Volume 178 — South Western Reporter

<p>Appeal from District Court, Reeves County ; S. J. Isaacks, Judge.</p> <p>Action by J. C. Short against Otto Hoefs and others. From an order granting a temporary writ of injunction against defendants, they appeal.</p>

<p>1. Depositions <&wkey;68 — Exhibits—Identification oe Exhibits.</p> <p>Where exhibits to depositions are so described in the answers as to render their identity certain, or where their identity is conclusively established by extraneous evidence, they are admissible in connection with the depositions, although not inclosed therein.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 155-157; Dec. Dig. &wkey;6S.]</p> <p>2. Depositions <&wkey;83 — Exhibits—Suppression oe Depositions.</p> <p>Where X-ray photographs were made exhibits to a deposition in a personal injury case, but were not returned in the same envelope, but were unnecessary to a proper understanding of the deposition, it was not error to refuse to suppress such depositions on the ground that they were unintelligible without the exhibits.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. <@=>83. ]</p> <p>3. Appeal and ErboX <&wkey;1051 — Review — Haemless Eeeoe.</p> <p>Admission of X-ray photographs as exhibits in connection with depositions in, an action for injuries to plaintiff’s leg while switching railroad cars is harmless error, where other expert evidence was given showing from such photographs that plaintiff’s leg would improve and again become serviceable.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. <&wkey;>1051.]</p> <p>4. Damages <&wkey;206 — Physical Examination.</p> <p>In an action for injuries to plaintiff’s leg while switching railroad cars, it was not error to refuse to allow physicians to examine the leg, except separately, the examiners to 'be placed on the stand by defendant, and before the jury, where each of such physicians had already made a thorough physical examination prior to the trial.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 531; Dec. Dig. <&wkey;>206.]</p> <p>5. Damages &wkey;>206 — Physical Examination.</p> <p>In a personal injury case, where defendant’s motion for a physical examination of plaintiff was denied, but no suggestion was made that plaintiff would utter exclamations of pain while being examined, and he had previously exhibited his injury to the jury, although defendant had a right to have physicians of its own selection make a proper examination, whether such examination , could be made in the presence of the jury was to be determined by the nature of the injury sustained.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 531; Dec. Dig. <@=>206.]</p> <p>6. Appeal and Eeeoe <&wkey;273 — Reseevation OE GROUNDS OE REVIEW — EXCEPTIONS.</p> <p>In a personal injury action, an exception to the court’s definition of “reasonable care” on' the ground that it was not correct is too general for consideration on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. &wkey;273.]</p> <p>7. Appeal and Eeeoe &wkey;>273 — Reservation, oe Grounds oe Review — Exceptions.</p> <p>An exception to the charge in a personal injury case that plaintiff’s theory of the case was-presented and defendant’s theory excluded is too-general to entitle the assignment to consideration.</p> <p>[Ed.i Note. — For other cases, see Appeal and Eirror, Cent. Dig. §§ 1590, 1606, 1620-1623,. 1625-1630, 1764; Dec. Dig. &wkey;273.]</p> <p>8. Trial &wkey;>352 — Special Issues.</p> <p>In a personal injury case, a special issue as-ta whether plaintiff was knocked down and run over and injured was not objectionable as combining two issues.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]</p> <p>9. Trial <&wkey;351 — Submission oe Issues.</p> <p>An assignment of error on the ground that the court refused to submit certain issues will be overruled when such issues are elsewhere submitted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. &wkey;351J</p> <p>10. Trial &wkey;>352 — Special Issues — Emphasizing Evidence.</p> <p>Issues which are argumentative and on ’the weight of the testimony in singling out portions thereof are properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]</p> <p>11. Trial &wkey;>350 — Special Issues.</p> <p>Issues not made by the pleadings are properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. &wkey;350.]</p> <p>12. Trial <&wkey;350 — Special Issues — Damages. Special issues as to damages, findings under</p> <p>which would be of no practical benefit on the question of whether the verdict is excessive,, are properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§, 828-833; Dec. Dig. &wkey;350.]</p> <p>13. Trial <&wkey;350 — Special Issues — Subsidiary Issues.</p> <p>The court is not required to submit special issues calling for findings on subsidiary questions of fact or evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. &wkey;350.]</p>

M. Overshiner, Judge. Action by the First State Bank of Hawley and others against Paul G. Taylor and others. Judgment for plaintiffs, and the named defendant appeals.

<p>1. CONTRACTS <&wkey;186 — CONSIDERATION—PERSONS Entitled to Attack Consideration.’</p> <p>That a contract between a railway company .and a labor union providing for the employment of a specific percentage of employes fro-m members of such union, and preference to such members in employment, was unilateral, wanting in mutuality, and unenforceable at law, could not be complained of by strangers to the contract not in privity with the parties thereto.</p> <p>[Ed. Note.—For other eases, seé Contracts, Cent. Dig. §§ 790-797; Dec. Dig. &wkey;186.]</p> <p>2. Contracts <&wkey;108 — Validity — Public Policy.</p> <p>Such contract was not void as against public policy, as, in the absence of any conspiracy ■or combination against any individual or organization to prevent employment, the railway company was free to employ whom it pleased, especially in view of Pen. Code 1911, art. 1477, providing that it shall be lawful for persons engaged in any kind of work to associate themselves together and form trade unions and other organizations for the purpose of protecting themselves in their respective pursuits and employments, and article 1479, providing that notliing therein contained shall interfere with the terms and conditions of private contracts with regard to the time of service or other stipulations between employers and employés,_ and also in view of the fact that the membership of such union greatly exceeded the membership of any other union, and that a larger percentage of the members of a rival union complaining^ of the contract were employed than of the union in question.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 498-503, 505, 507-511; Dee. Dig. <&wkey;10S.]</p>

<p>Appeal from District Court, Trinity County ; S. W. Dean, Judge.</p> <p>Doc Little was convicted of murder, and he appeals.</p>

<p>1. .Ckiminai, Daw <@=3112 — Venue—Daeceny.</p> <p>In theft, a conviction may be had in any county into which the property is carried after being stolen.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 188; Dec. Dig. <¿=3112.]</p> <p>2. Chimin An Daw <@=3108 — Venue — Bub-G1AEY.</p> <p>In burglary, conviction must be had in the county in which the house is broken and entered.</p> <p>[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 175,179-185; Dec. Dig. <@=> 108.]</p> <p>3. Bueglaby <@=»41 — Evidence—Sufficiency.</p> <p>In a prosecution for burglary, evidence held insufficient to support a conviction of breaking and entering a certain freight car with intent to commit theft while in a certain county.</p> <p>[Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig.</p>

<p>1. Sams @=>116 —■ Contracts — Rescission —Grounds.</p> <p>A violation by a seller of his promise to place in perfect condition the machine sold does not justify a rescission by the buyer of the contract of sale.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 290; Dec. Dig. @=>116.]</p> <p>2. Sales @=>359 — Actions for TJndaid Price —Issues.</p> <p>Where, in an action on a note for the unpaid price of an automobile sold to one of the makers, who pleaded infancy, there was no finding that the automobile was returned, or that the seller accepted the same in return, under an agreement to.rescind, and the issue tendered by the seller, alleging that the maker represented himself to be of full age and that the seller had good reason to believe the truth of the representation, was not determined, a judgment against the seller was unsupported on the theory of a rescission of the contract of sale.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 511, 1056-1059; Dec. Dig. @=>359.]</p> <p>3. Sales @=>418 — Breach off Contract — Damages.</p> <p>The measure of damages for a seller’s failure to deliver an automobile as represented is the difference between the contract price and the reasonable value of the automobile in the condition it was at the time of sale.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 117A-1201; Dec. Dig. @=>418.]</p>

