Volume 176 — South Western Reporter

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

<p>Carriers <®=»320 — Injuries to Passenger— Abusive Language by Bmployé — Physical Injury.</p> <p>In an action for damages resulting from profane and abusive language used by the conductor and train auditor toward a passenger whom they accused of not having paid his fare, where there was evidence that the passenger was sick at the time, and that the language used toward him made him feel weak, though he did not know that it made him any weaker, or that it increased his temperature, it was for the jury to say whether there was any physical injury caused by the abuse for which recovery might be had.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. <S=o320.]</p>

Pierson, Judge. Action by S. L. Green against the Gulf, Colorado & Santa Fé Railway Company and others. Judgment for plaintiff, and defendants appeal. The action is by appellee to recover damages for injury to a jack shipped on the lines of appellants from Celeste to Ft. Worth, and from Ft. Worth back to Celeste, Tex. Appellants traversed the allegation of negligent handling.

<p>1. Appeal and Ebeor @=>1002 — Veedict — OONCLUSIVENESS.</p> <p>A verdict on conflicting evidence and sustained by evidence will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. @=> 1002.].</p> <p>2. Appeal and Eeeob @=3544 — Questions Reviewable — Refusal of Insteuctions — Bill of Exceptions.</p> <p>In the absence of a bill of exceptions taken to the refusal of special charges as required by Acts 33d Leg. c. 59, assignments complaining of the refusal will be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. @=i 544.]</p>

<p>1. Appeal and Error <@=1071 —Review — Harmless Error.</p> <p>The failure of the court, in an action for the negligent firing of a building, to make any finding on the question of negligence, while erroneous, is harmless; there being no evidence of any negligence, and the judgment for defendant being based on other grounds.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-^4239; Dec. Dig. <§= 1071.]</p> <p>2. Railroads <@=469 — Fires—Contracts.</p> <p>Where a railroad company built a switch track to plaintiff’s premises and leased part of its right of way to plaintiff under agreement that it should not be liable for any loss or damage to any property owned, leased, or controlled by plaintiff, whether arising through the company’s negligence, or otherwise, the contract included damage from fires communicated, not only from trains and locomotives on the switch track, but also on the main track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1665; Dec. Dig. <@=469.]</p> <p>3. Railroads <@=469 — Fires — Contracts — Consideration.</p> <p>A railroad company’s building of a switch for a shipper at a point where it had no station, and was not bound to establish a switch, was sufficient consideration for an agreement by the shipper that the company should not be liable to him for any fires caused by trains and locomotives on either the switch or the main track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1665; Dec. Dig. <S=469J</p> <p>4. Railroads <@=484^-Fires — Actions—Evidence.</p> <p>In 'a suit against a railroad company for J the firing of adjacent property, evidence held insufficient to go to the jury on any theory; the cause of the fire being wholly conjectural.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1740-1746; Dec. Dig. ,<S=»484.]</p>

<p>1. Partnership <@=219 — Actions against Dismissal as to Paktner Not Served — Ee-eect.</p> <p>Where an action against a partnership and the three members thereof was dismissed as to one partner for failure to procure service on him, no judgment could be rendered against the firm.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 429-440, 442-445; Dec. Dig. <@= 219.]</p> <p>2. Appeal and Error <@=>733 — Assignment oe Error — Sufficiency.</p> <p>Assignments of error that the return on a citation showing service in a particular name will not support a judgment by default is a legal proposition, not an assignment of error, and will not be considered.</p> <p>[Ed. Note.- — For other cases, see Appeal and Error, Cent. Dig. §§ 8025-3027; Dec. Dig. <§= 733.]</p> <p>3. Appeal and Error <@=719 — Questions Presented eor Review — Necessity oe Assignment oe Error — Deeect in Service.</p> <p>A defect in the service of a citation is not fundamental, and will not be considered in the absence of an assignment of error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2082, 3490; Dec. Dig. <@=719.]</p>

<p>1. Witnesses <§=>405 — Cross-Examination— Rebuttal Evidence — Admissibility.</p> <p>In an action against a railroad company for damages caused by the construction of railroad tracks and the operation of trains thereon, the daughter of one of plaintiff’s lessees testified that when the tracks were being put down, he left the place because of the noise. On cross-examination she testified that she had never heard her father complain of an adjacent feed-mill. Plaintiff’s contention was that the noise and vibrations caused by engines and trains, as well as the smoke and dirt, depreciated the value of his property. Held, that an affidavit made by the lessee, showing that he moved on account of the feedmill, was not admissible to contradict the witness; her testimony on the question not relating to the issue involved.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1273, 1275; Dec. Dig. <§=>405.]</p> <p>2. Railroad <§=>114 — Actions—Evidence.</p> <p>In an action against a railroad company for damages for depreciation in the value of property; by reason of smoke and noise, plaintiff, having testified to the depreciation in rental value, could testify that the proximity of the railroad interfered with renting his houses.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 365-371; Dec. Dig. <§=>114.]</p> <p>3. Appeal and Error <§=>1051 — Review — Harmless Error.</p> <p>Where plaintiff was allowed to testify without objection that his tenants were always complaining of smoke and soot inside the houses, testimony that the renting of his houses was interfered with because people objected to the railroad is harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-A17(>; Dec. Dig. <§=> 1051.1</p> <p>4.Appeal and Error <§=>1050 — Review — Harmless Error.</p> <p>The admission of testimony that property in that vicinity began to enhance in value when the railroad company began buying in that locality, while irrelevant, is harmless as to the railroad company, tending rather to benefit it by showing a fictitious advance immediately before its line was located.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <§=>1050.]</p> <p>5.Appeal and Error <§sp499 — Presentation oe Grounds of Review in Court Below— Necessity.</p> <p>Objections to the charge of the court cannot be reviewed where it did not appear that they were presented to the court at the proper time, or that the overruling thereof was excepted to.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]</p> <p>6.Appeal and Error <§=>499 — Presentation of Grounds of Review in Court Below— Necessity.</p> <p>The refusal of a special charge cannot be overruled where no bill of exceptions was preserved showing presentation of the request and exception to the refusal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]</p>

<p>1. Appeal and Ereob &wkey;>232 — Questions Reviewable — Rulings on Evidence — Bill op Exceptions.</p> <p>The court, in reviewing rulings on the evidence, is confined to the objections in the bill of exceptions, and an objection to the admission in evidence of a copy of an instrument because not filed among the papers of the cause for one day before announcement and beginning of trial does not raise the objection that the copy was not admissible without accounting for the original. '</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. &wkey;232.]</p> <p>2. Appeal and Ebrok &wkey;>742 — Assignments op Ebboe — Supporting Statements.</p> <p>Where supporting statements do not substantiate the contention made in assignments complaining of the findings of fact, the assignments will be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=*742.]</p>

<p>1. Assignments <&wkey;85 — Peiobities — Paeol AND WRITTEN ASSIGNMENTS.</p> <p>In determining the rights of two assignees to the fund, the fact that one assignment is in parol and the other in writing does not give the latter any superior dignity.</p> <p>[Ed. Note. — Por other eases, see Assignments, Cent. Dig. §§ 149-151; Dec. Dig. &wkey;85.]</p> <p>2. Assignments <®=o74 — Effect — Title to Fund.</p> <p>A parol assignment by a company constructing a public road, to a bank, of funds to become due the construction company under the contract, for the purpose of securing advances by the bank, vests in the bank the equitable title to the fund on which the warrants in favor of the construction company would be drawn and a right to the possession of the warrant as soon as it was drawn, unless there existed a superior right on the part of some other claimant.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. § 138; Dec. Dig. <&wkey;>74.]</p> <p>3. Subrogation <&wkey;27 — Agreement for Sub-rogation.</p> <p>A clause in an application by a contractor for a surety bond providing that the surety should be subrogated to the contractor’s rights under the contract, and assigning to the company all deferred payments and. retained percentages and all moneys due and payable on the contract at the time of any default, igives the surety only the same rights to which it is entitled under the law of subrogation.</p> <p>LEd. Note. — For other cases, see Subrogation, Cent. Dig. §§ 68, 78; Dec. Dig. <&wkey;>27.]</p> <p>4. Assignments <®^73 — Construction — Claims Assigned.</p> <p>An assignment by a contractor whose contract provided that 15 per cent, of the value of the work finished should be retained from the paj'ments to be made as the work progressed to his surety to secure advancements made by the surety of all moneys rising from the retained percentages under the contract gives the surety no claim to money due the contractor for work completed and payable at once.</p> <p>[Ed. Note. — For other cases, see Assignments, Cent. Dig. §§ 139-142; Dec. Dig. t&wkey;73J</p> <p>5. Assignments <&wkey;85 — Operation — Priority.</p> <p>A written assignment by a contractor to his surety for sums due him under the contract is subrogated to a prior parol assignment by him of the same funds.</p> <p>[Ed. Note. — For other cases, see Assignments, Cáht. Dig. §§ 149-151; Dec. Dig. <&wkey;>85.]</p> <p>6. Subrogatíon <&wkey;36 — Rights — Priority over Assignment.</p> <p>A surety claiming by subrogation a fund as the property of a defaulting principal has a superior equity over a creditor claiming by equitable assignment.</p> <p>[Ed. Note. — Fop other cases, see Subrogation, Cent. Dig. §§ 99-103; Dec. Dig. @^>36.]</p> <p>7. Subrogation <&wkey;36 — Rights of Substituted Party — Extent.</p> <p>Where the surety of a road contractor who was compelled to complete the contract seeks subrogation to the rights of the contractor against the fund, the surety cannot claim the fund as against an assignee of the contractor, unless the board authorized to make payments thereof could have lawfully refused to pay the amount to the contractor or the assignee, since “subrogation” is merely the substitution of one party for another with respect to certain property rights, but the rights of the substituted party are coextensive with and limited by the rights of the other.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 99-103; Dec. Dig. &wkey;36.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Subrogation.]</p> <p>8. Highways <&wkey;113 — Construction Contracts — Assignments—Surety.</p> <p>Where a road contractor asked and was given permission by the board to have the work completed by his surety, there was no default by him in the performance of the contract, since it was merely an assignment of the contract with the consent of the other party, and the fact that the assignee was the assignor’s surety who took the contract to minimize its loss does not affect the rights of the parties, so that at the time the board could not withhold payment due the contractor from his assignee, and the surety did not become entitled thereto by subro-gation,</p> <p>ÍEd. Note. — For other cases, see Highways, Cent. Dig. §§ 348-352, 355; Dec. Dig. &wkey; 113.]</p> <p>9. Highways <&wkey;113 — Construction Contracts — Breach—W aiver.</p> <p>Even if the contractor had defaulted with his contract before the surety was substituted, the consent of the board to the completion of the contract by the surety waived any claim for damages for default, and it could not withhold the warrant due for work already completed.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 348-352, 355; Dec. Dig. <&wkey;>113.]</p> <p>10. Highways <&wkey;90 — Officers—Individual Liability — Unauthorized Act.</p> <p>Under Sp. Acts 31st Leg. c. 72, providing for the construction of permanent roads, and authorizing the road board to make the necessary contracts, allow claims, and direct their payments, and requiring the county, clerk to issue and deliver warrants, the board could not withhold a warrant from a person entitled thereto, and if the members attempt to do so they are individually liable for damages resulting therefrom.</p> <p>[Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 313, 314, 316, 317, 319-322, 356; Dec. Dig. <S¿^96.]</p>

<p>Execution <®=>272 — Property Subject to Execution — Rights oe Bubohasees — Notice.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5616, providing that the recording and indexing of a judgment creates a lien on the real estate then owned by the debtor, and on real estate subsequently acquired by him, a purchaser at an execution sale with notice that the execution debtor did not own, but that a person owned, the land, is not entitled to protection as against the third person’s claim, because he was without notice at the time of the recording and indexing of the judgment, notwithstanding article 6824, declaring that conveyances shall be void as to creditors and subsequent purchasers without notice unless acknowledged, proved, and filed to be recorded as required by law.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 771, 781-788; Dec. Dig. <§=272.]</p>

W. Simpson, Judge. Action by John E. Butcher against tbe Cummer Manufacturing Company of Texas and J. K. Warren. Judgment for defendant Warren and for plaintiff against defendant company, and it appeals.

