Volume 174 — South Western Reporter

<p>1. Appeal and Error <§=>1169 — Submission op Uncontroverted Issue — Beversal.</p> <p>For error in the submission of an uncontro-verted issue contrary to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, judgment will under some circumstances be reversed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4531-4539; Dec. Dig. &wkey;> 1169.]</p> <p>2. Negligence <&wkey;136 — Taking Case prom Jury.</p> <p>Negligence is generally a question of fact, and becomes a question of law only when the act done is in violation of some law, or when the facts are undisputed and admit of but one inference regarding the care of the party in the act in question, or when there is no room for ordinary minds to differ as to the conclusion from the evidence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. &wkey;136.]</p> <p>3. Bailroads <&wkey;357 — Injury to Person on Track — Negligence.</p> <p>A railroad is guilty of actionable negligence in failing to exercise ordinary care to discover ’and avoid injury to persons upon its tracks at such places and times as one of ordinary prudence might expect to find them, and whether such persons are trespassers or not is immaterial to its negligence, considered separately from the issue of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Bailroads, Cent. Dig. § 1235; Dec. Dig. &wkey;357.]</p> <p>4. Bailroads <&wkey;381 — Injuries to Person on Track — Contributory Negligence — Trespasser.</p> <p>A trespasser upon a railroad, excepting minors under the age of discretion and those mentally irresponsible, is guilty of contributory negligence as a matter of law which bars a recovery for injury by a train, in the absence of any showing that those in charge of the train discovered his peril in time to avoid injury and failed to do so, and in the absence of any justifying or excusing circumstances.</p> <p>[Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1285-1293; Dec. Dig. &wkey;381J</p> <p>5. Bailroads <&wkey;400 — Injuries to Person on Track — Negligence—Licensee.</p> <p>The act of going upon a railroad in pursuance of a lawful right to do so, at a public crossing, or where the railroad has expressly or impliedly licensed the act, is not negligence per se.</p> <p>[Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1365-1381; Dec. Dig. &wkey;400.]</p> <p>6. Bailroads <&wkey;381 — Injuries to Person on Track — Contributory Negligence — Trespass.</p> <p>One going into an elevator shed and sitting so that both of his legs were inside the rail, and killed by defendant’s car shunted on its switch into the elevator, in the absence of evidence that any one had ever used the track in such manner, so that there was no possible support for the claim that he was using it with defendant’s knowledge and permission, was a trespasser, ■guilty of contributory negligence as a matter of law.</p> <p>[Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1285-1293; Dec. Dig. &wkey;381.]</p> <p>7. Bailroads <&wkey;381 — Injuries to Person on Track — Contributory Negligence.</p> <p>In such case deceased, even if not a trespasser and guilty of negligence’by reason of that fact, was guilty of contributory negligence as a matter of law barring a recovery, in the absence of any cjrcumstance justifying or excusing him from voluntarily exposing himself to the known danger of being struck by cars that might be switched into the shed.</p> <p>[Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1285-1293; Dec. Dig. &wkey;381.]</p> <p>8. Evidence &wkey;>595 — Inferences — Weight and Sufficiency.</p> <p>In an action for the death of one killed on defendant’s switching track, inferences that the trainmen, who did not testify, had told deceased when other cars were switched in earlier in the day that there would be no more switching that day, and that deceased relied on that assurance, and had never known cars to be switched without warning, and that the trainmen saw him before they shunted the car, amounted to no more than surmises or conjectures not to be given any probative force.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2444, 2445; Dec. Dig. &wkey;595J</p> <p>9. Bailroads <&wkey;390 — Injuries to Persons on Track — Discovered Peril.</p> <p>Evidence that, by the exercise of ordinary care, defendant’s trainmen could have seen deceased, a trespasser, before they shunted the cars and in time to avert the accident, would not establish a prima facie right of recovery on the issue of discovered peril, since an actual discovery of the peril of deceased when the cars were shunted was a necessary predicate to liability on that ground.</p> <p>[Ed. Note. — For other cases, see Bailroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. &wkey;390.]</p> <p>10. Evidence &wkey;>77 — Failure to Call Witnesses — Inference.</p> <p>In the absence of some prima facie showing of defendant’s discovery of decedent’s peril, no inference in his favor could be drawn from defendant’s failure to introduce its trainmen as witnesses,, especially where it did not appear that their testimony was not as available to plaintiff as to defendant.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 97; Dec. Dig. <&wkey;>77.]</p> <p>11. Trial <&wkey;284^-lNSTRUCTioNs — Approval.</p> <p>Where no exception was presented to a</p> <p>charge which affirmatively excluded a recovery upon the issue of discovered peril, plaintiff, within the provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, will be held to have approved such instruction.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. &wkey;284.]</p>

<p>Appeal from County Court, Brooks County; J. A. Brooks, Judge.</p> <p>Action by Jesus G. Benavides against Duis G. Benavides. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Beeves County Court; Ben Palmer, Special Judge.</p> <p>Action by B. F. Capps against F. W. Johnson. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Hidalgo County Court; W. H. Gossage, Judge.</p> <p>Action by John Sehrank against J. J. Busby. From a judgment for plaintiff, defendant appeals.</p>

<p>Application for mandamus by J. B. Wilson against H. B. Dearborn, Sheriff.</p>

<p>1. Appeal and Eeeoe <§=>1051 — Hakmless Eeeoe — Eekoneous Admission op Evidence.</p> <p>Error in permitting a witness to testify to a fact established by agreement of the parties is harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <§=> 1051.]</p> <p>2. Caeeiebs <§=228 — Delay in Teanspobtation of Live Stock — Evidence—Admissibility.</p> <p>Where, in an action against a carrier of live stock for delay in transportation, there was evidence that part of the cattle were sold at Ft. Worth and the balance at Kansas City, evidence of the condition of the cattle at Ft. Worth, if properly handled, was admissible as to the cattle sold there.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <§=>228.)</p> <p>3. Evidence <§=341 — Public Documents— Ceetipied Copies.</p> <p>Where public documents are admissible if produced, bnt cannot, without inconvenience to the public interest, be removed from their place of custody, certified copies or copies verified by some person who has seen the original are admissible, but copies not so shown to be correct are inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1289-1292; Dec. Dig. <§=3341.]</p> <p>4. Evidence <§=>150 — Public Documents — Expebiments.</p> <p>A party seeking to introduce in evidence public documents showing the results of experiments must show that the conditions under which the experiments were made were similar to the conditions involved in the case.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 439; Dec. Dig. <§=>150.]</p> <p>5. Appeal and Eeeoe <§=>499 — Questions Reviewable — Giving and Refusal of In-stbuctions.</p> <p>An assignment of error to the giving and refusing of charges will be overruled where there are no bills of exception in the record as provided by Revised Statutes as amended in 1913 (Acts 33d Leg. c. 59).</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dee. Dig. <§=> 499.]</p>

<p>1. ■ Railroads @=^51 — Freight Transfer — Facilities.</p> <p>The middle of an international bridge, which was owned half by a railroad company of Texas and the other half by a Mexican company, is not such a place as is meant by the statutes requiring the erection of structures suitable for the protection of freight, and the railroad company cannot be compelled to build an inclosure to transfer freight at that point.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 116-118, 120; Dec. Dig. <®=»51.]</p> <p>2. Carriers <©=^18, 20 — Common Carriers— Duty to Exchange Freight.</p> <p>Where a Texas railroad company wrongfully refused to exchange business with a foreign company, it is subject to the penalties provided by Rev. St. 1911, art. 6615, and may be required to discharge its duties by mandamus or injunction.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 13, 16-18, 20, 24, 33-49, 133, 927; Dec. Dig. @=>1S, 20.]</p> <p>3. Receivers • <®=»35 — Appointment—Notice.</p> <p>The National Railways of Mexico having come into the control of a revolutionary faction, the defendant railroad company refused to accept freight and passengers therefrom and exchange its equipment with such company. The defendant railroad company was insolvent, and it lost considerable revenue from its refusal to make exchanges with the Mexican company. Neither creditors nor stockholders of the defendant railway company were complaining of its course, and it was extremely questionable whether those controlling the Mexican company could offer security for the return of equipment. Rev. St. 1911, art. 2128, relating to the appointment of' receivers in general, does not require notice of appointment. Held that, though notice was not required, it should be given except in case of emergency, and that there was no emergency warranting' the appointment without notice of a receiver on suit by the state for the forfeiture of the charter of the defendant railroad company.</p> <p>[Ed. Note. — Eor other cases, see Receiyers, Cent. Dig. §§ 54-00; Dec. Dig. <®=>35.]</p>

T. Lyttleton, Judge. Action by J. R. Prothro against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Appellee’s place as the rear brakeman on one of appellant’s freight trains was in the caboose. It became necessary to cool and repack a “hot box” on the car next to the locomotive. While the train was taking water at a tank at which it had been stopped, appel-lee went from the caboose to the car mentioned and began to work on the hot box.

E. Davis, Judge. Action by Anderson County and others against the International & Great Northern Railway Company. Held: “at the general offices of the company at Palestine,” from 1881 to 1911. It was also proven that directors’ meetings were held at Palestine from 1881 to 1888, inclusive, but were not held after 1888 until April, 1893, on account of injunction proceedings, at the instance of the state, in the suit of State against Ry.

<p>Appeal from Caldwell County Court; J. T. Ellis, Judge.</p> <p>Action by J. H. Long against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error <§=>759 — Briefs—Assignments of Erkob.</p> <p>Appellant’s brief, copying into the assignments of error words, phrases, and sentences not contained in his motion for a new trial, and omitting other words, etc., violated the rule requiring the assignments relied on to be copied in appellant’s brief, which does not permit appellant to reconstruct the assignment either in form or substance, since the appellee is entitled to have the case presented on appeal upon the same questions that were considered in the lower court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <§=>759.J</p> <p>2. Appeal and Ebeob <§=>742 — Assignments op Error — Statement.</p> <p>Statements in assignments which are not faithful to the record and which are incorrect in certain respects violate rule 31 for Courts of Civil Appeals (142 S. W. xiii), requiring that to each proposition there be subjoined a statement in substance of such proceedings or parts thereof contained in the record as are necessary and sufficient to explain and support the proposition, with a reference to the pages of the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <§=>742.]</p> <p>3. Appeal and Error <§=>767 — Briefs — Briefing Assignments Together.</p> <p>A brief, attempting to join and brief together several assignments each presenting different and distinct points of law, is not allowable under the rules, and an objection by the opposite party will justify striking out the particular assignments.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3102; Dec. Dig. <§^767.]</p>

<p>1. Venue ©=>27 — Privilege to be Sued in County of Residence — Evidence—Question fob Jury.</p> <p>Where an action by an assignee against the assignor, guaranteeing payment, and the debtor, was brought in the county of the residence of the assignor, and the debtor pleaded the privilege to be sued in the county of his residence, and the assignor and assignee both testified that the assignment and guaranty were bona fide, but it appeared that the assignor’s interest in the claim sued on amounted to $270, while he sold it for $125, and guaranteed its payment in full, the question of making the assignment in bad faith to make the assignee the owner so that he could sue in the county of the residence of the assignor was for the jury.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 32; Dec. Dig. ©=>27.]</p> <p>2. Appeal and Erkok ©=3273 — Assignments of Error — Instructions—Exceptions.</p> <p>Where a party objected in general terms to a charge withdrawing from the jury an issue and requested a special charge submitting the issue, which was refused, and brought two bills of exception — one to the giving of the charge, and the other to the refusal of the requested charge — but without stating the reason of the objections to the giving and refusal of the charges, the court on appeal would consider the objections; it being apparent that the trial court understood the ground of objections relied on.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. ©=3273.)</p> <p>On Motion for Rehearing.</p> <p>3. Appeal and Error ©=>646 — Record — Statement of Facts — Modification by Consent of Parties.</p> <p>Parties to a suit cannot, by agreement without the approval of the presiding judge, make any material change in the statement of facts approved by the judge.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 2802; Dec. Dig. <⅜=>646.)</p> <p>4.Appeal and Error ©=>653 — Record—Correction — Jurisdiction.</p> <p>Appellate courts have no jurisdiction to make any correction in the record, and any application for correction must be made to the trial court and a proper transcript of the correction brought to the appellate court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2816-2818; Dec. Dig. ©=> 653.)</p>

<p>1. Appeal and Error <&wkey;263 — -Review—Necessity op Exceptions — Instructions.</p> <p>Assignments of error with reference to the charge cannot be considered, no exceptions having been taken thereto.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <&wkey;>263.]</p> <p>2. Appeal and Error &wkey;>742 — Assignments op Error — Statements.</p> <p>Statements under assignments of error should not refer to bills of exceptions not appearing in the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=»742.]</p> <p>3. Carriers &wkey;>317 — Injury to Passenger-Immaterial Evidence.</p> <p>Plaintiff’s excluded evidence, in a passenger’s action for injury in alighting, that the depot lights would not throw light 0⅛ the car steps, was immaterial, defendant not contending they were for, or served, that purpose, but contending the light from the cars and vestibule was sufficient.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dec. Dig. &wkey; 317.]</p> <p>4. Trial <&wkey;255 — Instructions — Necessity op Requests.</p> <p>The charge that plaintiff had the burden of making out her ease'cannot be complained of because not instructing that defendant, as to its allegation of contributory negligence, had the burden; a request for such further charge being necessary.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. &wkey;255.]</p> <p>5. Appeal and Error <&wkey;1069 — Harmless Error — Papers in Jury Room.</p> <p>Any error in allowing the jury to have in the jury room a written statement previously made by a witness for plaintiff, as we'll as by her. daughter, and proved up on her cross-examination, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4136, 4138, 4139; Dec. Dig. '&wkey;1069J</p>

<p>Í. Trial <&wkey;139 — Direction of Verdict — Power of Court.</p> <p>Where there was sufficient evidence to require submission of the case to the jury upon all the issues raised by the pleadings, it was error to direct a verdict.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. &wkey; 139.]</p> <p>2. Appeal and Error <&wkey;>694 — Proceedings Not in Record — Grounds of Review — Failure to Direct Verdict.</p> <p>In an action against an irrigation company for failure to furnish water, where there was nothing in the record to indicate that the plaintiff requested direction of verdict for damages, and that a decree holding the water contract valid be entered, error cannot be predicated upon the failure of the court so to direct.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2910, 2915; Dec. Dig. &wkey;> 694.]</p> <p>On Rehearing.</p> <p>3. Trial <&wkey;141 — Direction of Verdict — Wei&ht of Evidence.</p> <p>Where the evidence in the record was sufficient to sustain all the allegations in the petition, and there was no evidence to the contrary, there was nothing on which to base a judgment for defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. >§ 336; Dec. Dig. <&wkey;>141.]</p>

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

<p>Appeal from Jim Wells County Court; L. Broeter, Judge.</p> <p>Action by J. W. King against tbe Texas Mexican Railway Company. From a judgment for plaintiff, defendant appeals.</p>

L. Lewis, Judge. Action by Steve Ballou against the Ft. Worth & Bio Grande Railway Company and another. There was a judgment for the co-defendant and for plaintiff against the defendant named, and the latter appeals.

