Volume 179 — South Western Reporter

<p>1. Vendor and Purchaser &wkey;>33<L-REMEDY oe Purchaser — Mistake — Recovery oe Payments.</p> <p>Interest paid on the excess of purchase-money notes, due to a mistake in acreage, was recoverable.</p> <p>I'Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig., <&wkey;334.]</p> <p>2. Limitation oe Actions &wkey;>37 — Statute!. Applicable — -Mistake—Action to Recover.</p> <p>An action to recover the amount of interest paid to defendants on notes through mistake of the parties as to the amount due which defendants had refused to. repay, all of which was paid or delivered to defendants within two years before the commencement of suit, was not barred by the two-year statute of limitations.</p> <p>[Ed. Note. — 'For other cases, see Limitation of Actions, Cent. Dig. §§ 1S2-186, 477; Dec. Dig. <&wkey;>37.]</p>

N. Browning, Judge. Action by T. H. Allen against the Ft. Worth & Denver City Railway Company, to recover damages sustained while alighting from a car. From a judgment for plaintiff, defendant appeals.

<p>Error from District Court, Harris County; We. Masterson, Judge.</p> <p>Action by J. W. Moose against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Ft. Bend. County; Samuel J. Styles, Judge.</p> <p>Action by the Imperial Sugar Company against Ben E. Cabell and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Orange County ; A. E. Davis, Judge.</p> <p>Action by L. T. Grubbs and others a.gainst J. P. Eddleman and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Carriers <&wkey;230 — Carriage oe Live Stock — Delay in Transportation — Instructions.</p> <p>In an action for delay in the interstate transportation of live stock, whereby the shipment had to be diverted to a point within the state, it was not error to refuse an instruction for defendant, if a connecting carrier failed to run a special train from the point of connection to destination, where such carrier owed no duty to do so.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <&wkey;>230.)</p> <p>2. Appeal and Error <&wkey;930 — Assignment oe Error) — Issues Not Requested.</p> <p>In an action for delay in transportation of a stock shipment, whereby it became necessary to divert it to another market, an assignment of error that the verdict was insufficient to support a judgment for plaintiff in failing to find the weight of the cattle when sold and their market value at that time, or what they sold for, will be overruled, where the issue was not requested and the market value of the cattle was sufficiently proven, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, providing that upon appeal an issue not submitted and not requested' by a party to the cause shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. &wkey;> 930.]</p>

<p>Appeal from McLennan 'County Court; Geo. N. Denton, Judge.</p> <p>Doe Calvert was convicted of unlawfully carrying a pistol, and he appeals.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by the Free and Accepted Masons of the State of Texas against the Ancient Free and Accepted Masons, Colored, and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Trial <@=^130, 140 — Province of Jury— Weight of Testimony.</p> <p>The credibility of witnesses and the weight of testimony is a question peculiarly for the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332-335, 338-341, 365; Dec. Dig. <©=> 139, 140.]</p> <p>2. Evidence <@=:>568 — Opinion Evidence,— Expert Testimony.</p> <p>A jury are not concluded by opinion evidence, but may apply their own experience and knowledge in solving the question.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. §§ 2392-2394; Dec. Dig. <®^568.]</p> <p>3. Eminent Domain <3^307 — Construction of Railroad — Damages.</p> <p>Whether plaintiff’s property was depreciated by reason of the construction of a railroad held, under the evidence, for the jury.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 820-824; Dec. Dig. <@=> 307.]</p> <p>4. Evidence <3=^474 — Opinion Evidence.</p> <p>Where plaintiff testified to his familiarity with conditions and knowledge of the market value of his property, which he claimed had depreciated by reason of the construction of a railroad, he was competent to testify as to the depreciation, and, notwithstanding that on cross-examination he became confused as to the distinction between actual and market value, his testimony could not be stricken; that fact going only to the weight of his testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. <3^>474.]</p>

<p>Appeal from Dallas County Court; W. F. Whitehurst, Judge.</p> <p>Action by the Neiman-Marcus Company against W. T. Trammell and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Error from District Court, Ellis County; F. L. Hawkins, Judge.</p> <p>Action by T. C. Forrest against the Missouri, Kansas & Texas Railway Company of Texas. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error <&wkey;724, 736, 742 — Assignment of Errors— Indefintteness.</p> <p>An assignment of errors which is multifarious, indefinite, and not supported by a sufficient statement will not be considered.</p> <p>TFd. Note. — For other cases, see Anneal and Frror, Cent. Dig. §§ 2997-3001. 3022, 3028, 3029; Dec. Dig. &wkey;724, 736, 742.]</p> <p>2. Principal and Agent &wkey;>22 — Evidence! of Relation — Testimony of Agent.</p> <p>Where the issue is whether one is an1 agent with authority to bind his principal and to vary the terms of a written contract, his own statements as to the relationship are incompetent, and it is error to admit them.</p> <p>' [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. <§=»22.]</p>

<p>Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.</p> <p>Action by X. H. Harper against Cicero Stewart and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Mortgages <§=3356 — Foreclosure — Notice.</p> <p>Where a builder’s contract conveyed the property to a trustee with power to sell at public sale on default and after the trustee had given public notice of the time prescribed by the statutes of Texas for the sale of real estate under deeds of trust, and that after such sale the trustee should make a deed, etc., a sale is not void; notice having been given in three public places in the county as required by statute, though the trustee himself had the notices posted by another and selected only one of the public places.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 1063-1067; Dec. Dig. <§=3356.]</p>

<p>1. Interpleader <@=>23 — Grounds—Partiality op Stakeholder.</p> <p>In an action against brokers who employed plaintiff to assist them in selling farm lands in a certain county, they alleged that they had made a similar agreement with H., that on a certain sale a commission was due either plaintiff or H., and that according to their information and belief H. was entitled thereto and they 'tendered the money into court and made H. a party to the suit. Held, that the allegation on information and belief that I-I. was entitled to the commission did not show such partiality as prevented, defendants from interpleading H., since, while it is the duty. of a stakeholder to be fair and impartial, it is also his duty to disclose to the court all facts possessed in reference to the matters in issue, and the remedy of interpleader is so beneficial and so just that any reasonable doubt as to a party’s right to an interpleader will be resolved in his favor.</p> <p>[Ed. Note. — For other cases, see Interpleader, Cent. Dig. §§ 47, 51; Dec. Dig. <@=>23.]</p> <p>2. Evidence <@=>317 — Hearsay—Admissibility.</p> <p>In an action against brokers who employed plaintiff to assist them in selling lands in which they interpleaded H. with whom they had a similar an-angement, one of the defendants testified that I-I. brought the purchaser into the office, that defendant asked him whether or not plaintiff had sent him in with the purchaser, and that H. stated that he had not, but that he brought the purchaser himself, and that thereupon defendant told H. that he would pay him half of the commission to close the deal. Held, that this testimony was obviously hearsay and inadmissible.</p> <p>[Ed. .Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. <@=>317.]</p> <p>3. Appeal and Error <@=>1050 — Harmless Error — Admission of Evidence.</p> <p>Even though there was other competent evidence tending to sustain H.’s claim to the commission, it could not be said that the admission of such evidence was harmless, as it could not be told how much importance the jury attached to such evidence, and hence, though there was no statement of facts, the admission of such evidence could not be regarded as harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dee. Dig. <@¿¿31050.]</p> <p>4. Evidence <©=>314 — Hearsay Evidence — Admissibility.</p> <p>Except in cases of pedigree, relationship, marriage, death, age, and boundaries, hearsay evidence is inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 116&-1173; Dec. Dig. <©=3314.]</p> <p>5. Appeal and Error <@=>688 — Presumptions in Support of Judgment — Omissions from Record.</p> <p>Though the language of defendants’ counsel in stating in his argument that plaintiff was a liar was severe and might under certain circumstances constitute serious error, it could not be said that it was error, where there was no statement of facts, as counsel’s remark may have been reasonably deducible from the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2894^2896; Dec. Dig. <@=> 688.]</p>

G. Street, Judge. Action for partition by Thomas W. Master-son and others against John W. Harris and others. Judgment for defendants, and plaintiffs appeal to the Court of Civil Appeals, which certified questions, answered by the Supreme Court. 174 S. W. 570.

Error from District Court, Dallas County; Kenneth Foree, Judge. Action by W. H. Fitzgerald and others against R. C. Ayres and L. R.'Terry, executors of Willis A. Skinner and of Sallie E. Skinner, deceased. Judgment for defendants, and plaintiffs bring error.

<p>Appeal from District Court, Potter County; Jas. N. Browning, Judge.</p> <p>Action by the First State Bank of Amarillo, Tex., against W. P. Cooper and others. Judgment for defendants, and plaintiff appeals.</p>

F. Whitehurst, Judge. Action for injunction by O. C. Booth and others against the City of Dallas and others. From the dissolution of a temporary injunction, plaintiffs appeal.

Error from District Court, Dallas County; Kenneth Foree, Judge. Action by the Consumers’ Lignite Company against the Houston & Texas Central Railroad Company. There was a judgment for defendant, and plaintiff brings error.

Action by L. W. Campbell, Jr., and others against George W. Barnes and wife and John O. Mitchell, copartners doing business as Barnes & Mitchell, and others. From an order granting plaintiffs a temporary injunction, defendants appeal.

