Volume 177 — South Western Reporter

<p>Appeal from District Court, Coleman County; John W. Goodwin, Judge.</p> <p>Action by W. V. Helm and others against the Wells Fargo & Co. Express. From judgment for defendant, plaintiffs appeal.</p>

County; Tom L. McCullough, Judge. Action by James Shear against Langdon Harris, to recover damages for fraud and deceit. Judgment for the plaintiff, and defendant appeals.

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by John Bartek against the International & Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Constitutional Law <@=»213, 254^Courts <®=o57 — Officers — Stenographers — Act Creating Office.</p> <p>Act March 31, 1911, providing for the appointment of official stenographers for district and county courts, does not violate Const. Tex. art. 1, § 3, guaranteeing equal protection of the la’tv, or Const. U. S. Amend. 14, and Const. Tex. art. 1, § 19, providing that no person shall be deprived of his property without due process of law, although certain sections provide that in cases of appeals by paupers such stenographers must perform services in furnishing transcripts without compensation, since where an office is created it is clearly within the right of the Legislature to prescribe the compensation of the incumbent, even by fees, and to require the performance of additional services without additional compensation; the acceptance of an office amounting to acceptance of its conditions under the statute creating it.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 735; Dec. Dig. <§=^>213, 254; Courts, Cent. Dig. §§ 198-200; Dec. Dig. <§=>57.]</p> <p>2. Courts <§=^57 — Officers—Stenographers — Paupers’ Appeals — Preparation, op Transcript — Statute.</p> <p>Under Acts 32d Leg. c. 119, providing for the appointment of official stenographers for district and county courts, section 5 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1924) providing for the transcription of testimony and other proceedings by such stenographers, and section 8 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1925', 2071) providing that in any civil case where the appellant makes the proof required to appeal without bond and files affidavit to that effect, the court shall order the stenographer to make a transcript, as provided in section 5, and deliver the same to such appellant free of charge, it is the duty of such a stenographer, when requested to, do so by one who has filed a pauper’s oath and fully complied with the statute authorizing him to appeal without bond, to prepare and file the transcript referred to in section 5.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 198-200; Dec. Dig. <®=>57.]</p> <p>3. Mandamus <@=^57 — Stenograhers — Paupers’ Appeals — Statute Bequiring Preparation of Transcript.</p> <p>Acts 32d Leg. c. 119, providing for the appointment of official stenographers, and that the court in cases of paupers’ appeals shall order such a stenographer to prepare a transcript free of charge, is a mandatory provision enacted for the benefit of the party appealing, requiring the performance of a ministerial act by the court, which may be enforced by mandamus. '</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 68, 114-120; Dec. Dig. <@^>57.]</p> <p>4. Courts <©=3207 — Court of Civil Appeals —Jurisdiction—Mandamus.</p> <p>Under Rev. St. 1911, art. 1592, conferring upon the Court of Civil Appeals the power to issue writs of mandamus to enforce its jurisdiction, such court has power to issue such writ to compel the official stenographer of a district or county court to prepare a transcript free of charge in connection with a pauper appeal, as required by Acts 32d Leg. c. 119.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 758; Dec. Dig. <§=>207.]</p> <p>5. Courts <@=j57 — Stenographers—Paupers’ Appeals — Preparation oe Transcript.</p> <p>The fact that any appellant may prepare a statement of facts himself, independent of the stenographer’s notes and transcript, does not preclude a pauper appellant from procuring an order to such stenographer to prepare a transcript free of charge as required by Acts 32d Leg. c. 119.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 198-200; Dec. Dig. <@=>57.]</p>

<p>Error from Irion County Court; W. F. Fokes, Judge.</p> <p>Action by Fayette Tankersley against S. B. Hovey and another, as receivers of the Kansas City, Mexico & Orient Railway Company. There was a judgment for plaintiff, and defendants bring error.</p>

C. Scott, Judge. Trespass to try title by Mary Ella Brazile and another against L. L. Blaylock and others. Judgment for defendants, and plaintiffs appeal.