<p>Appeal from District Court, Hopkins County; Wm. Person, Judge.</p> <p>Action by W. J. Chapman against Thomas J. Smiddy and others. Judgment for plaintiff, and defendant named appeals.</p>

<p>Master and Servant <©=>286 — Inexperienced Servant — Duty to Warn — Unusual Danger — Question eor Jury.</p> <p>Whether there was a risk of more than ordinary character, of which an inexperienced servant, directed to tighten nuts on handholds on a box car, should have been warned, held, under the evidence in an action for his injury from a fall when a rusty nut broke, one for the jury.</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; Dee. Dig. @=»2S6.]</p>

<p>Appeal from District Court, Hamilton County; J. H. Arnold, Judge.</p> <p>Action by J. W. Lillard and another against the Sovereign Camp Woodmen of the World. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Action by W. S. Noble against the Order of Aztecs. Judgment by default for plaintiff, and from the overruling of its motion to set aside the judgment, defendant appeals.</p>

<p>Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.</p> <p>Action by Nalle & Co. against J. L. Costley. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Trespass to Try Title @=>40 — Evidence —Unsigned Copy op Report op Commis-, sioners to Partition — Admissibility — “Decree.’*</p> <p>A certified copy of an. unsigned report of commissioners to partition a tract, forming a part of the record of the ease, and showing a partition between the heirs of the deceased owner, is admissible, in connection with other evidence in'trespass to try title between the heirs, to show a partition, though the report is not a “decree” which is a declaration of the court announcing the legal consequences of the facts found.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 55-61; Dec. Dig. @=> 40.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Decree.]</p> <p>2. Evidence @=>372 — Archives op Land Office — Ancient Documents.</p> <p>A letter addressed to the Commissioner of the General Land Office and forming a part of the records of the Land Office is admissible as an archive of the Land Office when more than 30 years old.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. @=>372.]</p> <p>3. Evidence @=>382 — Archives of Land Office-Ancient Documents.</p> <p>Whether a letter offered in evidence as an archive of the General Land Office was a forgery held under the evidence for the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1658, 1659; Dec. Dig. <£=382.]</p> <p>4. Evidence @=>474^Genuineness of Handwriting.</p> <p>A witness who testified that he had known a county clerk of a county for many years and knew his handwriting, having frequently seen him write, could testify that he had made an examination of a signature purporting to be that of the county clerk found among the papers in the General Land Office and that in his opinion the signature was not genuine, as against the objection that the testimony referred to a document not produced in court.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. @=>474.]</p> <p>5. Courts @=>89 — Controlling Decisions— Courts op Texas — Military Courts.</p> <p>A decision of a military court in Texas existing under reconstruction laws is not binding authority.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 311, 312; Dec. Dig. @=>89.]</p> <p>6. Evidence @=>197 — Handwriting — Genuineness-Proof of Comparison.</p> <p>A signature cannot be proved by comparison when the signature is not before the court.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 681, 681 ½ ; Dec. Dig. @=>197.]</p> <p>7. Evidence @=>564 — Handwriting — Genuineness — Proof op Comparison.</p> <p>Persons who are experts on the question of handwriting may not testify to the genuineness of a signature of an officer to papers submitted to them for comparison with signatures on other papers not filed in the case and their genuineness being denied.</p> <p>[Ed. Note. — For other .cases, see Evidence, Cent. Dig. §§ 2385-2389; Dee. Dig. @=>564.]</p> <p>8.Trespass to Try Title ⅞=>39 — Evidence-Admissibility.</p> <p>Where in trespass to try title defendant relied on partition, whereby plaintiff obtained a part of the land of the deceased ancestor of the parties, evidence that the land alleged to have been allotted to plaintiff was absorbed by conflict with another league grant was admissible as against the objection that it was improper to show conflict without field notes, and that the testimony was irrelevant and immaterial.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 54; Dec. Dig. @=>39.]</p>

<p>1. Venue <§==532 — Change—Action in Wrong County — Waiver.</p> <p>A motion to vacate a default judgment, which alleged, as was necessary, a meritorious defense to the action, is not a waiver of defendant’s right thereafter to plead his persona] privilege to be sued in the county of his residence.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. <§=>32.].</p> <p>2. Venue <§=>32 — Motion to Change — 1Time for Filing — “Appeabance. ”</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 18S3, providing that, where the citation of service is quashed on motion, the cause shall be continued for the term, but the defendant shall be deemed to have entered his appearance to the .succeeding term, the “appearance” thus entered is the appearance that the service of a proper citation would have produced, and the defendant may thereafter plead his personal privilege.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dec. Dig. <§=>32.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Appearance.]</p> <p>3. Corporations <§=>503 — Motion to Change VEnue — Affidavit—Correction.</p> <p>The trial court can permit a defendant corporation to correct a defective affidavit in support of a plea of personal privilege by permitting the president of the corporation to swear to it in lieu of the affidavit of the attorney.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. §§ 1835-1939, 1942-1946; Dec. Dig. <§=>503.]</p>

<p>1. Appeal and Error <@=3301 — Assignment op Error — Motion por New Trial.</p> <p>An. assignment of error not contained in the motion for new trial, which under Acts 33d Leg. c. 186 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), constitutes the assignments of error on appeal when a motion for new trial is filed, cannot be considered by the appellate court.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. <@=3301.]</p> <p>2. Appeal and Error <@=>759 — Assignments oe Error — Copying in Brief.</p> <p>Assignments of error, as they appear in the motion for new trial, must be correctly copied in the brief on appeal, in order to be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <@=3759.]</p> <p>3. Sales <@=3417 — Breach oe Contract by Seller — Evidence.</p> <p>Evidence held to show a seller’s breach of contract by failure to deliver.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. § 1173; Dec. Dig. <@=3417.]</p> <p>4. Sales <@=>82 — Contracts — Payment oe Price.</p> <p>A contract of sale, which calls for delivery f. o. b. for shipment, does not call for payment or tender before delivery to a carrier.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 229-233; Dee. Dig. <@=382.]</p> <p>5. Sales <@=3161 — Contracts—Delivery.</p> <p>Where a seller, under a contract calling for shipment as directed by the buyer, shipped goods contrary to instructions, there was no delivery under the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 377-380; Dee. Dig. <@=3101.1</p> <p>6. Sales <@=3101 — Contracts—Delivery.</p> <p>Where a seller, under a contract calling for delivery f. o. b. cars and shipments as directed, forwarded goods under a bill of lading, calling for delivery to himself, and the goods were never received by the buyer, there was no delivery.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 377-380; Dee. Dig. <@=3161.]</p> <p>7. Trial <@=3350 — Issues—Questions’ oe Law and Fact.</p> <p>Where, in an action by a buyer for the seller’s breach of contract, the seller claimed damages for the buyer’s wrongful attachment, and also prayed judgment for the value of goods shipped, a submission of the issue, “Was defendant [the seller] indebted to plaintiff [the buyer] in the sum of $875 when said attachment was sued out?” involved a question of law and fact, and was improper, since it is only issues of fact that are for the jury, while questions of law are for the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. <@=>350.]</p>

<p>Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.</p> <p>Action by Mrs. N. Ann Hardin against D. L. Cook and others. From a judgment for plaintiff, defendants appeal.</p>

Action by the City of Dallas against the Southwestern Telegraph & Telephone Company, to recover an annual privilege fee on poles in its streets. Judgment for plaintiff, and defendant appeals.

<p>Error from District Court, Terry County; W. R. Spencer, Judge.</p> <p>Suit by H. C. Byrd and others against L. W. MePhaul and others. From the judgment rendered, L. W. MePhaul brings error.</p>

<p>Appeal from Fisher County Court; G. M. Shelton, Special Judge.</p> <p>Action by B. P. Roy against the Cowboy State Bank & Trust Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>Error from District Court, Williamson County; C. A. Wilcox, Judge.</p> <p>Action by W. P. Riviere against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District 'Court, El Paso County; M. Nagle, Judge.</p> <p>Action by T. D. Skeen against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error ©=1002 — Review of Pacts — Conflicting Evidence.</p> <p>A verdict on conflicting evidence as to ■whether there was an express warranty will not be disturbed on appeal.</p> <p>[Ed. Note. — Por' other eases, see Appeal and Error, Cent. Dig. §§ 8035-8937; Dec. Dig. @=> 1002.]</p> <p>2. Sales <©=>269 — Application of Rule of Caveat Emptor.</p> <p>The rule of caveat emptor did not apply, where a seller knowingly sold a mule having a bone spavin not discoverable except through time and nicety of observation.</p> <p>[Ed. Note. — Por other cases, see Sales, Cent. Dig. § 746; Dec. Dig. ©=5269.]</p>

<p>Appeal from Titus County Court; Sam Porter, Judge.</p> <p>Action by George W. Hancock against the Eminent Household of Columbian Woodmen. From a judgment for plaintiff, defendant appeals.</p>

Error from District Court, Bowie County; W. T. Armstead, Judge. Action by E. A. Dryer against Joseph Zmek and others. There was a judgment for plaintiff, and defendant Zmek brings error. Jesse A. Miller owned a tract of land containing 560 acres in Bowie county, and a tract containing 465½ acres in Cass county. January 30, 1911, said Miller, in writing, authorized J. M. Christopher and J. N. L. King to sell said land on terms specified.

<p>Appeal from Hopkins County Court; Dan R. Junell, Judge.</p> <p>Action by Oscar Hay English against the Southern Benevolent League. From a judgment for plaintiff, defendant appeals.</p>

Nagle, Judge. Action by H. A. ICezer against the Southwestern Portland Cement Company - and the El Paso & Southwestern Railroad Company and another. From a judgment against the defendants named, they appeal.

<p>Appeal from District Court, Maverick County ; W. C. Douglas, Judge.</p> <p>Action by R. PI. Weller against Alberto Guajardo. Verdict instructed for defendant, cause transferred to Bexar county, and plaintiff appeals.</p>

<p>Appeal from District Court, Fannin County; Ben H. Denton, Judge.</p> <p>Action by Cora L. Dowlen and another against the Texas Power & Light Company and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from- District Court, Reeves 'County; g. J. Isaacks, Judge.</p> <p>Action for injunction by W. E. Winston against the Toyah Valley Irrigation Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Deeds ®=s>151 — Illegal Condition Subsequent — Effect.</p> <p>A conveyance of a fee-simple estate subject to an illegal condition subsequent conveys an absolute fee-simple estate free of the condition.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 481; Dec. Dig. <®=»151.]</p> <p>2. Deeds <®=»149 — Conditions Subsequent-Restraint of Alienation.</p> <p>Where a deed provided that grantee should hold a fee-simple estate in the land subject to the condition subsequent that title should revest in the grantor or his heirs in case of any attempted alienation during the lifetime of the grantee, such condition was void.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 451, 479; Dee. Dig. <8=»149J</p>

<p>Appeal from District Court, Frio County; J. F. Mullally, Judge.</p> <p>Action by Robert W. Thetford against Mrs. Mary Ellen O’Connor and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Railboads <&wkey; 148 — Debts — Consent of Railroad Commission.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6717, vests in the state government the. authority of issuing bonds and other evidences of debt and the execution of all liens and mortgages by railroad corporations, etc., and article 6727 declares that every evidence of debt operating as a lien on the property of a railroad company which shall be made, issued, or sold without a compliance with the chapter shall be void. Held that, where a railroad company executed a note which was transferred to defendant, for which was pledged as collateral notes executed to the railroad company for unpaid stock installments without the consent of the Railroad Commission, the original note was void, and the holder could not thereafter enforce the pledge.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 460; Dee. Dig. <&wkey;>148.]</p> <p>2. Bills and Notes <&wkey;375 — Invalidity— Bona Fide Pubchasbe.</p> <p>A negotiable instrument issued in contravention of a statute expressly declaring it void is subject to all defenses in the hands of one who otherwise would be a bona fide holder for value.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. i&wkey; 375.]</p> <p>3. Pledges &wkey;>7 — Invalidity of Principal Obligation.</p> <p>Invalidity of a principal debt destroys the claim of the creditor on collateral securities held for its payment. «</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. § 18; Dec. Dig. &wkey;>7.]</p> <p>On Further Motion for Rehearing.</p> <p>4. Cancellation of Instruments &wkey;>35 — Railroad Obligations — Cancellation — Parties — Trustees.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6630, 6631, provide that the directors and managers of a sold-out railroad company, by whatever name they may be known in law, shall be the trustees of the creditors and ¡Stockholders of the company, and may be sued as such, and that no suit pending against the company at the time of the sale shall abate, but same shall be continued in name of the trustees of the sold-out company. Held that, where plaintiffs sued to cancel a stock subscription note, and, pending the suit, the railroad’s roadbed, track, franchises, and charter were sold, and a receiver discharged, it was plaintiff’s duty to have the railroad company’s managers and directors made parties to the suit, and, not having done so, a judgment canceling the note was a nullity so far as it affected the rights of the trustees to recover thereon.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 55-64; Dee. Dig. <&wkey;>35.]</p>

<p>Appeal from District Court, Dallam County; D. B. Hill, Judge.</p> <p>Action by Charles R. Jones against I. C. Nix. From a judgment entered on an instructed verdict for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Reeves County; S. J. Isaacks, Judge.</p> <p>Action by H. T. Collier and others against J. F. Harbour and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Harrison County. Court; Geo. L. Huffman, Judge.'</p> <p>Action by Louis Smith against the Great Eastern Casualty Company. From a judgment for plaintiff, defendant appeals.</p> <p>The action is by appellee on a policy of Insurance, providing, as sued for, weekly indemnity for loss of time through disablement resulting while traveling as a passenger within any common carrier’s conveyance. After the issuance and delivery of the policy the insured sustained bodily injuries while traveling as a passenger on a railway passenger train, and was wholly disabled from attending to any kind of business for more than 10 weeks continuously. Appellee sues for the 10 weeks’ loss of time at the stipulated amount of $25 per week, and for the statutory damages and attorney’s fees for failure to pay the claim within 30 days after the demand therefor. Appellant pleaded, in avoidance of the policy, that a false statement as to his physical condition was made by the insured in applying for the policy. The appellee replied that the appellant was estopped by the knowledge of its soliciting agent from asserting any forfeiture in respect to the answer if it were false. The court gave a peremptory instruction in favor of appellee, and refused to give one in favor of appellant, to each of which appellant seasonably excepted and assigns error. The facts are agreed to, and are admitted to be undisputed. The local agent of appellant solicited insurance from appellee, and the application blank was filled in by the agent, and appellee signed it. The application reads as follows:</p> <p>“I hereby apply for limited accident and sickness insurance in the Great Eastern Casualty Company to be based upon the following statement of facts which I warrant to be true and complete and binding upon me:</p> <p>“Policy No. C-153889. Form S-54. Key tag No. 56289. Date, 8/19/1913. (Policy in force one year from date.) Name, Louis Smith. Age, 39 years. Street and number, --■. City and state, Marshall, Texas. Beneficiary, Sarah Smith. Relationship, wife. Address, Marshall, Texas.</p> <p>“I have never had fits, diabetes, kidney disease, syphilis or any sickness or disorder of the brain, spine or nervous system, am in whole and sound condition mentally and physically, and have no other insurance in this company, except as herein stated.”</p> <p>At some previous time one of appellee’s legs had been amputated near the knee, and the agent knew of the fact that appellee was one-legged. The appellee says he asked the agent, when his application was solicited, if his being one-legged would affect the insurance, and was told it would not. The agent denies making the statement. After appel-lee signed the application the agent collected the premium, which was for a year, and forwarded the application to the home office of the company, which was there approved and the policy issued and mailed to the agent, who delivered it to appellee. The agent had authority to solicit the insurance and collect the premium, but had no authority to issue policies or to waive or change any provision of the policy. The policy recites that it is issued in consideration of and subject to the agreements and statements in the application, which are' made a part of the contract, and stipulates for forfeiture of policy for untruthfulness of warranties. There is agreement as to amount of attorney’s fees that would be reasonable, and that being one-legged may be regarded as being material to the risk of insurance.</p>

<p>Error^from District Court, Culberson. County; Dan M. Jackson, Judge.</p> <p>Action by Mrs. Myrtle B. James and husband against G. A. Golson. Judgment for defendant, and plaintiffs bring error.</p>

Error from District Court, Panola County; W. C. Burford, Judge. Action by the General Bonding & Casualty Insurance Company against Ru E. Trabue and another. From a judgment rendered, both parties bring error.