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Action by J. W. Yarbrough against the San Antonio, Uvalde & Gulf Railway Company and another, with cross-action by defendants. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Bexar County Court for Civil Cases; John II. Clark, Judge.</p> <p>Action by George De Krekko against the Postal Telegraph Cable Company of Texas. .Judgment for plaintiff, and defendant appeals.</p>

<p>1. Pleading &wkey;>258 — Amendment of Answee at Trial.</p> <p>There was no error in refusing to permit defendant during the trial to amend his answer by setting up a deed of trust and introducing a new defense based thereon, which would necessitate a continuance to enable plaintiff to meet it ; all the facts and circumstances, showing that defendant was put on inquiry and had sufficient time to have ascertained the exact condition of affairs, and that if he did not know it it was due to his negligence.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 765-782; Dee. Dig. &wkey;258.J</p> <p>2. Trial <&wkey;250 — Instructions — Conformity to Issues.</p> <p>An instruction presenting an issue unauthorized by any pleading, or even by the evidence, is properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 584-586; Dee. Dig. &wkey;250.]</p> <p>3. New Trial <&wkey;102 — Newly Discovered Evidence — Diligence.</p> <p>Defendant is not entitled to a new trial on the ground of newly discovered evidence, a deed of trust, of which the circumstances put him on inquiry.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. &wkey;102.]</p>

<p>1. Insurance <&wkey;76 — Actions on Policies— Suiu.ilj.enoy of Evidence.</p> <p>Though in an action on an insurance policy the circumstantial evidence strongly tended to show that the agency of the person issuing the policy had terminated before its issuance, where he testilied that his agency had not tuen terminated his testimony supported the trial court’s finding in favor of plaintiff.</p> <p>(Ed. Note. — For other cases, see Insurance, Cent. Dig. § 101; Dec. Dig. @=>7t>.]</p> <p>2. Appeal and E'rro'r >&wkey;1010 — Review-Questions of Fact.</p> <p>The question for an appellate court is not whether findings of the trial court complained of are supported by a preponderance of the evidence, but whether or not there is any evidence to support them.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig. &wkey;1010.]</p> <p>3. Insurance &wkey;>7S — Authority of Agent-Estoppel to Deny.</p> <p>Where a party dealing with an insurance agent authorized to issue policies and having policies in his possession did not know of any restriction on his authority with respect to the territory in which he might write insurance or the classes of property which he might insure, he had a right to assume that the agent was authorized to issue the policy actually issued, and the insurance company was estopped from asserting the contrary.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 103; Dec. Dig. <&wkey;78.]</p> <p>4. Estoppel <&wkey;114r — Necessity of Pleading —Lack of Opportunity to Plead.</p> <p>Plaintiff sued on a fire insurance policy, alleging that it was issued by defendant through its agent L. The answer denied that L. was defendant’s agent and that he had authority to issue any such policy. Plaintiff showed that L. w.as defendant’s agent to issue policies and that he had no knowledge of a limitation on L.’s authority as to the classes of property on which he could write insurance. Held, that the es-toppel against defendant as to the agent’s authority was available to plaintiff, since, while the general rule is that facts relied upon to establish an estoppel must be pleaded, such rule does not apply where the party asserting the estoppel has not had an opportunity to plead it.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 304; Dee. Dig. @=>114.]</p> <p>5. Insurance <&wkey;78 — Authority of Agent-Extent of Authority.</p> <p>An insurance company’s agent at M. in 1-1. county, in applying for appointment, stated that the class of risks he would write would be among the best planters in H. county. The company replied that if he would take the agency they would endeavor to care for his country business if he would also give them some good city business. In an action on a policy issued by him covering farm property in another county about 18 miles from M„ the company’s secretary testified that the authority of agents was h'mi’-ed to their own town and its suburbs, that if the authority was greater than this special permission would have to be given, and that no authority was extended in any case to an agent to operate outside of his county. Held, that the court was not bound to find that this custom was observed when such agent was appointed, but had a right to determine the question from the correspondence, which correspondence did not limit his authority to H. county.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 103; Dec. Dig. @=>78.1</p>

<p>Error from District Court, Franklin County; H. F. O’Neal, Judge.</p> <p>Trespass to try title by J. T. MeLemore against Savannah Bickerstaff and others. There was a judgment for defendants, and plaintiff brings error.</p>

D. Guinn, Judge. Action by O. H. Hill and others against H. M. Whitaker and another. From an order refusing to dissolve a temporary injunction, defendants appeal. Mrs. Rosa R. Osburn, one of the appellees, owned 254.8 acres of the Jose Maria Procella survey, situated partly in Cherokeetand partly in Smith county. In consideration of $1,008.40 paid to her by C. II.

<p>Appeal from Bee County Court; T. M. Cox, Judge.</p> <p>Action l>y A. R. Schaeffer against the San Antonio & Aransas Pass Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Brazoria County Court; J. W. Munson, Judge.</p> <p>Action by J. G. Smith and T. L. Smith, doing business as Smith Bros., against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Motley County; Jo A. P. Dickson, Judge.</p> <p>Suit by Mrs. S. A. Damron against the Lockney State Bank. Decree in favor of plaintiff, and defendant appeals.</p>

<p>Appeal from Bexar County Court; Nelson Lytle, Judge.</p> <p>P. T. Garza was convicted of aggravated assault, and he appeals.</p>

C. Buford, Judge. Mrs. S. E. Lawson was convicted for unlawfully selling intoxicating liquor in prohibition territory, and she appeals.

<p>Appeal from District Court, Damar County ; Ben H. Denton, Judge.</p> <p>Hugh Buttrell was convicted, and appeals.</p>

Action between A. E. Wilkerson and others and Stasney & Holub. From the judgment, Wilkerson and others appeal. On motion to strike out the assignments of error.

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p>

<p>Appeal from Caldwell County Court; J. T. Ellis, Judge.</p> <p>On motion for rehearing.</p>

<p>1. Brokers &wkey;>82 — Actions for Commissions —Complaint—Allegations as to Ability and Willingness.</p> <p>In a broker’s action for commissions for procuring a contract for the exchange of lands between defendants and C., which provided that if either party failed to perform, such party should forfeit and pay to the other party a specified sum as liquidated damages, an allegation that C. was at all times ready, able, and willing to carry out the contract and take defendants’ property upon the terms agreed upon, as evidenced by such contract, was more than an allegation that he was ready, able, and willing to take the property or pay the stipulated penalty, and was a specific and distinct allegation of his ability and willingness to exchange the property upon the terms agreed upon.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. &wkey;S2.]</p> <p>2. Trial &wkey;>343 — Verdict —• Construction and Operation.</p> <p>In a broker’s action for commissions, where the testimony on an issue as to plaintiff’s breach of a contract to procure a loan for defendants with which to clear up an incum-brance was conflicting, and such issue was submitted to the jury, a verdict for plaintiff necessarily decided it against defendant.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. &wkey;>343.]</p> <p>3. Brokers <@=61 — Right to Commissions— Failure of Negotiations.</p> <p>Though brokers with whom defendants listed property for sale or exchange, and who had knowledge of the existence of incumbrances on the property, could not themselves have made a contract binding defendants to sell or exchange their property otherwise than subject to the incumbrances, where defendants made a contract to exchange lands with a party procured by the brokers which bound them to remove such incumbrances, the brokers were entitled to their compensation, notwithstanding their knowledge of the incumbrances, and though defendants’ failure to comply with the contract resulted from their failure to remove such incumbrances.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 77, 78, 92, 93; Dee. Dig. &wkey;61J</p> <p>4. Brokers <@=82 — Actions for Commissions —Complaint—Allegations as to Ability and Willingness.-</p> <p>In a broker’s action for commissions for procuring a contract for the exchange of lands between defendants and C., plaintiff’s allegation that C. was ready, able, and willing to carry out the contract was equivalent to an allegation that he had title to the property he contracted to exchange, especially where it otherwise appeared that the failure to carry out the contract was due to defendants’ failure to remove incumbrances from their property.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. <@=82. ]</p> <p>5. Pleading <&wkey; 129 — Failure to Deny — Admissions — Actions for Commissions — Evidence.</p> <p>Where, in a broker’s action for commissions for procuring a contract for the exchange of lands between defendants and C., defendants’ answer alleged that the trade was not consummated because of incumbrances on their property, and that by reason of their failure to remove such incumbrances, they became liable to C. for liquidated damages, their brief on appeal stated that the trade was not consummated because of such incumbrances, and one of the defendants testified that he paid O. $2,500 on account of their liability under the contract, it sufficiently appeared that O. did not break the contract, especially where the petition alleged that C. was at all times ready, able, and willing to carry out the contract, and the statute then in force required parties to swear to their pleadings, and provided that the failure of the opposite party to deny under oath a fact thus pleaded should operate as an, admission of the truth of such fact, and defendants did not deny the allegation in question.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 270-275; Dee. Dig. &wkey;129J</p> <p>6. Pleading &wkey;>290 —Evidence Admissible under Pleadings.</p> <p>Where defendants did not deny under oath the truth of an allegation in the petition that plaintiffs were partners, as they were required to do by the statute then in force in order to make it an issue, evidence that they were not partners was properly excluded.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent.Dig. §§ 859-863, 886y2 ; Dee.Dig. &wkey;290.]</p> <p>7. Trial <&wkey;329 — Verdict — Sufficiency — Failure to Dispose oe Issues.</p> <p>Where, in a broker’s action for commissions for procuring a contract for the exchange of lands which defendants failed to perform, defendants pleaded as a defense plaintiffs’ breach of a contract to procure a loan to enable them to clear up an incumbrance on the land, and this issue was submitted to the jury by a charge requiring a verdict for defendants if such issue was decided in their favor, a general verdict for plaintiffs for a specified sum, disposed of defendants’ cross-action for expenses claimed to have been incurred by reason of plaintiffs’ alleged breach of contract, and judgment was properly rendered against defendants on such cross-action.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 774-776, 782; Dec. Dig. &wkey;329.]</p> <p>8. Pleading <&wkey;406 — Waiver oe Errors.</p> <p>Where, in a broker’s action for commissions, though the allegation of the petition charging defendants with fault was general, and did not specify in what particular they had breached their contract, it was not excepted to for that reason, it had its standing in court as a plea fixing responsibility upon defendants for their failure to consummate the deal.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1355-1359, 1361-1365, 1367-1374, 1386; Dec. Dig. &wkey;406.]</p> <p>9. Trial <&wkey;251 — Instructions—Conformity to Issues — Actions-for Commissions.</p> <p>Where, in .a broker’s action for commissions for procuring a contract for the exchange of lands which defendants failed to perform, the supplemental petition alleged that the other party to the contract was at all times ready, able, and willing to carry out the contract, and that if the contract was not carried out by defendants, it was the fault of defendants themselves, an objection tó a special charge on the ground that the pleadings raised no issue as to whether it was defendants’ fault that the contract was not performed was not well founded.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.]</p> <p>10. Appeal and Error &wkey;>835— Objections to Instructions — Waiver.</p> <p>Objections to a paragraph of the court’s main charge and to a special charge, contained in a motion for .a rehearing, were waived, where in appellants’ brief no complaint was made of such paragraph of the charge and a different, objection was made .to the special charge in question. ■</p> <p>„[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3241-3243; Dec. Dig. <&wkey;> 835.]</p>