<p>Accord and Satisfaction <&wkey;7 — What Constitutes — Part Payment.</p> <p>Where a mortgagee expressly stated that he insisted on the full 10 per cent, interest which the notes called for after maturity, his acceptance for several years of 8 per cent. ■ interest was not a satisfaction of his claim for the excess, for part payment of a debt under an agreement that it shall be taken as full payment does not have that effect; the agreement being without consideration.</p> <p>[Ed. Note. — For other cases, see Accord and Satisfaction, Cent. Dig. §§ 46-58, 66, 94, 95; Dec. Dig. <&wkey;>7.]</p>

<p>1. Evidence <&wkey;441 — Parol Evidence Varying Contract — Letter.</p> <p>In an action to recover the price paid for a roof put on by defendant in accordance with a written contract, because of the breach of a warranty, a letter written by defendant which accompanied the contract, and which contained additional statements in the nature of warranties, is inadmissible, since, if it had any effect, it varied the terms of the contract.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765-1845, 2030-2047; Dec. Dig. &wkey;441.]</p> <p>On Motion for Rehearing</p> <p>2. Trial <&wkey;255 — Submission of ■ Issues to Jury — Necessity of Request.</p> <p>In an action to recover the amount paid for a roof put on by defendant in accordance with a written contract warranting it for 10 years, the failure to submit the issue as to the value of the roof as constructed does not require a reversal of a judgment for plaintiff, where defendant made no request for such submission, and the court, in substance, found that the roof was valueless at the time the action was brought, and that the value of the use thereof did not exceed the interest on the purchase price.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. &wkey;255.]</p> <p>3. Appeal and Error <&wkey;1052 — Harmless Error — Admission of Evidence — Cure by Special Verdict.</p> <p>Error, in admitting in evidence, in an action for breach of warranty, a letter which accompanied the written contract is harmless, where the findings of the jury, aside from those based on that evidence, were sufficient to sustain the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4171-4177; Dec. Dig. <S&wkey; 1052.]</p> <p>4. Sales <&wkey;440 — Remedies of Buyer — Breach of Warranty — Recovery of Purchase Price — Evidence.</p> <p>In an action to recover the price of a roof put on in accordance with the contract warranting it for 10 years if painted with a certain paint at times directed by the defendant, evidence that defendant’s salesmen vainly attempted to sell some paint to plaintiff is immaterial, where there was no showing that the salesmen requested him to paint the roof, or that they had any authority to make such request.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1261-1276; Dec. Dig. <¿=3440.]</p> <p>5. Trial <&wkey;260 — Submission of Special Issues — Issues Covered by Court’s Charge.</p> <p>It is not error for the court to refuse to submit special issues, which were sufficiently submitted in the court’s charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260J</p> <p>6. Sales <&wkey;446 — Action ' for Breach of Warranty — Submission of Special Issues —Incorrect Issues.</p> <p>In an action for the price of a roof put on by defendant five years before, in accordance with a written contract warranting it for 10 years, at the end of which time the roof should be perfectly water tight, it was not error to refuse to submit issues requested by defendant as to whether the roof could have been then repaired and made water tight, so as to last for several years.</p> <p>[Ed. Note. — For other cases, -see Sales, Cent. Dig. §§ 1309-1317; Dec. Dig. &wkey;446.]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Lou White and others against the .¡Etna Accident & Liability Company. From judgment for plaintiffs, defendant appeals.</p>

<p>1. Caebiebs <@=>228 — Cabbiage of Live Stock — Actions—Evidence.</p> <p>Evidence held sufficient to support judgment against a railroad company for damages for injuries to live stock on account of delay and rough handling.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <@=>228.]</p> <p>2. Appeal and Eeeob <@=>215 — Peesentation of Grounds of Review in Court Below— Necessity.</p> <p>Under Acts 83d Leg. c. 59, assignments complaining of errors in the charge cannot be reviewed where no objection was taken below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. <@=></p> <p>3. Caebiebs <@=>230 — Cabbiage of Live Stock — Actions—Instbtjction.</p> <p>In an action against a carrier for injuries to cattle caused by delay and rough handling, where the carrier asserted that the stock suffered because of their weakness, the charge that no recovery could be had unless the damages were caused by the carrier’s negligence and not the weakness of the cattle, that plaintiffs must make out their case by preponderance of the evidence and that the carrier was not an insurer sufficiently safeguarded the carrier’s interests.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <@=>230.]</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by Bessie Simpson against the Order of United Commercial Travelers. Prom judgment for plaintiff, defendant appeals.</p>

