Volume 180 — South Western Reporter

<p>1. Venue &wkey;>32 — Objections—Plea of Privilege — Waiver.</p> <p>Although the defendant files his plea for privilege, seeking a removal of the cause to another court, but fails to call it up for hearing at the term at which it is filed, he waives his plea, so that refusal to grant it cannot thereafter be alleged as error.</p> <p>[Ed. Note. — Eor other cases, see Venue, Cent. Dig. §§ 47-50 ; Dec. Dig. &wkey;>32.]</p> <p>2. Husband and Wife &wkey;>21 — Agency of Wife for Husband.</p> <p>A wife may act as her husband’s agent, and the fact that she uses her name, instead of her husband’s, does not alter his liability.</p> <p>[Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 139, 141; Dee. Dig. &wkey; 21.]</p> <p>3. Husband and Wife <&wkey;23% — Agency of Wife — Evidence.</p> <p>Evidence held to show a. wife to have been the agent of her husband in contracting for the education of their son at plaintiff’s college.</p> <p>[Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 145, 146; Dec. Dig. <&wkey;> 23%.]</p> <p>4. Contracts &wkey;>94 — Eraud — Failure to Read.</p> <p>In the absence- of a positive showing of fraud in inducing a contract, failure of one of the parties to read the contract does not, of itself, show sufficient fraud to vitiate it.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 420-430, 1160, 1164, 1165; Dec. Dig. <&wkey;>94.]</p> <p>5. Appeal and Error <&wkey;742 — Matters Reviewable — Preservation of Exceptions.</p> <p>An assignment of error which is not followed by a statement, as required by the rules of court, will not be considered on appeal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]</p> <p>On Motion for Rehearing.</p> <p>6.Venue <&wkey;7 — Contracts—Place of Payment.</p> <p>A contract, expressly agreeing to pay money at a certain place, lays the venue of the action in that place.</p> <p>[Ed. Note. — Eor other cases, see Venue, Cent. Dig. §§ 13-16; Dec. Dig. &wkey;7.]</p> <p>7.Husband and Wife <&wkey;23 — Liability of Husband — Necessaries.</p> <p>On the question of liability of a husband for the education of his son at a college, contracted for by his wife, it is immaterial whether the education is a .necessary.</p> <p>[Ed. Note. — Eor other cases, see Husband and Wife, Cent. Dig. §§ 142-144; Dec. Dig. <&wkey;> 23.]</p>

<p>1. Pledges &wkey;>ll — Essentials—Change oe Possession.</p> <p>Delivery is essential to a pledge; and, until there has been a change of possession and right of control sufficient to divest the owner of his right to possession by an act which must be equivalent to a delivery in case of sale, it is not a pledge, but a mere executory contract for one.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. §§ 28-35; Dec. Dig. &wkey;>ll.]</p> <p>2. Evidence <&wkey;588 — Weight — Credibility oe Witnesses — Question eok Juey.</p> <p>In a trial of right of property attached in the hands of a tenant, which was claimed by the landlord as security for a debt, the jury might properly reject the testimony of both the tenant and the landlord on the ground of interest, and answer as to a portion of the goods attached that the tenant still had possession thereof.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. § 2437; Dec. Dig. <&wkey;588; Witnesses, Cent. Dig. § 1104.]</p> <p>3. Pledges &wkey;>34r-ELEMENTS — Sueeiciency oe Possession.</p> <p>On a trial of the right of property attached in the hands of a tenant, claimed by the landlord as security for a debt, an instruction that possession, to support a pledge, need not be actual physical possession, was properly refused, since the jury might have understood therefrom that if the contract of pledge existed, the right of possession thereunder would give the landlord possession by presumption without delivery.</p> <p>[Ed. Note. — For other cases, see Pledges, Cent. Dig. § 90; Dee. Dig. <&wkey;>34.]</p>

<p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Action by John B. Stone against Jim Robinson, Jr., and others. Judgment for plaintiff, and he appeals on an agreement made under Rev. St. 1911, art. 2112.</p>

<p>Appeal from District Court, Deaf Smith. County; W. H. Russell, Special Judge.</p> <p>Action by S. B. Edwards against William Capps and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Action by John Ohojnaeky against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Potter County; Jas. N. Browning, Judge.</p> <p>Action by the Panhandle Packing Company against Nannie T. Stringfellow. Judgment for defendant, and plaintiff appeals.</p>

R. Hamblen, Special Judge. Action by the G. A. Stowers Furniture Company against Rose Hayes. From judgment for plaintiff, defendant appeals. Reversed, and judgment for defendant. On rehearing.