<p>Appeal from District Court, JoJmson County; O. L. Lockett, Judge.</p> <p>Action by J. A. Wilson against T. I. Richardson and another. From a judgment for plaintiff against the named defendant, he appeals.</p>

<p>1. Appeal and Error <&=>1026 — Review — Harmless Error.</p> <p>An assignment of error attacking the sufficiency of the evidence with respect to issues not submitted to the jury will be overruled.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4029, 4030; Dec. Dig. <S=s> 1026.]</p> <p>2. Mortgages <§=^78 — Defenses—MisrepreSENTATIONS.</p> <p>F. subscribed for stock in an insurance company and executed his notes therefor; S. being the promoter. S. also represented a trust company in negotiations with F. and his wife, which culminated in the execution of notes secured by a deed of trust, and in such negotiations falsely represented that the notes for the life insurance stock were due and unpaid; that the company was demanding payment; that S. had paid or would cause them to be paid; and that, in exchange for the life insurance stock, he would transfer to F. stock in the trust company and would attach it to the notes given the trust company. Held, that it was a defense to such notes in the hands of thei trust company that they were procured by S. by such misrepresentations, though the trust company was not interested in the transaction between F. and S. as the promoter of the life insurance company with respect to which the misrepresentations related.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 177-181; Dec. Dig. <S=>78.]</p> <p>3. Appeal and Error <§=o263 — Reservation of Grounds of Review — Exceptions.</p> <p>Where no exception was taken at the trial to an instruction or to the court’s ruling in permitting defendant to assert a defense claimed to be inconsistent with his statutory admission made for the purpose of obtaining the right to open and close, such rulings could not be complained of on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. .§§ 1516-1523, 1525-1532; Dec. Dig. <©=>2(53.]</p>

<p>Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.</p> <p>Action by Frank E. Thomas against the Great Eastern Casualty Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Pleading &wkey;>34 — Petition — Aider by VERDICT AND JUDGMENT.</p> <p>When not questioned by demurrer, the petition, after verdict and judgment, should be given a liberal construction to support the proceedings.</p> <p>[Ed. Note. — Por other cases, see Pleading, Cent. Dig. §§ 5%, 66-74; Dec. Dig. &wkey;34.]</p> <p>2. Negligence <&wkey;>138 — Instructions—Submission of Issues.</p> <p>It is only necessary to submit to the jury each of an entire series of negligent acts made the foundation of an action when proof of each act is necessary to show negligence.</p> <p>[Ed. Note. — Por other cases, see Negligence, Cent. Dig. §§ 354-370; Dec. Dig. <&wkey;138.]</p> <p>3. Master and Servant <&wkey;>264r — Injuries to Servant — Actions—Complaint.</p> <p>The complaint of a servant, injured when the walls of the building in which he worked collapsed and precipitated a water tank upon him, alleged that the building and the walls were under the exclusive control of the master, that the servant did not fully know the condition and defects therein, but believed that the walls and support were negligently constructed and permitted to become dangerous, in that the walls were built in two sections in no way connected, that the inner section was constructed of small stones held together with inferior mortar, that water was allowed to drip upon and wash away the mortar, and that the supports for the tank rested solely on the inner wall. The charge submitted to the jury the questions whether the walls of the room in which the servant worked were negligently constructed, and whether they were allowed to become weakened by the dripping of water, etc., and authorized a verdict for the servant if the master was negligent in any of the several particulars. Held that the complaint warranted submission to the jury of the question whether the master was negligent in any of the several ways alleged, notwithstanding that the negligent acts were alleged in the conjunctive.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <5&wkey; 264.]</p> <p>4. Appeal and Error <&wkey;1066 — Review — Harmless Error.</p> <p>In such case where it appeared that no unusual strain was imposed upon the walls, a charge that while the master was not an insurer of the servant’s safety, it was his duty to use ordinary care to furnish a reasonably safe place to work, and that the servant could assume that the building was safe and was not required to inspect it, etc., cannot be held prejudicial as submitting grounds of negligence not pleaded, for it would be unreasonable to suppose that the jury, which had before it evidence of negligent acts alleged, went into the realm of conjecture.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <®^=>1066.]</p> <p>5. Master and Servant &wkey;>264r-lNJURiES to Servant.</p> <p>In such ease, notwithstanding the specific allegations of negligence, the complaint was broad enough to authorize an inquiry into the attending circumstances and causes of the accident, and so the jury were entitled to refer the facts relating to the control of the building and the circumstances relating to its fall to the specific acts of negligence charged, though the doctrine of res ipsa loquitur might not be invoked, specific negligence having been pleaded.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. <&wkey;> 264.]</p> <p>6. Master and Servant &wkey;>265 — Injuries to Servant — “Res Ipsa Loquitur.”</p> <p>While"' the doctrine of res ipsa loquitur, which is a presumption of negligence arising where the particular thing causing the injury has been shown to be under the management of the defendant, and the accident to be one which would not happen in the ordinary course of events, does not ordinarily apply to master and servant cases, it may apply in extraordinary cases.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Gent. Dig. §§ 877-908, 955; Dec. Dig. <&wkey;>265.</p> <p>Por other definitions, see Words and Phrases, First and Second Series, Res Ipsa Loquitur.]</p> <p>7. Trial <&wkey;260 — Instructions—Refusal.</p> <p>The refusal of special requests covered by those given is not error.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. &wkey;260.]</p> <p>8. Trial &wkey;>131 — Arguments of Counsel.</p> <p>Where part of counsel’s argument was plainly within the scope of the evidence, and the objection went to the whole, the argument will not be considered reversible error, particularly where the matter was treated with levity by counsel and the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 312-314; Dec. Dig. &wkey;131.]</p> <p>9. Appeal and Error &wkey;>1060 — Review — Harmless Error.</p> <p>Improper argument of counsel will not warrant reversal, unless it appears that the verdict was affected by such argument.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. &wkey;sl060.]</p> <p>10. Trial <&wkey;121 — Argument — Personas Injuries — Award.</p> <p>Where plaintiff’s injuries resulted in pa-raylsis, argument of counsel that plaintiff was entitled to have damages assessed because his injuries would preclude him from having children, and thus he would suffer mental anguish is warranted, for mental anguish would naturally result from such injury and inability to perpetuate the race.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 294r-298, 300; Dec. Dig. <&wkey;121.]</p> <p>11. Master and Servant <&wkey;270 — Injuries —Evidence—Condition of Building.</p> <p>In an action by a servant for injuries resulting from the collapse of a building, a witness who saw the building and the wails a few hours after the accident may testify as to their condition and as to the mortar being washed ont.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Oent. Dig. §§ 913-927, 932; Dec. Dig. <&wkey;270.]</p> <p>12. Evidence <&wkey;513 — Opinion Evidence — Experts.</p> <p>An experienced builder may testify as to defects he discovered in the walls of the building which collapsed, such testimony not invading the province of the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Oent. Dig. §§ 2317, 2318; Dec. Dig. &wkey;513J</p> <p>13. Evidence <&wkey;18 — Judicial Notice — Weight op Water.</p> <p>The court will take judicial notice that a gallon of water weighs 8% pounds.</p> <p>[Ed. Note. — For other cases, see Evidence, Oent. Dig. § 22; Dec. Dig. &wkey;>18.]</p> <p>14. Evidence &wkey;>553 — Opinion Evidence — Hypothetical Questions.</p> <p>Where the walls of a building collapsed, precipitating a water tank upon plaintiff, an hypothetical question to an expert builder which assumed that the tank contained 6,000 gallons instead of 5,500 is not objectionable, it being sufficient in such cases that the evidence be substantially embodied in the hypothetical question, and the error going to the weight and not the competency of the testimony.</p> <p>■ [Ed. Note. — For other cases, see Evidence, Oent. Dig. §§ 2369-2374; Dec. Dig. &wkey;553.]</p> <p>15. Damages <&wkey;132 — Personal Injuries — Measure.</p> <p>Plaintiff, a strong, healthy man of 21 years of age, earning about $1.75 a day, who had just been married, was injured by the collapse of a building. The accident resulted in a broken leg, in injuries to his forehead, and in injuries to his back which caused paralysis. After the accident he lost sexual power and could not control his excretions, and his legs and body seemed to be wasting away. He incurred medical expenses to the extent of about $1,000 and required the almost constant attention of his mother and wife. The injuries were permanent. Held that an award of $20,000 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Oent. Dig. §§ 372-385, 396; Dec. Dig. &wkey;132.]</p>