<p>1. CORPORATIONS <&wkey;476 — Powers—Securing Debt oe Another.</p> <p>A note and deed of trust, executed by a corporation to. secure the debt of another corporation, were illegal when executed in violation of Rev. St. art. 1164, prohibiting a corporation from using its funds for purposes other than that for which it was incorporated.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 1856, 1864; Dec. Dig. &wkey;476J</p> <p>2. Corporations <&wkey;476 — Trust Deed — Consideration.</p> <p>A note and deed of trust, executed by a corporation to secure a debt of another corporation, were invalid for want of consideration, where the maker received no benefit from the transaction, though they were executed pursuant to an agreement made by. the organizer of the former corporation before its formation, and though the resolution, authorizing the execution of the deed of trust, recited that the consideration of same was the cancellation of a prior deed of trust, where such prior deed had in fact been released several years before.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1856, 1864; Dec. Dig. <&wkey;>476.]</p> <p>3. Corporations <&^14 — Formation — Illegal Purpose — Deed oe Trust — Securing Debt oe Another.</p> <p>Where a corporation, which executes a deed of trust to secure the debt of another corporation, has, with the knowledge of the bank to which the deed of trust is given, been organized for this purpose, its organization is for an illegal purpose which invalidates the deed of trust.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 16-22; Dec. Dig. <&wkey;>14.]</p> <p>4. Corporations &wkey;>487 — Ultra Vires Act-Execution oe Deed oe Trust — Ratification.</p> <p>Where the execution of a deed of trust by a corporation to secure the debt of another corporation was ultra vires, it was incapable of ratification.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1893-1898; Dec. Dig. <fc>487.]</p> <p>5. Homestead <&wkey;29> — What Constitutes— Intention.</p> <p>That the husband and wife had frequently gone over the land in controversy, looking for a building site, and had tentatively selected several sites thereon, did not give the land a homestead character, where they had done nothing to dedicate it, or any part thereof, to homestead purposes, a mere intention to occupy laud at some future time as a homestead, unaccompanied by any act evidencing such intention, being insufficient, though actual residence is not always necessary.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 37; Dec. Dig. <®==>29.j</p>

<p>Appeal from District’ Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Suit by Albert Krenz and another against Henry Strohmeir and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by M. C. H. Park, as trustee, against B. T. Rich and others. From a judgment for plaintiff, defendants appeal.</p>

B. Muse, Judge. Separate actions by George A. Harmon and another against the Orient Insurance Company of Hartford, Conn., and the Palatine Insurance Company, Ltd., of London, England, were consolidated for trial. Judgment for the plaintiffs, and defendants appeal.

<p>1. TELEGRAPHS AND TELEPHONES &wkey;>65 — DELAY in Delivery oe Message — Actions— Pleading.</p> <p>In an action for delay in delivery of a telegram advising- plaintiff that Ms child was not expected to live through the night, the petition alleged that if the telegram had been delivered with ordinary promptness, plaintiff, by taking a certain route, would have been at the bedside of the child by about 1 o’clock a. m. Held, that this raised an issue as to whether, had the telegram been promptly delivered, he would have reached the child before its death at 6 a. m.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. <&wkey;65.]</p> <p>2. Telegraphs and Telephones &wkey;>73 — Delay in Delivery op Message — Actions— Questions eor Jury.</p> <p>In such action, evidence held to make a question for the jury as to whether plaintiff would have reached the child’s bedside before it died had the telegram been delivered with ordinary promptness.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dec. Dig. <S&wkey; 73.]</p>

<p>Appeal from District Court, Austin County; Frank S. Roberts, Judge.</p> <p>Action by Sallie Turner and others against the Missouri, Kansas & Texas Railway Com-party of Texas. From a judgment for defendant, rendered on special findings by tbe jury, tbe plaintiffs appeal.</p>