Error from District Court, Harris County; Wm. Masterson, Judge. Action by the Bonner Oil Company against the Lake Austin Canal Company and John W. Gaines. Judgment for plaintiff against the Canal Company and in favor of defendant Gaines, and plaintiff brings error.

<p>Trial <&wkey;403 — Delay in Filing Findings— Effect.</p> <p>Where the .trial court, upon timely request, failed to file findings of fact within the 10 days .after expiration of the term allowed by Vernon’s .Sayles’ Ann. Civ. St. 1914, art. 2075, his subsequently filed findings of fact and conclusions of law were a nullity, and could not be considered by the Court of Civil Appeals.</p> <p>(Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 913, 954-956; Dec. Dig. &wkey;403.]</p>

<p>Appeal from Frio County Court; S. T. Dowe, Judge.</p> <p>Action by George K. Mixon against G. Longorio and T. H. Banks. Judgment for plaintiff, against Banks, and the latter appeals.</p>

<p>1. Master and Servant <@=>278, 281 — Injuries to Servant — Negligence—Contributory Negligence — Evidence.</p> <p>Evidence in an employe’s action for injuries held sufficient to support findings that defendant negligently failed to provide a reasonably safe place for plaintiff to work, and that plaintiff was not guilty of contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 956-958, 960-969, 971, 972, 977, 987-996; Dec. Dig. <@=>278, 281.]</p> <p>2. Master and Servant <@=>252 — Injuries to Servants — Notice of Claim — Waiver.</p> <p>Where plaintiff, in obtaining employment, signed an agreement that failure to give notice to the employer within 30 days after injury should bar his action for damages thereon, and after he was injured the employer’s agent took a written statement of the claim of the plaintiff, taking the statement waived the requirement of written notice.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 806; Dec. Dig. <@=>252.]</p> <p>3. Master and Servant <@=>252 — Contract of Employment — Limitation of Liability.</p> <p>Under Rev. St. 1911, art. 5714, providing that a stipulation in a contract requiring notice as a condition precedent to suit for damages for personal injuries must be reasonable, and making any stipulation for notice in less than 90 days void, and making void every stipulation between a railway and its employé for such notice in eases of injuries caused by negligence, a contract of employment of the plaintiff as a switchman for defendant requiring notice to be given in 30 days will not defeat plaintiff’s action, whether notice is given or not.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 806; Dec. Dig. <@=>252.]</p> <p>4. Master and Servant <@=>203 — Negligence <@=>101 — Injuries to Servant — ¿Assumed Risk — Contributory Negligence— Effect.</p> <p>Where a servant assumes a risk, it will defeat recovery for injuries caused thereby in any sum, but his contributory negligence on his part merely diminishes his recovery.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. <§= 203; Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dee. Dig. <@=>101.]</p> <p>5. Master and Servant <@=>291 — Injuries to Servant — Instructions — Assumption of Risk — Contributory Negligence.</p> <p>In a switchman’s action for injuries, an instruction that if, in going in front of moving cars, plaintiff knew the danger, and that it was not required of him in the performance of his duty, and if he was negligent, he was guilty of contributory negligence, is erroneous for attempting to combine contributory negligence and assumption of risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. <@=>291.]</p> <p>6. Master and Servant <@=>224 — Injuries to Servants — Assumption of Risk.</p> <p>Where the servant is injured while at work, but in doing an unnecessary act of his own volition, the master is not liable; it being an assumption of the risk.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent'. Dig. § 654; Dec. Dig. <@=>224.J</p> <p>7. Negligence' <@=>101 — Injuries to Servant —Comparative Negligence.</p> <p>In order to diminish recovery by the servant on account of contributory negligence, the employer need not show that the servant knew of the danger because of which he was injured, but it is sufficient that at the time he did not exercise due care.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dee. Dig. <@=></p> <p>8. Appeal and Error <@=>1140 — Medical Care — Amount—Remission.</p> <p>Where a verdict allows an excessive amount for medical attendance, the error will be cured by plaintiff’s filing a remittitur so as to conform the amount to that supported by the evidence.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Cent.Dig. §§ 4462-4476; Dec.Dig. <@=>1140.]</p> <p>9. Trial <@=>260 — Requested Instructions— Necessity.</p> <p>It is not error to refuse a requested instruction substantially covered by the charge of the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <@=>260.]</p> <p>10. Appeal and Error <@=>730 — Matters Re-vie W ABLE — ReCO RD.</p> <p>Where an assignment of error fails to give the substance of the requested charge on the refusal of which it is based, and the statement thereunder does not set it out nor refer to the page of the record where it may be found, the court will regard it as waived.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3013-3016; Dec. Dig. <@= 730.]</p> <p>11. Trial <@=250 — Instructions—Conformity to Pleadings and Evidence.</p> <p>Refusal to instruct upon an issue not raised by the pleadings or evidence is proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 5S4r-5S6 ; Dec. Dig. <@=250.]</p> <p>12..Master and Servant <@=289 — Injuries to Servant — Contributory Negligence. Where a switchman seeks recovery for personal injuries received when he went between cars to make a coupling, the question whether the coupler could have .been operated from the side of the- ears without going between them so as to make the plaintiff guilty of contributory negligence was for the jury.</p> <p>[Ed. Note. — For other cases', see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. <@=>289.]</p> <p>13. Appeal and Error <@=1008 — Harmless Error — Instructions.</p> <p>The refusal of a requested instruction that, if plaintiff switchman was guilty of negligence in going in front of a -car to make a coupling, and defendant railway company was not guilty of negligence, the jury should find for defendant, presents only harmless error, where the verdict shows that the jury found the defendant guilty of negligence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Dig. <@=1068.]</p> <p>14. Appeal and Error <@=1051 — Harmless Error — Admission of Evidence.</p> <p>Where plaintiff, an experienced switchman, injured in coupling cars, was permitted, to testify that he “had to” get down between the cars to make a coupling, the admission of such testimony, if error, was harmless; it already having been shown that the coupler would not open the ImueMe, so that the opinion evidence given was immaterial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. @=> 1051.]</p> <p>15. Master and Servant @=>274^-Personal Injuries — Contributory Negligence — Evidence-Custom.</p> <p>In the absence of a specific rule forbidding employés to make couplings by going between the cars, evidence of the custom of employés in that regard is admissible to rebut contributory negligence.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 939-949; Dec. Dig. @=> 274.]</p> <p>16. Witnesses @=>396 — Conflicting Statements — Explanation.</p> <p>Where the agent of defendant railway company by false and fraudulent representations procured a statement from plaintiff, injured while employed by defendant, that he had entirely recovered from all injuries received, and the statement is introduced on trial to contradict the plaintiff as to his injuries, evidence of plaintiff as to the circumstances surrounding the giving of the statement and as to its falsity is admissible.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1261-1264; Dec. Dig. @=>396.]</p> <p>17. Witnesses @=>414^0orroboration — Evidence-Admissibility.</p> <p>A report of defendant railway company’s investigator on the condition of a car coupling, in operating which plaintiff was injured, is not admissible to corroborate the testimony of the investigator, unless made before motive for concealing defects arose.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. @¿=>414.]</p> <p>18. Evidence @=>359 — Experts — Photograph.</p> <p>Evidence of a physician attending plaintiff switchman injured while in the employ of the defendant, as explained by means of X-ray photographs of the plaintiff’s anatomy after injury, is admissible, if preliminary evidence has established the correctness of the photographs.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1509-1512; Dec. Dig. @=>359.]</p>