<p>1. Evidence <@=>116 — Admissibility — Explanatory Matters — “Relevant Testimony” — -“Competent Evidence.”</p> <p>Where a witness for the defense on á second trial testified to a material fact contrary to the plaintiff, and to weaken such testimony plaintiff in rebuttal introduced the witness’ answer to a cross-interrogatory, showing that at a former trial he had been present, but was not used as a witness, and the defendant offered to prove that on the former trial the court had indicated its purpose to submit the case only upon an issue that rendered the witness’ testimony immaterial, such tendered proof should have been received as tending to rebut the inference that the witness’ testimony on the second trial was untrue, given with a view of supplying necessary evidence, since to be “relevant” testimony need not necessarily have direct relation to the principal issue, but is “competent” if it tends to explain or increase the probability or improbability of relevant facts to support his testimony, and any circumstance tending to explain unfavorable testimony elicited on cross-examination is always competent, and not within the discretion of the court to exclude.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. <@=>116.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Competent Evidence; Relevant.]</p> <p>2. Evidence <@=>116 — Explanatory Matters.</p> <p>Where the failure of a witness to testify on a former trial arose by reason of facts not within his knowledge, evidence explanatory of his failure to testify on the former trial, thereby rebutting the inference that his testimony on the second trial was untrue, could be supplied by competent evidence other than his own testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. <@=>116.]</p> <p>3. Trial <@=>119 — Conduct op Counsel — Argument — Propriety.</p> <p>In an action against a railroad for personal injuries, where the evidence was undisputed that the plaintiff was wholly dependent upon his parents, and always had been and always would be afflicted in body and mind, and without earning capacity, and where there was no prayer in plaintiff’s petition for damages except for physical and mental anguish, and the court in the charge submitted no other element of damages, the argument of plaintiff’s counsel in closing that the jury in awarding damages “should give plaintiff such a sum as will provide for him and furnish enough interest to take care of him” was -improper as a direct appeal to award compensation for an element of damages unwarranted by pleading, proof, or charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 284; Dec. Dig. <@=>119.] *</p> <p>4. Trial <@=>122 — Conduct op Counsel — Argument — Propriety — Failure to Call Witness.</p> <p>In an action against a railroad for personal injuries, where a constable of the precinct in which the accident occurred as an officer of the county had served subpffinas for defendant, the argument of plaintiff’s counsel that such officer was “in the power” of defendant, or had been an “employé” helping to get up evidence, and that the failure of the defendant to call such constable as a witness amounted to a confession that the plaintiff’s testimony as to the circumstances of the accident was true, such constable having been shown by evidence to have been near by at the time, was objectionable.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 299; Dec. Dig. <@=>122.]</p> <p>5. Trial <@=>120 — Argument op Counsel — Propriety.</p> <p>In an action against a railroad for personal injuries, where the plaintiff testified that the defendant had not rung the bell or blown the whistle, and .there was no evidence that there had been such failure on other occasions to give warning of the approach of trains, the argument of plaintiff’s counsel that defendant had neglected to give such signals “before,” and that he expected the defendant had run its trains a dozen times before the accident without blowing the whistle or ringing the bell, was improper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. <@=>120.]</p> <p>6. Appeal and Error <@=>660 — Certiorari to Perfect Record — Time op Filing — Rules op Court.</p> <p>Where the amended original petition of the plaintiff was not verified, as required by Rev. St. 1911, art. 1829a, as added by Acts 33d Leg. c. 127, S 5 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1829a), on defendant’s appeal, assigning error to the overruling of its special exception to such amended petition, plaintiff’s motion for certiorari to perfect the record so as to show verification, not presented in the Court of Appeals until the day of submission of the cause, came too late, under,rules for the Courts of Civil Appeals No. 11 (142 S. W. xi, xii), providing that motions for certiorari to perfect the record shall be made in the time required in rule 8, which provides that all motions relating to informalities in the manner of bringing a case into court shall be filed within 30 days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2829, 2844-2847; Dec. Dig. <@=660.]</p>

<p>1. Principal and Surety <®=>126 — Direction oe Surety to Sue Principal.</p> <p>While Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6329, 0330, provide that a surety by notice in writing may require the holder of a contract for the payment of money forthwith to file suit thereon, and a failure of such creditor to institute suit at the first term of court thereafter, or at the second term, with a showing of good cause, will discharge the surety, the notice must be equivalent to an explicit and peremptory demand that suit be brought; and a letter by a surety on a note, requesting that the payee collect from the principal, written in response to a demand for payment, is not sufficient to exonerate the surety where the payee did not sue the principal.</p> <p>[Ed. Note. — Eor other eases, see Principal and Surety, Cent. Dig. §§ 430-450; Dec. Dig. 126.]</p> <p>2. Principal and Surety @=»129 — Liability op Surety — Discharge.</p> <p>Where a note contained a stipulation that the makers and indorsers waived presentation for payment, protest, notice thereof, and the bringing of suit at the first term of court, and consented that the time of payment might be extended without notice, the failure of the payee to sue the maker pursuant to the indorser’s request will not discharge the indorser, the stipulation being a wmiver of the statutes declaring that such failure should work a discharge.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 451 — 457; Dec. Dig. 129.]</p>

<p>Appeal from District Court, Tarrant County; Marion H. Brown, Judge.</p> <p>Action by B. J. Hawkins against D. L. Cook, who counterclaimed. From a judgment for defendant, plaintiff appeals.</p>

W. Akin, Judge. Suit by G. E. Wilson and others against the Forest Oil Company and others. From an order and judgment appointing a receiver, defendants appeal.