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by F. O. Schoedinger against H. B. Vodrie and others. From judgment for plaintiff, defendant Vodrie appeals.</p>

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Action by Amparo C. De Garcia against the Cherokee Life Insurance Company of Rome, Ga. Judgment for defendant, and plaintiff appeals.</p>

G. Tayloe, Judge. Action by R. S. Cobb against the Southern National Insurance Company and others. From a judgment for plaintiff and parties impleaded, defendants appeal.

P. Ezell, Judge. Action by R. W. Hamilton and others against the City of San Antonio and others. Prom an order granting temporary injunction, defendants appeal.

<p>Appeal from District Court, Hemphill ■County; E. P. Greever, Judge.</p> <p>Action by Earl B. Smith against J. S. Per•ry. Eram a judgment for plaintiff, defend.ant appeals.</p>

<p>On motion to dismiss a petition for a writ of error.</p>

Error from Dallas County Court; W. F. Whitehurst, Judge. Action by the Hargreaves Printing Company against the Wertheimer Iron & Metal Works and others. From a judgment in the justice court against the defendant Simon Wertheimer, affirmed in the county court, he appeals.

<p>1. Railboads &wkey;>443 — Injury to Stock on Track — Liability — Sufficiency op Evidence.</p> <p>In an action against a railroad for killing a mare on its track, evidence held to warrant verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. &wkey;443J</p> <p>2. RAILROADS <&wkey;413 — Injury to Stock on Tracks — Fencing—Duty to Repair.</p> <p>Where a railroad allowed the gate of its fence placed for the convenience of an adjoining- landowner to become out of repair, it was liable for injury to stock of another landowner which came upon its right of way through such unrepaired gate and was killed.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1459-1472; Dec. Dig-. &wkey;413.]</p>

<p>1. Brokers <&wkey;85 — Compensation—Actions —Evidence.</p> <p>In a broker’s action for compensation based on procuring a purchaser to whom defendant sold direct, evidence by the purchaser that he suggested as the broker had voluntarily withdrawn from the effort to sell the lands for him, he and defendant should discuss the matter, was inadmissible to show defendant’s good faith in making the sale directly, for such evidence is at most only a conclusion.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 106-115; Dec., Dig. &wkey;85J</p> <p>2. Brokers <&wkey;85 — Actions—Compensation —Evidence.</p> <p>Evidence that a landowner, after some negotiations with a purchaser first interested by a broker engaged to sell, sold the property directly to the purchaser making a deduction for defect in title, is inadmissible to show the owner’s good faith.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 106-115; Dec. Dig. <®=pS5.]</p> <p>3. Evidence <&wkey;271 — Declaration — Self-Serving Declarations.</p> <p>A letter written by an owner revoking a broker’s authority to make a sale to one whom the broker had interested in the land is a self-serving document and is inadmissible to show that the broker had withdrawn from that transaction.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. <&wkey;>271.]</p> <p>4. Brokers <&wkey;44 — Compensation—Right to.</p> <p>Where a broker interested a purchaser, the owner’s subsequent revocation of his authority to make a sale to such purchaser will not deprive the broker of his right to commissions, where the owner made a sale direct to the purchaser, for while an agency may be revoked by the principal at any time, the revocation of the agency cannot be made the means of defeating the right of the agent to commissions already earned.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 45; Dec. Dig. <&wkey;44.]</p>