<p>Appeal from District Court, Harris County ; J. W. Woods, Special Judge.</p> <p>Suit by the Hart-Parr Company against the Alvin-Japanese Nursery Company and others. From an interlocutory order appointing a receiver, plaintiff appeals.</p>

<p>1. Pleading <@=>369 — Injuries to Servant— Election Between Counts.</p> <p>Where, in an action by the surviving wife and children of a railroad employé for his death, the pleadings were intended to meet proof as to his having been engaged either in intrastate or interstate commerce at the time of his death, such pleadings were not improper as an attempt to recover under federal and state statutes at the same time, and plaintiffs were under no necessity to elect under which statute they would proceed.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1199-1209; Dec. Dig. <@=>360.]</p> <p>2. Trial <@=>232 — Submission on Special-Issues — Instruction Calling eok General Verdict.</p> <p>Where a cause was submitted on special issues, a charge correctly embodying the law, but calling for a general verdict, should not be given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 524, 525; Dec. Dig. <@=>232.]</p> <p>3. Appeal and Error <@=>564 — Record—Necessity for Filing Statement.</p> <p>Where the appeal bond was filed December 9, 1914, the transcript was filed in the Court of Civil Appeals March 6, 1915, and on April 14, 1915, a purported statement of facts which had never been filed in the lower, court was filed in the appellate court, such statement could not be considered, since the law requires that it be filed in the lower court at some period within</p> <p>90 days from the date the appeal was perfected by filing an appeal bond.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. <@¿=564.]</p> <p>4. Appeal and Error <@=>644- .Record — Late Filing oe Statement oe Facts — Notice oe Court.</p> <p>Courts of Civil Appeals will notice a failure to file a statement of facts in time, although the question be not raised by the appellee.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2795-2798; Dec, Dig. <£=></p> <p>5. Trial <@=>232 — Request eor Submission on Special Issues — Propriety of informing Jury oe Party Making Bequest.</p> <p>There was no error in informing the jury which party had requested that the cause be submitted on special issues.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 524, 525; Dec. Dig. <@=>232.]</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and Error <@=>564 — Record — Statement — Excuse for Late Filing.</p> <p>Where the statement of facts is filed late in the trial court, more than 90 days after perfection of the appeal by filing an appeal bond, upon proper showing, made in the motion for rehearing, that counsel had difficulty in getting the statement prepared, thus excusing the delay, the statement will be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. <@=>564.]</p> <p>7. Appeal and Error <@=>564 — Record — Consideration oe Statement — Estoppel oe Court.</p> <p>As no power resides in the clerk of a Court of Civil Appeals or any justice thereof to refuse to permit the filing of a statement of facts which was not filed in the lower court, filing'in the Court of Civil Appeals does not preclude such court from refusing to consider the statement or estop it from exercising the duty to reject such purported statement. The duty to determine the validity of a statement of facts devolves upon the court only when the matter is called to its attention in a motion to strike out the statement or in its own independent investigation of the case.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. <@=>564.]</p> <p>8. Appeal and Error <@=>564 — ¿Record — Statement of Facts — Time for Filing — Agreement of Counsel — Effect.</p> <p>Agreement by appellee’s counsel that the statement of facts might be filed out of time could not relieve appellant of the duty and necessity of filing such statement in the trial court.</p> <p>TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2501-2506, 2555-2559; Dec. Dig. <@=>564.]</p>

G. Kittrell, Special Judge. Suit by J. S. Jarrell against James J. Gor-man on a promissory note and chattel mortgage. J. L. House, Thornton Hamilton, and O. M. Lipper were made parties defendant, as asserting an interest in the mortgaged automobile. The J. I. Case Threshing Machine Company intervened, asserting a prior lien on the automobile.

<p>Appeal from District Court, Atascosa County; P. G. Chambliss, Judge.</p> <p>Chon Alverez was convicted of selling intoxicating liquors in prohibition territory, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.</p> <p>Habeas corpus by Louis I-Iengy. Prisoner remanded to custody, and he appeals.</p>

<p>Appeal from District Court, Denton County ; C. P. Spencer, Judge.</p> <p>J. T. McDonald was convicted, and appeals.</p>

<p>Appeal from District Court, Bexar County; W. S. Anderson, Judge.</p> <p>Action by Ida West Fox against E. A. Fox for divorce and the recovery of separate property. From an order of injunction, defendant appeals.</p>

II. Arnold, Judge. Suit by Austin Thomas and others against H. L. Stewart and another. Judgment for plaintiffs, and the named defendant appeals.

<p>1. Principal and Agent <@=23 — Automobile —Sale — Repudiated Agent — Suepicien-cy of Evidence.</p> <p>In an action by an automobile dealer for the value of a car purchased by defendant from one representing himself as agent for plaintiff, evidence held to support a finding of agency.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. <@=23.]</p> <p>2. Principal and Agent <@=14 — Implied Agency.</p> <p>The relation of principal and agent does not arise from an express appointment merely, but also by implication from the words and conduct of the parties and the circumstances of the particular transaction.</p> <p>[Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 26-33; Dec. Dig. <@=14.]</p> <p>3. Husband and Wipe <@=23% — Agency op Wipe — Scope op Authority.</p> <p>In an action by an automobile dealer for the value of a car purchased by defendant from ohe representing himself as agent for plaintiff, evidence held to warrant a finding that plaintiff’s wife was his agent with authority to employ salesmen. !</p> <p>[Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 145, 146; Dec. Dig. <@= 23%.]</p> <p>4. Principal and Agent <@=>100 — General Manager — Scope op Authority — How Determined.</p> <p>A general agent for the management of a business has authority, coextensive in scope with the business intrusted to him, to do what is customary in such business; consideration being given to the character of the business and the usual manner in which it is conducted.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 262-273, 345, 364, 368-373; Dec. Dig. <@=100.]</p> <p>5. Principal and Agent <@=>103 — Business Necessity — Automobile Demonstrator — Implied Authority.</p> <p>Where it appeared that to succeed as a going concern the nature of plaintiff’s business required that salesmen travel about the country to demonstrate and sell cars, and the facts show an implied intention on plaintiff’s part to authorize another to act as such agent, a sale by the latter was binding on plaintiff, since such agent had implied authority to sell.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. <@==>103.]</p> <p>6. Principal and Agent <@=>103 — Agency — Salesman — Authority to Employ.</p> <p>Where plaintiff’s wife was left in general charge of his automobile agency and she employed one to act as a demonstrator and, salesman, such being customary in the business, or necessary to carry it on, a sale by the employé was binding on plaintiff, since, under such circumstances, the wife had implied authority to so employ.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. <¿=>103.]</p> <p>7. Principal and Agent <©=>145 — Express oe Implied Authority — Third Person — Knowledge of Authority — Immateriality.</p> <p>Where the act by which it is sought to bind the principal was within the authority actually conferred by the principal either expressly or by implication, one contracting with the agent need not show that he had knowledge of such authority and acted on the faith of it, since under either form of authority the act of the agent is that of the principal.</p> <p>[Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. §§ 499, 513-520; Dec. Dig. ©=>145.]</p> <p>8. Principal and Agent ©=>137 — Unauthorized Act op Agent — Estoppel—How Created.</p> <p>Liability on the principal’s part for the unauthorized acts of his agent rests upon estoppel arising from words or conduct of the principal indicating the existence of authority in the agent to do the thing in question upon which there is a reliance in good faith.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 492^494; Dec. Dig. ©=></p> <p>9. Principal and Agent ©=>103 — Sales — Agency — Barter Excluded.</p> <p>In general, the power of the agent to sell does not include the power to barter.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 307; Dec. Dig. ©=>103.]</p> <p>10. Principal and Agent ©=>100 — Apparent Authority — Determinable—Effect.</p> <p>In determining the question of apparent authority, the character of the service, together with the usual practice of agents in such employment, may be looked to, and the agent is held to have implied authority to do all those acts which are naturally and ordinarily done and reasonably necessary in such cases.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 262-273, 345, 364, 368-373; Dee. Dig. ©=>100.]</p> <p>11. Customs and Usages ©=>4 — Scope of Agent’s Authority — Duration of Custom.</p> <p>A custom or usage to enlarge an agent’s express authority must be shown by clear and satisfactory evidence, and must have existed long enough to make it widely and generally known, and such as will warrant the presumption that the principal had it in view at the time of appointing the agent.</p> <p>[Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. § 3; Dec. Dig. ©=>4.]</p> <p>12. Principal and Agent ©=>123 — Automobile Demonstrator — Power to Barter — Evidence — Sufficiency.</p> <p>In an action by an automobile dealer to recover the value of a car alleged to have been bartered by his Sales agent in excess of authority, evidence held insufficient to establish authority in the agent to barter under his express, authority or that implied by custom.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 420-429; Dec. Dig. ©=></p> <p>13. Principal and Agent ©=>152 — Unauthorized Act — Automobile—Barter—Effect.</p> <p>Where defendant procured an automobile by barter from one holding himself out as a sales agent for plaintiff, an automobile dealer, but who had no authority to barter, defendant was liable as for a conversion, since, in the absence of authority in the agent to barter implied by custom or otherwise, defendant was bound at his peril to ascertain the agent’s true authority.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 567-569; Dec. Dig. ©=> 152.]</p> <p>14. Principal and Agent ©=>40 — Demonstrator-Authority to Sell — Revocation —Sufficiency of Evidence.</p> <p>In an action by an automobile dealer to recover the value of a car procured by defendant through barter with plaintiff’s sales agent, evidence held insufficient to show a revocation of the agent’s authority prior to such sale.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 63; Dec. Dig. ©=>40.]</p>

Cochran, Jr., Judge. Proceeding on a claim by J. L. Ward and another to property levied upon under executions in favor of R. N. Grisham and others. From a judgment in favor of the claimants, the execution creditors appeal.