<p>Appeal from District Court, Wise County; F. O. McKinsey, Judge.</p> <p>Action by Henry B. Evert against the Guarantee Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Tarrant County; M. H. Brown, Judge.</p> <p>Action by the James McCord Company against W. M. Rea and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Master and Servant <&wkey;170 — Fellow Servants — Competency — Master’s Dtjty and Liability.</p> <p>Where a master’s foreman or vice principal employed as plaintiff’s fellow servant a winch-man incompetent for that position, as known to the foreman, and plaintiff, in the course of loading lumber on a vessel, was injured as a result of the winchman’s negligence while himself in the exercise of due care, the master was liable, since a master owes to a servant the duty of exercising ordinary care to employ reasonably competent fellow servants, which duty is nondelegable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 830; Dec. Dig. &wkey;> 170.]</p>

<p>Appeal from Galveston. County Court; George E. Mann, Judge.</p> <p>Action by the Sheridan Stove Manufacturing Company against Dolsons, Incorporated. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Titus County; W. T. Armistead, Judge.</p> <p>Action by H. L. Sterling against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Chattel Mortgages c&wkey;153 — Priority—Purchaser for Value.</p> <p>A manufacturing- company, being indebted to intervener, executed its note payable in six months and also its mortgage upon all the property owned by it to secure the note. This mortgage was not recorded in the county clerk’s office. Subsequently the manufacturing company, being also indebted to plaintiff, executed a note payable on ,a day certain and a similar mortgage to it. Plaintiff had no notice of the prior lien when it took the note. Held that, since at the time of the giving of the mortgage to plaintiff a definite extension of time of payment of its overdue debt -was granted, plaintiff became entitled to the status of a purchaser for value and was entitled to priority as against the previous unrecorded mortgage.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 255-262, 267, 268; Dec. Dig. &wkey;Jl53.]</p>

<p>1. AnvEBSE Possession <&wkey;31 — Sufficiency.</p> <p>Where plaintiffs’ predecessor in title took adverse possession of defendant’s land, claiming 160 acres thereof, and thereafter purchased an adjoining tract, putting under fence a tract which included part of the land so acquired and part of defendant’s 160 acres, the possession of the fenced tract by plaintiffs and their predecessor was sufficient to give title by adverse possession, since it could not be said as matter of law, merely from the fact that part of the land under fence belonged to plaintiffs’ predecessor, that the adverse possession was not sufficient to give a reasonably diligent, owner notice of the extent of plaintiffs’ claim to the land other than that owned by him.</p> <p>[Ed. Note.- — For other cases, see Adverse Possession, Cent. Dig. §§ 128-183; Dee. Dig. <&wkey;> 31.]</p> <p>2. Appeal and Errob <&wkey;1008 — Review— SUFFICIENCY OP ADVERSE POSSESSION ■ Question oe Fact.</p> <p>In trespass to try title, the sufficiency of plaintiffs’ adverse possession to give title was a question of fact, and the finding of the trial court thereon could not be disturbed on appeal.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent. Dig. §§ 3955-3960, 3962-3969; Dec. Dig. <S&wkey;1008.]</p>

<p>Appeal from District Court, Jasper County; A. E. Davis, Judge.</p> <p>Action by G. W. Davis and another against the People’s State Bank. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Wharton County ; Samuel J. Styles, Judge.</p> <p>Action by Emma D. Kiber and others against John W. Harris and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>1. Chattel Mortgages @=225 — Transfer by Mortgagor — Liability op Purchaser.</p> <p>Under Vernon’s Sajyles’ Ann. Civ. St. 1914, art. 5660, providing that mortgaged property shall not be removed from the county nor otherwise disposed of without the consent of the mortgagee, and that, if removed or disposed of, the mortgagee shall be entitled to possession and. to. sale for the payment of his debt, whether it is due or not, defendants, demurring' to the allegation of the petition that they bought the property upon which plaintiff held a chattel mortgage to secure an indebtedness with full knowledge of its existence, and thereafter, without plaintiff’s consent, removed the property from the county, contrary to a provision of the mortgage, were liable for a conversion of the property, for which plaintiff, as assignee of the mortgage, was entitled to sue.</p> <p>[Ed. Note. — Eor other cases, see Chattel Mortgages, Cent. Dig. §§ 468-470; Dec. Dig. @=225.]</p> <p>2. Chattel Mortgages <&wkey;213 — Transfer by Mortgagor — Action by Purchaser.</p> <p>In such case, plaintiff was not required, in order to establish his lien upon the property, to prosecute a suit against the nonresident mortgagor.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 468-465'; Dee. Dig. &wkey;></p> <p>3. Pleading <&wkey;246 — General Demurrer-Amendment.</p> <p>Where the court sustained a general demurrer to a petition, in a suit to recover damages for the alleged wrongful conversion of property upon which plaintiff claimed the lien of a chattel mortgage, it would not have availed plaintiif to have amended his petition to meet an objection presented by defendants’ special exception.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 676-683; Dec. Dig. &wkey;246.J</p> <p>4. Limitation of Actions @=182 — Pleading — Transfer by Mortgagor — Action against Purchaser.</p> <p>Under Vernon's Sayles^ Ann. Civ. St. 1914, art. 5706, providing that the defense of limitation cannot be available, unless it is specifically set forth as a defense in the answer, where the petition did not affirmatively show that the cause of action was barred, the defense of limitation could not be raised by exception, but only by specially pleading and proving facts showing that the cause of action was barred.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 676-680, 682, 695, 705; Dec. Dig. <&wkey;182J</p>

<p>Appeal from Harris County Court; Clark C. Wren, Judge.</p> <p>Action by Henry H. Tates against E. If. Crain. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Jefferson County Court; R. W. Wilson, Judge.</p> <p>Action by R. R. Stafford, receiver, against the Orange Iron Works. Judgment for plaintiff, and defendant appeals.</p>

Appeal' from District Court, Madison County; S. W. Dean, Judge. Suit for injunction by the Baptist Church of Madisonville against Joe E. Webb, County Judge, and others. From an order refusing the injunction prayed for, plaintiff appeals.

<p>Adverse Possession <&wkey;19 — In closure.</p> <p>Defendants, who claimed a strip of land not included in their deed by adverse possession by a lessee, are not entitled to verdict, where the strip was not included in the lessee’s inclosure.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99--105; Dec. Dig. &wkey;> 19.]</p>

C. Roberts, Judge. Action by W. B. Smith against Charles H. Beardsley and others, in which defendant Beardsley filed a plea in reconvention. Plea stricken or dismissed, and defendant Beardsley appeals.

<p>Appeal from District Court, Marion County ; H. F. O’Neal, Judge.</p> <p>Action by A. J. Wessell against N. B. Webb and another. From a judgment for plaintiff, defendant Webb appeals.</p>

<p>Appeal and Error <&wkey;281 — Review—Motion por New Trial — Statutes — Rules op Court.</p> <p>Rev. St. 1911, art. 1612, provides that the appellant shall file with the clerk of the court below all assignments of error, and that all errors not so specified are waived, and articles 1989-1991, provide that where conclusions of fact are separately stated it shall be sufficient if a party excepting- to the conclusions of law or the judgment, note his exceptions on the record in the judgment entry, whereupon he may appeal without further exceptions. Rule 24 for Courts of Civil Appeals (142 S. W. xii) provides that the assignments of error shall specify the ground of error relied on in the motion for a new trial, and that a ground of error not so set forth in the motion and not distinctly specified shall be waived unless fundamental; rule 69 (142 S. W. xxii) provides that when a case is tried by the court the motion for new trial shall specify the supposed errors of law or fact, and rule 71a (145 S. W. vii) provides that a motion for new trial shall be filed on appeal from a judgment of the trial court unless the error complained of is fundamental, and where the statute does not require such motion. In a receivership proceeding the court, on application of lien creditors for a sale of property, heard evidence on the merits, and directed a final decree, there being no requests for findings of facts and conclusions of law. Held,, that a motion for a new trial was a prerequisite for the consideration of assignments of other than fundamental errors.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1650-1661, 3024, 3281; Dec. Dig. 281.]</p>

T. Armistead, Judge. Action by J. E. Huddleston against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. This is an action by appellee, a passenger, against appellant company, for damages resulting, as alleged, from insulting and abusive language and an assault and battery upon him by appellant’s passenger brakeman.