<p>1. Appeal and Error &wkey;>662 — Record — Geounds of Decision.</p> <p>An assignment of error, not supported hy the record, will'be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2850-2852; Dec. Dig. &wkey; 662.]</p> <p>2. Carriers <&wkey;218 — Carriage op Live Stock —Actions—Time to Sue — New Cause op Action.</p> <p>In an action for delay in the shipment of mules, the petition alleged that defendant carrier negligently failed to transport the shipment to the destination in another state, but transported them to another point, and there held them in pens for five days or more beyond the reasonable time for transportation, that plaintiffs were compelled to divert the shipment, and that by the delay plaintiffs were damaged, because of the shrinkage and depreciated condition of the mules, to the amount of $900, and also because of extra feed bills of $50 and traveling expenses to look after the shipment amounting to $40. An amended petition declared on the same contract for delay in moving the mules after they were loaded, for unloading and detaining them in wet and muddy pens without proper food and shelter, for failure to keep them separated in reloading, and for allowing them to overeat upon reaching the point to which the shipment was diverted, whereby they became foundered and unfit for sale, and alleged damages at $950. The contract stipulated that suit should not be maintainable unless instituted within 91 days after the injury. The amended petition was filed after the expiration of such 91 days. Held, that no new cause of action was set up in the amended petition within the purview of the stipulation.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dee. Dig. <&wkey;>218.]</p> <p>3. Carriers &wkey;>218 — Carriage of Live Stock —Actions—Claim oe Loss.</p> <p>The filing of a suit within 30 days was a compliance with a stipulation in a contract for the shipment of live stock, requiring the shipper to file a written claim of damages within 30 days after the injury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <&wkey;218.]</p>

<p>1. Appeal and Ebeje &wkey;>215 — Pbesebvation op Objections — Insteitctions.</p> <p>Where the record does not show that the objection to the charge was presented to the court before the charge was read to the jury, or that the court acted on the objection made, or that any bill of exception was taken to the court’s action, as required by Acts 33d Leg. c. 59, relating to instructions, the assignment of error will not he considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. <&wkey; 215.) ’</p> <p>2. Appeal and Eeeoe <@=»301 — Reservation op Exceptions — Recobd.</p> <p>An assignment of error that the court could not properly render judgment against appellant for more than a certain amount, not found in the motion for new trial, could not be considered on appeal, where it did not constitute an. error of law apparent on the face of the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. <&wkey;>301.)</p>

E. Asbe, Judge. Action by R. J. Duffy, for himself and as next friend of Richard Newman Duffy, against the Magnolia Paper Company. From a judgment for plaintiff, defendant appeals.

C. Burford, Judge. Action by W. F. Cooper and others against G. L. Golding. Judgment for defendant against plaintiffs, and they appeal. The appellants are partners engaged in the manufacture and sale of vehicles. Appellee was employed as a traveling salesman to sell vehicles throughout the country, and, as authorized, made sales on credit of single vehicles to quite a number of people.

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by Genevieve Schulte against the Consolidated Kansas City Smelting & Refining Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from County Court, El Paso County; A. S. J. Eylar, Judge.</p> <p>Action by Silberberg Bros, against the National Surety Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1.Appeal and Error <&wkey;544v— Questions Reviewable — Fundamental Error.</p> <p>Where there was no motion for new trial, and the record contains no statement of facts, the court on appeal can consider only fundamental matters.</p> <p>TEd. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. <&wkey;544.]</p> <p>2. Appeal and Error <&wkey;544_ Questions . Reviewable — “Fundamental Error.”</p> <p>Errur in sustaining demurrers to petition going to the foundation of plaintiff’s cause of action and right to sue is fundamental, and reviewable though there was no motion for new trial, and the record contains no statement of facts.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey;544.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Fundamental Error.]</p> <p>3. Tenancy in Common <&wkey;55 —Action in Trespass to Try Title — Right oe Tenant.</p> <p>A tenant in common may sue in trespass to try title for the whole tract, against a trespasser, without joining cotenants.</p> <p>[Ed. Note. — For other cases, see Tenancy in Common, Cent. Dig. §§ 140-156; Dec. Dig. &wkey;> 55.]</p> <p>4. Executors and Administrators <&wkey;517— Foreign Executors — Statutory Provisions.</p> <p>An attempt by a foreign executor to act as such in .the state, without first complying with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3276, providing for the filing of a will probated in another state is without authority of law.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 1, 2297, 2298; Dec. Dig. &wkey;>517.]</p> <p>5. Wills <&wkey;434 — Foreign Wills — Probate —Eeeect.</p> <p>The purpose of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7S75, 7877, providing that, when a will has been probated in a sister state, a copj' thereof and its probate, when certified, may be filed and recorded, and take effect as a deed, is to permit a person owning land by virtue of a will duly probated in a sister state to preserve a muniment of his title without the formality of probating the will, required by article 3276.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 937-945; Dec. Dig. &wkey;434.].</p> <p>6. Wills <&wkey;681 — Trusts—Title oe Trustee.</p> <p>AVhere a will expressly or by necessary implication creates trusts and imposes on the executor duties performed by a trustee, he takes such title as is requisite, though the will does not specifically designate him as trustee, nor expressly bequeath or devise the property to him in trust.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1599-1601, 1612, 1613; Dec. Dig. &wkey; 681.]</p> <p>7. Wills c&wkey;681 — Foreign Wills — Probate —Record.</p> <p>A foreign will, whereby testator appointed a child executor to hold real estate in Texas in trust, with authority to sell and divide the proceeds in a manner directed, was probated in the state of testator’s domicile. There was no administration in Texas, and none could be had because of lapse of time. Meld, that the title to the real estate in Texas remained in the executor as trustee, and as trustee he could sue in trespass to try title and for damages.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1599-1601, 1612, 1613; Dec. Dig. &wkey; 681.] '</p> <p>8. Prjincipal and Agent &wkey;>113 — Power oe Attorney — Authority oe Agent.</p> <p>A power of attorney to sell real estate does not authorize the grantee therein to maintain a suit on behalf of the grantors in trespass to try title and for damages.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 334-337, 351; Dec. Dig. <@=>113.]</p>

Masterson, Judge. Proceedings by E. W. Robinson for the probate of the will of H. C. Cooper, deceased, in which Abraham Coker appeared as contestant, and in which Bettie Collins intervened. From a judgment admitting the will to probate, contestant appeals.

<p>Error from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by C. F. Emerson and wife against J. R. Parker. From a judgment for plaintiffs, defendant brings error.</p>

<p>1. Corporations ©=>121— Sale op Stock — Fraud — Sale by Agent — Knowledge oe Vendor.</p> <p>In a suit by a subscriber to stock to recover money paid on notes given for such stock and to enjoin defendants, vendors of such stock, from enforcing payment of the unpaid notes, the fact that such defendants had no knowledge that such money and notes of the plaintiff in their possession had been obtained by false representations made by their agent was no defense, unless defendants were purchasers for value without notice.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 285, 304-311, 342-348; Dec. Dig. ©=>121.]</p> <p>2. New Trial ©=>124 — Motion — Grounds — Sufficiency of Verification.</p> <p>In an action by the purchaser of stock to enjoin defendant vendors from enforcing purchase-money notes given therefor, defendants’ motion for a new trial was properly refused, where it stated no meritorious defense to the action, was made so late in term that its granting would have necessitated a continuance, and where its verification by affidavit of the parties’ attorney was insufficient, being merely to the effect that the attorney “believed the allegations in the above motion to be true.”</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 250-253; Dee. Dig. ©=>124.]</p> <p>3. Appeal and Error ©=>1072 — Harmless Error — Proceedings on Motion for New Trial.</p> <p>Where the trial court errs in not permitting defendants to file amended motions for new trial, and in not considering such motions, defendants neither in such motions nor otherwise showing that plaintiff’s demand Was unjust as to the merits of the case, merely insisting that the evidence does not show certain facts, the error is immaterial so far as the action of the court in refusing a new trial is concerned.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 42331/2; Dec. Dig. ©=>1072.]</p>

<p>1. Sales <@=>124 — Rescission — Tender—Necessity.</p> <p>A purchaser of an automobile, suing to rescind the contract and recover the amount paid on the purchase price, was not entitled to judgment, where there had been no tender of the machine.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 303-312; Dec. Dig. <@=>124.]</p> <p>2. Sales <@=>262% — Warranties—Liability.</p> <p>Where, on the sale of an automobile by a dealer, who was acting for himself and did not pretend to represent the manufacturer, he delivered to the purchaser the manufacturer’s warranty of the automobile, which provided that it was dependent on the purchaser registering his name, address, date of purchase, and model of car with the manufacturer, and the dealer neither signed any warranty nor made any representations as to the machine, except as might be implied from the delivery of the warranty, and the purchaser never registered his name as required by the warranty, he could not recover for breach of the warranty.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 740-74S; Dec. Dig. <@=>262%.]</p>

<p>■ Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.</p> <p>Action by E. E. Nuckols and husband against R. H. Stanger. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from Kaufman County Court; James A. Cooley, Judge.</p> <p>Action, by B. M. Childress against J. H. Harmon and others. From a judgment for plaintiff for insufficient relief, he appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by L. H. Bomar against the Camden Fire Insurance Association and others. From a judgment for plaintiff, the defendant named appeals.</p>

<p>1. Commerce <@=>33 — '“Interstate Commerce” —What is.</p> <p>A shipment from a point in the state to a point in a sister state is an “interstate” shipment, though the initial carrier obligated itself to transport the goods wholly in the state.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. <@=>33.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Carriers <@=>218 — Bill oe Lading — Stipulations — Validity.</p> <p>Under the Carmack Amendment to the Interstate Commerce Act (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]), a stipulation in a bill of lading of animals that, in case of loss of any of the animals from any cause for which the carrier is liable, the value thereof shall be its actual cash value at the time and place of shipment, not to exceed a specified sum per head, is valid, and governs the assessment of damages.</p> <p>[Ed. Note. — For other cases, see Carriers, ■Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. <®=218.]</p> <p>3. Pleading <@=>412 — Failure to Reply — Waiver.</p> <p>Special denial by plaintiff of defensive matter pleaded by defendant is waived by proceeding to trial as if issue had been properly joined, and the objection cannot be raised for the first time after an adverse verdict.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1387-1394; Dec. Dig. <@=>412.]</p>

<p>Appeal from District Court, Ellis County; F. L. Hawkins, Judge.</p> <p>H. C. Ghent was convicted of manslaughter, and he appeals.</p>

<p>Error from District Court, Harris County; ■Chas. E. Ashe, Judge.</p> <p>Action by J. E. Lester and another against the Liverpool & London & Globe Insurance Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Aiipeal from District Court, Martin County; S. J. Isaacks, Judge.</p> <p>Action by G. W. Wolcott against the Birge-Eorbes Company and others. Erom a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Newton County ; A. E. Davis, Judge.</p> <p>Action by Emma Bird and another against the Palmetto Lumber Company and others. Judgment for defendants, and plaintiffs appeal.</p>

Action by the Woldert Grocer Company against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. The action is by appellee to recover damages sustained by five cars of peaches by reason of alleged negligence in transportation. The negligence alleged is the failure to furnish suitable and properly equipped cars in which to transport the peaches, and the failure to sufficiently ice and refrigerate the peaches while in transit.

<p>1. Depositions <&wkey;83 — Sotpbession — Evidence.</p> <p>A party cannot be deprived of his right to have cross-interrogatories answered because the failure to answer them resulted from the negligence of the officer who took the deposition; and hence a notary’s testimony that deponent willingly answered all questions, and that, if any were not wholly answered, the failure was due to his own inadvertence, was inadmissible.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. <&wkey;83.]</p> <p>2. Depositions <&wkey;83 — Suppression—Discretion of Tkiai, Court.</p> <p>Bev. St. 1911j art. 3676, requires motions to suppress depositions to be disposed of before trial. Plaintiff filed his deposition May 2. 1912, and, on defendant’s motion, the trial court on May 8th indicated his opinion that the deposition should be suppressed on the ground that deponent had not answered defendant’s cross-interrogatory as to whether plaintiff told a codefendant to elect a board fence in the rear premises of defendant’s property at the place where it was erected, and as to whether such third person complied with plaintiff’s request and with deponent’s instruction, but at plaintiff’s request the matter was postponed from term to term, and on February 20, 1914, after the evidence on which the case was tried had been introduced, and after deponent’s death, the motion to suppress was granted, and an order was entered nunc pro tunc as of May Sth. The answer sought would have aided defendant, though such answer was contradicted by other witnesses. Held, that the suppression of such deposition was not an abuse of the trial court’s discretion.</p> <p>[Ed. Note. — For -other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. &wkey;>83.]</p> <p>3. Adverse Possession &wkey;>114^-FiNDiNGS— Sufficiency of Evidence.</p> <p>In trespass to try title, evidence held sufficient to support a finding that defendants had open, continuous, and adverse possession of the land claimed by them in their cross-bill for ten consecutive years prior to December 14, 1910, and lying between the plaintiff’s building or wall and a line parallel with such building 101 feet back from the street, being the present fence line, as against the objection that the evidence did not support defendants’ claim that they had inclosed the land with brick walls, in that it-did not show where such brick walls were located or what ground they inclosed.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dee. Dig. &wkey;>114.]</p> <p>4. Adverse Possession <&wkey;117 — Findings— Construction.</p> <p>In trespass to try title, with a cross-bill setting up a title by adverse possession, findings that plaintiff and those under whom he claimed had not had open and adverse possession of the tract of land lying between plaintiff’s building and an existing board fence did not conflict with findings that defendants had had possession of the land sued for in their cross-bill filed March, 1912, from the year 1876 to 1902, since the latter finding could not be construed as a finding that, after defendant’s exclusive possession in 1902, plaintiff had such possession for ten years as to create a title by limitation, where the evidence did not show ten years intervening between the plaintiff’s erection of the fence and the filing of defendant’s cross-action or plaintiff’s adverse possession during such time.</p> <p>[Ed. Note — For other cases, see Adverse Possession, Dec. Dig. &wkey;»117.]</p> <p>5. Stipulations <&wkey;18 — Construction—Admissions.</p> <p>In such action an agreement that plaintiff had a record title to one lot and defendant a record title to another lot, resei-ving the right to prove limitation to any property belonging to the other and to introduce such instruments as might be necessary therefor, did not have the effect of an admission that plaintiff had title by a regular chain from the sovereignty of soil, as a record title might be one derived from the common source.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 41-54; Dec. Dig. <&wkey;18J</p> <p>6. Appeal and Error &wkey;>499 — Objections and Exceptions — Sufficiency.</p> <p>Bills of exceptions, failing to show that requested special charges were presented, that objections to the submission of the issues were made at the' proper time, or that the rulings thereon were excepted to at the proper time, were insufficient as a basis for assignments of error in the refusal of such charges.</p> <p>LEd. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <&wkey; 499.]</p> <p>7. Appeal and Error &wkey;>742 — Assignments of Error — Sufficiency.</p> <p>An assignment of error in that all the findings of the jury were contrary to the evidence was too general, where no propositions were submitted thereunder and it was not followed by a statement, and would not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]</p>

M. Pick, Judge. Action by Turner Wilson and wife against the Chicago, Burlington & Quincy Railroad Company and others. From a judgment for plaintiffs against defendant named, it appeals.