<p>1. Judgment <&wkey;301 — Correction — Deeects Amendable — Default.</p> <p>Petitioner alleged that in a suit against the maker of a note and others,- including petitioner, the clerk entered a judgment reciting that default was taken against petitioner, and that the other defendants prevailed on a finding that the note was without consideration, and that judgment was entered on the default against petitioner; that this was entered by inadvertence, and that the real judgment was that there was no consideration for the note, and that petitioner go hence without day. Petitioner asked for stay of execution and a nunc pro tunc entry of correction. The court’s findings accorded with the allegations of the petition, and the relief was granted. JHelci that, this being a suit to correct record of judgment as authorized by Rev. St. Í911, art. 2015, and not to set aside a default or for stay on the ground that no final judgment was entered, petitioner was not entitled to relief, as it did not appear that the judgment last recited was entered, and in any event would not have been a proper judgment on default under articles 1037, 1938, requiring the court to assess damages on entry of judgment on a default.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 5S7-593; Dec. Dig. &wkey;>301.]</p> <p>2. Judgment <&wkey;32&wkey;CoRBECTioN — ProceedINGS — BURDEN OE PROOF.</p> <p>A party seeking to correct the record of a judgment by proceedings authorized by Rev. St. 191Í, art. 2015, has the burden of showing that the record does not speak the truth.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 623-625; Dec. Dig. &wkey;>324.]</p>

<p>1. Venue <&wkey;22 — Residence of One Defendant. _</p> <p>_ An action for conversion by both defendants may be brought in the county in which either resides.</p> <p>(Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dee. Dig. &wkey;22.]</p> <p>2. Sales &wkey;>219 — Fob Cash — Failure to Pat Check — Title—Estoppel.</p> <p>Though the terms of sale were cash on delivery, and the check given by the buyer was not paid, yet, where there was no fraud, and the check would have been paid had it been presented in due time, whether or not, as between buyer and seller, title passed, the delay of the seller in presenting the check was such laches as to estop him to assert title to the goods against one who advanced money thereon to the buyer without notice that the seller had not' been paid.</p> <p>[Ed. Note. — For other cases, see 'Sales, Cent. Dig. §§ 588-603; Dec. Dig. &wkey;219.]</p>

<p>1. Railroads <&wkey;348 — Accidents at Grossing — Sufficiency of Evidence — Contributory Negligence.</p> <p>In an action for the death of plaintiff’s son, evidence held to show as a matter of law that the son was contributorily negligent in driving an automobile upon defendant’s track in front of a train of cars that was switching, when he could have seen the cars approaching in time to have stopped if he had been looking.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. <&wkey;348.]</p> <p>2. Railroads &wkey;>350 — Crossing Accident-Questions for Jury — Evidence — Sufficiency.</p> <p>Where witnesses for the defendant had testified that at the time of the accident there were no cars on the main track which would prevent a driver on the highway from seeing a train on the side track, testimony by a witness for plaintiff that he reached the scene some time after the accident, when the inquest had been held and the body removed, and that there were at that time cars on the main track which obstructed the view, is too remote to make an issue for the jury whether the cars were there at the time of the accident.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. &wkey;350.]</p>

Reed, Judge. Action by Mrs. Lillian Melott against the Glens Falls Insurance Company of Glens Falls, N. Y., in which Henry Engel intervened. From a judgment for plaintiff and inter-vener, defendant appeals.

Clark, Judge. Action by A. H. Cameron against the National Equitable Society of Belton. From a judgment for plaintiff for less than the amount claimed, he appeals.

<p>1. Garnishment &wkey;>131 — Duty of Garnishee — Homestead Exemption.</p> <p>Where the debt sought to be garnisheed is exempt as the proceeds of sale of a homestead, it is the duty of garnishee to set up such exemption.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 260; Dec. Dig. <$=»131.]</p> <p>2. Garnishment <&wkey;133 — Right of Defendant to be Heabd.</p> <p>In garnishment proceedings, the defendant may voluntarily appear to protect his rights by setting up that the debt sought to be garnisheed was exempt as the proceeds of a sale of a homestead, or the garnishee may cite the defendant in for that purpose.</p> <p>[Ed. Note. — For other eases, see Garnishment, Cent. Dig. § 262; Dec. Dig. <&wkey;133.]</p> <p>3. Homestead <&wkey;76 — Sabe — Control of Proceeds by Husband.</p> <p>A husband has the right to control the proceeds of the sale of a homestead and may apply them to the payment of debts.</p> <p>[Ed. Note. — For other cases, see Homestead, Dec. Dig. <&wkey;>76.]</p> <p>4. Estoppel <&wkey;68 — Exemption—Failure of Garnishee to Set up.</p> <p>Where the defendant in garnishment, when notified by the garnishee to set up his proper exemptions that a claim attached was exempt as being proceeds of a sale of homestead, and such defendant told the garnishee to let the case go to judgment, and it would be all right, he cannot later recover against the garnishee a sum so laid open to attachment by his own act, since a husband’s control of the proceeds of the sale of his and his wife’s homestead was complete.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 165-169; Dec. Dig. &wkey;68.]</p>

<p>Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.</p> <p>Action by Maria Ramirez and others against Ed. L. Lasater and others. From a judgment for defendants, plaintiffs appeal.</p>

H. Davidson, Judge. Action by J. E. Glover against J. W. Babcock and wife. Judgment for tbe plaintiff against tbe defendant J. W. Babcock, and that defendant appeals.

<p>Carriers &wkey;>134 — Carriage oe Perishable Freight — Failure to Ioe Cars — Negligence.</p> <p>A carrier sent a car fully iced to a station not an icing station for loading of perishable freight by a shipper who unnecessarily delayed the car until the ice was too low to protect the freight. The carriel-, as soon as he reached the nearest icing station, filled the car with ice, and did not delay the movement of the car. The freight when delivered to the carrier was apparently sound, and when delivered to the consignee at destination it was in a defective condition. The consignor could have loaded the car in 10 hours, but delayed it 34 hours. Held, that the carrier was not guilty of actionable negligence, . though the freight was delivered in apparent good condition and on arrival at destination was in bad condition.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 588-592, 607; Dec. Dig. &wkey; 134.]</p>

<p>1. Corporations &wkey;255 — Garnishment—Unpaid Stock Subscription.</p> <p>A judgment creditor of a corporation may, by garnishment, enforce liability for the unpaid balance upon a subscription to its capital stock; such unpaid subscription being treated as property of the corporation for paying its debts and making distribution of its assets.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1031-1035; Dec. Dig. &wkey;255J</p> <p>2. Garnishment <&wkey;7 — Judgment Authorizing.</p> <p>Under Rev. St. 1911, art. 271, subd. 3, providing that the district and county courts may issue garnishment when the plaintiff has a judgment and makes affidavit that defendant to his knowledge has no property in his possession within the state subject to execution, sufficient to satisfy the judgment, a judgment against a garnishee rests-on the validity of the judgment against the defendant in the original suit; and hence the garnishee’s answer that the original judgment was void for want of jurisdiction of the defendant was a good defense, though if the judgment in the original suit was only voidable and not void, and no appeal was taken, and it was not set aside, the irregularities making it voidable would be no defense to the garnishee.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 6-10; Dec. Dig. &wkey;7.j</p> <p>3. Judgment <&wkey;16 — Jurisdiction—Process.</p> <p>A judgment is void when no jurisdiction is acquired over the property of defendant, and there is no legal service of process or appearance, since he must have his day in court.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 22, 24; Dec. Dig. &wkey;16J</p> <p>4. Corporations <&wkey;216 — Liability op Stockholders — What Law Governs.</p> <p>The charter of a foreign corporation or the statute under which it was organized determines the liability of resident shareholders to its creditors; and, if a shareholder is liable at all, he is liable only according to the law of the corporation’s domicile; and, if an unpaid subscription for stock is not a corporate asset, it cannot constitute a fund from which creditors are entitled to be paid.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 829-834;' Dec. Dig. <S&wkey; 216.]</p> <p>5. Receivers <&wkey;207 — Foreign—Territorial Jurisdiction.</p> <p>A foreign receiver has no extraterritorial jurisdiction, and his functions and powers are limited to the state in which he is appointed, so that, where no ancillary proceedings for the appointment of a receiver are commenced in this state, title to property here does not vest in him.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 411-415; Dec. Dig. &wkey;207.]</p>

<p>Appeal and Error <⅜=>768 — Questions Reviewable — Errors—Conceded Epeect.</p> <p>Where appellee’s brief concedes that the cause should be reversed for errors pointed out in appellant’s brief, the court will reverse the judgment and remand the cause without passing in detail on the assignments of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3103; Dec. Dig. <&wkey;>768.]</p>

Action by G. C. Glass and others against C. H. Wright From a judgment for plaintiffs, defendant appeals. Appellee sues for the $500 deposited as earnest money upon a contract for the purchase of real estate, claiming that he had complied with the terms of the written agreement by furnishing to the purchaser the full abstract as provided for, and that appellant had failed and refused to accept it and comply with the agreement of purchase.

O. Rouse, Judge. Action by S. W. Howard against the Had-sell Band Corporation, in which the First National Bank of Ft. Wayne, Indiana, filed a claim to property levied on as the property of defendant. Judgment for plaintiff, and claimant appeals.

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

<p>Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.</p> <p>Edna Smith was convicted of keeping a disorderly house, and she appeals.</p>

<p>Ceiminal Law <©=>1090 — Appeal — Bill of Exceptions.</p> <p>Without bills of exception or a statement of facts accompanying the record, no grounds in the motion for a new trial can be reviewed.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2S27, 2927, 2928, 2948, 3204; Dec. Dig. <©=> 1090.]</p>

<p>1. Chattel Mortgages <©=277 — Foreclosure — Defenses—Bona Fide Purchaser.</p> <p>Where, in a suit to foreclose a chattel mortgage covering property transferred by the mortgagor to defendant and by him transferred to codefendant, defendant alleged that before the suit it sold all of his interest in the property to codefendant, who did not make the defense of innocent purchaser or the acquisition of title from an innocent purchaser, plaintiff was entitled to a foreclosure of his mortgage, for the defense of innocent purchasers, to be available, must be pleaded.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 564M566; Dec. Dig. <©=277.]</p> <p>2. Vendor and Purchaser <®=231 — Notice-Chattel Mortgages.</p> <p>A purchaser of real estate need only take notice of the record title of the land, and is unaffected by a recorded chattel mortgage on a fixture which has become a part of the realty.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 487, 513-539; Dec. Dig. <®=231.]</p> <p>3. Chattel Mortgages <©=90 — Record—Mistake of Clerk — Effect.</p> <p>Where a copy of a chattel mortgage was duly filed in the office of the county clerk, who erroneously indexed the mortgage by placing the name of the mortgagee under the heading “Mortgagor,” and the name of the mortgagor under the heading “Mortgagee,” the registration of the mortgage was effectual as notice, notwithstanding the mistake.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgagees, Cent. Dig. §§ 168-173; Dec. Dig. <©=</p>

<p>1. Bills and Notes <®=»463 — Action by Payee — Petition.</p> <p>The petition in an action on notes need not allege plaintiff is the owner and holder thereof; but an allegation that they were executed and delivered to plaintiff by defendant is enough.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1474, 1475; Dec. Dig, <§=» 463.]</p> <p>2. Costs <S=o260 — Frivolous Appeal — Damages.</p> <p>The ground of appeal, that the petition in an action on notes by the payee must allege that plaintiff is the owner and holder thereof, is not so frivolous as to justify the conclusion that appeal was for delay only, as. regards award of damages.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dee. Dig. 260.]</p>

<p>1. Akpeal and Error @=548 — Reservation of Grounds of Review — Exceptions.</p> <p>In the absence of a bill of exceptions, the admission of evidence cannot be reviewed.</p> <p>[Ed. Note. — Eor other cases,, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. @= 548.]</p> <p>2. Evidence @=5590 — Weight and Sufficiency — Interested Witnesses.</p> <p>In trespass to try title to land which defendant claimed by adverse possession, as he was an interested witness, the trial court, in determining whether his possession was under a claim of right or title, was at liberty to disregard his testimony that he had for years claimed the land and surrounding lands under a Mexican land grant.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2439; Dec. Dig. @=>590.]</p> <p>3. Trespass to Try Title @=41 — Hostile Character of Possession — Sufficiency of Evidence.</p> <p>In trespass to try title to land where, though it appeared that defendant took possession in ÍS97 and had occupied the land as a home with his wife and family up to the time of the trial, and he testified that he had for years claimed such land and surrounding lands under a Mexican land grant, it also appeared that he had rendered and paid taxes on personal property, but had made no rendition of lands and had paid no taxes thereon, that he accepted a lease from plaintiff’s grantor recognizing him as his landlord, that such grantor had for years exercised dominion over the tract which defendant claimed under his supposed Mexican grant, and that defendant at no time questioned such grantor’s right to such land, a finding that defendant did not occupy the land under a claim of right or title could not be disturbed.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. ⅞= 41.]</p> <p>4. Adverse Possession @=112 — Presumptions and Burden of Proof.</p> <p>In trespass to try title where plaintiff connected himself with the sovereignty by a regular chain of title, the burden of establishing title by limitation rested upon defendant.</p> <p>[Ed. Note. — F'or other cases, see Adverse Possession, Cent. Dig. §§ 651, 653, 654, 657-659, 661-663, 665, 666; Dec. Dig. @=112.]</p> <p>5. Trespass to Try Title @=27 — Necessary Parties — Wife of Party in Possession.</p> <p>In trespass to toy title to land occupied as a home by defendant and his family, defendant’s wife was not a necessary party, since the homestead right was not available as a defense.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 33; Dec. Dig. @=27.]</p>

<p>Appeal from District Court, Tyler County; 'A. E. Davis, Judge.</p> <p>Action by Mrs. Alta Kirkland and others against George C. Matthews and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>1. Judgment ©=^126 — Default—Pkoof.</p> <p>Rev. St. 1911, art. 1902, as amended by Acts 33d Leg. c. 127 (Vernon’s Say les’ Ann. Civ. St. 1914, art. 1002), provides that the defendant in his answer either admit or deny each fact alleged in the petition or deny that he has any knowledge or information thereof sufficient to form a belief, and that any fact not denied by the defendant shall be taken as confessed. Rev. St. 1911, art. 1939, provides that upon default, in case the cause of action is unliqui-dated or be not proved by an instrument in writing, the court shall hear evidence as to ■damages and render judgment therefor, unless the defendant shall demand and be entitled to a trial by jury. Held, that as the amendment to article 1902 did not purport to change article 1939, defendant’s default in filing an answer did not admit allegations of plaintiff’s petition as to unliquidated damages, and plaintiff was bound to establish them by evidence, as in the past.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 223, 224, 228-230; Dec. Dig. <§=> 126.]</p> <p>2. Judgment @=^143 — Default — Setting Aside.</p> <p>Where defendants not only showed a meritorious defense, but offered an excuse for their default in filing answer, the default should be set aside and a new trial granted, where they agreed to go to trial at once.</p> <p>[Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 269, 270, 272-291; Dec. Dig. ©=></p>

G. Chambliss, Judge. Action by C. J. Moore against Mary E. Davis as individual executrix of the will of A. L. Davis, deceased, and others. From the judgment, plaintiff appeals.