<p>Appeal from Galveston County Court; George E. Mann, Judge.</p> <p>Action by Mathilda Thomas against the Texas City Terminal Company and the Galveston-Houston Electric Railway Company. From a judgment for plaintiff, defendants appeal.</p>

Action by J. D. Vaughan against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. This is an action brought by appellee to recover damages for personal injuries received by him while attempting to get upon a moving train of appellant’s for the purpose of taking passage thereon.

<p>Bills and Notes <&wkey;523 — Actions—Evidence — Sufficiency.</p> <p>In trespass to try title where defendant asserted tide by virtue of an assignment to him of notes reserving a vendor’s lien, evidence held insufficient to show that the notes had ever been transferred to defendant.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1822-1825; Dec. Dig. <&wkey;> 523.]</p>

<p>Appeal from District Court, Harris County; John A. Read, Judge.</p> <p>Suit for injunction by the Galveston, Harrisburg & San Antonio Railway Company against the J. B. Farthing Lumber Company. ■Order granting temporary injunction, and defendant appeals.</p>

<p>Appeal from District Court, Gregg County; W. C. Buford, Judge.</p> <p>Action by tbe City of Longview against Mrs. Margie Capps and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Garnishment <§=>88 — Application — Sufficiency-Statute — ‘ ‘Bocal Agent. ’ ’</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 273, requiring that an application for garnishment shall state the residence of the garnishee, an application and affidavit for garnishment, alleging “that plaintiff has reason to believe, and does believe] that the C. B. Co-zart Grain Company, a corporation, with a local agent in Miami, Roberts county, by the name of W. H. Rhodes, upon whom service can be had herein, is indebted to defendant,” was sufficient, “local agent” meaning- an agent at & given place, while to establish venue and obtain service of a writ under the statute, the residence of the local agent is deemed the residence of the corporation.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 160-166; Dec. Dig. <§=>88.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Local Agent.]</p>

<p>Appeal from District Court, Lubbock County ; W. R. Spencer, Judge.</p> <p>Action by tbe Farmers’ & Merchants’ Bank against Mrs. Lona Owens. From a judgment for defendant, plaintiff appeals.</p>

D. Guinn, Judge. Two suits consolidated, one by W. W. Wa-terhouse and another against David L. Gallup and another, S. H. Worden and another intervening, the other by said Gallup and another against said Worden and others. From portions of the judgment said Water-house and another and said Gallup and another appeal.

<p>1. Insttbance &wkey;>6G5 — Lies Insurance — Suicide — Sufficiency of Evidence.</p> <p>In an action on a life insurance policy with a suicide clause, evidence held sufficient to show that insured killed himself.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 1555, 1797-1728; Dee. Dig. &wkey; 665.]</p> <p>2. Appeal and Error <&wkey;999 — Review-Finding — Testimony by Deposition.</p> <p>Where the testimony of a witness was by deposition, the finding of the jury on the issue, as to which his was the only evidence, was not entitled to the conclusive force it otherwise might have been, since the jury were not in a position to draw inferences as to the witness’ credibility from his demeanor.</p> <p>[Ed. Note. — -For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. &wkey;>999.]</p>

Llewellyn, Judge. Trespass to try title by the Foster Lumber Company against E. P. Brown and another, in which Mary E. Brown filed a petition in intervention. Judgment for plaintiff, and defendant and intervener appeal.

<p>Appeal from Wiebita County Court; C. B. Felder, Judge.</p> <p>Action by Leona Hart against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Appeal ■ from. District Court, Grayson County; W. M. Peck, Judge. Action by James Roe Joiner against the Fidelity & Casualty Company. From a judgment for plaintiff, defendant appeals. The suit was by appellee, the beneficiary named in an accident policy issued to his father, J. R. Joiner, by appellant.

<p>1. Carriers <&wkey;lS0 — Interstate Shipments— Stipulations in Bill op Lading — Validity.</p> <p>A stipulation in a contract for an interstate shipment of freight that claims for loss, damage, or delay must be made in writing within four months after delivery, or in case of failure to make delivery within four months after a reasonable time for delivery has elapsed, is valid notwithstanding Carmiack amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U, S. Comp. St. 1913. § 8592]), making the initial carrier liable for any loss caused by it, or any connecting carrier-, and providing that no contract shall exempt the initial carrier from the liability imposed.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. &wkey;M80.]</p> <p>2. Courts <&wkey;97 — Federal Questions — Controlling Decisions.</p> <p>The decisions of the federal Supreme Court construing the Inter-state Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379) are binding on. the state courts.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 329-333; Dec. Dig. <&wkey;97.]</p> <p>3. Carriers <§=>180 — Interstate Shipments— Stipulations — 'Validity.</p> <p>A stipulation in a contract for an interstate shipment that claims for loss must be made in writing within four months after delivery, or in case of nondelivery within four months after a reasonable time for delivery has elapsed, is not void on the ground that it is without independent consideration.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. <§=>180.]</p> <p>4. Carriers <§=5180 — Interstate Shipments —Stipulations—Presentation ' oe Claims —Waiver.</p> <p>An interstate shipper, required by a contract of shipment to give notice of any claim for loss within a specified time, gave notice of claim after the expiration of the time. The auditor of the carrier asked for particulars and stated that the records showed a delivery of the freight with billing instructions. The shipper did not comply with the request and did not reply to the auditor. Held not to show a waiver by the carrier of the failure of the shipper to present notice of claim within the time stipulated.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. <§=>180.]</p> <p>On Motion for Rehearing.</p> <p>5. Carriers <§=>177 — Garríase oe Interstate Freight — Statutes—Construction.</p> <p>The effect of the Carmack amendment to the Interstate Commerce Act is not to impose on the initial carrier a liability for its own conduct different from that imposed on it at common law, but to impose on it, in favor of the shipper, a liability to him under the common law incurred by connecting carriers,</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. <§=>177.]</p> <p>6. Carriers <§=>185 — Carriage oe Freight-Evidence.</p> <p>A shipper suing the initial carrier of an interstate shipment must introduce in evidence a regulation of the State Railroad Commission if he desires to rely thereon.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§.835-850; Dee. Dig. <§=>1S5J</p> <p>7. Carriers <§=^104 — Carriage oe Freight-Delay in Transportation — Evidence.</p> <p>A shipper of cotton telegraphed to a freight agent of the carriel-, before the delivery of the cotton, asking him to trace to destination, and not to stop at any press not running. The agent replied that he would trace the cotton to destination and give best possible service and arrange prompt compression at a designated point. Meld, that the shipper contemplated a delay in transportation because of the necessity to compress the cotton, and the shipper, charging negligent delay in transportation, must show that the delay was not due to delay for purpose of compressing the cotton.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 439 — 147, 459-461; Dee. Dig. <§=104.]</p> <p>8. Carriers <§=>104 — Transportation oe Freight — Delay—Evidence.</p> <p>Where a carrier was required to notify the consignee of the arrival of the freight and the carrier did not notify the consignee, who failed to apply for and receive the freight, the question of the arrival of the freight at destination in determining the issue of negligent delay was immaterial.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 439-447, 459-161; Dec. Dig. <§=> 104.]</p> <p>9. Carriers <§=>105 — Transportation oe Freight — Delay—Damages.</p> <p>Where a carrier negligently delayed the transportation of cotton, but during the delay the market price of cotton at destination increased, the delay did not result in any injury to the shipper.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. <§=>105.]</p> <p>10. Carriers <§=*105 — Carriage oe Freight-Negligent Delay — Measure oe Damages.</p> <p>Where a shipper of cotton for sale was obliged because of the carrier’s delay in transportation to buy other cotton to deliver to the buyers, but the cotton when delivered was worth as much .as or more than the cotton he purchased, he suffered no damages because of the delay.</p> <p>. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. <§=>105.]</p>