<p>Appeal from Harris County Court; Clark Ü. Wren, Judge.</p> <p>Action by Horace Wilson against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Master and Sebvant <§^319 — Independent Contractor — Liability oe Property Owner for Negligence.</p> <p>Where a landowner employed a contractor to erect a building thereon, the land being so situated that rubbish therefrom would necessarily be carried across the sidewalk, injury to a lawful passenger on the sidewalk by being negligently run into by an employé of the contractor pushing a wheelbarrow loaded with rubbish, did not render the owner liable on the theory that the performance of the contract necessarily involved the production of the hazard which caused the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1259, 1260; Dee. Dig. @=5319.]</p>

Error from Distinct Court, Hardin County; J. Llewellyn, Judge. Trespass to try title by J. W. Richardson and others against the Houston Oil Company of Texas, in which the defendant filed a cross-petition. Judgment for the defendant on its cross-petition, and plaintiffs bring error.

Error from District Court, Harris County; •Chas. E. Ashe, Judge. Action by Ortman W. Crawford against Sarah M. Magee and others in which Catherine Zeigel and others were made parties. To review the judgment, Catherine Zeigel and others bring error.

<p>1.Appeal and Erkor <@=>736 — Assignments of Error — Grouping—Unrelated Propositions.</p> <p>Assignments of error, relating to different issues not susceptible of being* presented by propositions relating to all, are improperly grouped together.</p> <p>[Ed. Note. — For other cases, see Appeal ant Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. <@=: 736.]</p> <p>2. Appeal and Error <@=>1039 — Review — Harmless Error.</p> <p>In an action for damages for breach of defendant’s contract to buy cattle, the allegation of the complaint describing the quantity as two car loads, although defective as indefinite as to number, time, and general quality, was harmless, where the defendant alleged the contract as for the sale of two car loads of fat steers, which the plaintiff did not deny, and the evidence showed that 46 made two ear loads; there being no contention that such number was more than are customarily shipped in two cars.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-40S8; Dec. Dig. <@=> 1039.]</p> <p>3. Evidence <§=*508 — Opinion—Expert Testimony.</p> <p>In an action for breach of contract to buy cattle, opinion evidence of one who qualified in point of experience as to what such cattle would have weighed at a certain place was admissible; the weight of the opinion being for the jury in connection with other testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2311; Dec. Dig. <@=>508.]</p> <p>4. Sales <@=>384 — Remedies oe Seller — Action for Damages — Measure.</p> <p>In an action for breach of contract to purchase cattle, the seller’s measure of damage was the difference between the contract price and the price at the point of delivery, or the nearest available market, if no market existed at such point.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. <@=>384J</p> <p>5. Sales <@=>379 — Remedies oe Seller — Action for Damages.</p> <p>In an action for breach of contract to buy cattle at so much a pound, plaintiff should have alleged what the cattle would have weighed at point of delivery, and what was their weight at the point to which the plaintiff, upon breach, was forced to send them to find a market ; such allegations being necessary as a foundation for evidence of damage.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1094; Dec. Dig. <@=>379.]</p> <p>6. Appeal and Error <@=>273 — Reservation of Grounds of Review — Necessity of Pleading — Special Exception.</p> <p>Where no special exception was taken to a defective pleading, its correctness was not open to review.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764: Dec. Dig. <@=>273.]</p> <p>7. Depositions <@=>96 — Pleading to Support Interrogatory.</p> <p>Where testimony by deposition of a witness was not material, under the allegations of the petition on file when the deposition was taken, but found support in the allegations of an amended petition thereafter filed, the rejection of the testimony was not called for, although in such case, upon showing by the adverse party that, on account of the question being irrelevant at the time of being propounded, he failed to file interrogatories, or that the new pleadings present matters upon which it is material that he should further examine the witness, he should be granted a continuance to do so.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 278, 279; Dec. Dig. <@=>96.]</p> <p>8. Appeal and Error <@=>1050 — Harmless Error — Admission of Evidence.</p> <p>Error in admitting evidence was harmless, where it agreed with the only competent evidence given as to the matter.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <@=>1050.]</p> <p>9. Sales <@=>377 — Remedies of Seller — Action for Damages — Pleadings—Damage.</p> <p>In an action for breach of contract to buy cattle, which, upon defendant’s refusal to accept, were shipped to another point and sold, where the petition alleged that the resale was made on the best available market and for the best price obtainable, it was unnecessary to allege that the cattle had no market value at point of delivery, since the allegation made necessarily implied the fact.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1092; Dec. Dig. <@=*377.]</p> <p>10. Sales <@=>384 — Breach of Contract — Duty of Seller.</p> <p>Where a buyer of live stock refused to accept the same on delivery, it was the duty of the seller to realize the best price when, he undertook to sell elsewhere.</p> <p>[Bd. Note. — Por other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. <@=>3S4.]</p> <p>11. Sales <@=>384 — Remedies of Seller — Action for Damages — Measure.</p> <p>In an action for breach of contract to buy cattle at so much a pound, where, upon refusal of the buyer to accept, the plaintiff shipped such cattle to the best available market, and there sold them, the verdict for the difference between the contract price and the amount received was not excessive, because there was not deducted therefrom the amount lost by shrinkage in weight caused by the delay of the carrier in shipping from point of delivery to point of resale.</p> <p>[Bd. Note. — Por other cases, see Sales, Cent. Dig. §§ 1098-1107; Dec. Dig. <@=>384.]</p> <p>On Motion for Rehearing.</p> <p>12. Trial <@=>356 — 'Verdict—Special Bindings — Pailure to Bind on Issue.</p> <p>In an action for breach of a contract to buy live stock, where the court entered judgment upon a verdict without requiring an answer to the issue whether, at the time of the inspection and rejection of the steers by defendant’s agent, the plaintiff led such agent to believe that he (the plaintiff) would retain such cattle for his own use, the action of the court was improper, since if one party to a contract makes statements to the other calculated to lead such other to believe that it is satisfactory to him that the contract be rescinded, and thereupon such other treats the contract as rescinded, he is estopped to assert that the contract has not been rescinded.</p> <p>[Ed. Note. — Por other cases, see Trial, Gent. Dig. §§ 849-854; Dec. Dig. <@=>356.]</p> <p>13. Pleading <@=>186 — Joinder of Issue — Remedies of Seller — Action for Damages.</p> <p>In an action for breach of contract to buy cattle, where the petition set out that plaintiff had told defendant he would have to reship and sell elsewhere, while the answer pleaded an agreement by the plaintiff to retain such cattle, assenting to a rescission, the petition did not constitute a joinder of issue on the plea, under Rev. St. 1911, art. 1829, as amended by Acts 33d Leg. c. 127 (Vernon’s Say les’ Ann. Oiv. St. 1914, art. 1S29), enacted to secure joinder of issue on controvertible facts, and to eliminate those in controversy.</p> <p>[Ed. Note. — Por other cases, see Pleading, Cent. Dig. § 399; Dec. Dig. <@=>186.]</p>

<p>1. Counties <§=> 182 — Bonds — Sale — Validity.</p> <p>A county is not prohibited by statute from selling road construction bonds to contractors, but the statute forbids the sale of bonds for less than par and accrued interest, and where a contractor bids for both the work and bonds, but the bid for the work is not on a cash basis, but at an amount sufficiently above what the work could be done for cash to recoup him for part of the amount for which he agrees to pay for the bonds, the bids may not be accepted, for the method of selling the bonds is an evasion of the statute.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 285; Dec. Dig. <@=>182.]</p> <p>2. Counties <@=>182 — Bonds'—Sale — Validity.</p> <p>A road district authorized by vote the issuance of road construction bonds. Original specifications for bids for the road work declared that the bidders must accept bonds in payment. Subsequently, the bidders were notified that their bids for the work should be made on a cash basis, and that bids for the bonds should be made on a separate form. Bidders for the work were not required to bid for bonds. A successful bidder for the work made a separate bid for bonds on the understanding that the latter bid was optional. The bid for the work was low, and the bid for the bonds, to be issued in installments, was for not less than par and accrued interest. The bidder was required to pay into the county treasury the par value and accrued interest on each installment delivered. Held, that the sale of the bonds and the letting of the contract for the work did not evade the law forbidding sale of bonds for less than par and accrued interest.</p> <p>[Ed. Note. — For other cases, see. Counties, Cent. Dig. § 285; Dec. Dig. <@=>182.]</p>

<p>1. Certiorari <s=342 — Petition — SUFFICIENCY.</p> <p>_ A petition, to be sufficient to bring up for review the action of the county court in admitting a will to probate, should state the facts showing the purported will was void; hence a petition for certiorari which merely alleged that the purported will was void and prayed that it be set aside is insufficient.</p> <p>[Ed. Note. — For other cases, see Certiorari, Cent. Dig. §§ 64-73, 75-79, 81-84, 87; Dec. Dig. ®=^42.]</p> <p>2. Executors and Administrators <®=»35— Removal of Temporary Administrator-Review .</p> <p>Where a will appointing the testator’s wife an independent executrix was admitted to probate, one appointed temporary administrator cannot complain of an illegal order removing him; the wife being entitled to administer the estate.</p> <p>[Ed. Note. — Eor other cases, see Executors and Administrators, Dee. Dig. <@=>35.]</p> <p>3. Certiorari <@=>42 — Petition—Amendment.</p> <p>Rev. St. 1911, art. 734, provides that all applications for writ of certiorari to the county court shall distinctly set forth the error in the proceedings sought to be reviewed, while article 740 declares that the cause shall be tried de novo, but the issues shall be confined to the grounds of error specified in the application for the writ. The original petition for a writ to review the action of the county court admitting a will to probate did not set forth the facts showing its invalidity, hut only prayed that the purported will be set aside. Meld, that the denial of leave to file an amended petition alleging want of capacity, and that the will was not that of the testator, was not error; for it changed the cause of action upon which the writ of certiorari was granted.</p> <p>[Ed. Note. — Eor other cases, see Certiorari, Cent. Dig. §§ 64-73, 75-79, 81-84, 87; Dec. Dig. <®=42.]</p>

<p>Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.</p> <p>Action by J. W. Hocker against the San Bernardo Townsite Company and another. From a judgment for plaintiff, defendant named appeals.</p>

<p>Appeal and Ekeoe <&wkey;771 — Filing of Briefs — 1Time to File.</p> <p>Failure of appellant to file briefs within the time prescribed by Rev. St. 1911, art. 2115, thereby depriving appellee of the right to file a brief within 20 days after notice and of the right conferred by articles 1613, 1616, to have the cause set for submission in the order in which docketed, is not excused on a showing that nothing was done towards the preparation of the briefs after the filing of the record in the court on appeal on August 28th, until January following, while the cause was regularly set for submission April 8th, and where in December appellee refused to consent to a postponement of submission, though, because of transfers of other eases on the docket to other courts, the day of submission was hastened.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3105; Dee. Dig. &wkey;771J</p>

<p>Appeal from District Court, Chambers County; J. Llewellyn, Judge.</p> <p>Action by the Lone Star Canal Company against D. L. Broussard, Jr., and another. From affirmative judgment for defendants in their cross-action, plaintiff appeals.</p>

G. Street, Judge. Suit by the Waples Lumber Company against the General Bonding & Casualty Insurance Company, W. F. Breath and wife, and W. T. Butler, with cross-bill by defendants Breath and wife against the Insurance Company.