<p>1. Schools and School Districts <&wkey;135— TEACHEBS — CONTRACTS — APPROVAL BY County Judge.</p> <p>The failure of a teacher, who had unsuccessfully pursued her remedy by appeal to the state superintendent and state board of education, to resort to mandamus to obtain approval of her contract by the county judge, must be construed as an acquiescence on her part in the decision of the judge in refusing to approve the contract, and hence no valid contract existed between the trustees of the district and the teacher.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 139, 292-297; Dec. Dig. &wkey;>135.)</p> <p>2. Schools and School Districts <&wkey;144— Contracts to Teach — Compensation.</p> <p>The existence of a valid contract between the trustees of a school district and a teacher is a condition precedent to the right of the trustees to issue vouchers and of the county treasurer to pay them, and, until a written contract has been executed and approved, servicés performed by the teacher as such are without authority of law and she cannot recover therefor.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 308-314; Dec. Dig. <&wkey;144.]</p> <p>3. Schools and School Districts <&wkey;145— Contracts to Teach — Compensation—Actions — Petition.</p> <p>A petition, in a suit by a public school teacher for services for teaching in a district, which alleges that there was during the year in the hands of the county to the credit of the district to pay for teaching in. the district a specified sum, that the same was never paid out to any one for teaching the school of the district for the year, but that the teacher does not know whether the money is still so^ set aside, or whether the same has been distributed to other purposes, is defective for failing to affirmatively show that funds are on hand for the payment of the claim of the teacher.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 316-317; Dee. Dig-. <@=^145.]</p> <p>4. Schools and School Districts <&wkey;145— Teachers — Contracts — Compensation —Approval oe Vouchees.</p> <p>A public school teacher may not resort to the courts to recover for services rendered until an appeal has been unsuccessfully prosecuted to the state superintendent from the refusal of the county judge to approve vouchers, and this i? true whether controversies arise between the teacher on one hand, and the trustees and county school officials on the other, and a resort to the remedies provided in the school law must precede the right to a resort to the courts for relief.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 315-317; Dec. Dig. &wkey;145.]</p>

<p>1. A^endor and Purchasee &wkey;>86 — Abandonment of Rights — Title—Cube of Defect.</p> <p>The institution of a suit to recover money paid on a contract for the purchase of real estate upon discovery of fraudulent representations leading to the sale amounts to an abandonment of the contract, and it is then too late for the seller to make good the title by curing any defects therein.</p> <p>[Ed. Note. — Eor other cases, see Arendor and Purchaser, Cent. Dig. §§ 144-146; Dec. Dig. <&wkey;86.]</p> <p>2. A'ENDOR AND PURCHASER &wkey;>35 — RESCISSION BY PURCHASER1 — FRAUDULENT MISREPRESENTATIONS.</p> <p>AVhere the vendor of land concealed the existence of a lien thereon, stating that the title was good, and furnished an incomplete abstract, the fact that the purchaser employed an attorney to examine the abstract did not preclude rescission by the purchaser on the theory that it proved nonreliance on the vendor’s statements as to the title, since that would leave out the effect of furnishing a false abstract.</p> <p>[Ed. Note. — For other cases, see Arendor and Purchaser, Cent. Dig. §§ 45-51; Dec. Dig. <&wkey;> 35.]</p> <p>3. Attorney and Client <®^»104 — Knowledge of Attorney — Defect in Title — Rescission by Purchaser.</p> <p>That the attorney employed by the purchaser of land to examine the abstract knew of the existence of a lien which the vendor had concealed and which was fraudulently omitted from the abstract was not, as matter of law, conclusive against the purchaser’s right to rescind on discovery of the lien, where there was also evidence that the attorney agreed with the vendor not to disclose the lien to the purchaser.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 92, 93; Dec. Dig. &wkey; 104.]</p> <p>4. Vendor and Purchaser <@=>336 — Recovery ob Money Paid — Deeenses.</p> <p>In an action to recover money paid on a contract for the sale of real estate on account of flaws in the title thereto, that plaintiff has permitted a foreclosure and sale upon the lien which constituted the flaw in the title constitutes no defense.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 984; Dec. Dig. <@= 336.]</p> <p>5. Vendor and Purchaser <@=341 — Rescission by Pueohaser — Recovery ■ ob Payments.</p> <p>The rule that, where failure of title is partial and to a specific part of the land conveyed, the damages cannot exceed the value of the part to which title failed, is inapplicable to a case where the purchaser rescinds for fraud and sues to recover what he has paid.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1008-1017; Dec. Dig. <@=341.]</p>