<p>1. TRIAL <@=3170— DIRECTED VERDICT.</p> <p>Where defendant introduced no evidence, and by admission in open court conceded plaintiff’s cause of action, it is proper for the court to direct a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 390-394; Dec. Dig. &wkey;170.]</p> <p>2. Evidence &wkey;>265 — Admissions—Effect.</p> <p>In trespass to try title brought by plaintiff, one of whose vendor’s lien notes had not been paid at maturity, defendant filed an answer, setting up transfer of the land to him and his assumption of payment of the notes; that he made arrangements to obtain a loan to pay off the notes; that plaintiff, objecting agreed to extend the time of payment of'the notes in consideration of the interest to further accrue thereon, granting defendant a reasonable time in which to sell the land; and that defendant agreed not to pay off and satisfy the notes, and on the date of maturity of the second of the notes to pay the interest due on all of them. The answer further averred payment of the interest on all when the second became due, and plaintiff’s breach of his agreement to give defendant a reasonable time to sell the land, and prayed a judgment for damages, or extending the time of payment of the second note. Held, that where defendant in open court admitted that plaintiff had a good cause of action as set forth in the petition, except in so far as it might be defeated by the facts of the answer constituting a good defense, the admission entitled plaintiff to a verdict, for not only did it admit plaintiff’s title and defendant’s default, but it was a repudiation of all averments of the answer contrary thereto.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029-1050; Dec. Dig. <@=>265.]</p> <p>3. Trespass <@=>16 — Actions—Defenses.</p> <p>As the answer, setting up plaintiff’s breach of the agreement to extend time for payment of vendor’s lien notes, did not offer to pay the notes, but merely sought enforcement of, or damages for breach of, the agreement, it presents no defense to a judgment in favor of plaintiff.</p> <p>[Ed. Note. — For other cases, see Trespass, Cent. Dig. §§ 20, 23; Dec. Dig. &wkey;>16.]</p> <p>4. Appeal and Ereoe <@=>750 — Review—Assignments op Error.</p> <p>In such case, assignments of error, complaining that the court erred in instructing the jury to render a verdict for plaintiff without submitting the issues under the pleadings, that the court erred in holding the statute of frauds applicable to the contract for an extension, and that the court erred in instructing the jury to find for plaintiff, and not submitting the question whether the contract was made, and in not permitting defendant to introduce evidence in support of it, are not sufficient to raise the question whether the court erred in refusing to submit to the jury the question of damages for breach of the alleged agreement to extend the time of payment of the notes.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ .3074-3083; Dec. Dig. &wkey;> 750.]</p> <p>5. Bills and Notes <&wkey;137 — Extension of Time — Agreements.</p> <p>An agreement to extend the time of payment of vendor’s lien notes in consideration of the debtor’s agreement to pay interest is not binding, where the debtor did not obligate himself to pay interest for any definite time and there was no agreement to extend the notes for any definite period.</p> <p>[Ed. Note. — For other eases, see Bills and Notes, Cent. Dig. §§ 334r-337; Dec. Dig. <&wkey; 137.]</p>

Error from District Court, Collingsworth County; J. A. Nabors, Judge. Action by C. F. Berry against M. L.'Lang-ford and others on a vendor’s lien note, wherein R. R. Sherwood intervened, and which suit was consolidated with an action by R. R. Sherwood against James A. Moon and others. From the judgment rendered, James A. Moon brings error.

Error from District Court, El Paso County; M. Nagle, Judge. Action by Clark Bishop and others against Anna Gestean and husband. There was a judgment for plaintiffs, and defendants bring error.

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Action by H. C. Rich against George W. Eason, and others. From a judgment for defendants plaintiff appeals.</p>

<p>Appeal from Fisher County Court; M. A. Hopson, Judge.</p> <p>Suit by Terrell Rector and others, by B. R. Rector, next friend, against the Continental Bank & Trust Company. Judgment for defendant, and E. R. Rector appeals.</p>

<p>1. Municipal Coepoeations <&wkey;863 — Poweb TO CONTBAOT — LIMITATION BY TAXING POWEE.</p> <p>The power of a municipal corporation to contract is limited by its power to tax.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1824 — 1827; Dec. Dig. <&wkey;8G3.]</p> <p>2. Counties <&wkey;153% — Powek op County-Constitution — “Roads” — “Macadamized” — “Geavebed” — “Paved” — “Causeway.”</p> <p>Const, art. 3, § 52, provided that the Legislature could not authorize any county to lend its credit in aid of any individual or corporation. The section was amended in 1903 to provide that any county, upon a two-thirds majority vote of the resident property taxpayers voting thereon, may issue bonds for the construction and maintenance of “macadamized, graveled or paved roads and turnpikes, or in aid thereof.” Held, that such provisions did not authorize the construction of a causeway across a bay some 13,000 feet long, 3,000 feet of which, spanning deep water was to be a bridge; the word “roads” not being the equivalent of “roads and bridges,” and the words “macadamized/’ “graveled,” and “paved” not being descriptive of bridges, and a “causeway,” though coming within the term “road” would not come within the authority conferred, where a part of it constituted a bridge.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 221, 222; Dec. Dig. &wkey;153y2.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Roads; Macadamize; Gravel; Pave; Causeway.]</p>

G. Chambliss, Judge. Suit by the Coleman-Fulton Pasture Company and others against Aransas County and others to restrain a diversion of money voted for the construction of roads. From an order dissolving a temporary injunction, plaintiffs appeal.