<p>Appeal from District Court, Newton County; A. E. Davis, Judge.</p> <p>Action by R. A. Cruse and others against R. E. Dicken and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by S. T. Sherrill against the American Well & Prospecting Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Bankruptcy <S=295 — Action against Trustee — Jurisdiction—Bankruptcy Act.</p> <p>Under Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 552 [U. S. Comp. St. 1913, § 9607]) § 23, providing that the United States Circuit Courts i hall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants, concerning property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and the controversy had been between the bankrupt and the adverse claimant, where plaintiff had constructive possession of land from which defendant trustee in bankruptcy was attempting to cut timber, the district court of the county, and not the United States court, had exclusive jurisdiction to determine the rights of the parties to the timber under a contract between the bankrupt and plaintiff, since the only exception to the rule of the act is where the trustee holds actual possession of the bankrupt’s property, in which.case suits concerning it may be determined by the United States court having jurisdiction of the proceedings in bankruptcy.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 414, 417; Dec. Dig. <®=295.]</p> <p>2. Bankruptcy <§=293 — Action against Trustee — Jurisdiction — Possession of Land — Pleading.</p> <p>In a suit against a trustee in bankruptcy to restrain, such trustee from cutting timber from land formerly of the bankrupt, where plaintiff alleged that he was the owner of the timber and of the land, having purchased from the bankrupt and received a deed of general warranty, and that defendant trustee was claiming the right to cut and remove such timber under a contract unenforceable because without consideration, the petition could not be construed to allege that the timber was in the possession of the bankrupt or the trustee, so as to give the bankruptcy court jurisdiction to determine the respective claims thereto.</p> <p>[Ed. Note. — Eor other cases, see Bankruptcy, Cent. Dig. §§ 411, 417; Dec. Dig. <@=293.]</p>

<p>Appeal and Eeeob <&wkey;628 — Recoed—Filing Tbanscbipt — Failuee to File in Time— Effect.</p> <p>Where appellant, after filing a superse-deas bond, delayed nearly a month before requesting the clerk to prepare a transcript, and thereafter waited more than four months while the clerk failed to deliver such transcript and put appellant’s attorney off with promises, who failed to resort to mandamus against the clerk, the judgment should be affirmed on appellee’s motion; no sufficient excuse having been shown by appellant for not having filed the transcript within the statutory time, 90 days, or at least within 30 days after the expiration of such term.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2750-2764; Dec. Dig. <©=> 628.]</p>

<p>Appeal from District Court, Floyd County; R. C. Joiner, Special Judge.</p> <p>Action by William D. Cleveland & Sons against the First State Bank of Floydada. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Court,- Galveston County; Clay -S. Briggs, Judge.</p> <p>Action by George N. Copley against the Galveston, Houston & Henderson Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Harris County; A. R. Hamblen, Special Judge.</p> <p>Action by Dupuy & Mullen against the Greater Houston Suburban Corporation. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Brazoria County; Samuel J. Styles, Judge.</p> <p>Application by A. C. Abraham to be appointed administrator de bonis non of the estate of A. J. Kimmons. Elmer C. Kim-mons and others contested the appointment, which was made, and the contestants appeal.</p>

<p>Appeal from Harris County Court, at Law; Clark C. Wren, Judge.</p> <p>Action by H. Ficlitenberg against the World’s Special Filins Corporation. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Crosby County; W. R. Spencer, Judge.</p> <p>Action by H. D. Matheson against the C-B Live Stock Company and another. Erom a judgment for defendants, plaintiff appeals.</p>

Error from District Court, Galveston County; Robert G. Street, Judge. Action by Dewey Rinker against the Galveston-Houston Electric Railway Company and another and the Stone & Webster Engineering Corporation. There was a judgment for defendants, and plaintiff brings error.

<p>1. Carriers @=>230 — Injury to Live Stock — Contributory Negligence — Question for Jury.</p> <p>Whether plaintiff, whose horse was injured by defendant, was guilty of contributory negligence in not having it treated by a veterinary and in using it too soon, held, under the evidence, a question for the jury.</p> <p>[Ed. Note. — For other' cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. @=>230.]</p> <p>2. Trial @=>255 — Instructions—Necessity of Request.</p> <p>Defendant desiring a charge on contributory negligence should request it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. @=>255.]</p>

Styles, Judge. Action in the name of the State of Texas, for the use of Matagorda County Drainage District No. 1, against John E. Holt. Erom a judgment for plaintiff, defendant appeals.

<p>1. Trusts <@=>44t — Evidence—Judicial Sale.</p> <p>In a suit to recover a share of the profits realized from the sale of land bought at a judicial sale, evidence held not to show, as a matter of law, that plaintiff had authorized defendant, who was a co-owner with him of notes secured by a second vendor’s lien, to protect his interest at the sale so as to entitle him to share in the profits.</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. <§=>44.] ■</p> <p>2. Partnership <§=>96 — Purchase op Property by Partner — Judicial Sale.</p> <p>Where one partner purchases at a judicial sale land sold on foreclosure of a partnership lien, that purchase does not inure to the benefit of the partnership, but the land may be held by the purchaser for his individual benefit, if the purchase was made openly and without any agreement to stifle competition in bidding.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 144; Dec. Dig. <§=>96.]</p> <p>3. Contracts <§=3130 — Validity—Agreement with Purchasers at Judicial Sale.</p> <p>An agreement between two parties that one shall purchase the property at a judicial sale and sell it to the other does not necessarily render the sale illegal; but, if the agreement was entered into to stifle competition and to .prevent the property from bringing a fair price, it would be illegal.</p> <p>TEd. Note. — For other cases, see Contracts, Cent. Dig. §§ 654-658; Dec. Dig. <&=cl30.]</p>

<p>Appeal and Error <§=>263 — Bill op Exceptions — Necessity.</p> <p>Assignments complaining of the refusal of special charges will be overruled, where no bill of exceptions was taken to their refusal, as required by Acts 33d Leg. c. 59.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. <§=>263.]</p>

<p>1. Appeal and Error <@=3499 — Questions Reviewable — Rulings on Instructions.</p> <p>An assignment of error complaining of instructions, objections to which are not presented by bill of exceptions as required by Acts 33d Leg. c. 59, cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <@=> 499.]</p> <p>On Rehearing.</p> <p>2. Appeal and Error- <@=722 — Questions Reviewable — Assignments of Error — Motion for New Trial.</p> <p>Under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), providing that, where a motion for new trial has been filed, the assignments therein shall constitute the assignments of error, and need not be repeated by the filing of assignments of error, grounds on which a new trial is sought are assignments of error reviewable on complaint for entering judgment on the verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990-2996; Dec. Dig. <@= 722.]</p> <p>3. Master and Servant <@=217 — Injury to Servant — Assumption of Risk — “Emergency.”</p> <p>An employs who remonstrated with the foreman against moving a rail because too heavy for him and the three others directed to do the work, and who knew that the rail was too heavy for four men, assumed the risk of injury in assisting in moving the rail in the absence of any “emergency,” which is a condition arising suddenly or unexpectedly, and which calls for immediate action without time for deliberation.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. <@= 217.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Emergency.]</p> <p>On Rehearing by Appellee.</p> <p>4. Master and Servant <@=297 — Injury to Servant — Assumption of Risk — Special Verdict.</p> <p>A special verdict in an action for injuries to an employé assisting three men in moving a rail too heavy for four men that the employs knew that four men were insufficient in number to handle the rail in the manner directed is a finding that he understood and appreciated the danger and assumed the risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1195-1198; Dee. Dig. <@=297.]</p> <p>5. Master and Servant <@=221 — Injury to Servant — Promise by Master.</p> <p>A promise by an employer not to subject an employé to danger in the future if he would hazard it is not a promise by the employer to assume the risk of the danger.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 638-640, 642-645; Dec. Dig. <@=3221.]</p>

<p>1. Adverse Possession <@=>79 — Tax Deeds— Limitations — “Deed . ’ ’</p> <p>A tax deed not void on its face, but only because of extrinsic evidence, is a “deed” within the five-year statute of limitations.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459^462; Dec. Dig. <@=> 79.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Deed.]</p> <p>2. Adverse Possession <@=>79 — Tax Deeds— Limitations.</p> <p>Possession under a tax deed during the time allowed the owner for redemption is not adverse under the five-year statute of limitations.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. <S=> 79.]</p> <p>3. Adverse Possession <@=>100 — Tax Deeds— Limitations.</p> <p>A deputy sheriff, who had acquired possession of part of a tract, sold it at a tax sale to a third person, who bought for, and subsequently conveyed to, him. There was subsequently a substantial change in his possession and use by additional fencing and by placing a large part thereof in cultivation. The unfenced part was occupied by a lessee. Such possession continued for more than five years after the expiration of the period of redemption. HeW to show adverse possession of the entire tract.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. <@=o</p> <p>On Motion for Rehearing.</p> <p>4. Advebse Possession <@=>79 — Tax Deeds— Validity.</p> <p>A tax deed, which recites that notices were posted for more than 20 days successively next before the day of sale and which shows an interim of 58 days from date of judgment to date of sale, is not void on its face, but possession under it for five years after the expiration of period of redemption is within the five-year statute of limitation.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. <@=> 79.]</p>

<p>1. Corporations <S=^78 — Stock Subscriptions — Liabilitv to Subscriber.</p> <p>Where a contract for a subscription to stock in a corporation to be formed provided that the subscriber should, as soon as the corporation was organized, pay a fixed sum to it in cash or approved securities, and that he would pay to the organizers immediately an amount as his contribution to the expenses of organization, the contract was severable, and the corporation was not liable, after refusing to accept the subscription, for the return of the sum paid to the organizers; since it did not ratify that contract.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 219-231, 420-424, 429-434; Dec. Dig. <§^>78J</p> <p>2. Corporations <@=»30 — Organization—Promoters.</p> <p>The promoters of a corporation cannot procure the payment of a bonus to themselves as. commissions and charge - it to the corporation when formed.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 97-100; Dec. Dig. <S=^30J</p>

<p>Appeal from Armstrong County Court; H. A. Mobley, Judge.</p> <p>Action by T. J. Wallace against the St. Louis, Iron Mountain & Southern Railway Company and others. From a judgment for plaintiff against defendant named, it appeals.</p>

J. Mathis, Judge. Action by J. H. Montgomery against the McKinney Ice, Light & Coal Company and the City of McKinney, with cross-bills by defendants against each other. Judgment for plaintiff against defendants, and against each defendant on its cross-bill, and defendants appeal.

<p>1.Nuisance &wkey;>75 — Abatement—Disorderly House — Plaintiot—Injuey. ■</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 46S9, providing that the use of any place for keeping a bawdyhouse shall be enjoined at the suit of the state, or any citizen thereof, a citizen, to maintain the suit, need not be injured in his property rights.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184; Dec. Dig. i&wkey;>75.]</p> <p>2. Nuisance <&wkey;75 — Abatement—Disorderly House — Complaint — Describing Plain-test.</p> <p>The complaint, in a suit, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4689, to enjoin use of a place for a bawdyhouse, alleging that plaintiff is a citizen, all that is necessary to authorize him to maintain the suit, it is immaterial that it describes him as the head of a neighboring educational institution.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184; Dec. Dig. &wkey;75J</p> <p>3. Nuisance <&wkey;75 — Abatement—Disorderly House — Complaint—Remedy at Law.</p> <p>Plaintiff, in a suit under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4689, to enjoin the keeping of a bawdyhouse, need not plead that he has no adequate remedy at law.</p> <p>[Ed. Note. — For other cases, see Nuisance, Cent. Dig. §§ 176-184; Dec. Dig. &wkey;75J</p> <p>4. Statutes <&wkey;64 — Pabtial Invalidity — Ee-pect.</p> <p>The main purpose of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4689, being to give authority to the state, or any of its citizens, to enjoin the keeping of bawdyhouses, any nnconstitutionality of the part attempting to create an exception by recognizing authority of certain districts to create segregation districts does not invalidate the remainder.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. &wkey;64.]</p> <p>5. Constitutional Daw &wkey;387 — Injunction &wkey;>102 — Abatement Statutes.</p> <p>Granting authority to enjoin crime, as the keeping of a bawdyhouse, as does Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4689, is in the power of the Legislature, and invades no rights of property.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 156-171; Dec. Dig. &wkey;87; Injunction, Cent. Dig. § 176; Dee. Dig. &wkey;3l02.)</p> <p>6. Juey <&wkey;14 — Right to Juey Trial — Tem-pobary Injunction.</p> <p>There is no right to a jury trial on an interlocutory hearing for a temporary injunction, but only on the final hearing.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 40-60, 66-83; Dec. Dig. &wkey;14.]</p> <p>7. Juey <&wkey;14 — Right to Juey Trial — Civil ob Criminal Case.</p> <p>A suit to enjoin the keeping of a bawdy-house is not a criminal case, but a civil matter, as regards right to jury trial.</p> <p>[Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 40-60, 66-83; Dec. Dig. &wkey;14.]</p> <p>8. Witnesses <&wkey;307 — Privilege—Incrimination.</p> <p>A witness in a civil case, to be relieved from answering a question, on the ground that it will incriminate her, must swear that it will do so.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1061-1064; Dec. Dig. &wkey;307.]</p> <p>9. Witnesses <&wkey;234 —Examination —Adverse Parties.</p> <p>By express provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3647 a party may, like any other person, be examined as a witness by the opposing party.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 815; Dec. Dig. <&wkey;234.]</p> <p>10. Evidence &wkey;>158 — Ownership op Premises — Abatement of Nuisance.</p> <p>Defendant’s ownership of the premises need not, in a suit to enjoin the keeping- of a bawdy-house, be proved by a deed, but may be proved by direct testimony, including that of defendant, or by her admissions to others, or by any act tending to show it, as her rendering it for taxation.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 472, 478, 474y2-504, 506-526; Dec. Dig. &wkey;158.]</p> <p>11. Evidence <&wkey;471 — Conclusions or Statement -of Pact — Ownership.</p> <p>Statements as to who is the owner of property are not necessarily legal conclusions, but are statements of facts.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dee. Dig. &wkey;471.]</p> <p>12. Appeal and Error <&wkey;742 — Assignments op Error — Statement.</p> <p>The statement, under an assignment of error attacking a description in the petition, making no effort to show what the description was, but merely referring to the record, is insufficient.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. &wkey;>742.]</p> <p>13. Appeal and Error &wkey;>742 — Assignments op Error — Propositions—Indepinitenbss.</p> <p>An assignment of error, “Because the judgment * * * is contrary to the law and the evidence,” with a proposition thereunder equally vague and indefinite, does not require consideration.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]</p>