<p>Appeal from Cooke County Court; R. V. Bell, Judge.</p> <p>Action between R. P. Elkins and J. J. Houlihan and others. Judgment for Houli-han and others, and Elkins appeals.</p>

<p>Appeal from District Court, San Patricio County; W. W. Walling, Special Judge.</p> <p>Action by Exer Sims against the Aransas Harbor Terminal Railway. Judgment for plaintiff, and defendant appeals.</p>

<p>1.Appeal and Error @=>194 — Gbounds of Review — Exception.</p> <p>The fact that a special exception in plaintiff’s supplemental petition was not in due order of pleading was no cause for reversal, where no exception to the supplemental petition was taken in the court below, on the ground that it was not in due order of pleading.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1241-1246; Dec. Dig. @=> 194.]</p> <p>2. Payment @=>9 — Incumbered Property-Legal Tendee.</p> <p>A creditor is not required to accept incumbered property in settlement of his account and to assume the incumbrance, but need accept nothing but a legal tender.</p> <p>[Ed. Note. — Eor other cases, see Payment, Cent. Dig. §§ 38, 40, 41, 49, 53; Dec. Dig. @=> 9J</p> <p>3. Evidence @=5354t-Books op Account— ElBST PEEMANENT ENTEY — ORIGINAL EN-TEY.</p> <p>In an action for the balance due on a bill of lumber furnished to build a residence on land, the plaintiff’s daybook or journal, kept as a book of account in the regular course of business, and the first book in which the items of sale entered by plaintiff’s yardmen on slips torn from a pad were first permanently entered, after the preliminary proof, was admissible as a book of original entry.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. @==>354.]</p> <p>'*4. Evidence @=>354 — Books op Account-Collateral Facts.</p> <p>Under the rule as to the admission of books of original entry containing items of account, books not containing charges made in the regular course of business are inadmissible to prove the collateral matters shown therein, which matters must be shown by independent testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dee. Dig. @=>354.]</p> <p>6. Evidence @=>354 — Books op Account— Alteeation.</p> <p>In an action for the balance due on a bill of lumber furnished to build a residence upon land, legal title to which was in defendant, who bad contracted to convey it to one S. on payment of a certain sum, an account book, showing charges against J. F. or J. F. S., was not inadmissible because plaintiff’s manager wrote after S.’s name the word “residence,” where it appeared that S. was procuring material about the same time, and where there was no indication of fraudulent intent.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. @=>354.]</p> <p>6. Sales @=>53 — Action poe Price — Question poe Jury.</p> <p>In an action for the balance due on a bill of lumber furnished to build a residence upon land, the legal title to which was in defendant, but which he had contracted to convey to one S. on payment of a certain amount, evidence ' held to make defendant’s agreement to pay therefor a question for the jury.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 145-151; Dec. Dig. @=>53.]</p> <p>7. Te!ial @=>251 — Instructions—Pleading.</p> <p>In such action, where the plaintiff did not plead any estoppel or waiver as against the defendant, an instruction that if defendant waived the size of the house, or knew the size of the house actually built, plaintiff could recover, and that defendant would be estopped to claim that the lumber was furnished for a house of that size for which there had been no agreement, should not have been given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. @=>251.]</p>

<p>1. Contracts <&wkey;332 — Actions—Petition-Sufficiency to Support Yerdict.</p> <p>A petition alleged that plaintiff contracted with defendant to install the plumbing and heating in a building, that the contract provided for payment upon architects’ estimates as the work progressed; that payment of an estimate was refused, whereupon plaintiff abandoned the contract, but that he afterwards finished the work by special agreement with defendant, that there was due and owing him for work performed and material furnished $1,200, after deducting’ $1,300 theretofore paid, and after deducting from the contract price of $2,700, the reasonable cost and expense of installing the heating and plumbing, which sum of $1,200 was the fair and reasonable value over and above the amount paid for the work and material of which defendant had availed himself, and .which he had used, kept, and retained. Held that, in the absence of an exception, the petition was sufficient to authorize a charge and a verdict either upon quantum meruit or for the balance of the contract price, as the amount due could be definitely ascertained in view of the allegation that the work was to be paid for upon estimates as the work progressed.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1615-1639; Dec. Dig. &wkey;332.]</p> <p>2. Appeal and Error <&wkey;1066 — Harmless-Error — Errors Not Affecting Result.</p> <p>A judgment would not be reversed on the ground that the petition stated a cause of action on a quantum meruit,-and the charge authorized a recovery of the balance due under a contract, where there was no question as to the reasonable valué of the work done and material furnished, and there could therefore have been no other verdict rendered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <&wkey;>1066.j</p> <p>3. Mechanics’ Liens <&wkey;93 — Persons- Entitled — Statutory Provisions.</p> <p>Under Rev. St. 1911, art. 5621, providing that any person or firm, etc;, who may labor or furnish material, etc., to erect any house or improvement, shall have a lien on such house, building, etc., and all its properties, and on the lots of land necessarily connected therewith, where a contract for the installation of the heating and plumbing in a building provided for payments from time to time as the work progressed upon the architects’ estimates, and the owner refused to make a payment on an es-tímate, for which reason the contractor abandoned the contract, he was entitled to a lien.</p> <p>[Ed. Note. — Por other cases, see Mechanics’ Liens, Cent. Dig. § 124; Dec. Dig. <&wkey;93.]</p> <p>4. Appeal and Error <&wkey;934^-PRESUMPTi0NS m Support op Judgment.</p> <p>Where, in an action by a contractor who installed the plumbing and heating in a building to recover the amount due him and for the foreclosure of a lien, the court did not submit any issue as to plaintiff’s right to a lien, and defendant did not request the submission of such an issue, an assignment that the court erred in decreeing the foreclosure of a mechanic’s lien for the reason the jury made no finding on that issue would be overruled under Rev. St. 1911, art. 1985, providing that upon appeal or writ of error an issue not submitted and not requested by a party to the cause shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3781, 3782; Dec! Dig. &wkey;3934.]</p> <p>5; Appeal and Error <&wkey;1062 — Harmless</p> <p>Error — Special Issues — Issues Submitted.</p> <p>In an action on a contract, an assignment that the court erred in submitting an issue as to whether certain parties were defendant’s agents because the controverted issue was not whether they were his agents, but whether they were authorized to enter into the contract, would be overruled, where the court submitted another issue as to the authority of such agents to enter into the contract.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]</p>

<p>1. Carriers «&wkey;230 — Shipment of Live Stock — Actions fob Damages — Instructions.</p> <p>Though in an action for damages to a shipment of cattle, the original petition alleged that the damages were proximately caused by defendant’s breach of a contract to ship- the cattle on a particular day, so as to reach a particular market, the court did not err in defining negligence in its charge, where the answer alleged that the delay was not caused by defendant’s negligence, but by the burning of a railway bridge, and a supplemental petition alleged, in addition to what had been originally charged, that defendant was negligent in failing to properly bed the car in which the shipment was made.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <&wkey;>230.]</p> <p>2. Carrier's &wkey;>213 — Shipments — Liability fob Damages.</p> <p>To the extent that delay in transporting a shipment of cattle was caused by the inability of the carrier’s train to cross a burned bridge, which burned without fault on the carrier’s part, it was not liable, and it was error to charge that, if there was an agreement to ship the cattle on a particular day, the burning of the bridge, though unavoidable, would be no defense for any damage resulting from the failure to comply with the contract.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 920-922; Dec. Dig. &wkey;213.]</p> <p>3. Carriers <&wkey;>230 — Live Stock — Delay — Instructions.</p> <p>Where, in an action for delay in the transportation of a shipment of cattle, the evidence seemed to show that statements by the carrier’s dispatcher were rather in the nature of information as to when a train to take the cattle might be expected than a specific contract to ship them on any particular day, and it appeared that plaintiff expected to, and subsequently did, sign a contract for the transportation of the cattle which expressly provided that the cattle were not to be transported within any specified tíme, nor delivered at destination at any particular hour, nor in season for any particular market, an instruction submitting the issue of a special contract to ship the cattle on July 21st, in time for the market of July 22d, was at least misleading.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. &wkey;230.]</p> <p>4. Caeuier's <&wkey;230 — Actions eor Delay in Transportation — Instructions — Measure op Damages.</p> <p>In an action for delay in the transportation of a shipment of cattle, the court charged that the measure of damages would be the difference in the reasonable market value of the cattle at their destination in the condition that they would have been, had they arrived there in the ordinary condition and usual_ time, and without any negligent delay, and. their condition at the time when they did arrive there, and that, if the market was lower on the day the cattle were sold than on the day they should have arrived, plaintiff would be entitled to recover such difference. Meld, that this was erroneous, as the measure of damages was the difference m the market value of the cattle at their destination in the condition in which they were delivered, and in the condition in which they should have been delivered, had the shipment been without negligence, and this difference includes, not only depreciation in weight and stale appearance caused by the delays charged, hut also any decline in the market, and the charge authorized a double recovery for the decline m the market.’</p> <p>[Ed. Note — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. &wkey;230.]</p>