<p>Appeal from District Court, Dawson County; W. R. Spencer, Judge.</p> <p>Action by C. E. Brown against W. E. Gaines. From a judgment for plaintiff, defendant appeals.</p>

<p>1.Dogs and Logging @=33 — Sale of Timbee —Breach of Contract — Waives of Provision — Question fob JTury.</p> <p>Where, in an action for breach of a contract to sell timber, providing the seller notified the buyer on or before a certain date that he had secured a right of way on which to construct a railroad by which the timber could be transported, the evidence was such that reasonable minds might differ as to whether the time in which the notice was to be given had been waived and the contract continued in force with that provision eliminated, such question was for the jury.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. @=33.]</p> <p>2. Brokers @=>3'8 — Dual Employment — Question for Jury.</p> <p>Where, in such case, the evidence was conflicting on defendant’s contention that plaintiff had secretly employed his agent and paid him a commission, thereby rendering the contract void, such issue was for the jury.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 31-36; Dec. Dig. @=>3S.]</p> <p>3. Principal and Agent <@=314 — Existence of Agency — Payment of Expenses — Sale of Timber.</p> <p>That the buyer under a contract for the sale of timber, which involved the procurement of a railroad right of way, by the seller, paid the expenses of the seller’s agent in getting the right of way, did not make him the buyer’s agent.</p> <p>[Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 26-33; Dec. Dig. <@=> 14.]</p> <p>4. Brokers <@=j7 — Existence of Agency-Statement of Owner.</p> <p>Where the owner of timber stated, in response to C.’s request that he submit through him price on the timber, that he would not do so and would give no option, but that if C. found any one who wanted the timber and was able to buy it he would trade on almost any fair proposition, this did not make C. the owner’s agent for the sale of the timber.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 5-8; Dec. Dig. <@=>7.]</p> <p>6.Logs and Logging <@=33 — Sale of Timber —Breach of Contract — Waiver of Condition — Submission of Issues.</p> <p>Where, in an action for breach of a contract to sell timber providing the seller notified the buyer on or before a certain date that he had (secured a right of way on which to construct a railroad by which the timber could be transported, the evidence was conflicting on whether the parties by mutual agreement had extended the time for notice and on whether the seller gave such notice, it was error to refuse instructions in which such issues were submitted to the jury.</p> <p>[Ed. Note. — Eor other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. <@=33.]</p> <p>6. Logs and Logging <@=33 — Sale of Timber —Repudiation of Contract.</p> <p>A statement by the buyer that it would expect indemnification against lawsuits affecting a part of the land on which the timber bought was located, and that it was losing money every day waiting for a railroad to be built by the seller, and an inquiry as to how long it would be until the road was completed, did not constitute a repudiation of the contract; a mere intimation that a contract may be repudiated, when unaccepted by the other party, not operating to avoid the contract.</p> <p>[Ed. Note. — Eor other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. <@=>3.]</p> <p>7. Corporations <@=3642 — Foreign Corporation-Doing Business in State — Timber Contract.</p> <p>Vernon’s Say les’ Ann. Civ. St. 1914, arts. 1314, 1318, requiring that foreign corporations secure permits before doing business within the state, does not prevent a foreign corporation which has not procured a permit from contracting to buy timber located in the state, in contemplation of doing business in the state.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 2520-2527; Dec. Dig. <@=3642.]</p> <p>8. Logs and Logging <@=33 — Sale of Timber —Validity of Contract — Description.</p> <p>A contract for the sale of timber on a “certain tract of land” in a county named, “containing 12,000 to 15,000 acres of timber land east of Trinity river,” was not so indefinite in description as to be void, where a map attached to it, as shown by the evidence, accurately and fully defined the boundaries.</p> <p>[Ed. Note. — For other cases, see Logs and Logging, Cent Dig. §§ 6-12; Dec. Dig. @=>3.]</p> <p>9. Frauds, Statute of @=>72 — Interest in Land — Sale of Growing Timber.</p> <p>Where a contract for the sale of growing timber stated that it was not a lease, and that the owner retained absolute control of the land and a railroad to be built over it, giving the buyer a mere right to go on the land and cut and remove the timber, it was a contract for the sale of chattels and not a contract to convey an interest in the land, within the statute of frauds.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 116-118, 146; Dec. Dig. @=372.]</p> <p>10. Frauds, Statute of @=>49 — Operation-Contract.</p> <p>A contract which may or may not be performed within one year does not fall within the statute of frauds.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 74; Dec. Dig. @=>49.]</p>

P. Greever, Judge. Action by Ered and Henry Holmes against the Pecos & Northern Texas Railway Company and another. From a judgment for plaintiffs, the defendant named appeals.