<p>1.Specific Performance <©=>121 — Contracts —Evidence.</p> <p>In a suit for specific performance, evidence held to show that defendant did not agree to sell his land upon the terms insisted upon by plaintiff.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 387-395; Dec. Dig. <©=>121.]</p> <p>2. Brokers <©=>91 — Authority — Effect of Custom.</p> <p>Where the authority of a broker, which was express and unequivocal, did not provide for the furnishing of an abstract by the vendor or the giving of it to the purchaser for his examination, a general custom among land dealers to that effect’ did not warrant the broker in contracting to do so.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. § 134; Dec. Dig. <©¿>91.]</p> <p>3. Frauds, Statute of <©=>106 — .Contracts for Sale of Land.</p> <p>Where a landowner executed and signed a written proposal for the sale of his property, there is no contract enforceable against him unless the purchaser in writing accepts the proposal; for it is not a memorandum of the terms of the sale within the statute of frauds (Rev. St. 1911, art. 3965, § 4).</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 193, 210, 211; Dec. Dig. <S=>106.]</p>

<p>1. Railroads <§=216 — Construction op Spur Tracks — Contractual Obligations.</p> <p>A railway company, contracting with a lumber company for the construction and operation of a spur track for the exclusive benefit of the lumber company, is under no contract obligation to furnish cars for a subsequent seller of timber to the lumber company to be delivered on board cars on the spur track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 713 ; Dec. Dig. <®=216.]</p> <p>2. Carriers <§=40 — Obligation to Furnish Cars — Spur Tracks.</p> <p>A railway company, contracting with a lumber company for the construction and maintenance of a spur track for the exclusive benefit of the lumber company, is under no obligation to one as a member of the public to furnish cars for the shipment of freight from the spur; for railroads need only furnish cars for the shipment of freight at stations or points on their roads provided for the service of the public or where the railroads are in the habit of accepting freight from any person offering same for transportation.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 120-122; Dec. Dig. <®=40.]</p> <p>3. Carriers <®=44 — Construction of Spur Tracks — Obligation to Furnish Gars.</p> <p>Where a railway company contracted with a lumber company for a spur track for the exclusive benefit of the lumber company, and thereafter the lumber company contracted for the purchase from a third person of logs to be delivered on board the railway company’s cars on the spur, the third person, making no demand on the railway company to furnish any specified number of empty cars at the spur, but only complaining that not enough cars were furnished, and that those furnished and loaded were not transported promptly, had no cause of action against the railway company.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120-122, 230; Dee. Dig. <®=44.]</p> <p>4. Carriers <®=44^-Breach of Contract-Special Damages.</p> <p>A railway company, contracting with a lumber company to construct and maintain a spur track for the exclusive use of the lumber company, is not liable for damages claimed by a subsequent seller of timber to the lumber company, .to be loaded on cars on the spur, in the absence of proof that the railway company had notice of the contract of sale and of facts which would cause damages for failure to furnish cars.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120-122, 230; Dec. Dig. <®=44J</p>

<p>1. Chattel Mortgages <&=o283 — Foreclosure —Stay of Execution — Action on Super-sedeas Bond — Evidence.</p> <p>Evidence, in an action on a bond staying execution of judgment of foreclosure of a mortgage lien on a certain traction engine, held to sustain a finding that its actual value and sale price at the time of sale, notwithstanding deterioration from use, was greater than at the time sale was stayed by the bond.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 569, 572; Dec. Dig.</p> <p>283.]</p> <p>2. Chattel Mortgages <©=^283 — Foreclosure —Stay of Execution — Action on Super-sedeas Bond — Damages.</p> <p>The measure of damages recoverable on a supersedeas bond staying execution of judgment of foreclosure against personal property is the difference between the amount it would have sold for when the bond was given and the amount it sold for.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 569, 572; Dec. Dig. <S^> 283.]</p> <p>3. Chattel Mortgages <S=^>283 — Action on Supersedeas Bond — Pleading.</p> <p>In an action for damages against defendants whose bond had stayed execution of judgment of foreclosure against personal property, where the petition did not seek a recovery of interest, eo- nomine, plaintiff was not entitled to interest as a matter of law from the execution of the bond.</p> <p>TEd. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 569, 572; Dec. Dig. 283.] 1</p>

<p>1. Receivers <§=>174^-Liability — Touts Occurring BEFORE APPOINTMENT.</p> <p>One appointed receiver of a railroad by a federal court cannot be sued for past torts of the company unless the party suing first obtains permission from the court; but Act March 3, 1911, c. 231, § 66, 36 St. 1104 (U. S. Comp. St. 1913, § 1048), expressly allows suits against such receiver for his own wrongful acts, without previous leave of court.</p> <p>[Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 333-343; Dec. Dig. <§=>174.]</p> <p>2. Railroads <§=>452 — Killing Stock — Allowance fob Attorney’s Fees.</p> <p>Under Rev. St. 1911, art. 2178, authorizing a recovery of attorney’s fees in certain suits where the amount does not exceed $200, the allowance of a $20 attorney fee for collecting a $75 item included in claims for $215 for killing three head of stock was erroneous.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1653; Dec. Dig. <§=>452.]</p> <p>3. Appeal and Error <§=>499 — Assignments of Error.</p> <p>Where there is nothing in the record showing any objection to the charge before it was submitted to the jury, nor any exception reserved thereto, assignments complaining of the charge wiil not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]</p> <p>4. Railroads <§=>442 — Killing Stock — Ac-tio n — Evidence.</p> <p>Where the evidence in an action for killing stock was sufficient to permit a finding that the stock was killed at a point on defendant’s road where it was unfenced, or where the fence was insufficient to keep stock off the road, evidence that the mutilated bodies were found near the track, and circumstances tending to show that they were killed by passing trains, were admissible, without proof of negligence of those operating the trains.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1596-1607; Dec. Dig. <§=>442.1</p> <p>5. Railroads <§=>441 — Action for Killing Stock — Burden of Proof.</p> <p>In view of Rev. St. 1911, art. 6603, making railroads liable for the value of stock killed or injured by their locomotives, etc., without requiring the owner to show negligence, except where their roads are fenced, proof that one or more of the animals were within the switch-yards or limits when killed required the road to show that it was not permitted^ by law to fence at such point, or that to do so'would endanger train operatives, or that public convenience prevented fencing.</p> <p>[Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig, <§=>441.]</p>

<p>Error from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by Virgil McCormick against the Houston Printing Company. Judgment for defendant, and plaintiff brings error.</p>

Wren, Judge. Action by D. S. Cage & Co. against the Gulf, Colorado & Santa Eé Railway Company, the International & Great Northern Railway Company, and the Industrial Rice Milling Company. From a judgment for plaintiff against the Gulf, Colorado & Santa Fé Railway Company such defendant appeals, and from a- judgment -in favor of the Gulf, Colorado & Santa Fé Railway Company against the International & Great .Northern Railway Company, the latter appeals.

<p>1. Trover and Conversion <§=>4 — Acts Constituting.</p> <p>Where plaintiff, who had purchased furniture on time, giving a chattel mortgage on it to the seller to secure the price, moved away after renting his house, containing such furniture, to a third person, and where the seller of the furniture entered into an agreement with the plaintiff’s tenant that by paying what was due on the furniture such tenant might have the use of it, but must surrender it to plaintiff -on his return, the goods actually being surrendered to the plaintiff on his return, the plaintiff had no right of action as for conversion against the seller of the furniture.</p> <p>[Ed. Note. — For other eases, see Trover and Conversion, Cent. Dig. §§ 25-37; Dee. Dig.</p> <p>2. Trover and Conversion <3^4 — Right oe Action — Damage.</p> <p>Where plaintiff bought furniture of defendant on time, giving a chattel mortgage on the goods to secure their price, and, having let the house containing such furniture to a third person, left the state, and where plaintiff’s tenant refused to pay rent as for a furnished house because defendant furniture company, after plaintiff’s departure, notified the tenant of the state of affairs and entered into an agreement with him that he might us.e the furniture by paying what was due on it, subject to the plaintiff’s ultimate right to reclaim, the damage suffered by the plaintiff through his tenant’s failure to pay rent as for a furnished house gave no foundation for a right of action by way of conversion against defendant.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 26-37; Dec. Dig. <@=34.]</p> <p>3. Damages <@=387 — Exemplary Damage — Trover.</p> <p>In an action of trover and conversion, the plaintiff could not recover exemplary damages, where he failed to establish his right to recover actual damages.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 188-192; Dec. Dig. <⅜^87.1</p> <p>4. Troveb and Conversion <@=340 — Damages —Sufficiency oe Evidence.</p> <p>Evidence held insufficient to show that plaintiff sustained actual pecuniary damage because of loss of rent as for a furnished house, refused to be paid by a tenant because the furniture therein had not been paid for by plaintiff.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 232-244; Dec. Dig. <§==>4o.]</p> <p>5. Apee ad and Eeeoe <@=31175 — Determination oe Cause — Reversad — Directing Judgment.</p> <p>Where it fully appears from the testimony developed below that the plaintiff has not made out a cause of action, the case will not be remanded, but judgment for the plaintiff will be reversed and rendered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. <@=3 1175.]</p>

<p>Deains <§=>18 — Bonds—Contracts.</p> <p>Rev. St. 1911, art. 2600, prohibiting the sale of drainage district bonds for less than par and accrued interest, and providing that as the bonds are sold the moneys received shall be paid to the county treasurer to the credit of the drainage district, is mandatory, and contemplates that contracts for work for a drainage district shall be based on the expectation of payment in money, and where it was contemplated that the successful bidder should find a purchaser for the bonds, the market value of which was less than par and accrued interest, and that the successful bidder would pay the difference between the market value and par .value, the transaction was illegal, because compelling-taxpayers to pay the bonds in full while getting in work only the market value.</p> <p>[Ed. Note. — Eor other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. <gcs>18.]</p>

V. Bell, Judge. Action by F. W. Williams against-the Missouri, Kansas & Texas Railway Company of Texas, in which Val Peers was made a party. From a judgment for plaintiff against Val Peers, the latter appeals.

<p>Error from District Court, Harris County ; Norman G. Kittrell, Judge.</p> <p>Actions by B. II. Bailey and Fredrick Stucy against G. H. Hermann and another. Judgment for plaintiffs, and defendants bring error.</p>

<p>Appeal from Johnson County Court; J. B. Haynes, Judge.</p> <p>Action by B. E. Eskridge and another against I. H. Woodard and others. Judgment for plaintiffs, and defendant Woodard appeals.</p>

<p>Appeal from Jones County Court; Joe C. Randel, Judge.</p> <p>Action by D. C. Cave and another against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Negligence <@=o62 —Use of Dangerous Abticles—Proximate Cause.</p> <p>One supplying gasoline to a boat carried the same in open buckets, some of which were left on the wharf, while others were taken on the boat to be poured into a tank. While pouring gasoline into the tank, a match on the boat was ignited, which set fire to the gasoline, and the fire was communicated to another boat. HeM, that the negligence of placing open buckets of gasoline on the wharf was not the proximate cause of the injury by fire to the other boat, but the proximate cause was the ignition of the gasoline by the match.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 76-79; Dec. Dig. <⅛=62.]</p> <p>2. Negligence <⅞⅜=>136 — Proximate Cause-Question of Fact.</p> <p>Whether an act is the proximate cause of an injury complained of is a question of fact, unless the evidence leaves no room for ordinary minds to differ.</p> <p>[Ed. Note. — For other eases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. ®=»136.]</p> <p>3. Appeal and Error <S=»1071 — Harmless Error — Statement of Facts in Conclusion of Law.</p> <p>It is not reversible error for the court, stating conclusions of fact and law, to state in the conclusion of law a conclusion of fact.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. 1071.]</p> <p>4. Pleading <®=>36 — Admissions — Conclusiveness.</p> <p>A plaintiff, who did not avail himself of an admission in the answer, but resorted to proof of facts at variance with the facts stated in the answer, could not complain of findings contrary to the admissions.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 81-86; Dec. Dig. <®=>36.]</p>

<p>1. Venue €=>34^-Plea of Privilege — 'What Law Governs — Institution of Suit.</p> <p>Where suit was instituted January 15, 1913, and a plea of privilege to be tried in another county filed February IS, 1913, and where the judgment rendered thereafter was reversed and remanded, and another plea of privilege filed on February 17, 1914, the date of “institution of suit” was the date when the petition was filed, though it was held insufficient for failure to state a cause of action, and an amended petition was filed subsequent to July 1, 1913; and hence the merits of the plea of privilege were to be determined under the statute existing before July 1, 1913, which authorized the bringing of suit in any county where any one of the defendants resided, rather than under Act July 1, 1913 (Acts 33d Leg. c. 177; 'Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830), providing that the transfer of a note or chose in action shall not give any subsequent holder the right to sue in any county other than that in which the suit could have been prosecuted, if no transfer had been made.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 52; Dec. Dig. €=>34.]</p> <p>2. Schools and School Districts €=>1⅛-Action Against — Venue.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2822, providing that school district trustees shall constitute a body corporate, which may sue and be sued in any court of proper jurisdiction, a school district may be sued in other courts than those of its domicile, under circumstances authorizing defendants in general to be thus sued.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. | 271; Dee. Dig. €=>114.]</p> <p>3. Venue €=>68 — Plea of Privilege — Sufficiency of Evidence.</p> <p>Evidence in a bank’s action on a draft drawn by contractors on the trustees of a school district, wherein it was contended, in support of the defendant school district’s plea of privilege to be tried in another county, that the transfer to the bank was a mere hypothecation of the claim as collateral, held to sustain a finding adverse to the plea of privilege.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 121; Dec. Dig. €=>68.]</p> <p>4. Trial €=>85 — Evidence—Objection—Sufficiency.</p> <p>Error cannot be predicated on objections addressed to the admission in evidence of two instruments, and not separately to the admission of one, where it appears that one instrument was admissible, though the other was not.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222, 223-225; Dec. Dig. €=>85.]</p> <p>5. Contracts €=>322 — Building Contract-Action for Balance Due — Evidence — Architect’s Final Estimate.</p> <p>Where, in a bank’s action on a draft drawn by contractors on the trustees of a school district for a balance due the contractors for erecting a schoolhouse, it appeared that the building contract made the architect the arbiter of the amounts due as the work proceeded, the architect’s final estimate of the amount due was properly admitted in evidence.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1306, 1307, 1339, 1347, 1348, 1465, 1492, 1534-1542, 1754, 1768, 1772, 1801, 1802, 1804-1808, 1815, 1816; Dec. Dig. €=> 322.]</p> <p>6. Bills and Notes €=>503 — Action on Draft — Consideration—Evidence.</p> <p>In such action, the deposit slip given to the contractors, when they delivered the draft to the bank, was admissible to show that a consideration was paid for the draft, and that the transaction was a bona fide transfer of the contractors’ claim.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1733-1739; Dee. Dig. €=> 503.J</p> <p>7. Bills and Notes €=>400 — Action on Draft — Joinder of Parties — Indorsers.</p> <p>In a bank’s action on a draft drawn by building contractors, on trustees of a school district, for the balance due for erecting a schoolhouse, the contractors, having guaranteed payment of the draft, were properly joined with the trustees of the school district as parties defendant.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1431-1443; Dec. Dig. €=> 460.]</p>

