.</p> <p>Action by Mrs. E. P. Sayres against the Street-Whittington Company. Judgment for the plaintiff, and defendant appeals.</p>

B. Hopkins, Judge. Suit by R. H. Corbett and others against J. V. Palacios, as. County Clerk, and others. From a judgment granting plaintiffs a writ of mandamus, defendants appeal.

<p>Criminal Law (§ 1184*) — Appeal — Correction of Sentence.</p> <p>Where the judgment and sentence both failed to place the punishment within the indeterminate sentence law, they will be reformed on appeal, so as to conform to that law.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig, §§ 3199, 3200; Dec. Dig. § 1184.*]</p>

<p>Appeal from Smith County Court; Jesse F. Odom, Judge.</p> <p>Frankie Stewart was convicted of violating the local option law, and appeals.</p>

<p>1. Master and Servant (§ 297*) — Injuries to Servant — Special Findings — Inconsistency.</p> <p>In an action for the death of a railway engineer killed when his engine left the track, the jury answered a special issue as to whether the track was uneven or not properly ballasted, or whether there were sunken joints in it, in the negative. It also found specially that the track was not in a reasonably safe condition for the passage of locomotives and trains; that this, with- the nature of the engine, was the proximate cause of the wreck ; that the track was not reasonably safe for high speed, or for a work train at a low speed; that the locomotive in question could be run on the track at 15 miles an hour with safety; that deceased had orders not to run it over 12 miles an hour; that defendant was not exercising ordinary care to have the track in safe condition; that it could not have known of the unsafe condition by the exercise of ordinary care; and that deceased was operating the train at from 8 to 15 miles an hour. Held that, even construing the answer to the first mentioned issue, its meaning being doubtful, as a finding that the road was not properly ballasted, the findings were still in direct conflict and a judgment thereon could not be sustained.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dec. Dig. § 297.*]</p> <p>2. Trial (§ 350*) — Special Interrogatories —Questions to be Submitted.</p> <p>The special issue law was intended to simplify trials by the submission to the jury of those matters touching the liability dr nonlia-bility and the pertinent defenses, and was not intended to require a finding on every fact tending to establish or disprove these main issues.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. § 350.*]</p> <p>3. Evidence (§§ 121, 317;* § 275% New, vol. 18 Key-No. Series) — Hearsay—Exceptions to Rule.</p> <p>Where, in an action for death, it was shown that deceased, after the death of his mother, who was named as the beneficiary in an insurance policy, made his younger brother the beneficiary for the purpose of showing that he would not have contributed to the support of Ms father for whose benefit the action was brought, evidence that the mother, on her deathbed, but some time before her death, requested deceased to make this change, was not admissible as res gestse, as a dying declaration, or under any other exception to the rule excluding hearsay evidence.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119, 1174-1192; Dec. Dig. §§ 121, 317.*)</p> <p>4. Evidence (§ 275%, New, vol. 18 Key-No. Series) — Hearsay—Dying Declarations.</p> <p>'A .statement that would not be admissible if declarant were living is not admissible as a dying declaration, and the declarant must have knowledge of the transaction.</p> <p>5. Death (§ 104*) — Actions—Instructions— Measure oe Damages.</p> <p>Where, in an action for death, the court submitted a special issue as to the sum which, if paid at the time of the trial, would be equal to the pecuniary benefit that plaintiff had a reasonable expectation of receiving, it was not necessary to tell the jury to find what total sum deceased would have contributed to plaintiff had he lived, and then discount this by deducting interest to show the present worth.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.*]</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by Ladislado Lopez against the Gordon Jones Construction Company. Judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Victoria County ; John M. Green, Judge.</p> <p>Action by J. W. Rutland against Charles Ara. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bexar County; W. E. Ezell, Judge.</p> <p>Action by T. E. Proctor and another against Terrell, Atkins & Harvin. Judgment for plaintiffs, and defendants appeal.</p>