<p>1. Judgment <@=3256 — On Teiai of Issues— Conformity to Findings.</p> <p>Where a special verdict is returned, the court must enter judgment in accordance therewith, however erroneous such verdict may appear to it; for a judgment must conform to the verdict.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. <@=3256.]</p> <p>2. Judgment <@=3256 — On Trial of Issues— Conformity to Findings “Paid in Full.”</p> <p>In an action to recover a broker’s commission, on the sale of a hotel, that was not to be paid unless the purchase-money notes given for such hotel were paid, where no issue was raised by the pleadings whether the notes were paid in money, the parties trying the case on the issue that the contract was rescinded, and not that money was paid in settlement of the notes, while the jury found that a rescission of the purchase was made in good faith because of the buyer’s inability to pay the price, and that the seller in rescinding and taking a reconveyance did not intend to defeat the broker’s right to his commission, a special finding by the jury that the purchase-money notes were “paid in full” meant that the notes were canceled by the rescission of the purchase contract, not paid in money, so that entry of judgment for the defendant upon the special verdict was not improper as inconsistent with the findings.</p> <p>[Ed. Note. — For other cases, see Judgment, Gent. Dig. §§ 446-454; Dec. Dig. <@=3256.]</p>

Styles, Judge. Claim for attorney’s fees by S. P. Bowe, as administrator, -was allowed, and A. D. Dyess and another, who objected, appealed to the district court. From a judgment there allowing the full claim, they again appeal.

<p>1. Negligence <§=>56 — “Proximate Cause” —What is.</p> <p>A proximate cause is not necessarily the last cause that produces a result, but is that which produces or actively aids in producing the result, or that which concurs with the last cause to produce the result which might reasonably have been contemplated under the attending circumstances.</p> <p>[Ed. Note. — Por other cases, 'see Negligence, Cent. Dig. §§ 69, 70; Dec. Dig. <§=>56.</p> <p>Eor other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]</p> <p>2. Carriers <§=>320 — Carriage oe Live Stock —Negligence—Proximate Cause.</p> <p>An initial earner of live stock required the shipper to accompany the stock, and at intervals look after the same. It failed to properly bed the car, which, while on a side track of the connecting carrier, was struck by cars operated by the connecting carrier, so violently as to throw one of the animals on the floor, injuring the shipper then in the car. Held that, whether the failure to properly bed the car was negligence, and, if negligence, it concurred with the act producing the result, was for the jury.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1283, 1244, 1248, 1315-1325; Dee, Dig. <§=>320.]</p> <p>3. Carriers <§=>290 — Carriage oe Dive Stock —Negligence—Proximate Cause.</p> <p>The failure of the initial carrier to properly bed the car rendered it liable for the injury to the shipper, since the result could reasonably have been anticipated by the initial carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1168, 1169, 1177, 1178, 1180, 1182-1184; Dec. Dig. <§=>290.]</p> <p>4. Carriers <§=>306 — Carriage oe Live Stock —Negligence—Proximate Cause.</p> <p>The initial carrier selling a passenger ticket entitling the purchaser to ride over the line of the initial and connecting carriers, but without any stipulations as to liability for accidents, did not thereby relieve itself from liability for injuries received on the line of the connecting carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1249-1251; Dec. Dig. <§=53(36.]</p> <p>5. Customs and Usages <§=>10, 21 — Validity —Evidence.</p> <p>Customs of trades and provisions not repugnant to express statutes or rules of law have the force of law, but whether a custom exists, is one of fact.</p> <p>[Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 9, 17; Dee. Dig. <§=510, 21.]</p> <p>6. Negligence <§=>61 — Proximate Cause.</p> <p>Negligence of intermediate agencies may be the proximate cause which sets in motion the concurring act of negligence of another for which the latter will, in ease of loss or injury, be liable.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 74, 75; Dec. Dig. <§=>61.]</p> <p>7. Evidence <§=>481 — Opinion Evidence — Admissibilty.</p> <p>One having an experience of 15 or 20 years of shipping live stock, may testify that it is usual and customary to bed cars with sand or hay to enable stock to stand.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2248-2254; Dec. Dig. <§=>481.]</p> <p>8. Appeal and Error <§=>1040 — Harmless Error — Erroneous Rulings on Pleadings.</p> <p>Where issues raised by allegations in a petition to which special exceptions were overruled, were not submitted, and defendant’s liability was predicated on other facts, the ruling was immaterial.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. <§=> 1040.]</p>