<p>Appeal from Sabine County Court; J. B. Lewis, Judge.</p> <p>Action by H. P. Pratt & Son against E. P. Padgett. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Harris County Court; Clarke C. Wren, Judge.</p> <p>J. T. Morgan was convicted, and appeals.</p>

<p>Criminal Law <&wkey;>1099 — Appeal—Statement of Facts — Time fob Filing.</p> <p>A statement of facts, filed more than 90 days after the motion for new trial was overruled and notice of appeal given and entered, the court by law, and actually, continuing more than 8 weeks, cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <&wkey; 1099.]</p>

<p>1. Justices oe the Peace <5&wkey;73, 74t — Plea oe Privilege — Statute.</p> <p>Where suit is not pending also in the justice court of the county of defendant’s residence, or brought in such court, defendant’s plea of privilege to be sued in the county of his residence need not show that the justice to whose court the case is asked to be transferred is not disqualified, since Rev. St. 1911, art. 2312, providing if there be no justice of the peace qualified to try the suit in the proper precinct, it may be commenced before the nearest justice of the peace of the county who is not disqualified to try the same, has no application to a nonresident of a county.</p> <p>[Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dee. Dig. &wkey;>73, 74.]</p> <p>2. Justices oe the Peace &wkey;>73, 74^-Waiver oe Pbivilege — Statute.</p> <p>Rev. St. 1911, arts. 1831-1833, providing that issuing process for witnesses and taking depositions shall not constitute a waiver of a plea of privilege, that if a plea of privilege is sustained the cause shall not be dismissed, but the court shall transfer it to the court having jurisdiction of the person of the defendant, and that when the plea is sustained the court shall order the venue changed and the record shall be transmitted, apply to cases pending in justice courts, since article 1903, prescribing what the plea of privilege shall state, and that none of the exceptions to exclusive venue in the county of one’s residence mentioned in article 1830 or article 2308 exists in the cause, was added to the Revised Statutes by the same act of 1907 (Acts 30th Leg. c. 133), which added articles 1831-1833, while the exceptions mentioned in article 2308 refer to the venue in justice courts.</p> <p>[Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dee. Dig. &wkey;73, 74.]</p>

<p>Insubance <&wkey;141 — Delivery and Acceptance op Policy — Estoppel.</p> <p>As claimed by plaintiff, he was induced to take life insurance by the representations of the insurer’s agent that the annual premium would be $81.90, whereas the policy provided for payment of an annual premium of $86.90. A few days after the delivery of the policy plaintiff discovered this discrepancy and wrote the agent a letter calling his attention to it, and stating that he did not want the policy unless he could get it corrected and would hold it subject to the agent’s order unless corrected. The agent did not answer the letter, and, though they lived in the same community, plaintiff neither returned the policy, notified the company, nor again wrote the agent until payment of the second annual premium was demanded, when he notified the company that he had dropped the policy. Held that, conceding that fraud was proved, there being no offer to return the policy, except what might be construed as a conditional proposition to do so, plaintiff’s retention of the policy was an acquiescence therein, and a ratification thereof and estopped him from asserting the contrary as a defense to an action on notes givJ en for the premiums.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 75, 253-262; Dec. Dig. &wkey;141.]</p>

<p>Appeal from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Action by Nick Alley against tlie Texas-Kalamazoo Silo Company. Erom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Cameron County Court; H. L. Yates, Judge.</p> <p>Action by T. A. Kinder against the City of Brownsville. Judgment for plaintiff for $200, and defendant appeals.</p>

B. Hopkins, ludge. Objection by the New Britain Machine Company and others to a sale by R. F. Watt, receiver, and to the action of the receiver in paying himself the salary fixed by the court. Sale and order confirmed, and the objectors appeal.