<p>1. Evidence &wkey;>474% — Opinion Evidence-Question op Law and Pact.</p> <p>In an action for injuries to live stock in shipment, testimony by the shipper as to the ordinary shrinkage of cattle under proper shipment, if they were properly handled, is not an opinion on a mixed question of law and fact, since the expressions “proper shipment” and “properly handled” do not refer to the condition of the cattle under the shipment in question, but to the usual and ordinary shrinkage of cattle of that class when shipped.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2220-2223; Dec. Dig. i&wkey;474y2J</p> <p>2. Appeal and Error <@=31051 — Harmless Error — Admission oe Evidence — Fact Otherwise Established.</p> <p>Error in admitting opinion evidence as to a mixed question of law and fact is harmless, where substantially the same facts were otherwise proved without objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. &wkey;> 1051.]</p> <p>3. Carriers &wkey;>218 — Carriage oe Live Stock — Liability op Carrier — Negligence.</p> <p>A carrier of live stock cannot, under the Hepburn Act (Act June 29, 1906, 34 Stat. 584), exempt itself by contract from liability for its negligence, or that of its servants, causing damage to an interstate shipment of live stock.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674H396, 927, 928, 933-949; Dec. Dig. <&wkey;218.]</p> <p>4. Carriers &wkey;>218 — Carriage oe Live Stock — Liability oe Carrier — Higher Rate — Option oe Shipper.</p> <p>Where a carrier had published a tariff of interstate rates on shipments of live stock, which contained two rates, a higher one for shipment at the carrier’s risk, and a lower one for shipment at an agreed valuation and limitation of damages, and a shipper exercised his option by demanding the higher rate, the carrier cannot escape full liability for damages because of the fact that the agent refused to accept the shipment at the higher rate and to mark the contract accordingly, since by the exercise of the shipper’s option the contract became one at the carrier’s risk, regardless of the terms of the bill of lading, and the carrier could have collected the higher rate at destination.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674^696, 927, 928, 933-949; Dec. Dig. <&wkey;>218.]</p>

<p>1. Compromise and Settlement &wkey;>20 — Con-traco^-Breach.</p> <p>Where two partners, between whom actions were pending, agreed upon a settlement by the terms of which one transferred to the other certain claims against third persons, and one of the claims so transferred had already been fully paid, the contract was breached in its inception and furnishes no ground for recovery by the partner making the transfer against ' the other for proceeding to judgment in one of the actions.</p> <p>[Ed. Note. — -For other cases, see Compromise and Settlement, Cent. Dig. §§ 83-88; Dec. Dig. <S&wkey;20J</p> <p>2. Judgment <&wkey;335 — Vacation—Bill oe Review — Remedy at Daw.</p> <p>A bill of review does not lie to set aside a judgment where the judgment defendant neg-iected to make use of a legal remedy to vacate the judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 647-603; Dec. Dig. &wkey;335.]</p> <p>3. Justices oe the Peace &wkey;>126<-Civu, Actions — CertiobaRI—Diligence.</p> <p>Where one against whom a judgment had been rendered by a justice of the peace learned of the judgment four days before the expiration of the time within which to sue out a writ of certiorari, but left town on other business so that his attorney could not take any action in time, he did not exercise due diligence and is not entitled to a bill of review to vacate the judgment.</p> <p>[Ed. Note. — For other cases, _ see Justices of the Peace, Cent. Dig. §§ 400, 464; Dec. Dig. &wkey;»126.]</p>

<p>Appeal from Taylor County Court; E. M.. Overshiner, Judge.</p> <p>Action by Audra Lodge No. 438, Fraternal Union of America, and others, against W. A. Kelley and another.</p>

<p>1. Account, Action on <&wkey;ll — Verified Account as Prima Facie Evidence — Sufficiency of Account.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3712, providing that when an action or defense is founded upon an open account, supported by affidavit, it shall be taken as prima facie evidence thereof, unless the party resisting it shall file a written denial, under oath, stating that the account is not true in whole or in part and, if in part only, stating- the items which are unjust, where the first item in an account was for merchandise, but the rest of the items, with the exception of several charges of interest, without any statement showing upon what sums, for what period, or at what rate the interest was charged, consisted merely of dates and of amounts, without stating whether for merchandise sold or for a debt of some other character the account was not sufficient to support a default judgment.</p> <p>[Ed. Note. — For other cases, see Account, Action on, Cent. Dig. §§ 32-36; Dec. Dig. <&wkey;ll.j</p> <p>2. Interest <&wkey;34 — Agreements as to Interest-Necessity of Writing.</p> <p>To recover 10 per cent, interest on any item of an account and 10 per cent, attorneys’ fees, it was - necessary to prove an agreement in writing to pay such sums.</p> <p>[Ed. Note. — For other cases, see Interest, Cent. Dig. §§ 71-74; Dee. Dig. &wkey;34.j</p> <p>3. Interest <&wkey;34^AGR®EMBNTS as to Interest-Sufficiency of Evidence — Verified Accounts — “Open Account.”</p> <p>A verified account sued on, which contained charges of interest, did not tend to prove a written agreement to pay interest on the items of the account at the rate of 10 per cent., as the charges for interest were founded upon a definite contract, and were not a part of the “open account” contemplated by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3712.</p> <p>[Ed. Note. — For other cases, see Interest, Cent. Dig. §§ 71-74; Dec. Dig. <&wkey;34.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Open Account.]</p>

<p>Error from Comanche County Court; J. H. McMillan, Judge.</p> <p>Action by H. H. Hardin against C. W. Lusk. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action by J. E. Forster against the Enid, Ochiltree & Western Railroad Company and others, in which defendant the First National Bank of Henry, Ill., filed a cross-action. From a judgment for the bank, plaintiff appeals.</p>

<p>Appeal from District Court, Hemphill County ; E. P. Greever, Judge.</p> <p>Action by M. M. Gardner against the Enid, Ochiltree & Western Railroad Company and others. Erom a judgment for defendants, plaintiff appeals.</p>

M. Jeter, Judge. Action by Charles L. White, individually and as next friend, etc., against the Gulf, Colorado & Santa Fé Railway Company and another. From a judgment for plaintiff against the defendant named, it appeals.

<p>Public Lands <&wkey;173 — Contract to Convey —Validity.</p> <p>A contract embodied in a bond for title whereby the obligor, whose vendor had been in possession of school lands for over a year, contracted to convey to the plaintiff, was a valid obligation, and defendant, who had taken a conveyance from the obligor, agreeing to perform the conditions of such bond, was liable to the plaintiff for the land, since the obligor had a vendible title; his vendor having complied with the prescribed period of occupancy.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;>173.]</p>

<p>1. Vendor and Purchaser <&wkey;176 — Contracts — Misrepresentations.</p> <p>Where an agent of .the vendor represented to the purchaser that the tract contained 100 acres, while it contained only 84.04 acres, and the purchaser relied on the representation, the purchaser was entitled to an abatement in the price, whether the representations were made in good faith or not.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. &wkey;176.]</p> <p>2. Vendor and Purchaser <&wkey; 176 — Sale in Gross — Relief for Shortage in Area.</p> <p>■ Where a sale of real estate is in gross, the purchaser is not, as a general rule, entitled; in the absence of fraud or gross mistake, to an abatement of the price, though, where the deficiency is so great as to shock the conscience of the court, relief can be granted on the ground of fraud, though the quantity is qualified by the words “more or less.”</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dee. Dig. <§^176.]</p> <p>3. Vendor and Purchaser <&wkey;176 — Saue in Gross — Relief for Shortage in Area.</p> <p>A vendor of a tract of land containing 84.04 acres represented that it contained 100 acres, and the purchaser relied on the representation and accepted a deed describing the land as containing 100 acres “more or less.” Both parties believed that the tract contained 100 acres. The purchase was in gross. Held, that the purchaser was entitled in equity to an abatement of the price for the deficiency, in the absence of anything to show that the parties intended to take the risk of a deficiency or of an excess.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. <&wkey;176.]</p> <p>4. Vendor and Purchaser <&wkey;176 — Contracts oe Purchase — Mistake as to Quantity — Effect.</p> <p>A purchaser going on a tract of land repre-sen ted by the vendor as containing 100 acres, while in fact containing only 84.04 acres, and vey, and accepting a deed describing the land as containing 100 acres more or less, will not failing to ascertain the exact acreage by a sur-be denied relief for the deficiency on the ground of failure to use proper diligence, where the purchaser and the vendor were friends, and there was no reason why the purchaser could not rely on the vendor’s judgment.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. &wkey;176.]</p> <p>On Motion for Rehearing.</p> <p>5. Principal and Agent <&wkey;15G — Personal Liability of Agent — Judgment.</p> <p>Where an agent for the sale of land was not personally liable for any misrepresentation as to the acreage, a judgment granting the purchaser relief for a deficiency in the acreage should not include the agent personally.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. &wkey;> 156.]</p> <p>6. Exchange of Property <&wkey;8 — Remedies— Damages.</p> <p>Plaintiff exchanged his land estimated by the parties to be worth $5,000 for defendant’s land represented to contain 100 acres, but actually containing only 84.04 acres. Plaintiff gave, in addition, a note for $2,750, secured by a lien on the land acquired by him. The parties acted under mutual mistake as to the acreage of the land received by plaintiff. Held, that plaintiff could recover such sum for the deficiency as would, when added to the value of the land actually received, give him the equivalent of what he contracted for, free from any deduction based on the theory that the land conveyed by him was priced too high in the absence of any clear evidence on that subject.</p> <p>[Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. §§ 14-18; Dec. Dig. <&wkey;>8.]</p>

Conley, Judge. Suit by the S. H. Supply Company against Dallam County, W. J. Miller, W. B. Slaughter, and others, with a cross-bill by Dallam County against defendants Miller and Slaughter. Judgment for plaintiff and Slaughter against Miller and Dallam County, and the County appeals.

<p>1. Evidence <&wkey;448 — Written Instruments —Parol Evidence to Explain.</p> <p>Where an instrument is ambiguous in some of its expressions, testimony by those who drew it is admissible to aid in its construction.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. &wkey; 448.]</p> <p>2. Trial <&wkey;85 — Evidence—Objections.</p> <p>Where evidence was in part material, a general objection of immateriality will not warrant its exclusion.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]</p> <p>On Appellee’s Motion for Rehearing.</p> <p>3. Vendor and Purchaser <s=>352 — Option to Purchase Land — Actions — Instructions.</p> <p>Where defendants, who had given plaintiff an option to purchase land, agreed to procure an extension of the contract binding upon the owners of the superior title to the land, a charge that the only question in the case was whether defendants agreed to procure the consent and concurrence of the owners of the superior title, including the holders of vendors’ liens, while possibly not technically correct, is sufficient.</p> <p>[Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. <5&wkey; 352.]</p> <p>4. Vendob and Purchaser <&wkey;352 — Option-Action por Breach — Verdict.</p> <p>A verdict in response to the charge that defendant did undertake to procure the consent of the holders of the superior title will warrant a judgment for plaintiff.</p> <p>[Ed. Note. — For other eases, see Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. <&wkey;> 352.]</p>