<p>1. Tebspass to Try Titus <&wkey;6 —Title op Plaintiff.</p> <p>In trespass to try title, plaintiff can. recover only on the strength of his own title, and defendant need not show title in himself.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dec. Dig. <&wkey;>6.]</p> <p>2. Trespass to Try Title <&wkey;41 — Title op Plaintifi--Eindings — Evidence.</p> <p>Where in trespass to try title plaintiff claimed under third persons as heirs of the original grantee of a certificate under which the land in controversy was located and patented, while defendants claimed under others as heirs, and the court under evidence justifying it found that the third persons under whom plaintiff claimed were not the heirs of the original grantee of the certificate, a verdict for defendants was justified, though the evidence did not sustain the claim of defendants.</p> <p>[Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. 41.]</p> <p>3. Public Lands <&wkey;178 — GeIrtificates — Transfers — Evidence.</p> <p>The original certificate to county lands issued to D. was in possession of O. prior to the location of the land under it. C. claimed the certificate as his own and located the land by virtuie of it, and obtained a patent from the state. The patent was in his possession at his death and continuously thereafter in the possession of his heirs, and G. and his heirs continuously claimed the land since its location in 1881, and they paid the taxes since the land was patented, and since 1891 they were in possession through tenants. Held, to show a transfer of the certificate from D. to O.</p> <p>[Ed. Note. — Eor other cases, see Public Lands, Oent. Dig. §§ 579-582; Dec. Dig. &wkey;178.]</p> <p>4. Public Lands &wkey;>178 — Unlocated Land Certificate — Transfer's.</p> <p>An unlocated land certificate is a chattel and may be transferred by parol.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. &wkey;178.]</p> <p>5. Adverse Possession &wkey;>114 — Evidence — Sufficiency.</p> <p>Evidence held to justify a finding that defendants acquired title under the five and ten years’ statutes of limitations.</p> <p>[Ifld. Note. — Eor other eases, see Adverse Possession, Gent. Dig. §§ 682, 683, 685, 686; Dec. Dig. <&wkey;114.]</p>

N. Browning, Judge. Action by A. J. Davis against H. W. Brown and others. From a judgment sustaining a general demurrer and special exceptions to the answer of Brown, he appeals.

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by Charles Middleton against the Texas Power & Light Company. Judgment for defendant, dismissing the action, and plaintiff appeals.</p>

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action for injunction by J. E. Brown, administrator of C. R. Phillips, deceased, against S. S. Fleming, Sheriff, and another. Judgment for defendants, and plaintiff appeals.</p>

Error from District Court, McLennan County; Richard I. Munroe, Judge. Action by Crate Dalton against the Reliance Insurance Company of Philadelphia. Judgment for plaintiff and denial of a new trial, and defendant brings error.

<p>Appeal from District Court, Robertson County; J. C. Scott, Judge.</p> <p>Action by G. W. Penney against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

W. Timmins, Judge. Suit for injunction by Washington County again W. F. Pendleton and others. Judgment for defendants, and plaintiff appeals. Washington county instituted this suit against W. F. Pendleton and others, seeking to restrain the defendants from maintaining and using a certain dam adjacent to, and a certain irrigation ditch over and across, survey No. 105, section 14 of Washington county’s school lands, located in Tom Green county.

<p>1. Parties <&wkey;27 — Actions—Joinder of Parties.</p> <p>In an action against a railroad ticket agent to recover money converted to his own use, the surety company which had guaranteed the railroad against loss by the agent’s defalcation was properly joined as a party defendant, to avoid multiplicity of suits.</p> <p>[Ed. Note. — For other eases, see Parties, Cent. Dig. § 35; Dec. Dig. <@=>27.]</p> <p>2. Appeal and Error <@=>1073 — Harmless Error — Form of Judgment.</p> <p>In an action against a railroad ticket agent to recover money converted to his own u^e,. ■where the jury found that the plaintiff was indebted to the defendant in the amount claimed by plaintiff, and there was judgment that plaintiff recover nothing against defendant, the jury’s failure to pass on the claim against defendant was not reversible error, since the plaintiff suffered no injury thereby.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4240-4247; Dec. Dig. <&wkey;> 1073.]</p> <p>3. Trial <&wkey;252—Issues—Evidence.</p> <p>In an action against a railroad ticket agent to recover money converted by him to his own use, with cross-action by the agent for the same amount, a charge that defendant might recover for his services if he was employed by an agent of an express company to serve as agent for the plaintiff under the promise that plaintiff would pay him for his services, and plaintiff with full knowledge of such contract ratified it, was reversible error, where there was no evidence raising the issue as to such ratification.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252J</p>

D. Stephenson, Judge. Suit by A. H. Hudgins against John Hammers with a plea in reconvention, consolidated with a suit against Hudgins by Den-man Hammers. Judgment for defendant John Hammers and Denman Hammers, and plaintiff Hudgins appeals.