<p>Appeal from District Court, Brazos County; J. C. Scott, Judge.</p> <p>Action by the Houston & Texas Central Railroad Company against C. A. Buchanan. Erom a judgment for plaintiff, defendant appeals.</p>

<p>1. Deeds i&wkey;112 — Description—Reference.</p> <p>Where a conveyance referred to a recorded map for description, such map and metes and bounds of the lot as delineated thereon are a part of the instrument.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 823, 324; Dec. Dig. &wkey;112.]</p> <p>2. Deeds <&wkey;120 — Conveyances—Effect.</p> <p>,A grantee can acquire no greater title to land than her grantor possessed.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 375-393, 401, 407-412, 416-454; Dec. Dig. @==3120.]</p> <p>3. Dedication <&wkey;19, 38 — Plats — Designation ox Streets.</p> <p>A plat of land which sets apart streets to the public is equivalent to a conveyance, and the easement granted is irrevocable.</p> <p>[For other cases, see Dedication, Cent. Dig. j 35, 37-47, 77, 78; Dec. Dig. &wkey;19, 38.]</p> <p>4. Navigable Waters <@=39 — Riparian Rights — Accretion—Reliction—Wharves.</p> <p>The riparian rights of a landowner whose property abutted upon a navigable gulf are those of access, the right to acquire the fee in accretions and alluvion, as well as in land exposed by reliction, together with the privilege of building a wharf.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 21, 53, 82, 103, 112, 117, 127, 239-244; Dec. Dig. &wkey;39.]</p> <p>' 5. Eminent Domain <&wkey;45 — Condemnation.</p> <p>Water rights can be condemned for public ways, as can any right connected with land.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 94r-100, 102, 106; Dec. Dig. <@=45.]</p> <p>6. Dedication <@=53 — Land under Water-Riparian Rights.</p> <p>Where a riparian proprietor filed a plat declaring the dedication of a street in land covered by water, which was beyond the boundaries of his parcel, such dedication carried with it the riparian rights, and a subsequent grantee whose conveyance referred to the recorded plat and described the parcel as bounded by the street takes only to the street, and does not acquire any riparian rights.</p> <p>[Ed. Note. — For other cases, see Dedication, Cent. Dig. § 96; Dec. Dig. <§=53.]</p> <p>7. Injunction <&wkey;114r — Title—Right to.</p> <p>In the absence of riparian rights, plaintiff is not entitled to enjoin another from building a wharf on the bank of a navigable gulf; the injunction being sought on the ground that it interfered with such rights.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 202-220; Dee. Dig. @=114.]</p> <p>8. Navigable Waters @=46 — Riparian Rights — Alienation.</p> <p>Riparian rights may be alienated separately and apart from the land to which they are appurtenant.</p> <p>[Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 283-291, 293; Dec. Dig. @=46.]</p>

<p>1. Justices oe the Peace <&wkey;44r — Jurisdiction — Amount in Controversy.</p> <p>A justice’s court had jurisdiction of a suit for the conversion of a soda fountain alleged to be worth $350, where plaintiff alleged his damage to be only $199.50 by reason of his indebtedness to the defendant in the sum of $180, with interest thereon, to secure the payment of which defendant held a mortgage on the soda fountain, as plaintiff’s damage, if any, was less than the amount alleged, $199.50.</p> <p>[Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 157-172; Dec. Dig. &wkey;»44.]</p> <p>2. Justices oe the Peace &wkey;>175 — Appeal-Evidence — Actual Value.</p> <p>In an action for the conversion of a soda fountain, the reasonable value of which was alleged to be $350, evidence of its actual or intrinsic value was admissible on appeal to the county court.</p> <p>[Ed. Note. — Eor other cases, see Justices of the Peace, Cent. Dig. §§ 694r-698; Dee. Dig. &wkey;175.]</p> <p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p>

<p>Appeal from District Court, Collin County; W. M. Peck, Judge.</p> <p>Action by W. C. Holland against J. W. Ashley. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Potter County Court; T. W. McBride, Judge.</p> <p>Action by O. I. Sellers against J. W. Puckett and others. Judgment for defendants, and plaintiff appeals.</p>

Porter, Judge. Action for divorce by Mrs. Cora Wade against W. T. Wade. Judgment for plaintiff, motion for new trial denied, and defendant appeals.