<p>Petition by the First National Bank of Aspermont for a writ of mandamus against T. H. Conner and others, Judges of the Court of Civil Appeals for the Second District.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by H. C. Middleton against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Aransas County Court; Roy Jackson, Judge.</p> <p>Action by A. L. Bracht against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Kaufman County Court; James A. -Cooley, Judge.</p> <p>Action by R. S. Rodgers against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Wood County Court; R. E. Bozeman, Judge.</p> <p>Action by C. I-Iood against the Missouri, Kansas & Texas Railway Company of Texas. From judgment for xilaintifC, defendant appeals.</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Action by Charley Anderson against Charles Schumm and another. Judgment for the plaintiff, and defendant Schumm appeals.</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Trespass to try title by Jacob Snover against Paul Jones. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Carriers (§ 180*) — Loss or Injury to Goods — Notice of Claim.</p> <p>A notice in writing to the freight claim agent of a connecting carrier of a shipper’s claim for damages was a sufficient compliance with a provision of the contract with the initial carrier requiring such notice.</p> <p>[Ed. Note.' — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.*]</p> <p>2. CARRIERS (§ 185*) — Loss OR INJURY TO Goods — Actions—Evidence.</p> <p>In an action by a shipper against an initial carrier for damages to .a shipment, a letter written a connecting carrier’s claim agent was properly admitted to show that notice of the claim required by the contract of shipment was given the claim agent.</p> <p>[Ed. Note. — Eor other cases, see Carrier?, Cent.. Dig. §§ 835-850'; Dec. Dig. § 185.*]</p> <p>3. Triad (§ 256*) — Instructions—Necessity of Requests.</p> <p>If a more complete instruction on one phase of the case than that given by the court was desired by a party, it should have prepared and requested a special instruction covering such matter.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]</p>

<p>Appeal from District Court, Grayson County ; W. J. Mathis, Judge.</p> <p>Action by N. O. Kinslow against the Missouri, Kansas & Texas Railway Company of</p> <p>Texas. Judgment for the plaintiff, and defendant appeals.</p>

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

<p>Error from District Court, McMullen County.</p> <p>Action by F. G. Hicks against J. E. Murphy and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Courts (§ 183*) — Jurisdiction — County Court — Specific Performance.</p> <p>A county court has no jurisdiction of a cross-action, in an action on an account, which asks specific performance of a contract by plaintiff to purchase land from defendant at the price of $1,000.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ .412, 437, 439, 447, 449-455, 457, 458, 460-464, 467; Dec. Dig. § 183.*]</p> <p>2. Account, Action on (§§ 6, 7*) — Admissibility of Evidence — Relevancy.</p> <p>Where the petition alleged that W. was the agent of the defendant corporation, that one who was indebted to plaintiff in writing instructed W. to pay a certain sum to plaintiff, which amount the defendant, through its agent W., admitted was due from defendant to the drawer of the order and agreed to pay to plaintiff, and the evidence did not controvert W.’s agency, but instead showed that defendant, through its president, had, in a letter to plaintiff, admitted its indebtedness to plaintiff, including the amount of that order, the written order was admissible, over objection that it was not supported by the pleadings, and that it was an attempt to make the defendant answer for the debt of another without showing any agreement in writing on defendant’s part.</p> <p>[Ed. Note. — For other cases, see Account, Action on, Cent. Dig. §§ 8-17; Dec. Dig. §§ 6, 7.*]</p> <p>3. Trial (§ 192*) — Instructions — Assumption of Facts — Uncontroverted Facts.</p> <p>The court in his charge may assume, as established, facts alleged in the petition and not denied, and which are supported by uncontra-dicted evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 432-434; Dec. Dig. § 192.*]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by F. F. Shows against the City of Dallas. From a judgment for defendant, plaintiff appeals.</p>

T. Armistead, Judge. Application by Will A. Kimbrough for a writ of ha-beas corpus to secure admission to bail. Prom a judgment denying admission to bail, he appeals.

<p>Appeal from Tarrant County Court; Jesse M. Brown, Judge. Pete Arnold was convicted of an aggravated assault, and he appeals.</p>

<p>Appeal from District Court, Lampasas County; John D. Robinson, Judge. Will Davis was convicted of violating the liquor prohibition law, and he appeals.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge. Action by C. W. Gibson against W. G. Sterrett, Game, Pish and Oyster Commissioner, and others. From a judgment for defendants on demurrer, plaintiff appeals.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge. Habeas corpus by G. W. Woosley. Prom a judgment denying bail, the petitioner appeals.</p>