<p>1. Municipal Coepoeations <&wkey;29 — Annexation op Territory— Charter PROVISIONS— Validity.</p> <p>Acts 33d Leg. c. 147 (Vernon’s Say les’ Ann. Civ. St. 1914, arts. 1096a-1096i), adopted to put into effect the amendment to Const, art. 11, § 5, which authorized cities to adopt or amend their charters, but provided that no such charter should contain any provision inconsistent with the constitution of the state, or the general laws, which act gave to a city adopting its own charter under that amendment power to fix boundary limits, provide for the extension of boundary limits, and the annexation of additional territory, superseded in so far as such cities were concerned, Rev. St. 1911, art. 781, which requires a vote of the inhabitants of outlying territory before it can be annexed to a city, so that a provision of a city charter authorizing it to extend its boundaries so as to include adjacent territory without vote of the inhabitants of such territory, does not conflict with a general law.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 66-75; Dee. Dig. <&wkey;>29.]</p> <p>2. Municipal Coepoeations <&wkey;-29 — Annexation op Teeeitoby — Submission to Vote —Necessity.</p> <p>The Legislature can authorize a city to annex additional territory without the consent and even against the remonstrance of the residents of such territory.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 66-75; Dec. Dig. <&wkey;29.]</p> <p>3. Municipal Coepoeations <&wkey;29 — Annexation op Terbitoey — Objections—Indebtedness op City.</p> <p>It is no constitutional objection to the annexation of territory to a city, without the consent of the residents of such territory, that the territory is thereby subjected to taxation to discharge a pre-existing debt of the city.</p> <p>[Ed. Note. — Por - other cases, see Municipal Corporations, Cent. Dig. §§ 66-75; Dec. Dig. <&wkey;>29.]</p> <p>4. Municipal Coepoeations ®=^33 — De Pac-to Corporation — Attack.</p> <p>Where a city had extended its boundaries under its charter so as to include new territory, and had exercised governmental control over the new territory, it was a de facto municipal corporation throughout the entire territory, and the legality of the charter provisions for annexation cannot be attacked in a suit by residents in the annexed territory to restrain the city from issuing bonds.</p> <p>[Ed. Note. — Por other eases, see Municipal Corporations, Cent. Dig. §§ 81-97; Dec. Dig. <&wkey;>33.]</p> <p>5. Injunction <&wkey;24 —Bonds —Injunction Against Issuance — “Balance op Convenience.”</p> <p>Where the right of complainants to enjoin the issuance of city bonds, because the territory in which their property was located was illegally annexed to the city, is doubtful, the injunction will be denied on the doctrine of “balance of convenience,” which is the rule that where in a doubtful case, the granting of an injunction would cause greater harm to the defendant if he should prevail than its refusal would cause to the complainant if he should prevail, the injunction will be denied, and where in such doubtful case the refusal of an injunction will cause greater damage to the complainant if he were ultimately successful than the injunction would to the defendant if he should thereafter succeed, it will be granted, since in such case the complainants, if their property is not subject to taxation to pay the bonds, can resist the collection of the taxes therefor, while to grant the injunction would interfere with the construction of public improvements for the city.</p> <p>[Ed Note. — Por other cases, see Injunction, Gent. Dig. § 23; Dec. Dig. t&wkey;24.]</p> <p>6. Municipal Coepoeations <&wkey;993 — Bonds — Injunction Against Issuance — Misappropriation op Funds.</p> <p>The fact that a city had misappropriated money in the sinking fund created to pay previous bond issues, does not authorize an injunction against a subsequent bond issue until that money has been restored; especially where the complainants are not holders of the other bonds, since the principle of equity that a defaulting trustee can be restrained from further exercising the trust until he has made the default good, does not apply to municipal corporations exercising sovereign powers-, and that right can be enforced against a trustee only by the beneficiaries of the trust.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 2158-2161; Dec. Dig. <&wkey;993.j</p> <p>7. Municipal Coepoeations <&wkey;929 — Bonds —Submission to Voters — Installments.</p> <p>A city can issue, in installments as they are needed for the work, bonds, though the question submitted to the voters was the issue of the total amount, where the intention to issue in installments was stated by the city officials in a public newspaper of wide circulation.</p> <p>LEd. Note. — Por other cases, see Municipal Corporations, Cent. Dig. § 1942; Dec. Dig. &wkey;></p> <p>8. Municipal Coepoeations <&wkey;915 — Bonds —Amount—Limit op Taxing Power — Issuance in Installments.</p> <p>Such bonds are not invalidated because the total amount authorized was such that the city could not levy a tax sufficient to pay the interest thereon, and provide the required sinking-fund, if each installment thereof was not to be issued until the taxable valuations had increased sufficiently so that the interest and sinking fund could be provided for.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 1906, 1909-1912; Dec. Dig. <@¿^915.]</p>

<p>1. Appeal and Error <&wkey;544 — Questions Presented eor Review — Bill oe Exceptions — Necessity.</p> <p>In the absence of bills of exceptions, assignments complaining of errors in the charge, which did not state what the charge was, must be overruled.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey; 544.]</p> <p>2. Mines and Minerals <&wkey;78 — Oil Leases— Judgment.</p> <p>Where defendant disclaimed any intention of interfering with plaintiffs’ rights in wells opened, and plaintiffs made no effort to have the jury determine how much land was necessary for their operation, they cannot complain of a judgment which'merely awarded so much land as was necessary.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 205-207; Dec. Dig. &wkey;78.]</p> <p>3. Evidence &wkey;>461 — Parol Evidence — Written Instruments.</p> <p>Where an oil lease merely gave plaintiffs such land as was necessary to operate wells, they cannot show a parol agreement that for each well opened they should be entitled to an acre of land.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. &wkey;461.]</p> <p>4. Mines and Minerals <&wkey;77 — Oil Leases —Defenses.</p> <p>Where plaintiffs sued to prevent defendant from interfering with their possession of oil land, they are not entitled to show that defendant, who had a lease from the owner, had forfeited his rights; that being a matter concerning the owner alone.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. § 204; Dec. Dig. &wkey;77.]</p>

<p>Courts <@==65 — Teems of Court — County Court.</p> <p>Under an order of the commissioners’ court authorized by Const, art. 5, § 29, stating when the terms of the county court for civil and probate business shall begin, and providing that they may continue till the succeeding term begins, and stating when' its terms for criminal business shall begin, and providing that they may continue till the succeeding term, a term for civil and probate business ends, as regards time for filing bond on appeal from a judgment rendered at such term, when the next term for criminal business begins.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 230-246; Dec. Dig. <S=65.]</p> <p>Huff, C. J., dissenting.</p>

Error from District Court, Cottle County; Jo. A. P. Dickson, Judge. Action by J. R. Hailey against Mike C. Le Master and others. Judgment for plaintiff, and the named defendant brings error.

<p>1. Judgment <&wkey;256 — Conformity to Verdict.</p> <p>If issues found by the jury in favor of defendants were material to plaintiffs’ right of recovery, or if the affirmative findings by the jury established any material defensive pleading by defendants which, if sustained by evidence, would defeat plaintiffs’ right to recover, a judgment for plaintiffs could not be sustained, as the judgment must follow and be supported by the verdict.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. <®=>256.]</p> <p>2. Appeal and Error <&wkey;934 — Presumptions in Support of Judgment.</p> <p>Under 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 to the cause shall be deemed found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding, the trial court is presumed to have found issues not submitted in favor of the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. <&wkey;934.]</p> <p>3. Contracts &wkey;>261 — Nonperformance — Treating Contract as Rescinded.</p> <p>Defendant, an alleged partner in a suspended private bank, contracted with a committee representing depositors to wind up the affairs of the bank for their benefit; a receiver then in charge to remain in charge, if he deemed it expedient, and to personally assume the liability of the bank to all of its depositors and satisfy their bona fide claims. The depositors procured the execution by certain local partners or stockholders of notes for a part of the bank’s obligations, to be delivered to a trustee and used in liquidating its obligations, and to procure an assignment to defendant of the interests in the bank of such local partners. Held, that the facts that the assignment was never tendered to defendant, and that he did not know that the assignment was in the possession of the trustee, did not entitle him to treat the contract as a whole as abrogated; and where the court presumptively found that the depositors had not abandoned the contract or pursued such a course as authorized defendant to presume that they had done so, and that defendant had suffered no; injury from delay in delivery, and the defendant had acted with the receiver in an effort to settle the claims of the creditors, and never demanded delivery of the assignment, and received all the benefits of it, the jury’s findings that he was not notified that the assignment was in the hands of the trustee, subject to his order, and that he did not know this fact, did not entitle him to judgment, in an action by the creditors.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. §§ 1174-1180; Dec. Dig. &wkey;261.)</p> <p>4. Partnership &wkey;>94^CoNTRACTS between Partners — Mutual Rights and Liabilities.</p> <p>Where such agreement provided that, upon the execution and delivery of such notes by the local partners, they should be relieved of any further responsibility as to the bank’s indebtedness, such local partners as were depositors did not thereby waive their rights as such, and they were entitled to the benefits of defendant’s agreement to assume the bank’s liabilities, since, while as to third parties they were liable equally with defendant for the entire indebtedness of the bank, as between themselves their mutual and respective rights and liabilities as partners could be altered, enlarged, or restricted by contract.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 141; Dee. Dig. <&wkey;>94.]</p>

<p>Appeal from Callahan County Court; L. L. Blackburn, Special Judge.</p> <p>Action by the Cisco Oil Mill against M. A. Shepherd. From a judgment granting insufficient relief, plaintiff appeals.</p>

<p>1. Appeal and Ebbob <&wkey;719 — Assignments op Ebbob — Necessity.</p> <p>On an appeal from a judgment granting a temporary mandatory injunction, no formal assignments of error are necessary.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dee. Dig. <&wkey;>719.]</p> <p>2. .Railboads <&wkey;73 — Rights op Way — Pee-VENTING TRESPASSES — BUILDING EENCES.</p> <p>A railroad company was within its rights in building a fence along its right of way to prevent the use of its right of way as a highway or passway by the patrons of a restaurant adjacent to the right of way, though there were no other means of ingress or egress to and from the restaurant, as the use of the right of way for such purposes would largely increase the hazard of accident, and was inconsistent with the use thereof for railway purposes, and a railway company may exclude trespassers from its right of way and take reasonable steps necessary to effect this purpose, even though the title in fee to the land occupied as a right of way is not vested in it.</p> <p>[Ed. Note.- — For other cases, see Railroads, Cent. Dig. §§ 179-182; Dee. Dig. &wkey;73.]</p>

<p>1. Carriees t&wkey;219 — Delay in Transportation-Liability op Initial Carrier.</p> <p>Where the initial carrier of live stock, though guilty of delaying transportation, delivered an hour and a half late the stock to the connecting carrier while its train was on its track, but the connecting carrier refused without cause to accept the stock and transport it in that train, thereby delaying transportation, the initial carrier was not liable for delay in the delivery of the stock at its destination.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 950, 951; Dec. Dig. &wkey;219.]</p> <p>2. Appeal and Error <&wkey;205 — Questions Review able — Findings—Judgment.</p> <p>Appellant may not attack the findings of fact unless he excepts thereto in the trial court and reserves his exceptions as provided by law, but he may complain of a judgment because contrary to the findings without excepting to the findings or requesting additional findings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1461, 1536-1551; Dec. Dig. &wkey;265.]</p> <p>3. Trial <&wkey;398 — General and Special Findings — Variance—Effect.</p> <p>A general finding at variance with a specific finding must be disregarded.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 946, 947; Dec. Dig. &wkey;398.]</p> <p>4. Carriers <&wkey;230 — Initial and Connecting Carriers — Delay in Transporting Freight — General and Special Findings.</p> <p>In an action against the initial and connecting carriers for delay in transporting live stock, a finding of concurrent negligence by both carriers, and a finding that the initial carrier tendered the stock to the connecting carrier, while its train was on its track and about tq leave, but that it refused to then accept the shipment, are inconsistent, and the second finding controls the first, and a judgment against both carriers cannot be sustained.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. &wkey;230.]</p>

<p>1. Railroads <§^282 — Operation—INJURIES.</p> <p>In an action for injuries caused by cottpn seed cakes falling upon plaintiff in loading a car when another car was coupled to it, evidence held insufficient to show that defendant’s employes knew that plaintiff was in the car.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. &wkey;282J</p> <p>2. Railroads &wkey;>282 — Operation—Injuries —Contributory Negligence.</p> <p>In an action for injuries caused by cotton seed cakes falling upon plaintiff while loading them into a car," whether plaintiff was guilty of contributory negligence in being in the car when another car was being coupled to it held for the jury.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 910-923; Dec. Dig. &wkey;282.]</p>