<p>Appeal from Denton County Court; S. H. Hoskins, Judge.</p> <p>Action by C. M. Cauble against the Missouri, Kansas & Tesas Bailway 'Company of Texas and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Somervell County; W. J. Oxford, Judge.</p> <p>Action by D. O. Gresham and another against W. E. Keitt. Judgment for plaintiffs,</p> <p>and defendant appeals.</p>

<p>Appeal from District Court, San Augustine County; A. E. Davis, Judge.</p> <p>Action by W. L. Holman against the Houston Oil Company, in which Harriett J. Harrison and others intervened. From a judgment for defendant, interveners appeal.</p>

<p>Sales <⅞=^398 — Recovery of Price — Special Verdict — Inconsistencies.</p> <p>A special verdict in an action for the price of two car loads of goods, defended on the ground that the goods were not shipped in accordance with the contract, and hence not accepted ; that under the contract the buyer could inspect the goods on arrival before acceptance; that the goods belonged to him on arrival; that both parties breached the contract; that one car was not in condition because of delay in shipment due to the fault of the seller; that the buyer sold both cars, but did not deliver them — is contradictory and uncertain, and does not support a judgment which must follow the verdict.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 1137-1139; Dec. Dig. <S=39S.]</p>

<p>1. Evidence ©=563 — Handwbiting Expeet —Qualification .</p> <p>Where an alleged handwriting expert testified that he was not an expert, but also testified that he had worked for 1 ½ years as a bank clerkj and had been engaged for a number of years in teaching in writing schools and commercial and business schools, where he had been required to study handwriting in signatures, such witness’ testimony was admissible on the point of the genuineness of a signature; the determination of his qualifications being solely for the court, and his declaration on the point being without effect.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2347, 2383, 2384; Dec. Dig. ©= 563.]</p> <p>2. Witnesses ©=3374 — Inteeest — Impeaching Evidence.</p> <p>In an action on a note, evidence that defendant had frequently secured liquors from witness’ saloon without paying therefor was admissible, as showing that defendant owned the saloon, that the witness was merely her employs, and that his testimony was therefore interested.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. ©=374.]</p> <p>3. Witnesses ©=374^-Inteeest — Impeaching Evidence.</p> <p>In an action on a note, where the officers of a bank had testified for defendant to the effect' that the signature of the note was a forgery, evidence that defendant was indebted to the bank in a large sum, and that defendant’s testator, who had executed the note, had left an insolvent estate, was admissible, as showing the interest of the bank officers for defendant in the controversy.</p> <p>[Ed. Note. — For other case, see Witnesses, Cent. Diig. §§ 1201, 1202; Dec. Dig. ©=374.]</p> <p>4. Appeal and Ekboe ©=1046 — Haemless Eebor — Remarks of Judge.</p> <p>In an action on a note, where certain returned checks of the maker were being exhibited for comparison, where the judge said, on objection by defendant’s counsel: “In testing the witness, I can understand a return check paid by the bank and ratified and approved by him, and now then he claims to know Maxey’s [the maker’s] signature, and I think he [plaintiff] ought to have a right to determine whether he does know it or not. He wouldn’t have to determine that if he cashed the check, and returned it to Maxey, and Maxey accepted it. I wouldn’t admit in evidence at all before the jury a signature that is not accepted as Maxey’s genuine signature for comparison; but he is testing the witness’ knowledge of the signature, and I presume they will follow up that, and, acting on that phase, I am permitting them to do that” — although it is advisable for the judge to confine himself to a simple negative or affirmative in his rulings in the presence of the jury, such remarks were not error, where both signatures and letters in evidence were shown conclusively to be those of the maker of the note.</p> <p>[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. §§ 4128-4131, 4134; Dec. Dig. <§==>1046.]</p> <p>6. Depositions <®=>90 — Admissibility — Deponent Within Counts'.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3649, providing that the deposition of a ■witness may be taken in all civil suits, whether or not the witness resides in the county where suit is brought, and article 3677, providing that depositions may be read in evidence subject to all legal exceptions which might be made if the witness were personally giving evidence, in a suit on a note, depositions of a witness residing in the county of trial were admissible in evidence.</p> <p>[Ed. Note.—Eor other cases, see Depositions, Cent. Dig. §§ 248-255, 258-260; Dec. Dig. <§=>90.]</p> <p>6. Bills and Notes <§=>501—Testimony as to Drunkenness oe Plaintiee—Admissi-bility in Evidence.</p> <p>In an action on a note, evidence was properly excluded that plaintiff drank considerably, and sometimes got drunk, while working for the maker of the note.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1698-1707; Dec. Dig. <§=> 501.]</p> <p>7. Bills and Notes <§=>504—Note to Secure Loan—Evidence Showing Possibility oe Loan.</p> <p>Where plaintiff had worked for the maker of the note in suit, evidence that his employer had been in the habit of giving him all his old clothes was admissible in rebuttal of evidence tending to show that plaintiff’s family were so numerous that all his salary must' have been consumed in supporting them, so that he could not have made the loan which he alleged the note in suit was given to secure.</p> <p>[Ed. Note.—Eor other cases, see Bills and Notes, Cent. Dig. §§ 1719-1727; Dee. Dig. <§=> 504.]</p>

<p>Appeal from District Court, Shackelford County; W. J. Oxford, Judge.</p> <p>Action by John F. Sedwick against Frank Sands. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Tarrant County; J. W. Swayne, Judge.</p> <p>Action by W. J. Punkhouser against William Capps. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Courts <©=>474 — Concurrent Jurisdiction — Priority.</p> <p>Ordinarily, where two courts have jurisdiction of the parties and the subject-matter, the one first acquiring jurisdiction will retain it to the exclusion of the other.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1228; Dec. Dig. <®=474.]</p> <p>2. Abatement and Revival @=4^-Pending Action — Plea in Abatement.</p> <p>A prior suit pending between the same parties, involving the same cause of action, abates the subsequent suit, when properly interposed by plea in abatement.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 25-38; Dec. Dig. <S=>4.]</p> <p>3. Abatement and Revival <©= 17 — Penden-cy of Prior Suit — Abatement.</p> <p>A plea of pending action between the same parties, involving t'he same cause of action, is available only as one in abatement and not- in bar.</p> <p>[Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 123-136; Dec. Dig. <®=17.]</p> <p>4. Abatement and Revival <S==>80 — Other Action Pending — Objections—Waiver.</p> <p>Where a defendant in an action on a note did not appear and answer though duly cited, and did not prosecute a writ of error sued out to review a judgment' against him, the court on motion "will affirm on certificate as against the objection that defendant had, prior to the action, instituted a suit in another court to cancel the note for fraud.</p> <p>[lid. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 10, 15, 17; Dec. Dig. ⅛=>80.]</p>

<p>Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.</p> <p>Action by the J. M. Radford Grocery Company against the Bangs Mercantile Company, E. H. Flynn, and others. Judgment for plaintiff, and defendant Flynn appeals.</p>

<p>1. Perpetuities Enjoyment of Vested Estates — Postponement.</p> <p>A bequest or devise is not void as violating the rule against perpetuities so long as the estate vests within the period of a life or lives in being and 21 years thereafter, and it is immaterial how long the mere enjoyment of the estate may be postponed.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. ⅜^>4.]</p> <p>2. Perpetuities ⅞=>4 — “Perpetuity.” «</p> <p>A “perpetuity” is a limitation taking the subject-matter of the perpetuity out of commerce for a period of time greater than a life or lives in being and 21 years thereafter.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. <§⅛>4.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Perpetuity.]</p> <p>3. Remainders “Vested Remainder.”</p> <p>A remainder is vested if, at every moment during its continuance, it is ready to come into possession whenever and however the preceding estates determine.</p> <p>[Ed. Note. — For other cases, see Remainders, Cent. Dig. § 1; Dec. Dig.<®=>l.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Vested Remainder.]</p> <p>4. Remainders <©=>4 — '“Contingent Remainder.”</p> <p>A remainder is contingent if, and in order for it to come into possession, the fulfillment of some condition precedent other than the determination of the preceding estates is necessary.</p> <p>[Ed. Note. — For other cases, see Remainders, Cent. Dig. § 2; Dec. Dig. <®=o4.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Contingent Remainder.]</p> <p>5. Estates <©=1 — “Vested Estate.” — Nature.</p> <p>A “vested estate” is an interest clothed with a present, legal, and existing right of alienation.</p> <p>[Ed. Note. — For other cases, see Estates, Cent. Dig. § 1; Dec. Dig. <S=>1.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Vested Estate.]</p> <p>6. Wills <©=>447, 629 — Construction—Rule Against Perpetuities.</p> <p>Where a will, fairly construed, leaves in doubt the question whether a devise or bequest is so remote as to violate the rule against per-petuities, the doubt will be resolved to vest the title at the earliest possible moment, so as to uphold the will; the law favoring the vesting of estates.</p> <p>[Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 963, 1461, 1462; Dec. Dig. <©=3447, 629.]</p> <p>7. Perpetuities <S=o4 — Construction oe Will — Intent oe Testator.</p> <p>In determining whether an estate vests under a will within the period of the rule against perpetuities, the legally expressed intention of the testator as found within the four corners of the will is the leading guide of the court.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. <©=>4.]</p> <p>8. Perpetuities <S=>4 — Vesting oe Estates— Liee Beneficiary at Discretion of Executor in Income.</p> <p>Where a testator’s will provided that his estate was to vest in executors, subject to certain trusts alleged to be in violation of the rule against perpetuities, and where it was provided that the testator’s widow for her life should be paid by the executors “such portions of the rents, revenues, interest, and income” arising from the property as they might deem proper, such provision vested in the widow no legal or equitable estate in the corpus of the property sufficient to take its disposition from the operation of the rule against perpetuities.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. <©=>4.]</p> <p>9. Perpetuities <©=>4. — Rule Againso>-Be-quest Subject to Defeasance.</p> <p>In determining whether the estate vests in some person within the period of the rule against perpetuities so as to avoid the operation of that rule, it is immaterial if the right vested is subject to defeasance by the contingency of the death of the person.</p> <p>[Ed. Note. — For other cases, see Perpetuities, Ceht. Dig. §§ 4 — 44; Dec. Dig. <®=>4.]</p> <p>10. Perpetuities <©=>4 — Vesting of Estates —Life Beneficiary at Discretion of Executor in Income.</p> <p>Where a testator left his property to executors, subject to trusts for the payment of income, in the discretion of the executors, until 30 years after his death, to his wife and daughters, when the principal was to go to such daughters or their heirs in certain proportions, such ultimate disposition of the fund being concededly void as violating the rule against perpetuities, unless the estate vested earlier, the right which the daughters had to receive the income of the fund at the discretion of the executors was not such a vesting of the estate as to take the case from the operation of the rule against perpetuities.</p> <p>[Ed. Note. — For other cases. see Perpetuities, Cent. Dig. §§ 4-44; Dee. Dig. <©=>4.]</p> <p>11.Wills <©=381 — Construction—Intention of Testatori.</p> <p>AVhere a will manifested two plans, a disposition of property to provide for the widow and son of testator, and a disposition, void as creating a perpetuity, to provide for the daughters of testator and their heirs, there being nothing in the will or. in the evidence indicating that the testator would have written his will to provide only for his wife and son, the whole must fall on account of the invalidity of the provisions relating to the daughters under the rule against perpetuities, since where parts of a will are void the whole will be set aside if to sustain the other parts would work an injustice or violate the general scheme of testator.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 201, 202; Dec. Dig. <©=>81.]</p>

<p>WAREHOUSEMEN <&wkey;24r — DELIVERY BY WARE-HOUSEMEN — Liability for Negligence.</p> <p>One with whom the owner of apples stores them for purposes of resale, a bailee for hire, under duty to redeliver either to the bailor or to another as might be required, having, on direction of the bailor to deliver them to one to whom it had sold them, undertaken to reload them for delivery by railroad, is not only liable for its negligence in loading them, proximately causing injury to them, but such liability is to the purchaser.</p> <p>[Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 111-123; Dec. Dig. &wkey;>24.]</p>