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by Charles Thayer against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Action by Wilie, Carpenter & McClelland against J. IT. Stanford. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Hamilton County; J. H. Arnold, Judge.</p> <p>Action by W. J. Flanary against W. S. Walker. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal and Error <&wkey;917 — Presumptions —Decision on Exceptions to Pleadings.</p> <p>On defendant’s appeal from a decision on exceptions to Ms pleadings, it must be assumed that all the allegations thereof are true.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3706-3709; Dec. Dig. <§==> 917.]</p> <p>2. Pleading &wkey;>149 — Cross-Petition Against Codefendant — Sufficiency.</p> <p>A cross-petition by defendant in a bank’s action on a note signed by him in payment for stock of a corporation given as collateral, alleging that the cross-defendants were officers of the corporation; that they proposed to defendant that he execute his note for unsubscribed stock with the stock as collateral, and that they would arrange with the payee to advance the money with which to pay for the stock and to carry it for their use until they could sell it; that they would sell it and apply the proceeds of sale to payment of the note and so protect defendant from any liability thereon; that they sold a part of the stock and applied it on the note; that defendant signed a renewal note on the same; that such agreements were made with the knowledge and consent of the payee, who agreed that the cross-defendants should pay the note, and that defendant would not be called on to pay it — stated a cause of action against the cross-defendants for breach of contract, which might be asserted against them in a separate suit.</p> <p>[Ed. Note. — For other cases, see Pleading, Gent. Dig. § 301; Dec. Dig. <&wkey;>149.]</p> <p>3. Action <&wkey;25 — Complete Relief — Prevention of Multiplicity of Suits.</p> <p>One of the reasons for giving the courts both legal and equitable jurisdiction was that the equitable doctrine of avoiding a multiplicity of suits might be enforced, as it is the general policy of law to settle all matters between the same parties, and between all parties as to the same subject-matter, in the same suit.</p> <p>[Ed. Note. — For other cases, see Action, Gent. Dig. §§ 12A-145, 147-149, 153, 156-159, 313; Dec. Dig. <&wkey;>25.]</p> <p>4. Parties &wkey;>50 — Joinder—Exception.</p> <p>Under Rev. St. 1911, art. 1848, permitting additional parties to be brought in, it is the g'eneral exception to the rule as to the joinder of parties that the court in its discretion may refuse to allow additional parties defendant, who, though proper, are not necessary parties, where such action would prejudice plaintiff’s right by unduly delaying the trial of the cause.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. § 76; Dec. Dig. &wkey;>50.]</p> <p>5. Action &wkey;>47 — Joinder of Causes of Action-Actions Ex Contractu and Ex De-licto.</p> <p>Matters ex contractu and ex delicto should not be joined in the same suit, though they may be joined when they grow out of the same transaction, relate to the same subject-matter, and are dependent upon the same evidence.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 469, 470, 472-489; Dec. Dig. &wkey;47.]</p> <p>6. Contribution i&wkey;5-^JoiNT Tort-Feasors.</p> <p>No contribution is allowed between tort-feasors, though such rule will not be applied where the wrongdoers are not in pari delicto.</p> <p>[Ed. Note. — For other cases, see 'Contribution, Cent. Dig. §§ 6-9; Dec. Dig. <&wkey;>5.]</p> <p>7. Parties &wkey;>92 — Joinder—Waiver.</p> <p>A bank, suing the maker of a note, but failing to object within a year to the joinder of cross-defendants who had appeared and answered and were ready for trial, and agreeing to several contingent continuances, thereby waived its right to object, on the ground of delay, to such cross-defendants being made parties to suit; and, where the cross-defondants were proper, if not necessary, parties, the sustaining of an exception to their joinder was an abuse of the trial court’s discretion, especially as defendant might thereby incur the danger of having the statute of limitations successfully urged in his cause of action against the cross-defendants.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 150-152; Dec. Dig. &wkey;92.]</p> <p>8. Pleading <&wkey;149 — Cross-Petition Against Codefendants — Allegation and Proof.</p> <p>In an action on a note wherein defendant made his alleged sureties cross-defendants, he need not allege that the agreement of suretyship was in writing, as, if required to 'be in writing, written evidence would be admissible to prove the alleged contract.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § SOI; Dec. Dig. <®¿M49.]</p> <p>9. Bills and Notes <&wkey;460 — Action—Join-DER — CROSS-DEPENDANTS.</p> <p>In an action against the maker of a note, given in payment for a subscription to capital stock of a corporation, wherein defendant alleged that the note had been executed by him .at the request of the cross-defendants for their accommodation and benefit as stockholders and directors of the corporation, in that they were thereby enabled to issue additional shares of the corporation and deliver it to the plaintiff subject to sale by them, that defendant was only nominally, and that cross-defendants were primarily, liable on the note and had assumed its payment, the plaintiff had a cause of action against the cross-defendants to which the defendant was entitled to be subrogated, and the cross-defendants, primarily liable, were proper parties to the suit</p> <p>[Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1434-1443; Dec. Dig. 460.]</p> <p>10. Bills and Notes <&wkey;119 — Parties Liable — Name on Note.</p> <p>No one is chargeable on a note unless his name appears as a party to it in some relation.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 255-259; Dec. Dig. <&wkey;> 119.]</p> <p>11. Evidence <&wkey;385 — Parol Evidence — Writing.</p> <p>In the absence of fraud, accident, or mistake, oral evidence is not admissible to contradict or vary the terms of a written instrument.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1757, 1'758; Dec. Dig. &wkey;3S5.j</p> <p>12. Principal and Agent &wkey;»145 — Undisclosed Principai^-Liability por Debt.</p> <p>While an undisclosed principal cannot be held as a party to a bill or note, he may nevertheless be held liable for the debt, so that, while an agreement in reference to the payment of a note may not be a good plea in bar to recovery thereon, it may furnish sufficient grounds for a suit for breach of'contract.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. &wkey;}145.]</p> <p>13.,Parties •&wkey;51 — New Parties — Persons Primarily Liable.</p> <p>One who, as between himself and a defendant in any suit, is the principal obligor may be impleaded by such defendant, who may have judgment over against such primary obligor; and in such case it is immaterial that the obligation arose upon a collateral contract or by force of law.</p> <p>[Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 77-82; Dec. Dig. &wkey;51.]</p>

<p>1. Assignments eor Benefit oe Cbeditoes <&wkey;363 — Rights oe Heibs op Assignors— Action to Recover Balance — Laches.</p> <p>A suit by creditors against assignees for the benefit of creditors, resulting in the setting aside of a fraudulent conveyance by an as-signee to a grantee, who reconveyed to him according to an understanding, inured to the benefit of the heirs of the assignors, and made the assignees trustees of such property after payment of creditors, so that a suit by the heirs to recover the balance, brought within two years after final judgment in the creditor’s suit, was not subject to the defenses of laches or limitations; .and, where the petition negatived any report by the assignees, as contemplated by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 106, providing-that an assignee who has fully performed the duties of his trust and desires to be discharged may file a report of his proceedings in the office of the county clerk, and that no action shall be brought against him on anything done under the assignment as shown by the report, except within 12 months from the filing thereof, the general law of limitations was not applicable.</p> <p>[Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. §1 1101-1103; Dec. Dig. @=363.]</p> <p>2. Assignments fob Benefit of Creditors @=363 — Action bt Heirs of Assignors to Recover Balance — Sufficiency of Petition..</p> <p>A petition by the heirs of assignors for the benefit of creditors to recover the balance due the estate from the assignees after payment of debts, alleging that the assignees had fraudulently conveyed part of the property to one who, pursuant to an understanding, had reeonveyed to one of the assignees; that One of the assignees had conveyed certain parts thereof for an inadequate consideration to the other defendants, who had knowledge of the fraud; that in a suit by creditors the first conveyance had been adjudged fraudulent and an order made that on payment of all accepting creditors the estate should be closed and the assignees discharged — stated a good cause of action.</p> <p>[Ed. Note. — For other cases, see Assignments for Benefit of Creditors, Cent. Dig. í¡§ 1101-1103; Dec. Dig. @=363.]</p>