<p>Appeal from District Court, Hemphill County; F. P. Greever, Judge.</p> <p>Action by J. F. Johnson and another against the Canadian Country Club and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Public Lands @=175 — School Lands— Boundaeies — Powee oe Commissioners’ Court.</p> <p>The commissioners’ court of a county has implied power to fix the boundaries of its school lands by express agreement, such power being necessary in order to carry out the object of the grant of the lands to the county in the event of sale.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. @==>175.)</p> <p>2. Public Lands @==3175 — School Lands— Boundaeies — Establishment by Ageeement.</p> <p>Where the representatives of several counties made a joint survey of their school lands, the commissioners’ court of each county, with knowledge that the survey was joint, adopting the reports of its particular representative in regard to the lands of each, and the attorney for one of the counties, in a suit involving the boundaries of the lands, abandoning any contention against another county on account of the disclaimer of its attorney as to certain lands not given it by the joint survey, the facts did not show settlement of the location of the school lands by agreement.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. @=>175.)</p> <p>3. Public Lands @=3175 — School Lands— Fixing Boundaeies — Estoppel oe County.</p> <p>Where plaintiff county, suing to determine the location of its school lands, had had a resurvey made for the purpose of subdividing and selling such lands, and where fences had been built in reliance upon such resurvey by the lessees of defendant counties, with the acquiescence of plaintiff county, and there had been reliance upon the boundaries of such resurvey by defendant counties in other suits, whereby one of such defendant counties lost part of its school lands, there was no estoppel against plaintiff county precluding it from claiming boundaries to its school lands other than those set by its own resurvey, since, as to the suits subsequent! to the survey, defendant counties had no right to rely upon plaintiff county’s conduct, while the general policy of constitutional and statutory enactments, with reference to the disposition of public school lands, as well as numerous decided cases, has narrowly limited the power of the trustee county in dealing with such lands.</p> <p>[Ed. Note. — For other cáses, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. @=3175.)</p> <p>4. Boundaeies @=>48 — Establishment — Agreement — Acquiescence.</p> <p>An agreement fixing a boundary may be implied from acts and long acquiescence, especially if a failure to recognize such boundary would result in injury to subsequent purchasers, or where one of the proprietors has made valuable improvements induced by the acts and acquiescence of the other owner.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 232-242; Dee. Dig. @=48.)</p> <p>5. ADVERSE POSSESSION &wkey;>7 — OPERATION Against County — School Lands.</p> <p>Statutes of limitations do not apply to settle title to unlocated school lands as against a county holding and disposing of such lands granted it by the state in trust for purposes of education, since in such case the county acts practically as an agency for the state, against which such statutes are inoperative.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 24-42; Dec. Dig. <i&wkey;7.]</p> <p>6. Public Lands &wkey;>175 — School Lands — Location — Evidence.</p> <p>In an action between counties to locate school lands, where certain surveys, as^ to the location of certain monuments in a prior survey, were in close accord with such survey, an instruction forbidding the jury to consider such subsequent surveys as evidence of the location of the monuments was erroneous.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig-. §§ 555-570; Dec. Dig. &wkey;175J</p> <p>7. Public Lands <&wkey;175 — School Lands— Location — Evidence.</p> <p>In an action by a county against others to locate its school lands, where the field notes of a junior survey did not suggest that the surveyor knew anything about the school land tracts, the only connection between it and another senior survey locating the lands being that in the junior survey one corner of a survey lying north of the school tracts was located, such junior survey was not admissible under the rule that such a survey may locate a senior survey when the latter is involved in doubt.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. &wkey;175.]</p> <p>8. Trial <&wkey;48 —Review — Evidence Inadmissible in Part.</p> <p>Where testimony inadmissible in part is offered as a whole, error cannot be predicated upon its rejection.</p> <p>[Ed. Note. — For' other cases, see Trial, Cent. Dig. § 120; Dec. Dig. &wkey;>48.]</p> <p>9. Public Lands <&wkey;175 — School Lands— Location — Sufficiency oe Evidence.</p> <p>In an action by a county against others to locate its school lands, evidence held sufficient to sustain the jury’s finding as to the position of the southeast corner of a certain survey.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 555-570; Dec. Dig. &wkey;175.]</p>

<p>1. Master and Servant <&wkey;>209 — Injuries to Servant — Assumption of Risk.</p> <p>A servant who worked on a merry-go-round which had certain uncovered cogwheels; in which he was caught, assumed the risk of injury from such cogs, since an employé must avoid all known and obvious defects and perils and such as he must have discovered in the discharge of his duties, although the defects and dangers may arise from defective tools and machinery.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 552, 553; Dec. Dig. &wkey;> 209.]</p> <p>2. Master and Sebvant <&wkey;209 — Injury to Servant — Assumption oe Risk — Defective Switch.</p> <p>Where the deceased servant in the discharge of his duties of running a merry-go-round must necessarily have acquired knowledge that the controlling switch was defective, in that gravity alone might close the circuit, he assumed the risk of injury through any such chance closing.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. §§ 552, 553; Dec. Dig. 209.]</p> <p>3. Master and Servant <&wkey;276 — Injury to ServantProximate Cause — Failure to Supply Safety Device — Sufficiency of Evidence.</p> <p>In an action by a widow for death of her husband, killed on a merry-go-round in the course of his employment, evidence held, insufficient to show that the failure of the employer to supply a certain safety device was the proximate cause of the accident.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. &wkey;276.]</p> <p>4. Death <&wkey;58 — Due Care — Presumption.</p> <p>Where there are no witnesses of an accident whereby a servant is killed, the mere fact of the accident raises a presumption of negligence neither against the servant nor the master; but the presumption will be indulged that the servant exercised due care, especially when last seen he was then acting with due care and within the scope of his employment.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 75-78; Dee. Dig. &wkey;58.]</p> <p>On Motion for Rehearing.</p> <p>5. Master and Servant <&wkey;217 — Injury to Servant — Assumption op Risk — Defective Switch.</p> <p>Where the electric switch controlling the machinery of a merry-go-round was so loose that gravity would close the circuit unaided, negligence could not be predicated upon the employer’s failure to equip such switch with a spring which would prevent the closing, since the decedent used such switch constantly in his work of operating the machine, while it would have been a simple matter for him to have rigged some device to secure such switch when open.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. <&wkey;> 217.]</p> <p>6. Master and Servant &wkey;129 — Injury to Servant — Defective Machinery.</p> <p>Where plaintiff’s husband was killed on a merry-go-round in the scope of his employment, defendant’s failure to furnish certain lock nuts, cotter keys, and buckle yokes, alleged as negligence, was not such, since the only effect of such devices would have been to steady the machine, while the only probable cause of the accident was its starting through the action of gravitation on an electric switch, so that the jarring effect, which the missing devices might have prevented, could not have taken place until the mischief, the starting of the machine, was done.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. <&wkey;> 129.]</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by the Gate City Fertilizer Company against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Tarrant County; R. H. Buck, Judge.</p> <p>Action by R. S. De Long and another' against the Texas & Pacific Railway Company. Erom a judgment for plaintiffs, defendant appeals.</p>

<p>1. Corporations <@=348 — Action against Directors — Judgment against Corporation.</p> <p>The directors of a corporation not only having the right to control the defense of an action against it, but the duty to do so resting on them, the facts alleged in the petition tending to also make them personally liable, the judgment rendered against it is admissible in an action to hold them personally liable on the same matter.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1491; Dec. Dig. <§=348.]</p> <p>2. Corporations <@=348 — Action against Directors — Findings in Action against Corporation.</p> <p>The findings, in an action against a corporation in which judgment was rendered against it, are admissible against its directors, in an action to hold them personally liable on the same matter.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1491; Dec. Dig. <^=348.]</p> <p>3. Corporations <@=306 — Misappropriation —Liability of Directors — Evidence.</p> <p>Evidence, in an action against directors of a corporation, held to show that they knowingly permitted funds, collected for and belonging to another to be appropriated to the corporation’s use, rendering them personally liable.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1457, 1458; Dec. Dig. <@=306.]</p> <p>4. Appeal and Error <@=1051 — Harmless Error — Admission of Evidence.</p> <p>Any error in admitting findings made in another action is harmless; the facts found being shown by other uncontroverted evidence.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <S= 1051.]</p>

<p>Appeal from Parker County Court; T. F. Temple, Judge.</p> <p>Action by the First State Bank of Weath-erford against D. E. Senters and another* From a judgment for plaintiff- against defendant named, he appeals.</p>

Thomas, Judge. Action by N. W. Hickman and others against G. A. Schneider and another, rin which A. C. Braun intervened. From a judgment for plaintiffs, intervener appeals.

<p>1.Principal and Agent <§=126 — Conveyance by Agenon-Title Conveyed.</p> <p>A conveyance by an attorney in fact for his principal conveys whatever right the attorney had in the property, whether he signed the conveyance as agent or as principal.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 430-450; Dec. Dig. <§=</p> <p>2. Appeal and Error <§=934 — Questions Reviewable — Presumptions in Support op Judgment.</p> <p>The court must presume that the trial court made findings which will support the judgment, where the facts warrant the findings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec. Dig. <§=934. ]</p> <p>3. Principal and Agent <§=126 — Execution op Instrument by Agent — Fraud—Eeeect.</p> <p>An attorney in fact induced by fraud to execute a deed for his principal to the fraudulent grantee is not bound thereby, and may subsequently acquire title as against the fraudulent grantee or those claiming under him.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 430 — 450; Dec. Dig. <§= 126.]</p> <p>4.Estoppel <§=107 — Pleading—Necessity.</p> <p>A plaintiff suing to remove a cloud on his title and to prevent defendant from asserting title under a deed, on the ground that defendant, in obtaining the deed, was the agent of plaintiff, is confined to the ground relied on, and cannot rely on an estoppel not pleaded.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 297; Dec. Dig. <§=107.]</p> <p>5. Estoppel <§=107 — Pleading—Facts.</p> <p>A plaintiff in a suit to remove a cloud from his title, who relies on estoppel to give him a title, must plead the facts necessary to create an estoppel and authorize a recovery.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 297; Dec. Dig. <§=107.]</p> <p>6. Estoppel <§=12 — Estoppel by Deed.</p> <p>To estop one by deed it must be alleged and proved that there was a consideration paid the grantor therein for the land, and this must be done independent of the recitals of consideration in the deed, or it must be alleged and proved that the party sought to be estopped was guilty of fraud or gross negligence in signing the deed, and that the person relying on the estop-pel was without knowledge thereof.</p> <p>[Ed. Note. — For other cases, see Estoppel, Dec. Dig. <§=12.]</p> <p>7. Estoppel <§=12 — Estoppel by Deed — Notice.</p> <p>A party relying on estoppel by deed is chargeable with knowledge of the state of the title shown by the record.</p> <p>[Ed. Note. — For other cases, see Estoppel, Dec. Dig. <§=12.]</p> <p>8. Appeal and Error <§=742 — Assignments op Error — Proposition.</p> <p>A proposition not germane to the assignment of error will be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <§=742.]</p> <p>9. Appeal and Error <§=1011 — Findings — Conclusiveness.</p> <p>A finding on conflicting evidence is conclusive on appeal.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. <§= 1011.]</p> <p>10. Appeal and Error <§=747 — Questions Reviewable — Cross-Assignment.</p> <p>In the absence of a cross-assignment complaining of terms in a judgment for appellee, the court cannot reform the judgment so as to eliminate such terms.</p> <p>.[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3056; Dec. Dig. <§= 747.]</p>

<p>Appeal from Tarrant County Oourt; Charles T. Pruitt, Judge.</p> <p>Action by J. H. Fitzgerald against tlie Texas Manufacturing Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hill County; Norton B. Porter, Judge.</p> <p>Action by the Lummus Cotton Gin Sales Company against the Farmers’ Co-operative Gin Company and others. Judgment for defendants, and plaintiff appeals.</p>

Error from Nolan County Court; John H. Cocheron, Jr., Judge. Action by T. E. Arledge against S. B. Ho-vey and another, receivers. Judgment for plaintiff, and the receivers bring error.

Error from Nolan County Court; John H. Cochran, Jr., Judge.’ Action by the Halsell-Arledge Cattle Company against S. B. Hovey and another, receivers. Judgment for plaintiff, and defendants bring error.

Error from Nolan County Court; John H. Cochran, Jr., Judge. • Action by J. G. Imboden against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiff, motion for new trial overruled, and defendant brings error.