<p>1. Principal and Agent <&wkey;>103 — Exceeding Authority — Liability or Person Dealing with Agent.</p> <p>Plaintiff executed a power of attorney to B. to sell, convey, or trade 200 acres of land upon such terms for cash or credit or other property as to him might seem advisable. B., purporting to act thereunder, conveyed to defendants, in consideration for a conveyance of city property to B.’s wife. Meld that, as a power of attorney to sell property does not authorize a sale on credit in the absence of a stipulation in the instrument giving that authority nor for the benefit of some one other than the party who gives the power of attorney, and as defendants therefore knew that B. was acting beyond the scope of his authority, their reliance in good faith on an attorney’s advice that B. could give a good title, and their lack of any intention to defraud plaintiff, did not relieve them of liability to plaintiff for the value of the 200 acres on the theory that they participated in B.’s fraud.</p> <p>[Ed. Note. — Por other cases, see Principal and Agent, Gent. Dig. §§ 278-293, 353-359, 367: Dec. Dig. &wkey;>103.j</p> <p>2. Principal and Agent <&wkey;103 — Exceeding Authority — Liability of Person Dealing with Agent.</p> <p>That B. and his wife had disposed of part of the city property transferred to the wife by defendants did not entitle defendants to have the amount so received charged against plaintiff.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Gent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. &wkey;103.]</p> <p>3. Stipulations <&wkey;14 — Agreed Statement of Facts — Construction and Operation.</p> <p>Where, in an action to recover the value of land tried on an agreed statement of facts, though the agreed statement stated that prior to 1905 plaintiff executed a contract to attorneys in Kentucky conveying to them a one-half interest in whatever land should be recovered in litigation then pending, and that such attorneys employed B. to assist them, and contracted to give him two-tliirds of t'heir one-half interest, and that the land involved was recovered in that litigation, it was further agreed therein that plaintiff in February, 1907, was the owner in fee simple of the land in question, a judgment for plaintiff for two-thirds of the value of the land was not erroneous on the ground that the Kentucky attorneys were the owners of an undivided one-sixth interest, and that the recovery should have been only for one-half the value of the land.</p> <p>[Ed. Note. — For other cases, see Stipulations, Gent. Dig. §§ 24-37; Dec. Dig. <&wkey;>14.]</p> <p>4. Limitation of Actions &wkey;>l00 — Commencement of Period of Limitation — Discovery of Fraud.</p> <p>Where though, purporting to act under a power of attorney, the attorney in 1909 conveyed land to defendants in exchange for other land, title to which was taken in his wife’s name, the attorney’s principal did not discover the fraud practiced upon her until about one month prior to the institution of a suit against defendants for the value of the land in 1913, and it did not appear that by the exercise of ordinary diligence she could have discovered it any earlier, her cause of action was not barred by the statutes either of two or three years’ limitation.</p> <p>[Ed. Note. — For other cases, see Limitation oi Actions, Cent. Dig. §§ 323, 4S0-493; Dec. Dig ⅞=»100.]</p> <p>5. Principal and Agent <&wkey;189 — Wrongful Acts — Actions—Petition.</p> <p>Plaintiff executed a power of attorney to B. to sell 200 acres of land, and, purporting tc act thereunder, .he conveyed the land to W., in consideration for city property conveyed to his wife, the conveyance of the city property retaining a vendor’s lien to secure the payment of notes for a part of the purchase price. W. conveyed the land to an innocent purchaser. Plaintiff sued W., her husband, B. and his wife, alleging that a trust resulted in favor of plaintiff in the city« property, .that she became the legal and equitable owner thereof to the extent of the value of the 200 acres, and that by reason of W.’s acts she became the owner of a right in, title to, and lien upon such property superior to W.’s rights under the vendor’s lien, and praying for judgment against each of the defendants, establishing a trust in her favor in such property and a lien thereon for the value of the 200 acres, superior to the rights of all of the defendants, and that such city property be sold for the satisfaction of such judgment. Meld that, taken as a whole, the petition could not be interpreted as showing that plaintiff had elected to claim title to the city property, thereby requiring her to take it burdened with the vendor’s lien; as, properly construed, the allegation that title to the city property was held for plaintiff’s benefit was merely to show the basis for t'he equitable lien asserted.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Gent. Dig. §§ 713-717; Dec. Dig. <&wkey;> 1S9.]</p>

Action by J. N. Rayzor against the Pecos & Northern Texas Railway Company and others. Judgment for plaintiff, and defendants appeal. Affirmed in accordance with Supreme Court’s (172 S. W. 1103) answer to certified questions.

<p>Appeal from District Court, Comanche County; J. H. Arnold, Judge.</p> <p>Action by A. McMillan against the Western Union Telegraph Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, El Paso County; Leigh Clark, Special Judge.</p> <p>Action by George 0. Walker against R. W. Wilmore. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Vendor and Purchaser <@=>265 — -Trans-fer by Grantee — Assumption oe Vendor’s Lien Note — Right oe Vendor to Sue.</p> <p>Where the vendors of land took the purchaser’s lien notes to secure the price, the purchasers selling to one who sold part of the land to defendant, who assumed payment of a proportionate part of the debt, such defendant was liable to the original vendors for the amount so assumed, by the rule that a third person has a right of action upon a promise made for his benefit, though he be a stranger both to the promise and consideration therefor; it being immaterial whether defendant’s immediate grantor himself assumed the debt.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 700-712; Dec. Dig. <@=>265.]</p> <p>2. Vendor and Purchaser <@=>294 — Assumption oe Part oe Note Carrying Attorneys’ Fees.</p> <p>Where defendant purchased lots which had been sold' to his vendor by purchasers who had given four vendor’s lien notes carrying attorneys’ fees, he became liable for such fees, although he had assumed only part of the debt covered by the notes.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 830; Dec. Dig. <@=>294.]</p>

<p>1. Telegraphs and Telephones <§=>74^-Ac-tion for Damages — Instructions.</p> <p>In an action for damages for failure to deliver a telegram, whereby plaintiff lost an opportunity to purchase certain cattle at prices stated, in which there was some testimony that the plaintiff had been offered certain stock at $25 a head, an instruction that the offer was $25 a head was not erroneous as not conforming to the evidence; and, in view of the finding that the offer was $25 a head, it was immaterial that the proof failed to show that the purchase would have been made had the offer been at $27.50 a head, as testified to by the seller and sender.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec. Dig. <§=> 74.]</p> <p>2. Trial <§=>243 — Instructions — Conflicting Instruction.</p> <p>In an action for damages for nondelivery of a telegram, depriving plaintiff of the opportunity to buy cattle, a charge which, as a whole, merely authorized the jury to consider the seller’s testimony, together with all other testimony, and to find for plaintiff only if the seller’s alleged offer had been made, did not conflict with a special charge that plaintiff must prove that he could and would have purchased the stock at the prices for the several classes pleaded by him, and that, if he failed to do so, he could not recover. *</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. <§=>243.]</p> <p>3. Evidence <g=>142 — Market Value — Different Locality.</p> <p>In an action for nondelivery of a telegram, whereby plaintiff lost the purchase of cattle, where the evidence showed that defendant’s agent had notice that plaintiff’s intended purchase was for resale at Ft. Worth, and that the market value of such cattle in S. county was fixed by the market value in Ft. Worth, evidence as to the market value of the cattle at Ft. Worth and the identification and reading of published market reports was admissible on the issue of damages in the market in S. county.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. <§=>142.1</p> <p>4. Evidence <§=>501 — Opinion—Facts Forming Basis.</p> <p>In an action for nondelivery of a telegram, whereby plaintiff lost the purchase of cattle, where plaintiff so described the cattle as to bring them within the classification of “stocker steers,” and gave his opinion as to their market value at Ft. Worth, he was properly allowed to read from the Ft. Worth Live Stock Reporter the reports of representative sales covering the period involved, to show on what he then based his opinion of the market.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2292-2305; Dec. Dig. <§=>501.]</p> <p>5. Evidence <§=>474^0pinion — Knowledge of Witness.</p> <p>In an action for nondelivery of a telegram, whereby plaintiff lost the purchase of cattle, testimony of a witness as to what the cattle would have weighed on the Ft. Worth market was not inadmissible on the ground that he did not see them until about two weeks after the failure to deliver the telegram, where it appeared that at about such time he examined them and bought part of them.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. <§=>474.]</p> <p>6. Appeal and Error <§=>1050 — Harmless Eeror — Admission of Evidence.</p> <p>In an action for nondelivery of a telegram, whereby plaintiff lost the purchase of cattle, where testimony of witnesses as to the effect that live stock reports of the Ft. Worth market had upon the market in S. county were admitted without objection, the admission of subsequent testimony to the same effect was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <§=>1050.]</p> <p>7. Telegraphs and Telephones <§=>37 — Failure to Deliver Message — Liability.</p> <p>A telegraph company not negligent in transmitting a telegram which, with notice of probable damages, was sent to plaintiff, but was negligent in not delivering the message to plaintiff, although, as received, the middle initial was different from plaintiff’s, was liable in damages.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 23, 24, 29, 30, 32; Dec. Dig. <§=>37.j</p> <p>8. TELEGRAPHS AND TELEPHONES <§=>66 — ACTION foe Damages — Sufficiency of Evidence — Negligence.</p> <p>In an action for damages for failure to deliver a telegram addressed to plaintiff relative to an offer to sell certain cattle, which, as received, contained a middle initial different from plaintiff’s, evidence, regardless of any negligence in its transmission,- held, to show defendant’s negligence in failing to deliver it to plaintiff.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. <⅞=>66.]</p> <p>9. Telegraphs and Telephones <§=>74L-In-structions — Evidence.</p> <p>In such action, where the court relieved defendant’s agent, who had received the sender’s message over the telephone of any negligence in reducing it to writing, a requested instruction that the receiver was the agent of the sender, and not of defendant, was properly refused.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 77; Dec.. Dig. <§=> 74.]</p> <p>10. Trial <§=>260 — Request for Instructions.</p> <p>Charges which, so far as proper, were sufficiently comprehended in the court’s charge, were properly refused.</p> <p>[Ed. Note.- — For other cases, see Trial, Cent. Dig. §1 651-659; Dec. Dig. <§=>260.]</p>

T. Armstead, Judge. Action by John Merrett and others against Carver Bros, and the Merchants' & Planters’ National Bank of Mt. Pleasant. There was a judgment for plaintiff against the defendant bank, and in favor of the bank against defendant Carver Bros., and the latter appeal.

<p>Judgment <§==>256 — Conformity to Verdict.</p> <p>Where plaintiff traded a horse to defendant for a horse of defendant warranted by him to bo sound, and sought to recover back his horse or its value, because of false representations, and tendered to defendant the horse. received from him, and defendant filed a cross-bill for the use of his horse while in possession of plaintiff, but requested no charge on the subject, a verdict for plaintiff determined all the issues, but a judgment for plaintiff should direct him to return the horse obtained from defendant.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. <§=>256.]</p>

<p>Appeal from District "Court, Franklin County; H. F. O’Neal, Judge.</p> <p>Action by J. L. Rutherford against B. B. White. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, El Paso County ; M. Nagle, Judge.</p> <p>Action by the El Paso Live Stock Commission Company and John T. Cameron against C. H. Fuller' and O. B. Fuller. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Mortgages <⅞=^374 — Sale under Trust</p> <p>Deed—Validity.</p> <p>A recital in deed executed by a trustee in a. trust deed that public • notice of the time, place,_ and terms of sale was made by posting a notice on the courthouse door does not make the deed void for want of notice, as required by the trust deed, stipulating for notice in accordance with the law regulating sales under trust deeds, though it be conceded that the recital was notice to the' purchaser of as much as the recital imported, but the purchaser may show that the trustee gave the required notice.</p> <p>TEd. .Note.—For other cases, see Mortgages, Cent. Dig. §§ 1118-1123; Dec. Dig. <S=>374.]</p> <p>2. Mortgages <s=3356—Sales under Trust Deed — Notice — Statutory Provisions — Compliance.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 3751, 3757, 3759, provide that sales under trust deeds shall be made after giving 20 days’ notice, by posting notice in three public places, one of which shall be at the. courthouse door, and by giving notice to the grantor in person or by mail. A trustee in a trust deed, which stipulated for notice of sale in accordance with the law, posted a notice on the courthouse door and mailed a notice to the grantor, who received it, and mailed two notices to third persons with the request that the same be posted in public places, but the trustees did not know whether the third persons actually posted them. Held, that though the trustee’s deed recited the posting of a notice at the courthouse door, the evidence justified a finding of compliance with the law.</p> <p>TEd. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1063-1067; Dec. Dig. ⅞=»856.]</p>

County Court; J. C. Lumpkins, Judge. Suit by W. C. Perry against the Blackwell-Wielandy Book & Stationery Company and another. Judgment for the plaintiff, and the defendant corporation appeals.

F. Whitehurst, Judge. Action by Birches Bird against the American National Insurance Company. From a judgment for plaintiff in the county court and appeal from the justice court, the defendant appeals.

F. Mullally, Judge. Action by D. T. Winters against John R. Coward and others, in which C. A. Crouch intervened. Judgment in part for plaintiff and in part for defendants, and judgment for intervener against plaintiff and defendants, and defendants appeal.

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by J. C. Garrison against W. A. Shaw, Jr. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Scurry County Court; C. R. Buchanan, Judge.</p> <p>Action by C. L. Ezell against TV. H. Stamps. Payment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error <©=51002 — Review — Verdict.</p> <p>A verdict based on conflicting evidence cannot be reviewed on appeal.</p> <p>• [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <©=> 1002.]</p> <p>2. Marshaling- Assets and Securities <S=>9 —Notes Secured by Mortgage — Rights op Indorser.</p> <p>In a suit by payee of a note against its indorser, where such note had been secured by mortgage of the maker’s crop, subject to the lien of the maker’s landlord, if t'he indorser desired a foreclosure of the mortgage, he should pay the note, thus subrogating himself to the payee’s rights, taking a chance, on bringing suit to foreclose, on the point of whether there would be any surplus after the landlord’s lien was satisfied.</p> <p>[Ed. Note.- — For other cases, see Marshaling Assets and Securities, Cent. Dig. § 6; Dee. Dig. <§=9.]</p>

<p>1. Appeal and Error <@=>759 — Questions Reviewable — Assignments of Error — Nonconformity to Rules of Court.</p> <p>An assignment of error, not presented in conformity to Court of Civil Appeals rule 29 (142 S. W. xii), providing that assignments as presented in the brief shall be numbered from the first to the last in their consecutive order, will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <@=>759.]</p> <p>2. Brokers <@=>64 — Commissions — When Earned.</p> <p>A broker, employed by an administrator to procure a purchaser of real estate, who procures a purchaser who refuses to accept the administrator’s deed, cannot recover commissions, because the purchaser is not ready and willing to purchase on the terms specified.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 07, 97; Dec. Dig. <@=>64.]</p> <p>3. Executors and Administrators <@=384— Sales — Jurisdiotion of Probate Court.</p> <p>A sale ordered by the probate court is not completed until the purchaser accepts the deed and the consideration is paid or the terms are complied with by the purchaser, and a failure of the purchaser to comply avoids the whole proceeding.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 1569; Dee. Dig. <@=>384.]</p> <p>4. Executors and Administrators <@=>379— Sale of Real Estate — Order Confirming Sale — Order to Vacate.</p> <p>An order, confirming a sale by an administrator and allowing a broker procuring a purchaser a commission, may, at a subsequent term, be vacated by direct proceeding in the nature of a bill of review, on the purchaser refusing to complete the purchase.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1545-1564, 1567; Dec. Dig. <@=>379.]</p> <p>5. Executors and Administrators <@=>379— Sale of Real Estate — Order Confirming Sale — Order to Vacate.</p> <p>An application by an administrator to vacate an order confirming a sale of real estate and allowing a broker a commission for procuring a purchaser because of the refusal of the purchaser to complete the purchase is a direct proceeding in the nature of a bill of review to vacate the order, and is maintainable as against the broker.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1545-156-4, 1567; Dec. Dig. <@=>379.]</p>

<p>Appeal from Gray County Court; Siler Faulkner, Judge.</p> <p>Action by J. F. Vicars against J. B. Tharp. From a judgment for defendant, plaintiff appeals.</p>

B. Muse, Judge. Action by the White Sewing Machine Company against R. L. Sneed and others. • From a judgment for defendants, plaintiff appeals.