<p>Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.</p> <p>Action by the National State Bank of Mt. Pleasant, Iowa, against' L. A. Ricketts and others. Judgment for the defendants, and plaintiff appeals.</p>

S. Kinder, Judge. Action by the Alfalfa Lumber Company against J. W. Grant, the Fidelity & Deposit Company of Maryland, and another. Judgment for the plaintiff and for the defendant Grant as against the surety company, and the defendant Grant appeals, and the surety company assigns cross-error.

<p>1. COURTS <@=>169 — JURISDICTION — COUNTY Court — Pleading.</p> <p>Where the aggregate of the items of damage set out in the petition is less than $800, but the prayer was for judgment for the sum of $1,000, with interest thereon, the prayer does not claim an amount in excess of the jurisdiction of the court, since the interest claimed is on the judgment, not on the damages.</p> <p>[Ed. Note. — -For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. <§£=>169.1</p> <p>On Motion for Rehearing.</p> <p>2. Commerce <§=>8 — Interstate • Commerce — . Contracts — Law Governing.</p> <p>The United States statutes and the decisions of the United States courts control the interpretation of contracts for interstate shipments.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <@=S.]</p> <p>3. Carriers <@=218 — Carriage of Live Stock — Bill of Lading — Requirements for Notice.</p> <p>A requirement in the bill of lading for an interstate shipment of live stock that the shipper shall give notice of injury or damage to an agent of the carrier within one day after arrival and before the stock are removed from the yards, or mingled with other stock, is unreasonable and not binding when no reduced rate therefore is shown, it does not appear that there was any agent of the carrier at the point of destination to whom the notice could be given, and the damage claimed is the decrease in the market during the time the shipment was delayed.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674^696, 927, 928, 933-949; Dec. Dig. <@=3218.]</p> <p>Hendricks, J., dissenting.</p>

<p>1. Cotjkts <§=>97 — Juisdiotion— Decisions oe Federal Courts — As Authority in State Court.</p> <p>In a shipper’s action for damages to an interstate shipment of live stock, shipped under a written contract, the decisions of the federal courts control, and the Court of Civil Appeals must follow them.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 329-333; Dec. Dig. <@=>97.] .</p> <p>2. Carriers <@=>228 — Injury to Live Stock-Action eor Damages — Pleading and Proof —Reasonableness oe Stipulations.</p> <p>In an action for damages to a shipment of live stock from delay and rough handling, under a stipulation in the written contract that as a condition precedent to any claim of damages the shipper, as soon as he discovered any injury, should promptly give written notice to some general officer, claim or station agent, or to the agent at destination, or to some general officer of the delivering line, before removing the stock, and within one day after delivery, and the shipper’s agreement that failure to give the notice should bar recovery, the carrier had the burden of showing that the stipulation, as to the particular shipment, was reasonable, and that it had an officer or agent at or near the place where the notice was to be given, and, where there was no such allegation and proof, the shipper was not required to prove notice oí-an excuse for not giving notice; and the fact that damages were known to the shipper, or the shipper’s direction to a commission company to put in the claim, did not dispense with proof that there was an agent to receive notice.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. <§=>22S.]</p> <p>Hendricks, J., dissenting.</p> <p>On Motion to Certify to Supreme Court.</p> <p>3. Courts <@=>247 — Court oe Civil Appeals —Certificate to Supreme Court — Federal Question.</p> <p>Where the question involved in an action for damages to an interstate shipment of live stock, defended on the ground of the shipper’s failure to give the notice of injury required by the written contract of shipment, was a federal question of which the Supreme Court of the United States had final jurisdiction, appellant, if the opinion of the Court of Civil Appeals was erroneous, had a plain, adequate, and complete remedy by due course of law, by proper application to the Supreme Court of the United States, so that it was not mandatory upon the Court of Civil Appeals to certify the case to the state Supreme Court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. <§=247.]</p> <p>4.Courts <@=>247 — Court oe Civil Appeals —Conclusiveness oe Decision.</p> <p>The decision of the Court of Civil Appeals on appeal from the county court is final, and a certificate to the Supreme Court does not lie, and, if the Supreme Court had jurisdiction by virtue of a dissent, appellant was not deprived of the remedy by petition for writ of error.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. <@=>247.]</p>