<p>Appeal froin Tarrant County Court; Leon B. Fant, Judge.</p> <p>Action by A. E. Want & Oo. against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for the plaintiff, the defendant appeals.</p>

<p>Error from District Court, Tarrant County ; Marvin H. Brown, Judge.</p> <p>Action by R. L. Lane against J. B. Daniel. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Tarrant County Court; Charles T. Prewitt, Judge.</p> <p>Action by the North Ft. Worth Undertaking Company against the American Express Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Homestead ¡&wkey;117 — Conveyance — Consent of Wife — Statute.</p> <p>Under Rev. St. 1911, art. 1115, providing that the homestead of the family shall not be sold and conveyed by the owner, if a married man, without the consent of his wife, where two lots were the business homestead of one of the incorporators of a corporation, he agreeing to transfer them to the company in return for a portion of its stock, which was issued to him, neither the application for the charter nor the affidavit thereto being executed by the incorpo-rator’s wife, title to such lots did not pass from the incorporator to the company.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 191-202; Dec. Dig. &wkey;117.]</p> <p>2. Frauds, Statute of <&wkey;69 — Conveyance of Land — Necessity for Writing.</p> <p>Under Rev. St. 1911, art. 1103, providing that no estate in land shall be conveyed unless the conveyance be declared by instrument in writing, where an incorporator orally agreed to transfer two lots to the company in return for a portion of its stock, which was issued to him, the lots not being designated either on the company’s charter or the affidavit thereto, title to such lots did not pass from the incorporator to the company.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ S3, 111; Dee. Dig. &wkey;69J</p> <p>3. Fraudulent Conveyances &wkey;295 — Character as Such — Sufficiency of Evidence.</p> <p>In trespass to try title, evidence held sufficient to justify jury’s finding that the conveyance of the premises to defendant was fraudulent as to the grantor’s creditors.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances’ Cent. Dig. §§ 867-875; Dec. Dig.</p>

<p>Contracts <&wkey;94 — Assignment — Rescission —Fraud.</p> <p>Defendant by assignment acquired a contract for the sale of land for $3,500 payable in installments, which further provided that when one-fourth of such amount should be paid the vendor would execute a warranty deed to the premises, conveying them deal- of all liens and incumbrances. Defendant sold such contract to plaintiff, informing' him that the last provision in the contract would control and that upon payment of one-fourth of the sum mentioned the vendor would convey the land clear of all liens and incumbrances. He, however, did not tell plaintiff that there were any other conditions or understandings except what was in the written contract, and though he was an attorney he did not, in giving his opinion as to the effect of the contract, act or pretend to act as plaintiff’s attorney, but did advise him to consult other attorneys, which plaintiff did. Held, that plaintiff was not entitled to rescind his contract with defendant, as defendant’s statement was but the expression of'an opinion on a question of law, and moreover plaintiff did not rely on such opinion.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164, 1165; Dec. Dig. &wkey;>94.]</p>

<p>1. Insurance <&wkey;533 — Fire Insurance — Accrual of Liability.</p> <p>Under Vernon’s Sayles’. Ann. Civ. St. 1914, art! 4874, providing that a fire insurance policy, in case of a total loss of the property insured, shall be considered a. liquidated demand against the company for the full amount thereof, such a liability accrues immediately after the occurrence of the fire, regardless of stipulations in the policy for notice and proof of loss.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1320; Dec. Dig. &wkey;533.]</p> <p>2. Insurance <&wkey;539 — Fire Insurance — Limitations as to Notice of Loss.</p> <p>Stipulations in a fire insurance policy that proof of loss must be furnished to the company within 90 days after the fire were void under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, providing that no stipulation in any contract requiring notice to be given for any claim for damages shall be valid unless reasonable, and any such stipulation fixing the time within which such notice shall be given at a less period than 90 days shall be void.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. &wkey;539J</p> <p>3. Insurance <&wkey;622 — Action, on Policy — Limitations.</p> <p>A provision in a fire insurance policy that suit thereon should not be sustained unless commenced before the expiration of two years from the accrual of the cause of action ,was void under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5713, providing that no agreement limiting the time to sue to a shorter period than 2 years shall be .valid. .</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1540, 1544r-1550; Dec. Dig. &wkey;> 622.]</p> <p>4. Insurance <&wkey;665 —Action on Policy — Settlement^</p> <p>In an action on a fire policy, wherein it was .contended that a settlement was obtained by duress, evidence held sufficient to sustain tbe plea thereof.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. <&wkey;> 665.)</p> <p>5. Trual <&wkey;296 — Action on Fxee Policy-Instruction — Cube.</p> <p>In an action on a fire insurance policy, wherein a contract of settlement was imposed as defense, an instruction ignoring such defense was erroneous, notwithstanding that other instructions recognizing the contract of settlement were also given, since it was impossible to determine which of the conflicting instructions were followed by the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. &wkey; 296.)</p>

<p>1. Railroads <&wkey;398 — Injuey- to Person on Tbacks — Discovery otp Peril by Train Crew — Sufficiency of Evidence.</p> <p>In an action against a railroad for death of plaintiffs’ minor son, struck by defendant’s train while walking on the track, evidence held to authorize finding that defendant’s engine crew discovered the child on the track, unaware of the approaching train, in time to have avoided the death.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1356, 1358-1363; Dec. Dig. <&wkey;> 398.]</p> <p>3. Railroads <&wkey;390 — Injury to Person on Tracks — Contributory Negligence — Immateriality.</p> <p>Where defendant railroad’s engine crew was guilty of negligence, proximately resulting in the death of one walking along the track, after their discovery of the peril, it was immaterial that such person was guilty of contributory negligence in entering upon the track.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1324, 1325; Dec. Dig. &wkey;390.]</p> <p>3. -Railroads <&wkey;400 — Injury to Person on Tracks — HiGn Rate oe Speed of Engine-^ Question for Jury.</p> <p>In an action against a railroad for the death of plaintiffs’ minor son, struck by locomotive while walking on defendant’s tracks, question whether defendant negligently operated its engine at a high rate of speed held for the jury under the evidence.</p> <p>[Ed. Note. — F'or other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. &wkey;400.]</p>

<p>Appeal from Harris County Court at Law; Clark C. Wren, Judge.</p> <p>Action by Terrell Bros, against J. M. McLaughlin. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Webb County j J. F. Mullally, Judge.</p> <p>Action by Pilar Garcia against Clemente G. Gonzales. Judgment for plaintiff, and defendant appeals.</p>

C. Buford, Judge. Action by J. F. Berthea against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals. Appellee, a passenger on appellant’s regular south-bound passenger train, was injured by the derailment of the main line of the coach in which he was riding, in consequence of the breakage of certain track rails. This action was brought to recover damages for the injuries thus sustained, and a recovery by appellee was had.

<p>Appeal from Jim Wells County Court; L. Broeter, Judge.</p> <p>Action l>y H. F. & J. C. McGill against Frank Andrews, receiver of the St. Louis, Brownsville & Mexico Railway Company, and another. From a judgment for plaintiffs, the Texas Mexican Railway Company appeals.</p>

A. Nabors, Judge. Action by John M. Gist against the Memphis Cotton Oil Company and others, upon a note and mortgage. Judgment for plaintiff, and defendants appeal.

Error from District Court, Kaufman County ; F. L. Hawkins, Judge. Action by Carrie S. Grice, guardian, against Honorable Thomas R. Bond, former County Judge, and James A. Cooley, County Judge, to retax certain costs. Judgments for defendants in the county court and district ■ court, and plaintiff brings error.