<p>Appeal from District Court, McLennan ■County; Tom L. McCullough, Judge.</p> <p>Action by E. M. Mailander and another against C. H. Cox. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Robertson County; J. C. Scott, Judge.</p> <p>Action between A. J. Speer and Will Rushing and others. From the judgment Speer appeals.</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by the First State Bank of Hubbard against the Hubbard Farmers’ Oil & Gin Company and others. From a judgment subordinating plaintiff’s lien to other claims, plaintiff and others appeal.</p> <p>This suit was brought on the 7th of July, 1913, by First State Bank of Hubbard against Hubbard Farmers’ Oil & Gin Company, a private corporation, to recover an indebtedness evidenced by a note and overdrafts secured by a mortgage on the plant' of said company, and for foreclosure of said mortgage thereon. W. C. Horne, Eb Johnson, J. A. Madera, Percy Wood, W. E. Berry, and Will Bankston were likewise made parties defendant, on the ground that they were guarantors of said indebtedness, and recovery was also sought against them. Thereafter, on August 8, 1913, at the instance of said defendants, the court appointed O. O. Condor receiver of the properties of said oil company, who took charge thereof and proceeded to administer said trust. On September 2, 1913, upon hearing, the case was dismissed as to said guarantors, and judgment rendered in favor of First State Bank of Hubbard against said Hubbard Farmers’ Oil & Gin Company, for the sum of $18,937.-\)5, with interest. On September 2, 1913, the receiver filed his application for authority to issue receiver’s certificates, which was opposed by appellant; but the court on the 8th of said month granted authority to issue such certificates in the sum of $5,000, by virtue of which receiver’s certificates were issued for said amount and purchased by intervener, Dawson State Bank. During the administration of such receivership said property was destroyed by fire, at which time it was insured in various companies in the total amount of $27,634. The receiver, by permission of the court, settled with said companies for the sum of $21,000, which policies contained loss clauses payable to appellant as its interest might appear. On June 26, 1914, the receiver filed his final report, showing that he had received from all sources $23,234.17, of which $20,835.90 represented the corpus of said plant owned by said Oil & Gin Company. Appellant filed its motion on June 13, 1914, to require the receiver to pay its debt of $18,-937.95, established by the judgment of the court, the application stating that said amount had been established by the court as a preference lien. The following parties filed pleas of intervention in said cause: Robert Priddy and Eb Johnson on February IS, 1914; Dawson State Bank on April 24, 1914; R. M. Vaughan, on July 28, 1914; the Waco Machinery & Supply Company on June 30, 1914; and the Western Engineering Company on April 9, 1914 — to all of which appellant filed its exceptions. The court denied appellant’s motion to require the receiver to pay its debt, and he was ordered to pay all court costs, including cost of the receivership proceeding, as follows: Compensation allowed the receiver $2,000; compensation allowed R. M. Vaughan for legal services in the'receivership proceeding, $1,500; Dawson State Bank, $5,388.49 on receiver’s certificates; and after the payment of said several sums the receiver was ordered to pay appellant the balance remaining in his hands. Provision was made, if any balance remained, for the payment of the interveners, but the total amount in the hands of the receiver was not sufficient to pay appellant and the claimants first named. At the time the suit was filed said Oil & Gin Company was insolvent and not being operated, and the court found that unless a receiver was appointed the property, if sold, would bring from one-fourth to one-third less than its value, and it could obtain no money with which to operate during the ensuing season and would be closed down; that if a competent manager was appointed it might be run at a profit. From which judgment appellant and the Waco Machinery & Supply Company have prosecuted this appeal.</p> <p>The above statement is taken in part from appellant’s brief and is concurred in by some of the appellees, the substance of whose supplemental statement we have incorporated herein.</p>

<p>Appeal from Bell County Court; W. S. Shipp, Judge.</p> <p>Action by Frank L. Denison and another against Frank Doering and the Ford Motor Company. Judgment for plaintiffs, and defendants appeal.</p>

N. Denton, Judge. On motion for rehearing. Order overruling motion set aside on the court’s motion, and case continued until following term to give parties opportunity to file copies of their briefs.

<p>1. Appeal and Error &wkey;>745 — Assignments of Error — Filing in Court Below,</p> <p>Where no assignments of error were filed in the trial court, an assignment of error in the brief as to the refusal of the court to postpone the trial until witnesses could inspect the premises sued for will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3039, 3042; Dec. Dig. &wkey;745.]</p> <p>2. Appeal and Error <&wkey;745 — Assignments oe Error — Filing in Court Below.</p> <p>Under rule 101 (159 S- W. xi), providing that assignments of error to any ruling of the trial court subsequently to final judgment may be incorporated in the brief filed in the Court of Civil Appeals without being included in the transcript, assignments of error relating to findings of fact and conclusions of law, filed by the court subsequent to final judgment, need not be filed in the court below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3039, 3042; Dec. Dig. &wkey;> 745.]</p> <p>3. Executors and Administrators <g=^55 — Sales — Proper Subject — Donation Certificates.</p> <p>A donation certificate issued by the state to-the heirs of one who fell at the Alamo in 1836, being a mere gratuity, did not belong to his estate and was not subject to sale by his administrator.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 306; Dec. Dig. <&wkey;> 55.]</p> <p>4. Estoppel &wkey;>83 — Representations as to Title — Donation Certificates.</p> <p>Since one who induces the purchase of land or other property as being that of a third party is estopped from asserting any title to such property, the heirs of an administrator who sold a donation certificate issued by the state to the heirs of his intestate, and which was not part of the estate, on representations in the petition for administration, the petition for sale, and in the report of sale that the certificate, belonged to the estate, were estopped from claiming any interest therein.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 218, 227-229; Dec. Dig. &wkey;83.]</p> <p>5. Estoppel <&wkey;98 — Representations of Title-Donation Certificate.</p> <p>The heirs of an administrator,_ who S9H a donation certificate issued to the heirs of his intestate on representations that it belonged to the estate, were estopped from claiming any interest therein, notwithstanding that the sale was made to the administrator’s attorney; no fraud appearing on the part of the latter.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 290; Dec. Dig. <&wkey;©8.]</p> <p>6. Equity <&wkey;84 — Stale Demand — Legal Title.</p> <p>The doctrine of stale demand does not apply as against the legal owners of a donation certificate and the land located by virtue thereof.</p> <p>[Ed. Note. — For other cases, see Equity, Dec. Dig. &wkey;>84.j</p>

<p>Waters and Water Courses <&wkey;156 — Riparian Rights — Deeds—Validity oe Reservations.</p> <p>Since riparian rights exist only by reason of ownership of riparian property, a deed granting all the grantor’s riparian property, reserving an equal undivided one-half interest in the water power included within the land described and the ground necessary to utilize it, was yoid, because so vague as to the amount of the land reserved that its exercise would be inconsistent with the grant.</p> <p>[Ed. Note. — Eor other cases, see Waters and Water Courses, Cent. Dig. §§ 15S, 174^-183; Dec. Dig. <&wkey;>156.]</p>

<p>1. Pleading <&wkey;171 — Trial — Amendment — Discretion of Court. '</p> <p>The statute declaring that the court may permit amendments to the pleadings at any time before announcing ready on the merits, and not thereafter, is directory, and thereunder the court in its discretion may permit a supplemental petition to be filed after the jury have been selected and the other pleadings read to the court and jury.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 333; Dec. Dig. <&wkey;>171.]</p> <p>2. Appeal and Error &wkey;3l041 — Harmless Error — Trial—Amen dment.</p> <p>Error, if any. permitting plaintiff to file a supplemental petition after the jury had been selected and the other pleadings read to the court and jury, was not reversible error, where it in no wise influenced the jury in finding against the appellant.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. &wkey;1041.].</p>

<p>Error from Hale County Court; W. B. Lewis, Judge.</p> <p>Action by J. S. Haydon and others against John B. McLane. Judgment for plaintiffs, and defendant brings error. On motion to strike statement of facts.</p>