<p>1. Trial <@=>296 — Instructions — Errors Cured by Other Instructions.</p> <p>In an action against the initial carrier and a connecting carrier for damages for delay in transit and for rough handling of live stock, where the evidence showed that any rough handling occurred on the line of the connecting carrier, any error in an instruction authorizing the jury, on finding certain facts, to find defendants jointly liable, was rendered harmless by the connecting carrier’s special charge eliminating its liability for delay, but leaving it liable for the rough treatment shown to have been occasioned by its own acts or default.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. <@=> 296.]</p> <p>2. Carriers <@=>219 — Carriage oe Live Stock — Liability oe Initial Carrier.</p> <p>The initial carrier of an interstate shipment of live stock is liable for all damages, whether occasioned by its acts or default or the acts and default of its connecting carrier.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. @=>219.]</p> <p>3. Carriers <©=>219 — Injury to Live Stock —Contract.</p> <p>A connecting carrier receiving an interstate shipment from the initial carrier, to be delivered at destination under the initial contract, was bound by the terms thereof and by conversation between the shipper and the initial carrier’s agent in regard to the market the shipper wished the cattle to reach.</p> <p>[Ed. Note. — For other cases, see .Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. @=>219.]</p> <p>4. Appeal and Error <@=>1066 — Trial <@=> 252 — Instructions Without Evidence —</p> <p>In an action against such carriers for damage from alleged delay and rough handling, where there was evidence that none of the cattle had broken legs or were killed, or that the cars in which they were carried were jammed together, a charge that if the trains in which they were carried were roughly handled by “ramming or jamming cars together, knocking cattle down and against each other, thereby injuring them,” was without proper support in the evidence, and prejudicial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <@=>1066; Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. <@=>252.]</p> <p>5. Trial @=244 — Instructions — Singling Out Evidence.</p> <p>Such charge was also improper because it singled out facts in the case and unduly emphasized their importance.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. Si 577-581; Dec. Dig. <@=>244.]</p> <p>6. Appeal and Error <@=>204 — Harmless Error — Examination of Witness.</p> <p>Where it was not objected in the lower court that the hypothetical question to a witness did not coi'rectly present the evidence in respect to an inquiry as to the amount of shrinkage of cattle and the damage suffered by the shipper by reason of alleged delay and rough handling error, therein, if any, was not ground for reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278. 128Q. 1569; Dec. Dig. <@=>204.]</p> <p>7. Appeal and Error <@=>204 — Harmless ' Error — Admission oe Evidence.</p> <p>Where a telegram upon which a witness stated that he based his opinion as to the decline of. the cattle market for such cattle as were shipped, inadmissible as original evidence, was .inquired about by defendant on cross-examination and its contents fully disclosed, any error in allowing the witness to testify as to the market conditions based on such telegram was not ground for reversal.</p> <p>[Ed. Note.-1 — For other cases, see Appeal and 'Error, Cent. Dig. §§ 1149, 1258-1272, 1274-1278, 1280, 1569; Dec. Dig. <@=>204.]</p> <p>8. Appeal and Error <@=>757 — Briefs—Af-firmance.</p> <p>A brief declaring that appellant agreed to the sufficiency of the statement of the nature and result of the suit by its codefendant and adopted its codefendant’s brief, so far as applicable to its own contentions, and suggesting certain counter propositions, - etc., and which contained no assignments of error and pointed out no assignments of error mentioned by its codefendant applicable to its “contentions,” did not comply with the rules, and judgment against it would be affirmed.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. <@=>757.]</p> <p>9. Appeal and Error <@=>774 — Review — Fundamental Error.</p> <p>Material error apparent on the face of the record affecting the appellant’s rights makes it the duty of the Court of Civil Appeals to consider the matter, notwithstanding it is not presented by a brief conforming to the rules.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3096, 3097; Dec. Dig. <@=> 774.]</p>

<p>1. Carriers <§=o317 — Carriage oe Passengers — Injuries to One Boarding Train-Evidence.</p> <p>In an action for injuries received by plaintiff when attempting to board its train, evidence was inadmissible that each year in October during the continuance of a fair it was customary for the crowd at the station in question t’o board defendant’s train from both sides; the plaintiff’ having been injured in July.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1295, 1297-1305; Dec. Dig. <@=> 317.)</p> <p>2. Appeal and Error ⅞^>499 — Reservation oe Grounds oe Review — Exception to Charge — Statute.</p> <p>Under Rev. St. 1911, art. 1971, as amended by Acts 33d Leg. c. 59, providing that after the evidence has been concluded the court’s charge shall be submitted to the parties for inspection, and a reasonable time given them to present their objections, which shall be handed to the court before the change is read to the jury, and providing that all objections not so presented shall be considered waived; where the record failed to show that any objection was urged to certain paragraphs of the court’s • charge, or that any bill of exceptions was reserved, the assifnments of error based thereon could not be considered.</p> <p>[Ed. Note. — For other cases,' see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. 499.)</p> <p>3. Teial <S=o257 — -Requested Instructions— Time bob Asking.</p> <p>Under Rev. St. 1911, art. 1973, as amended by Acts 33d Leg. c. 59, providing that either party may present such instructions as he wishes to be given, and the court may give or refuse them, provided such instructions shall be submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties for examination, where the bill of exceptions of the plaintiff, to the refusal of the court to give special charges requested, showed that such charges were presented after the main change of the court was read to the jury, error could not be predicated on the action of the court in refusing such charges.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 642-645; Dec. Dig, <®^257.]</p>

<p>Appeal from District Court, Donley County; Jas. N. Browning, Judge.</p> <p>Action by Mrs. Eva R. Betts against the City of Clarendon. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Jim Wells County Court; L. Broeter, Judge.</p> <p>Action by J. W. King against the Gulf, Colorado & Santa Pé Railway Company and others. Judgment for plaintiff, and certain defendants appeal.</p>

<p>1. Larceny <©=>10— Lost Goons.</p> <p>Where a trunk was sold in which were goods unknown to both buyer and seller, the goods, so far as the parties were concerned, were lost, and the owner is deemed to still have constructive possession, so that they may be the subject of larceny by the finder.</p> <p>[Ed. Note. — For other cases, see Larceny, Cent. Dig. § 21; Dec. Dig. <®=H0.]</p> <p>2. Larceny <®=>16 — Stolen Goons — Intent. *</p> <p>For a person to be guilty of the theft of lost goods, there must have been an intent to steal at the time of the finding, and knowledge or reasonable means of ascertaining the owner.</p> <p>[Ed. Note¿ — For other cases, see Larceny, Cent. Dig. §§ 43-45; Dec. Dig. <©=>16.]</p> <p>3. Libel and Slander ©=366 — Retraction— What Constitutes.</p> <p>A storekeeper sold a trunk in which old hats were stored. The storekeeper’s wife charged that plaintiff, the purchaser, stole the hats and stated that others encouraged her, following that charge by the statement that when the trunk was sold, it was not known the hats were in it. Held, that the last statement was not a retraction, showing as it did, that the hats were the subject of larceny.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 168; Dec. Dig. <S=w66.].</p> <p>4. Libel and Slander <S=>7 — Liability — Meaning oe Language.</p> <p>The meaning of slanderous language must be ascertained from the language as commonly understood, and not from what defendant intended by it, and hence, regardless of defendant’s intention, a charge that plaintiff stole hats stored in a trunk sold her was a charge of theft.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dee. Dig. <⅜337.]</p> <p>5. Libel and Slander <S=w120 — Punitive Damages — Malice.</p> <p>Where a statement was not privileged, implied malice, inferred from the wrongful act, may be sufficient to support an award of punitive damages.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 350, 351; Dee. Dig. <©=> 120.]</p> <p>6. Libel and Slander <⅞=»123 — Actions — Evidence — Jury Question.</p> <p>Questions whether a charge was slanderous and whether punitive damages should be allowed held, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. 123.]</p>

Error from Tarrant County Court; Chas. T. Prewitt, Judge. Action by C. A. O’Keefe against the Buick Automobile Company, in which the Motor Car Specialty Company was made a party. There was a judgment for plaintiff and' the Motor Car Specialty Company, and defendant brings error.

<p>Appeal from District Court, Leon County; S. W. Dean, Judge.</p> <p>Action by T. F. Baker against Johnie J. Stephenson and others. From the judgment, plaintiff appeals.</p>

<p>1. Schools and School Districts <©=380 —</p> <p>Public Schools — Contracts.</p> <p>Const, art. 7, § 3, provides that the Legislature may authorize an additional ad valorem tax to be collected within all school districts for the erection of school buildings, provided a majority ,of the taxpaying voters shall vote for such tax. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2839, provides that, on the vote of a majority of the taxpayers voting, bonds may be issued by the district and sold to the highest bidder; the purchase money being placed in the county treasury to the credit of the school district. Article 2843 provides that the funds arising from the sale shall be apportioned after they are placed in the treasury. Article 2853 invests the trustees of independent school districts with the powers of taxation conferred by law upon the council or board of aldermen of incorporated cities. Held, that as, until the bonds are sold, the voters might discontinue the tax, the directors of an independent school district cannot until the sale of the bonds enter into a valid contract for the erection of the building.</p> <p>[Ed. Note. — Eor other eases, see Schools and School Districts, Cent. Dig. §§ 191-194; Dec. Dig. <©=>80.]</p> <p>2. Schools and School Districts <©==>82 —</p> <p>Buildin gs — Erection—Contracts.</p> <p>A contract for the erection of a school building cannot be enforced, where it did not appear that the plans and specifications provided for the lighting, heating, and sanitation of the building as required by Acts 33d Leg. e. 120 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2904b-2904q).</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 197, 198; Dec. Dig. <©=382.]</p>

<p>Appeal from District Court, Potter County; Jas. N. Browning, Judge.</p> <p>Action by Z. T. Northcutt and wife against H. E. Hume and others. From a judgment</p> <p>for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action by C. L. Tennison against the National Equitable Society of Belton. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Ward County Court; Burch Carson, Judge.</p> <p>Suit by O. P. Jenson against the Smith Bros. Grain Company and another. Judgment for the plaintiff, and Smith Bros. Grain Company appeals.</p>

A. Nabers, Judge. Mandamus by the City of Memphis, on relation of W. P. Dial and others, against D. Browder and others. Judgment for the defendants, and relators appeal.

<p>Appeal from Ward County Court; Burch Carson, Judge.</p> <p>Suit by John Miller against the Smith Bros. Grain Company and another. Judgment for the plaintiff, and Smith Bros. Grain Company appeals.</p>

<p>1. Municipal Corporations <@=>51 — Dissolved City —Receivers—Statutes.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1080, authorizing any creditor of a dissolved city to apply to the district court for the appointment of a receiver, and after having post- ' ed in at least three public places in the county, one of which shall be in the city, notices stating the substance of the application, when and before whom the same will be heard, the judge may appoint a receiver, does not require that notices should be posted under the direction of the judge hearing the applicatión, and if notices were posted by plaintiff in the proper manner, and for a sufficient length of time before the hearing, the statute was complied with, and the appointment of a receiver was valid.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. '<@=>51.]</p> <p>2. Municipal Corporations <@=>51 — Dissolved • City — Appointment op Receiver-Establishment op Claims — Collateral Attack.</p> <p>An order appointing a receiver for a dissolved city, which recites that it appears that notice as required by law had been given and an order establishing a creditor’s claim as a valid debt against the city, are not subject to collateral attach by the successor of the city.</p> <p>[Ed.- Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. <S=>51.]</p> <p>3. Constitutional Law <@=>312 — Municipal Corporations <@=>51 — Dissolution and Receiver-Due Process op Law — Notice.</p> <p>The method prescribed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1080 et seq., for the appointment of a receiver for a dissolved city on giving notice, is due process of law, provided the notice was given for a reasonable length of time.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 928; Dec. Dig. <@=>312; Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. <@=>51.]</p> <p>4. Municipal Corporations <@=>956 —Liability por Debts.</p> <p>Where a municipal corporation became liable for bonds issued, a tax lien to secure them existed on all property within the corporate limits, and the lien may be enforced by requiring an assessment and collection of taxes on the property.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2010-2013; Dec. Dig. <@=>956.]</p> <p>5. Municipal Corporations <@=51 — Dissolved Corporations — Establishment op Claims — Statutory Proceedings.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1082, providing that a receiver for a dissolved city, to whom the claim is presented duly verified, shall mark the same allowed, if he finds it correct, and file the same in the district court, and at its next regular term, if no protest be filed, the claim shall be approved by the court, is directory so far as it relates to the approval of a claim at the next regular term of court, and a premature approval of a claim is but an irregularity, not rendering the order of approval void, especially where the existence of the debt is not disputed.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. <S=>51.]</p> <p>6. Municipal Corporations <@=>51 — Dissolved City — Receivership—Approval op Claims.</p> <p>An order, approving the claim of a creditor of a dissolved city, taken in connection with an order appointing a receiver of the city, is, in effect, a judgment, and precludes any question of liability of the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. <®=>51.]</p> <p>7. Municipal Corporations <@=>51 — Liability por Debts op Predecessor.</p> <p>A city, incorporated after the appointment of a receiver of a dissolved city, embracing the same territory and pending receivership proceedings, is liable for the debts of the dissolved city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 138-140; Dee. Dig. <@=>51.]</p> <p>8. Municipal Corporations <@=>51 — Debts— Liability.</p> <p>Where pending receivership proceedings of a dissolved city, a city embracing the same territory was incorporated, and thereby deprived the court of the power to satisfy a judgment against the dissolved city, the new city must levy a tax to satisfy the judgment.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 138⅛40; Dec. Dig. <@=>51.]</p> <p>9. Constitutional L'aw <@=>143 — Municipal Corporations <@=>51 — Dissolution—Debts —Impairment of Obligation op Contracts —Statutes.</p> <p>A statute, which forbids a duly incorporated city embracing only the territory of a prior city duly dissolved from levying a tax to pay a judgment rendered against the dissolved city, is invalid, as impairing a contract with the dissolved city.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 346-348; Dee. Dig. <@=> 143; Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. <@=>51.]</p> <p>10. Judgment <@=>866 — Enforcement — Limitations — Mandamus.</p> <p>Mandamus, to enforce a judgment against a city by compelling the collection of a tax, is in effect an execution to> collect the judgment, and the 10-year statute of limitations is applicable.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1603-1607; Dec. Dig. <@=>866.]</p> <p>11. Mandamus <@=>151 — Parties—Officers— Judgments — Enforcement.</p> <p>In mandamus to compel a city to levy a tax to satisfy a judgment rendered against its predecessor, which was duly dissolved, the receiver of the dissolved city is not a necessary party.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 291, 292; Dec. Dig. <@=>151.]</p> <p>12. Constitutional Law <@=>42 — Impairing Obligations of Contracts — Right to Invoke Provision.</p> <p>Only one whose rights are invoked by a statute impairing an obligation of his contract can invoke the invalidity of the statute.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. <@=> 42.]</p> <p>13. Constitutional Law <§=>43 — Waiver of Constitutional Rights.</p> <p>A person may, by acts or omissions, waive ■a right which he might otherwise have asserted under the Constitution.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 41; Dec. Dig. <§=>43.]</p> <p>14. Constitutional Law <§=>43 — Statutes— Validity — Right to Raise Question.</p> <p>A city which has been organized under a statute, and which has proceeded to do business and has received benefits under it, cannot assert its invalidity.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 41; Dee. Dig. <§=>43.]</p> <p>15. Constitutional Law <§==>43 — Statutes— Validity — Right to Raise Question. ■</p> <p>A city which has availed itself of the ben•efit of the statutes allowing a dissolution of a •former city by reincorporating the same territory, and which has assumed control thereof, may not assail the validity of the -statutes as against a person having a contract with the former city.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 41; Dec. Dig. <§=>43.]</p> <p>On Motion for Rehearing.</p> <p>.16. Constitutional Law <§=>312 — Municipal Corporations <§=>51 — Dissolution-Due Process op Law — Wiiat is.</p> <p>The appointment of a receiver under Version’s Sayles’ Ann. Civ. St. 1914, art. 1080, for a dissolved city on the application of a creditor seeking to establish a judgment against the city, is ancillary only, and does not affect -the rights of taxpayers of the dissolved city, and the appointment made after notice and hearing does not deny to taxpayers due process of law.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 928; Dec. Dig. <§=>3Í2; Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. <§=>51.]</p> <p>17. Constitutional Law <§=>316 — Municipal Corporations <§=>51 — Dissolution-Due Process op Law — What is.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1082, providing that before a receiver of a dissolved city shall approve any claim against it, notice must be given, and in the absence of some contest, the court may enter a judgment establishing as valid debts against the city claims presented and approved by the receiver, does not deny to taxpayers due process of law, though the taxpayers are not given the right of appeal from any judgment rendered against the receiver on a claim against which a protest has been filed, for the receiver may appeal.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 938; Dec. Dig. <§=>316; Municipal Corporations, Cent. Dig. §§ 138-140; Dee. Dig. <§=>51.]</p> <p>18. Constitutional Law <§=>205, 249 — Municipal Corporations <§=>51 — Receiver-Special Privileges — Equal Protection op the Law.</p> <p>The provision of the statute that a receiver, of a dissolved city cannot plead limitations against demands asserted against the city is not invalid as granting a special privilege to creditors, nor a denial to the city of the equal protection of the law, for the act is applicable to all creditors and debtors of the same class.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 591-624, 710; Dec. Dig. <§=>205, 249; Municipal Corporations, Cent. Dig. §§ 138-140; Dec. Dig. <§=>51.]</p> <p>19. Constitutional Law <§=>43 — Statutes— Validity — Right to Question.</p> <p>Where a city was incorporated after Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1080 et seq., providing for abolition of corporate existence, and the appointment of a receiver, had been in force for more than a year, it could not complain because it was denied a right to contest claims against the dissolved city, since the statute became a part of its charter and was binding on it.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 41; Dec. Dig. <§=>43.]</p> <p>20. Statutes <§=>64 — Validity — Invalidity in Part — Effect.</p> <p>The invalidity of the provision of Acts 29th Leg. c. 134, relating to the abolition of corporate existence of cities, that the receiver shall not plead limitations against demands against the city does not render invalid the other provisions of the statute because the provision is but an incident to the main purpose of the act.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. <§=>64.]</p> <p>21. Municipal Corporations <§=>18 — D® Facto Corporation — Liability for Debts.</p> <p>A. de facto municipal corporation cannot urge the invalidity of its incorporation as a defense in a suit to collect a debt contracted by it.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 4Í-44; Dec. Dig. <§=>18.]</p>