<p>1. Appeal anb Error <§=^842 — Review—Error Apparent on Face oe Recorb.</p> <p>An erroneous construction of the law applicable to tbe facts found is error apparent on tbe face of tbe record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3316-3330; Dec. Dig. <§=> 842.]</p> <p>2. Monopolies ®^17 — What Constitute.</p> <p>A^ernon’s Sayles’ Ann. C'iv. St. 1914, art. 7798, declares that it shall constitute a conspiracy in restraint of trade where any two or more persons, firms, or associations engaged in buying- or selling any article of merchandise, enter into an agreement to refuse to buy from or sell to any other person, and article 7799 declares that all trusts are prohibited. Article 7807 declares that any contract or agreement in violation of the law shall be absolutely void. Plaintiff entered into a contract with defendant whereby defendant agreed to purchase of plaintiff exclusively all beers which he might require in his business and sale. Held, that the contract was in violation of the monopoly statutes, and an action for moneys due thereunder could not be maintained.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dee. Dig. @=>17.]</p>

<p>Appeal from District Court, Kaufman County; E. L. Hawkins, Judge.</p> <p>Action by George Williams against Joe R. Gillespie. From judgment for plaintiff, defendant appeals.</p>

<p>1. Mandamus @^>6 — Conflict with Injunction.</p> <p>Where the trial court made final an order enjoining a sale of land on execution, mandamus to compel the sheriff to levy execution will not be issued until the order is set aside.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 36; Dec. Dig. <@=»6.]</p> <p>2. I-Iusband and Wife <@^87 — Maeeied Women — Appeal Bonds.</p> <p>A married woman, not even with the consent of her husband, can legally bind herself as surety on an appeal bond, and a bond on which she is a surety may be refused.</p> <p>TEd. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 346-353, 798; Dec. Dig. <®=^87.]</p>

<p>1. Sales <®=>288 — Warranty—Waiver by Retention oe Goods.</p> <p>Where a chattel mortgage securing the price of a cement mixer contained the provision that the buyers agreed to give the machine a fair trial within ten days after receiving it, and, if it was found not to have the claimed capacity, or they were not fully satisfied with it in every respect, they should have the right to refuse it by notifying the seller’s agent of their intention to do so, the buyers, by not rejecting the mixer for breach of warranty as to its capacity within the ten-day period, waived their right to thereafter reject on such ground.</p> <p>[Ed. Note. — Eor other cases, see Sales, Cent. Dig. §§ 817-823; Dee. Dig. <®=>2S8.]</p> <p>2. Sales <§=^287— Contract — Modification.</p> <p>Where the chattel mortgage, executed by the buyers of a cement mixer to secure the price, stipulated that they should reject for breach of warranty as to capacity within ten days, and the agent of the seller, by his requests and promises that they might return it, if unsatisfactory, later than that, caused the buyers to forego their right to reject within such period, such agent, in suit on the purchase-money notes assigned him by his principal, the seller of the mixer, could not be heard to say that he was not bound to permit rejection of the mixer after the ten-day period upon its failing to give satisfaction, since a subsequent agreement altering the terms of a written contract may be made by by parol.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ Sll-816; Dec. Dig. <§=287.]</p>

<p>Appeal from Wise County Court; E. M. Allison, Judge.</p> <p>Action by the Decatur Cotton Seed Oil Company against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Pleading <®=»183—Supplemental Answeb —Necessity.</p> <p>Where a supplemental petition consisted solely of exceptions and denials, and alleged no new matter, there was no place in the pleadings for a supplemental answer.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 389-396; Dec. Dig. <&wkey;183.)</p> <p>2. Appeal and Ekbob <&wkey;1041 — Harmless Ebkob—Amendment of Pleadings.</p> <p>Where a pleading sought to be filed by defendant after its announcement of ready, although styled a supplemental answer, was in response to the amended original petition and was therefore an amendment, and the court permitted defendant to file a trial amendment, setting up new matter in defense of plaintiff’s suit, it did not appear that defendant was injured by the court’s refusal to permit defendant to withdraw its announcement of ready in order to file such so-called supplemental answer.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4106-4109; Dec. Dig. <&wkey;> 1041.)</p> <p>3. Pleading <&wkey;199 — Demubeee — Time eor Demubbeb.</p> <p>If a general demurrer is well taken, it should be sustained at any stage of the proceedings.</p> <p>[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 464-469; Dec. Dig. <&wkey;>199.]</p> <p>4. Appeal and Ebbob <&wkey;1040 — Haemless Error—Refusal to Rule on Demubbeb.</p> <p>Defendant cannot complain of the court’s refusal to rule on a general demurrer, unless it is well taken.</p> <p>[Ed. Note.—For other eases, see Appeal and Error, Cent. Dig. §§ 40S9-4105; Dec. Dig. &wkey;> 1040.]</p> <p>5. Appeal and ERROR &wkey;>242 — Fundamental Error — Refusal to Rule on Demurrer.</p> <p>When the court refuses to rule on a general demurrer which is well taken, the case will be reversed for fundamental error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1417-1425 ; Dec. Dig. d&wkey; 242.]</p> <p>6. Pleading &wkey;>228 — Demurrer or Exception.</p> <p>A special exception which did not go to the form of the pleading, but asserted that defendant was not bound by the contract sued on, because it was an oral one, and that plaintiff therefore stated no cause of action, was a general demurrer.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. &wkey;228.]</p> <p>7. Municipal Corporations <&wkey;243 — Contracts — Form—Oral Contracts.</p> <p>As Rev. St. 1911, arts. 769-771, authorizing cities to construct electric light plants and waterworks are silent as to how contracts with their customers shall be made, a contract by a city to furnish electric current was binding on the city, although oral; the superintendent who made the contract having special authority to make oral or written contracts.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 675-677; Dec. Dig. &wkey;243.]</p> <p>8. Licenses <&wkey;39 — Remedy of Unlicensed Persons.</p> <p>Where plaintiff intending to engage in the moving picture business, contracted with defendant for electric current with which to light his theater building and conduct a moving picture show therein, and defendant’s failure to furnish such current delayed him in engaging in such business, he was not precluded from recovering damages sustained before engaging in the business, because he did not, at that time, have any license from the state to conduct such business, as he was not required to have a'license before he engaged in the business, especially as the statute imposing an occupation tax upon the theater business was passed for the purpose of raising revenue, and he paid the tax the day he commenced business.</p> <p>[Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 76-78; Dec. Dig. &wkey;?39.]</p> <p>9. Evidence <&wkey;433 — Parol Evidence to Vary Writing — Mistake.</p> <p>Where a written transfer by a partner of his interest in the partnership business did not include a transfer of claims due the firm, and it did not appear on the face of the instrument, or otherwise, that the instrument was intended to evidence a part only of the transaction, but, on the contrary, it was claimed that the failure to include a transfer of claims resulted from a mutual mistake, it could not be shown by parol that there was a transfer of such claims, as the rule that where the original contract was verbal and entire, and a part only reduced to writing, the parol part may be shown by oral evidence cannot be resorted to for the purpose of adding other property to that mentioned in a conveyance, when the parties undertake to make the written instrument cover the entire transaction ; the remedy when a mutual mistake is made in describing the property transferred being to bring an action to reform the conveyance.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1990-2004; Dec. Dig. &wkey;>433.]</p> <p>10. Reformation of Instruments <@=»33, 36 —Actions—Pleading—Parties.</p> <p>In an action on a claim due a partnership by one of the partners who had acquired the interest of the other partner in the partnership business, if it was desired to reform the instrument transferring such partner’s interest so as 'to include claims due the firm, the petition should have contained proper allegations, and the partner who made the transfer should have been made a party, so that the reformation of the instrument would be binding on him.</p> <p>[Ed. Note. — For other cases, see Reformation of Instruments, Cent. Dig. |§ 122-139, 141-146; Dec. Dig. <5&wkey;33, 36.]</p> <p>11. Damages <&wkey;23 — Breach of Contract-Damages Not within the Contemplation of the Parties.</p> <p>Where defendant’s representative understood, when he contracted to furnish electric current to plaintiff for his theater building, that the business to be conducted therein was that of a moving picture show, it was not within the contemplation of the parties that a breach would cause damages on account of salaries to be paid members of a vaudeville troupe.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 58, 62; Dec. Dig. &wkey;>23.]</p> <p>12. Damages <&wkey;23 — Breach of Contract-Damages Not Within Contemplation of Parties.</p> <p>Notice to defendant’s representative, after the contract was made and before the breach, was not sufficient to entitle plaintiff to recover as special damages the amount paid to such vaudeville troupe.</p> <p>LEd. Note. — For other cases, see Damages, Cent. Dig. §§ 58, 62; Dec. Dig. &wkey;>23.]</p> <p>13. Damages <&wkey;176 — Breach of Contract-Evidence — Loss of Profits.</p> <p>In an action for breach of contract to furnish electric current for plaintiff’s theater building, plaintiff, in testifying to his loss of profits, was not bound to estimate his loss for each night separately.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 461, 468, 471, 493; Dec. Dig. &wkey; 176.]</p> <p>On Motion for Rehearing.</p> <p>14. Evidence <&wkey;442 — Parol Evidence to Vary Writing.</p> <p>In an action by one member of a partnership on a claim due the firm, evidence held insufficient to show that the written transfer of the other partner’s interest in the firm business, which was not in the record and did not include claims due the firm, purported to express only a part of the transaction, so as to authorize parol proof of the other part, especially where plaintiff expressly testified that the instrument was intended to cover the claims, but that they were omitted by mutual mistake.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1874-1897; Dec. Dig. &wkey;442.]</p>

<p>Appeal from Clay County Court; W. T. Allen, Judge.</p> <p>Action by G. W. Lovell against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Nolan County; W. R. Spender, Special Judge.</p> <p>Action by the State Savings Bank of Manchester, Iowa, against R. K. Bolt and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Bosque County.</p> <p>Action by D. F. Phillips against J. L. New-some. Judgment for defendant, and plaintiff appeals.</p>

F. Ezell, Judge. Action by A. A. Brown against J. J. Law-ler and others. There was a judgment for plaintiff against defendants, and in favor of defendants Texas Fidelity & Bonding Company and another, against defendant named, and the Bonding Company appeals.

Jackson, Judge. 'Suit by the Finnigan-Brown Company against Leon Escobar and another to recover title and possession of goods. From a judgment that plaintiff take nothing against Es-cobar, and adjudicating the rights of' inter-veners, plaintiff appeals. Finnigan-Brown Company, a corporation, filed suit against Leon Escobar and T. J. Woodside to recover title and possession of certain hides and skins.