<p>Error from Nolan County Court; John H. Cochran, Judge.</p> <p>Action by J. J. Hitson against the Kansas City, Mexico & Orient Railway Company of Texas and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Evidence <&wkey;444 — Parol Evidence Affecting Writings- — Conditional Delivery —Deeds and Notes.</p> <p>In an action on notes given for the purchase price of land to foreclose the vendor’s lien, parol evidence is inadmissible to show a previous oral agreement between the parties that the transaction should become effective only on the happening of a condition; since the rule that parol proof is inadmissible to show that a deed to land absolute in form was delivered under a parol agreement that it should become effective only on conditions inconsistent with its terms governs in such a case, rather than the rule that parol evidence is admissible to show that a note was never delivered, in fact, as a present contract.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent Dig. §§ 1929-1944, 2049; Dec. Dig. 444.]</p> <p>2. Deeds <&wkey;70 — Validity—Misrepresentation — Opinion as to Law.</p> <p>A misrepresentation by the grantee’s attorney to the grantor that the property covered by a deed of trust was a homestead, and therefore the trust deed was unenforceable, when the grantor had no knowledge of the law, was unable to read the deed, and relied on the assurance, although a misrepresentation of opinion as to the legal effect of the deed of trust, is sufficient to avoid that deed for fraud.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 165-182; Dec. Dig. &wkey;70.]</p>

<p>1. Bailment <&wkey;ll — Liability os- Bailee-Special Contract.</p> <p>The parties to a bailment may substitue, for the contract implied by law, a special contract relieving the bailee from all liability or making him an insurer, but his liability is not to be enlarged or restricted by words of doubtful meaning.</p> <p>[Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 33-36; Dec. Dig. &wkey;ll.]</p> <p>2. Animals <&wkey;27 — Contract op Bailee — Construction.</p> <p>A contract, obligating a tenant to use good and reasonable care and caution in the care and maintenance of mules furnished him by the landlord and to return them on expiration of the lease in as good condition as received, the natural wear and tear excepted, did not constitute the tenant an insurer of the mules, but obligated him merely to use ordinary diligence in safeguarding them.</p> <p>[Ed. Note. — For other eases, see Animals, Cent. Dig. §§ 70-78; Dec. Dig. &wkey;27.]</p> <p>3. Animals &wkey;>27 — Hire and Use — Loss-Action Against Bailee — Negligence—Evidence.</p> <p>Evidence in support of a bailor’s cross-action for loss of a mule drowned while in the bailee’s possession held insufficient to show that the loss was due to any negligence of the bailee, where there was nothing to indicate that a reasonably prudent man would have anticipated such an accident.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 70-78; Dec. Dig. <5&wkey;27J</p> <p>4. Animals <&wkey;27 — Loss of Peopeety — Negligence of Bailee — What Constitutes. '</p> <p>That the bailor requested that a mule, the subject of the bailment, be moved to another pasture because of scarcity of the grass, did not render the bailee liable for loss of the mule from being drowned by a flood, though it would not have been drowned had the bailee complied with the bailor’s request; noncompliance with such request not constituting negligence which proximately caused the death of the mule.</p> <p>[Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 70-78; Dec. Dig. &wkey;27.]</p> <p>5. Bailment i&wkey;ll — Loss oe Peopeety — Common-Law Liability of Bailee.</p> <p>The common-law liability of a bailee does not make him liable for loss of the property by theft or its being taken from him by force.</p> <p>[Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 33-36; Dec. Dig. &wkey;>ll.]</p> <p>On Motion for Rehearing.</p> <p>6. Set-Off and Gounteeolaim <&wkey;35 — Un-liquidated Claim foe Toet — Action fob Conveesion.</p> <p>In a tenant’s action against his landlord for conversion of the proceeds of a check received for crops grown on the leased premises, which proceeds were obtained from the bank by defendant to whom plaintiff delivered the check, tile defendant cannot set off an unliquidated claim for damages for tort arising out of the loss of a mule furnished plaintiff by defendant.</p> <p>[Ed. Note. — For other cases, see Set-Off ana Counterclaim, Cent. Dig. §§ 58-64; Dec. Dig. &wkey;»35.]</p>

<p>Appeal from District Court, Harris County; E. B. Campbell, Special Judge.</p> <p>Action by I. L. Stuidevant against Thomas S. Falvey. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Trinity Oounty Court; C. M. McKinnon, Judge.</p> <p>Action by Elbert Conner against the Trinity County Lumber Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error <&wkey;>754'— Questions Reviewable — Sufficiency of Evidence to Sustain Judgment.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1986, 1990, providing that a special verdict shall be conclusive as to the facts found, and requiring the court to render judgment thereon, unless the same is set aside and a new trial granted, a party cannot complain of a judgment conforming to a special verdict on the ground of the insufficiency of the evidence to support the verdict, where he did not assign error to the refusal of the court to set aside the special verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. <&wkey;> 754.]</p> <p>2. Homestead &wkey;-162 — Actual Occupancy-Necessity.</p> <p>Where a divorced woman occupied as a home property set apart to her as a homestead in the divorce decree, and then married a man, who intended to make the homestead the common homestead, actual occupancy was not essential to maintain the homestead right, in the absence of any other homestead or other property owned by them.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 315-319; Dec. Dig. <§=>162.]</p>

A. Hill, Judge. Action by the First National Bank of Ranger against W. H. Snell, in which the defendant asked that Latham Company and another be made parties defendant. Judgment for the plaintiff against the defendant Snell, and in favor of that defendant against the Lath-am Company, and the Latham Company appeals.

<p>Appeal from Eastland County Court; E. A. Hill, Judge.</p> <p>Action by Louer Bros., a foreign corporation, against the Latham Company. Judgment for the plaintiff, and defendant appeals.</p>

<p>1. Appeal and Ebbob <@=>797 — Dismissal-Motion — Time.</p> <p>Under rule 8 for the Court of Civil Appeals (142 S. W. xi), requiring motions relating to informalities in the manner of bringing the case up, to be filed within 30 days after the transcript is filed, a motion not filed within 30 days, to dismiss a writ of error, on the ground that the petition for the writ was hot filed within 12 months after final judgment, must be dismissed, unless the objection is jurisdictional.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3149-3154; Dec. Dig. <@=> 797.]</p> <p>2. Appeal and Ebbob <@=>361 — Writ op Er-eoe — Waives op Petition.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2088, provides for petitions for writs of error, and prescribes the requisites. Held that, as the requisites are purely formal, the petition for a writ of error may be waived by the parties.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1941-1959; Dec. Dig. <@=> 361.]</p> <p>3. Chattel Mortgages <@=>21 — Provisions— Validity.</p> <p>A stipulation in a chattel mortgage that it should be security for any other debt due from the mortgagor, not to exceed a specified sum, is valid.</p> <p>[Ed. Note. — For other cases, see -Chattel Mortgages, Cent. Dig. §§ 67, 69; Dee. Dig. <@=> 21.]</p> <p>4. Chattel Mortgages <@=>176 — Action bob Conversion — Special Findings — General Verdict.</p> <p>Defendant made a note, which was transferred to plaintiff for a valuable consideration. Thereafter, to secure another note, defendant executed to plaintiff a chattel mortgage, which was duly registered, which provided that it should be security for any other indebtedness due or to become due from defendant, not exceeding a sum specified. In response to special issues, the jury found that no false representations were made by plaintiff to defendant when he executed the mortgage, though he did not understand that it was to cover any note, except the one for which it was primarily given. The mortgaged property was sold by the mortgagor to other defendants for an amount in excess of that of the note for which it was primarily given, and the proceeds applied to that note. Held that, in a suit by plaintiff for conversion of the property, a general verdict for defendants would not overturn the answers to the special issues, and defendants were liable.</p> <p>[Ed. Note. — For other cases, see Ghattel Mortgages, Cent. Dig. §§ 335, 337-339; Dec. Dig. <@=>176.]</p> <p>5. Chattel Mortgages <@=>176 — Conversion op Mortgaged Property — Damages—Measure.</p> <p>The measure of damages for the conversion of mortgaged property is the market value of the property taken, with legal interest from the date of conversion.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Gent. Dig. §§ 335, 337-339; Dec. Dig. <@=>176.]</p>

<p>1.Principal and Agent <§=>47 — Duty op Principal — Statement op Indebtedness to Agent.</p> <p>Where a principal refused to give its agent a statement of the amount which it owed him on a certain sale of stock negotiated by him, whereby the agent, being unable to give satisfactory proof to a prospective purchaser of his interest in the note which the buyer of the stock had given to secure the price thereof, lost such prospective sale of his equity in such note, the facts gave rise to no right of action in the arent against the principal.</p> <p>LEd. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 76, 79; Dec. Dig. <§=>47.]</p> <p>2. Principal and Agent <§=>82 — Agent’s Compensation — Joint Interest in Notes.</p> <p>Where plaintiff agreed to sell stock for the defendant, the contract providing that he should receive “Í5 per cent, commission on all sales made by him in cash or notes as obtained on said sales,” the plaintiff thereby became the joint owner with his principal, to the extent of a 15 per cent, interest, in notes which he took covering the price of stock sold by him.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 216-219; Dec. Dig. <§=> 82.]</p> <p>3. Trover and Conversion <§=>17 — Acts Constituting.</p> <p>Where plaintiff agent agreed to sell stock for the defendant company, and to accept, as compensation, 15 per cent, of the cash or notes which he might secure for such stock, and where he negotiated a sale of such stock, taking notes to cover the purchase price, which the defendant immediately turned over to the company, whose stock had been sold to liquidate its (defendant’s) separate obligation to such company, together with the shares of stock bought, which were hypothecated with the defendant by the buyer of the stock to secure the payment of the notes, the action of the defendant amounted to a conversion of plaintiff’s interest in such notes and security, rendering the defendant personally liable therefor.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Dec. Dig. <§=>17.]-</p> <p>4.Trover and Conversion <§=>50 — Conversion op Notes — Measure op Damages.</p> <p>Where plaintiff negotiated a sale of stock for defendant, agreeing to accept as compensation a 15 per cent, interest in the purchase-money notes, and such defendant, the buyer being solvent, transferred such notes to the company, whose stock was sold, in order to liquidate its own debt to such company, the measure of plaintiff’s damage for such conversion of his interest in the notes was 15 per cent, of their face value.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 266; Dec. Dig. <§=>50.]</p> <p>5.Trover and Conversion <§=>22 — Return op Property.</p> <p>Where the defendant converted notes, in which plaintiff held a 15 per cent, interest, by transferring them to liquidate its individual debt, the subsequent return of such notes by the transferee did not render the initial act any the less a conversion, or destroy plaintiff’s right of action.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 152-162, 167-169; Dec. Dig. <§=>22J</p> <p>6. Trover and Conversion <§=>50 — Conversion op Notes — Judgment.</p> <p>Plaintiff negotiated a sale of stock under an agreement that he- was to receive therefor a 15 per cent, interest in the purchase-money notes. His principal took such notes and the stock for which they were given, pledged by the purchaser to secure the notes, and transferred them, to the company whose stock was sold, to liquidate its own indebtedness to such company. Thereafter, upon the insolvency of the purchaser of the stock, the company returned such notes to the defendant, but retained the stock, the value of which largely exceeded plaintiff’s interest in the notes. Plaintiff sued his principal, the transferror of such notes, for their conversion. Held, that judgment for plaintiff for his 15 per cent, interest in the face of the notes, less any credit in favor of the buyer through dealings between such buyer and the plaintiff individually, -was proper.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. § 266; Dec. Dig. <§=> 50.]</p> <p>7. Trover and Conversion <§=>32 — Action-Pleading.</p> <p>In an action for the conversion of notes, where the petition charged that, after the plaintiff delivered to the defendant notes which he had secured from a buyer of stock, in the sale of which he was acting as agent for defendant, to secure the price thereof, such defendant transferred to another two of the notes, together with attached collateral and. dividend agreements, in accordance with its own schemes and plans, and in defraud of plaintiff’s rights, and without his knowledge or consent, to his damage in a certain sum, such allegation, unattack-ed by demurrer, was sufficient to raise the issue that the defendant had thereby converted the notes and the shares of stock, in which plaintiff held a 15 per cent, joint interest as commission, to its own use.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 191-202; Dec. Dig. <§=>32.]</p>

J. Oxford, Judge. Action by the State of Texas against Mrs. Janie Cage, community survivor of the estate of J. H. Cage, deceased. From a judgment granting insufficient relief, the State appeals, and defendant presents a cross-assignment.

<p>Appeal from Coryell County Court; G. E. Johnson, Judge.</p> <p>Action by the Bigham Hardware & Furniture Company and others against the Sparks Lumber Company and others. From the judgment, plaintiffs .appeal.</p>

<p>1. Garnishment <@=133 — Bringing in New Parties.</p> <p>' The relation between depositor- and bank is that of debtor and creditor only; and hence, where a landowner- deposited in a bank funds to bé .used in paying a building, contractor, the fact that the bank debited the account with sums advanced to the contractor does not render it liable for a conversion. Hence, in an action where other creditors of the contractor garnished the funds in.the hands of the owner, the. bank might be impleaded and the garnishee’s rights against it adjudicated. •</p> <p>[Ed. Note. — For other cases,'see Garnishment, Cent. Dig. § 262; Dec. Dig. @=133.]</p> <p>2. Garnishment @=133 — Rights op Garnishee-Interpleader. " ;</p> <p>A garnishee or other stakeholder may im-. plead all persons having claims against the fuúdá’held by him. Hence the owner of a'buiíd; ing may, in 'a proceeding Ky creditors’of 'the contractor, implead all persons having cláimg' ■ ' 1 '. Q'. '. . ... !i) to funds deposited in a bank to be applied on tbe amount due the contractor.</p> <p>[Ed. Note. — For other cases, see Garnishment, ' Cent. Dig. § 262; Dec. Dig. <§=133.]</p> <p>3. Appeal and Error <@=1036, lOdO1 — Review — Harmless Error.</p> <p>Where appellant was in no way prejudiced ; by the misjoinder of parties and actions, the overruling of his exceptions and plea setting up misjoinder was not error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. "Dig. §§ 4074, 4089-4105; Dec. Dig. >@=1036, 1040.]</p> <p>4. Subrogation .@=23 — Right to Subrogation.</p> <p>Where a bank advanced to a contractor money used by Mm in discharging claims for labor and material on a building, but there was no agreement between the bank and the owner that such payments should be made or that the bank should be subrogated to any liens in favor of the holders of the claims, the bank is not subrogated to such liens.</p> <p>[Ed. Note. — For other cases, see Subrogation, Cent. Dig. §§ 60-66; Dec. Dig. @=23.]</p>

Blanton, Judge. Action by W. J. Mangum against the First National Bank of Gorman and another, in which others intervened. From a judgment for plaintiff and intervener, defendants appeal.