P. Greever, Judge. Suit by the Chicago, Rock Island & Gulf Railway Company against Fayette Ratliff and others to restrain the collection of certain taxes. From a judgment for defendants, plaintiff appeals.

<p>Cbimtnal Law &wkey;>1097 — Questions Reviewable — Statement oe Pacts.</p> <p>In the absence of a statement of facts, refusal of charges will not be reviewed.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. &wkey; 1007.]</p>

<p>Criminal Law c&wkey;109O — Appeal—Statement oe Faots.</p> <p>Where no statement of facts is filed, and no bill of exceptions is reserved to any proceeding bad on the trial, there is nothing for review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. >&wkey;>1090.]</p>

<p>Appeal from Wood County Court; R. E. Bozeman, Judge.</p> <p>J. W. Moon was convicted of unlawfully carrying a pistol, and he appeals.</p>

<p>Appeal from Harris County Court at Law;, K. C. Barkley, Special Judge.</p> <p>Action by the J. W. Carter Music Company against Maggie Evans and others-Prom a judgment for defendants, plaintiff appeals.</p>

B. Minor, Judge. Action by the Gulf National Bank against C. D. Bass and others. From an order dissolving a temporary injunction and denying the application for the appointment of a receiver, plaintiff appeals.

<p>Appeal from District Court, Bexar County; W. E. Ezell, Judge.</p> <p>Action by H. E. Simms and another against Theodore Plummer. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Bexar County Court; Nelson Lytle, Judge.</p> <p>Ed. P. McDevitt was convicted of unlawfully taking and driving a vehicle, and he appeals.</p>

<p>Appeal from District Court, Sau Jacinto County; J. Llewellyn, Judge.</p> <p>Action by J. Stanley against J. C. Cleveland and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Harris County Court, at Law; Clark C. Wren, Judge.</p> <p>Action by H. Lorentz against the Buffalo Bayou Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.</p> <p>Action by J. P. White against the Texas & Pacific Bailway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Carriers @=>277 — Carriage oe Passengers — Breach oe Special Contract — Damages — Humiliation.</p> <p>Where plaintiff, contemplating to attend a Confederate Reunion, was induced by the traffic agent of defendant railroads to travel over their line, and to influence his friends to do so, by the promise to furnish through first-class chair ear transportation, in his action for breach of such contract the plaintiff could not recover for any humiliation he sustained because the friends whom he had induced to go with him were treated as he was, and compelled, to ride in inferior cars.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1082-1084; Dec. Dig. @=>277.]</p> <p>2. Damages @=»23 — Breach oe Contract.</p> <p>The measure of damages for a breach of contract includes compensation for only such injuries a» the defaulting parties must have contemplated as a natural and necessary result of the breach.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 58, 62; Dee. Dig. <@=>23.]</p> <p>3.Damages @=>56 — Breach oe Contract — Mental Annoyance and Discomfort.</p> <p>The law does not ordinarily allow recovery in damages for mental annoyance and discomfort resulting from a breach of contract, which must be shown to have attained a higher pitch of intensity than ordinary regret or annoyance, must have been mental anguish, and a necessary and natural result of the breach, so that the party in fault must be held to have contemplated it as a result of the breach before recovery can be had.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 104, 105; Dec. Dig. @=>56.]</p>

<p>On motion for rehearing.</p>

<p>Appeal' from Somervell County Court; J. W. Childress, Judge. William Fine was convicted of aggravated assault, and he appeals.</p>