<p>1.Appeal and Eeros <§=>499 — Presentation for Review — Exclusion op Evidence — Bills op Exceptions.</p> <p>Where bills of exceptions to the exclusion of evidence do not disclose the objections made to the evidence excluded, the ruling cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. <§=> 499.]</p> <p>2.Appeal and Error <§=>569 — Bill op Exceptions — Signature op Judge — Necessity.</p> <p>Bills of exceptions taken to the exclusion of evidence could not be considered on appeal, where they were not signed by the presiding judge.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. <§=> 569.]</p> <p>3. Evidence <§=>471 — Conclusion op Witness.</p> <p>A question inquiring of defendant whether he had any agreement with plaintiff whatever or gave him any right to the property in controversy was not objectionable as calling for a conclusion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. <§=471: Witnesses, Cent. Dig. § 833.]</p> <p>4. Appeal and Error <@=>1050 — Harmless Error — Admission op Evidence.</p> <p>The admission of a witness’ testimony over an objection that it was a statement of a conclusion, if error, was harmless, where the witness had already given substantially the same testimony without objection.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166.: Dee. Dig. <@=>1050.]</p> <p>5. Partnership <@=>336 — Existence op Partnership-Interest in Land — Evidence.</p> <p>In an action for a partnership accounting in respect to two tracts of land bought by defendant in his own name, wherein he denied the existence of partnership, the testimony of the attorney who had acted for plaintiff and defendant in connection with various transactions and was familiar with their dealings with each other that he did not know or hear of plaintiff’s ownership in the lands in controversy was properly admitted.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. <@=>336.]</p> <p>6. Appeal and Error <@=>1027 — Harmless Error — Admission op Evidence.</p> <p>The admission of such evidence, if error, was harmless where it appeared that the same verdict and judgment would have been rendered had the evidence been excluded.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4033; Dec. Dig. <@=>1027; Trial, Cent. Dig. § 124.]</p> <p>7. Appeal and Error <§=>742 — Presentation por Review — Admission op Evidence.</p> <p>An assignment of error complaining of the admission of evidence could not be considered on appeal, where it was not followed by a statement from which it could be determined whether the court erred in admitting the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=3742.]</p> <p>8. Partnership <©=>336 — Accounting — Evidence.</p> <p>Where, in an action for an accounting in respect to a general partnership in land deals, defendant denied the existence of such partnership, but claimed that plaintiff had been interested with him in special land trade contracts, the defendant’s testimony that prior to the date on which the alleged general partnership was entered into he and plaintiff had made a number of trades together and divided the profits was properly admitted.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. <§=>336.]</p> <p>9. Appeal and Error <§=>1050 — Harmless Error — Admission op Evidence.</p> <p>The admission of defendant’s testimony that prior to the date of the general partnership the existence of which was in controversy he and plaintiff had made a number of land trades together and divided the profits on same, if error, was harmless, where plaintiff had testified to similar, if not the same, transactions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <§=>1050.]</p> <p>10. Appeal and Error <§=>742 — Assignment op Error — Proposition.</p> <p>An assignment of error under which no proposition is submitted will not be considered on appeal, where it does not sufficiently disclose the point insisted on to be a proposition within itself.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <§=>742.]</p> <p>11. Appeal and Error <§=>742 — Assignment op Error — Statement.</p> <p>An assignment of error will not be considered on appeal where the statement subjoined thereto is wholly insufficient to support same and enable the Supreme Court to determine without an examination of the record whether error was committed.</p> <p>[Ed. Note. — For other cases, See Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <§=>742.]</p> <p>12. Partnership <©=>336 — Accounting—Existence op Partnership — Burden op Proof.</p> <p>In an action for an accounting in respect to a general partnership, wherein defendant denied the existence of such partnership, the burden of proof was on plaintiff.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. § 797; Dec. Dig. <¿=336.]</p> <p>13. Trial <©=>255 — Instructions—Request-Burden of Proof.</p> <p>In an action for an accounting in respect to a general partnership in land, wherein defendant denied the existence of such partnership, but claimed that he and plaintiff had participated in several land trades in respect to which he asked an accounting, the court’s failure to charge that the burden was on defendant to establish the causes of action which he set up in his favor was not error, in the absence of a request for such an instruction.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. <@=>255.]</p> <p>14. Trial <©=>339 — Verdict—Correction.</p> <p>Where, in an action for an accounting in respect to a general partnership, defendant denied the existence of such partnership, and set up special partnerships in respect to which he asked an accounting, and according to plaintiff’s admission and the uncontradicted evidence an item to which defendant was entitled had been overlooked by the jury, the court properly called the jury’s attention to same, and directed that they return to the jury room and correct the verdict.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 791-794; Dec. Dig. <§=>339.]</p> <p>15. Appeal and Error <§=>743 — Presentation for Review — Verdict—Evidence.</p> <p>On appeal in such case plaintiff’s contention that. defendant admitted and that the undisputed evidence showed that he was entitled to an item not allowed by the verdict could not be considered, where the page or pages of the voluminous statement of facts containing such admission and evidence was not given.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2999, 3011; Dec. Dig. <©=></p> <p>16. Costs <©=>32 — Prevailing Party — Partnership Accounting.</p> <p>Where defendant in such case recovered on both phases of the case involved, he was entitled to recover all costs, though plaintiff recovered some items in controversy in the accounting.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dee. Dig. <§=>32.]</p>

R, Spencer, Judge. Action by Kate H. McWhorter and others against the First National Bank of Plain-view, Tex., and others, in trover and conversion for grass seed. Judgment for plaintiffs, and defendants appeal.

<p>1. Forgery &wkey;>34— Indictment — Variance between Purport Clause and Instrument.</p> <p>Where the purport clause in an indictment alleges the instrument forged to have been the act of one or more named persons, while the instrument set out by its tenor is the act of more or less persons than alleged, the variance is fatal, especially in the absence of any innuendo or explanatory averments as to the nature of the instrument and its character.</p> <p>[Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. <&wkey;34.]</p> <p>2. Forgery &wkey;o28 — Indictment—Requisites —Purport Clause.</p> <p>An indictment for forgery need not state in the purport clause the names to the instrument forged.</p> <p>[Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 66-70, 7A-76; Dec. Dig. &wkey;2&]</p>

<p>Criminal Law <&wkey;>1092, 1099 — Bills or Exception — Statement oe Facts — Time oe Filing.</p> <p>The court on appeal from a conviction in the county court cannot consider bills of exception and statement of facts filed within 20 days after adjournment of the term, where the record contains no order allowing the filing thereof.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834r-2861, 2866-2880, 2919; Dec. Dig. &wkey;1092, 1099.)</p>

<p>Cbiminal Law <&wkey;1090 — Questions Reviewable— SUFFICIENCY OF* EVIDENCE — STATEMENT of Facts — Bill of Exceptions.</p> <p>The sufficiency of the evidence cannot he reviewed in the absence of a statement of facts or bill of exceptions.</p> <p>[Ed. Note. — Por 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 Ellis County Court; W. M. Tidwell, Judge.</p> <p>Augustine, a Mexican, was convicted of gaming, and he appeals.</p>

<p>Appeal from Tarrant County Court; Jesse M. Brown, Judge.</p> <p>Tom Ridgeway was convicted of unlawfully selling intoxicating liquors and he appeals.</p>

<p>Criminal Law <&wkey;1134 — Exceptions — Questions Presented por Review.</p> <p>Where no exceptions were reserved to the introduction of any testimony, nor to the charge of the court as given, and no special charge was requested, the only question presented for review w.as the sufficiency of the testimony.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. &wkey;1134.]</p>

<p>Appeal from Ellis County Court; W. M. Tid-well, Judge. Pelata, a Mexican, was convicted of gaming, and he appeals.</p>

<p>Appeal from Ellis County Court; W. M. Tid-well, Judge. Benito, a Mexican, was convicted of gaming, and he appeals.</p>

<p>Appeal from District Court, Bexar County; W. S. Anderson, Judge. Richard Mickey was convicted of arson, and ho appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Bertha Goodman was convicted of robbery, and she appeals.</p>

<p>Appeal from Ellis County Court; W. M. Tid-well, Judge. Mike, a Mexican, was convicted of gaming, and he appeals.</p>

<p>Appeal from Johnson County Court; B. Jay Jackson, Judge. Henry Sloan was convicted of making a sale of intoxicating liquors in prohibition territory, and he appeals.</p>

<p>Appeal from Bexar County. Court; Nelson L3'tle, Judge. Mariano Seguin was convicted of unlawfully carrying a pistol, and he appeals.</p>

<p>Appeal from Ellis County Court; W. M. Tid-well, Judge. Jose Rodreguez was convicted of gaming, and he appeals.</p>

<p>Appeal from Disti'ict Court, Rains County; William Pier-son, Judge. Buck Case was convicted of rape, and he appeals.</p>

<p>Appeal from Ellis County Court; W. M. Tid-well, Judge. John, a Mexican, was convicted of gaming, and he appeals.</p>

<p>Appeal from Ellis County Court; W. M. Tid-Judge. Joe Treubine was convicted of gaming, and he appeals.</p>

<p>Appeal from District Court, El Paso County; W. D. Howe, Special Judge. C. E. Willis was convicted of burglary, and he appeals.</p>