<p>Appeal from District Court, Presidio County; W. C. Douglas, Judge.</p> <p>Action by the Murphy-Walker Company against the National Surety Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error >&wkey;643 — Correction op Record — Time and Necessity — Rule op Court.</p> <p>Under rules 8 and 11 of the Courts of Civil Appeals (142 S. W. xi), providing that a motion to correct the transcript shall be filed within 30 days after its filing, and shall show a necessity therefor appearing on the record, a motion to correct a transcript filed more than 30 days after filing the transcript, and on which it appeared that the appellee’s affidavits opposing an application for a change of venue were never presented to the court or acted upon by it, would be denied because too late, and as showing no necessity for correction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2791-2794; Dec. Dig. &wkey; 643.]</p> <p>2. Appeal and Error &wkey;>766 — Brieps—Fil-ing.</p> <p>Where the parties, by an agreement on file in the court, abrogated the rules with regard to the filing of briefs, and the appellant did not object to the filing of appellee’s brief, though not presented within the time agreed, the clerk would be directed to file the brief as of the date when presented.</p> <p>[Ed. Note. — For other cases, see Appeal and Error-, Cent. Dig. §§ 3101, 3120; Dec. Dig. >&wkey;> 766.]</p> <p>3. Subscriptions ⅞ — >15 — Rescission — Performance op Conditions Precedent.</p> <p>In a suit by a committee of local subscribers to a railroad project for the possession and cancellation of certain promissory notes issued in aid of, railroad construction, on the ground of a total failure of consideration by failure to complete the grade work within the time allowed by the contract, which was declared of the essence of the contract, where it appeared that the committee knew that the contractor had been enjoined, and that the injunction suit was due to its own failure to furnish title to a part of the right of way, the committee was itself in default, and was not entitled to relief.</p> <p>[Ed. Note. — For other cases, see Subscriptions, Cent. Dig. §§ 14-17; Dec. Dig. &wkey;15.]</p> <p>4. Subsceiptions <&wkey;15 — Performance—Repudiation by Other Party.</p> <p>In such case where the committee filed a pleading repudiating its liability upon any of the notes, it could not recover for any failure of performance on the part of the railroad.</p> <p>LEd. Note. — For other cases, see Subscriptions, Cent. Dig. §§ 14-17; Dec. Dig. &wkey;15.]</p> <p>5. Subscriptions <&wkey;i5 — Performance of Conditions.</p> <p>In such case, the further performance of the contract by the railroad was excused by the committee’s express repudiation of its notes made and delivered for the benefit of the railroad.</p> <p>LEd. Note. — For other cases, see Subscriptions, Cent. Dig. §§ 14-17; Dec. Dig. <&wkey;15.]</p> <p>6. Judgment &wkey;>256 — Findings of Jury — Verdict — Conformity.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, providing that, upon appeal or writ of error, an issue not submitted and not requested by a party shall be deemed found by the court, so as to support judgment, if there is evidence to sustain such a finding, does not affect articles 1986, 1990, declaring that, as between the parties, a special verdict shall be conclusive as to the facts found, and that, unless the verdict be set aside, the court shall render judgment thereon, nor authorize the trial court in rendering judgment to disregard findings upon material issues; and hence, where all the material findings of the special verdict entitle one of the parties to judgment, the trial court can only set aside the verdict and grant a new trial, or render judgment in conformity with the verdict, and can in no case render judgment contrary to the verdict.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dee. Dig. &wkey;>256.]</p> <p>7. Trial «&wkey;356 — Findings—Effect.</p> <p>Where all the material findings were in favor of the plaintiff, but judgment was rendered for defendant on motion, the action of the jury in failing to agree upon findings deciding anything material in favor of defendant, necessary to judgment in his favor, was tantamount to a mistrial.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ S49-854; Dec. Dig. &wkey;3356.]</p> <p>8. Venue <&wkey;42 — Change of Venue — Statutes.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1912, providing for change of venue on application stating prejudice against a party preventing a fair trial, and article 1913, providing that, where application for change of venue is made according to the preceding article, it shall be granted unless the credibility of the applicant, his means of knowledge, or the truth of the facts alleged by him are attacked by affidavit of a credible person, a .change of venue is mandatory on the prescribed showing; and, independently of such provisions, a contractor suing a committee on its railroad aid notes would be entitled to a change of venue, where many citizens were directly or indirectly interested.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 64; Dee. Dig. <§=>42. ]</p> <p>On Motion for Rehearing.</p> <p>9. Subscriptions <&wkey;21 — Construction 'of Pleading — Rescission.</p> <p>A subscriber’s committee, impleaded in a contractor’s action against the railroad, which answered, setting up failure to comply with the construction contract and nonliability on aid 1 notes, and which in its plea in reconvention alleged failure to construct the railroad, breach of the construction contract, and failure of consideration for its notes, and sought to have such notes canceled and delivered to it, evidenced an intention to rescind the contract.</p> <p>[Ed. Note. — For other cases, see Subscriptions, Cent. Dig. §§ 25-29; D'ec. Dig. <&wkey;21.]</p> <p>10. Appeal and Error <&wkey;390 — Appeal</p> <p>Bond — Amendment.</p> <p>Under Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 2104, authorizing the amendment of appeal bonds, both as to matters of form and substance, appellee, on the filing of a defective appeal bond giving the Court of Civil Appeals jurisdiction, should have filed a motion pointing out the defect in time, whereupon appellant could have amended, if found defective.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2077-2088; Dec. Dig. <S&wkey; 390.]</p>

<p>Appeal from District Court, El Paso County; A. M. Walthall, Judge.</p> <p>Action by Tom Bailey against George Look. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Reeves County; S. J. Isaacks, Judge.</p> <p>Action by T. A. Ezell against Annie D. Rogers and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Guadalupe County Court; J. M. Woods, Judge.</p> <p>Action by Chris Herry, Jr., against August Just. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Boundaries <⅜=>3 — Courses and Distances — Relative Importance.</p> <p>Where a survey called for a line running from a beginning point a certain distance in a certain course to the south bank of a river, the course controlled the distance, and the point where such course in fact touched the bank of the river, irrespective of the distance, was the true point located.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <§=>3.]</p> <p>2. Boundaries <S=o37 — Location of Survey —SUFFICIENCY OF -EVIDENCE.</p> <p>In an action between claimants to public lands previpusly surveyed and located, evidence held sufficient to show that defendants’ surveys were located on the south bank of a river, although the distance, given to be run from the beginning point of the survey to such river' was erroneous.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. ⅞=⅜7.]</p> <p>3. Boundaries <S=j37 — Location oe Survey— Change in Position oe Landmark — Sufficiency of Evidence.</p> <p>In an action between claimants to public lands previously surveyed and located, evidence held insufficient to warrant finding that the river on which the surveys, under which defendants claimed, were located had changed its course considerably since such surveys.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dee. Dig. <g^37.]</p> <p>4. Boundaries <®=»3 — Conflicting Calls.</p> <p>Where there are two identified marks or lines in a block of surveys neither can control the other to establish another point in the same survey when it is found that the calls are conflicting, but effect should be given to the one most in harmony with the other calls of the field notes and with the lines of contiguous surveys.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <⅜^3.]</p> <p>5. Boundakies — Location of Sub-vey — Sufficiency of Evidence.</p> <p>In an action between claimants to public lands previously surveyed and located, evidence hold, insufficient to show that plaintiff’s survey, crossed a certain creek.</p> <p>TEd. Note. — For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. <®=»37.]</p> <p>6. Public Lands <®=>175 — Lands of States— Location — Lands Pbeviously Located.</p> <p>Lands previously located by defendants by surveys older than those under which plaintiffs claim cannot be recovered in trespass to try title.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. <⅜^175.]</p>

<p>Appeal from District Court, Dickens County; ,To. A. P. Dickson, Judge.</p> <p>Suit by L. 6. Wilhite against C. C. Haile and C. L. Harless. Judgment for Wilhite and Haile, and Harless appeals.</p>

Error from District Court, Foard County; J. A. Nabers, Judge. Action by Mrs. V. L. Sanders and others against S. B. Hovey and another, as receivers of the Kansas City, Mexico & Orient Railway Company .of Texas. Judgment for plaintiffs, and defendants bring error.

Error, from District Court, Hardeman County; J. A. Nabers, Judge. Action by A. Mosely and another against the General Bonding & Casualty Insurance Company and others. There was a judgment for plaintiffs, and defendants bring error.

<p>1.Evidence <®=345 — Public Recobds — Copies — Authentication.</p> <p>Under Rev. St. U. S. § 882 (U. S. Comp. St. 1913, § 1494), providing that copies of any record in any of the departments authenticated under the seal of the department shall be admitted in evidence equally with the original, and Act Cong. July 26, 1892, c. 256, § 3, 27 Stat. 272 (U. S. Comp. St. 1913, § 720), providing for certified copies of any records belonging to the files of the Commissioner of Indian Affairs, authenticated by the seal and certified by him or some officer acting in his stead, á copy of a part of the approved roll of a Seminole freedman, authorized by Act Cong. May 27, 190S, c. 199, 35 Stat. 313, § 3, declaring that the rolls of citizenship and o-f freedmen of the Five Civilized Tribes approved by the Secretary of the Interior shall be conclusive evidence, certified by the Commissioner of the Five Civilized Tribes, but not authenticated by any seal, is inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1302-1314, 1331-1360; Dec. Dig. <§=345.]</p> <p>2. Indians <§=13— Enrollment Records — Conclusiveness.</p> <p>Under Act Cong. May 27, 1908, c. 199, § 3, 35 Stat. 313, providing that the enrollment records of the Commissioner of the Five Civilized Tribes shall be conclusive evidence as to the age of any enrolled citizen or freedman, the testimony of an enrolled freedman as to his age 7ieM incompetent.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. § 30; Dec. Dig. ®=13.]</p> <p>3. Evidence <@= 348 — Records— Certified Copies.</p> <p>Under Rev. St. U. S. § 906 (U. S. Comp. St. 1913, § 1520), providing for the exemplification of records of another state, and declaring that the exemplifications properly authenticated shall be given such faith and credit as they have in the state from which they are taken, copies of deeds recorded in a sister state not authenticated as required by law, are inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1301-1383; Dec. Dig. 0=5348.]</p> <p>4. Evidence 0=383 — Records of Sister States — Evidence—Effect.</p> <p>The court, admitting in evidence copies of records of a sister state duly authenticated, cannot give effect to the records accorded to them by the laws of the sister state, unless the laws are proved; for the court cannot judicially know the legal effect of the records in the sister state.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. .§§ 1660-1677; Dec. Dig. 0=383.]</p> <p>5. Indians <®=15 — Minor Allottees — Conveyances — 'Validity.</p> <p>Act Cong. May 27, 1908, c. 199, § 6, 35 Stat. 318, providing that persons and property of minor allottees, except as otherwise provided by law, are subject to the control and jurisdiction of the probate court of Oklahoma, restricts the alienation of land by minor allottees, which restriction can only be removed by the probate court, and a deed executed by a minor allottee is void.</p> <p>[Ed. Note. — For other cases, see Indians, Cent. Dig. §§ 17, 29, 34, 37-44; Dec. Dig. ⅞= 15.]</p> <p>6. Covenants <®=22 — Wiiat Law Governs.</p> <p>The law of the state where land conveyed by deed is situated governs the obligation assumed by the grantor.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. §§ 21, 229; Dec. Dig. <®=22.]</p> <p>7. Covenants ⅞=10 — Warranties — Statutory Provisions.</p> <p>Under Comp. Laws Okl. 1909, § 1202, declaring that a warranty deed made in substantial compliance with the act shall convey the whole interest of the grantor, and shall be deemed a covenant that the grantor is legally seised of the estate in fee simple, and has good right to convey, and that the premises are clear of incumbrances, a general warranty deed made in compliance with the law of Oklahoma contains, by operation of law, a warranty of seisin, as well as a warranty of full power to convey, and the covenants, if broken, are broken when made, and an actual eviction is unnecessary to consummate a breach.</p> <p>[Ed. Note. — For other cases, see Covenants, Cent. Dig. § 8; Dee. Dig. <§=10.]</p> <p>8. Evidence ⅞=⅛05 — Declarations ox Agent — Admissibility.</p> <p>Testimony of witnesses as to declarations of an agent of admissions of his principal is admissible as to the weight to be given testi-mon3' of the principal.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. <S^2Gsj.]</p>