<p>Appeal from Gray County Court; Siler Faulkner, Judge.</p> <p>Action by the Chicago, Rock Island & Gulf Railway Company against the Western Lumber Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>Action by the State against Henry Tray-han and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Action by N. Z. Stewart against L. Dillon. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Ereestone County; H. B. Daviss, Judge.</p> <p>Civil action by the State against Frank Anderson and other’s. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error &wkey;>66 — Decisions Ap-pealable-Necessity ox Final Judgment.</p> <p>Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 2078, providing that an appeal or writ of error may be taken to the Court of Civil Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which it has original jurisdiction, and from every final judgment of the county court in civil cases of which it has appellate jurisdiction where the judgment or amount in controversy exceeds §100, exclusive of interest and costs, an appeal can only be taken from a final judgment of the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 329-331, 335-343; Dec. Dig. &wkey;?66.]</p> <p>2. Habeas Corpus <&wkey;113 — Decisions Ap-pealable — “Final Judgment” — “Judgment.”</p> <p>In a habeas corpus proceeding by a child’s maternal grandmother against its father and its paternal grandparents, with whom the father had left it to be cared for, in which the petitioner alleged that defendants were not proper persons to have the custody and control of the child, and that the petitioner was financially and otherwise able to rear and maintain it, the court adjudged that the custody, maintenance, and education of the child be committed and awarded to its maternal grandmother, subject, however to the conditions thereinafter specified; that the temporary custody of the child be given and awarded to its paternal grandparents until the further orders of the court; that such temporary custody be not disturbed until such reasonable time as the father might, to the court, show himself competent, worthy, and able to rear and care for the child, at which time and upon which showing the custody of the child would be awarded to him, and that if he did not, within a reasonable time, make such showing, the final and absolute custody should remain with the maternal grandmother. Held, that this was not a final but a conditional judgment, from which no right of appeal existed, as the issue as to the permanent custody of the child was left open for further consideration, and a “judgment” is the final consideration and determination of a court af competent jurisdiction upon the matters submitted to it (quoting Words and Phrases, First and Second Series “Judgment”).</p> <p>[Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. &wkey;113.] 3. Appeal and Error &wkey;>66 — Dismissal of</p> <p>Appeal for Lack of Final Judgment.</p> <p>Where there is no final judgment, an appeal ■will be dismissed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 329-331, 335-343; Dec. Dig. &wkey;>06.j</p>

<p>SET-OFF AND COUNTERCLAIM <&wkey;4&wkey;DlSMISSal — Nonjoinder of Necessary Parties.</p> <p>Where, in an action on a note given in renewal of a rental note by one of two lessees, the other lessee was not a party to the action, and it appeared that they were jointly and collectively entitled to enjoy the rights resulting from the lease, defendant’s counterclaim for damages from being deprived, by a sale of the property, of an option given by the lease to purchase and of the leasehold interest in the property, was properly dismissed for nonjoinder of the other lessee.</p> <p>[Ed. Note. — Por other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 82-96, 98, 99; Dec. Dig. <&wkey;44.]</p>

<p>1. Municipal Coeípoeations &wkey;>105 — Officers — Compensation — Statutory Provisions.</p> <p>Rev. St. 1911, art. 807, refers to the approval or disapproval by the mayor of a city of ordinances and resolutions adopted by the council. Article 811 provides that the city treasurer shall receive such compensation as shall be fixed by the city council. • Article 816 provides that the city council on or before die 1st day of January preceding each election shall establish the compensation or salary of officers elected or appointed by it. Hold, that the council could fix the salary of the city treasurer by resolution.</p> <p>[Ed. Note. — Eor other eases, see Municipal Corporations, Cent. Dig. §§ 223, 224; Dec. Dig. <&wkey;105.]</p> <p>2. Municipal Coepoeations <&wkey;115 — Offi-cebs — Compensation — Statutory Provisions.</p> <p>Rev. St. 1911, art. 816, requires the city council on or before the 1st day of January preceding each election to establish the compensation of officers elected or appointed by it. An ordinance adopted in 1902 required the city at the first regular meeting after each general election to fix the compensation and fees of all city officers for the next ensuing term, and such compensation to remain in force until changed, and that such compensation might he fixed by an order spread upon the minutes. An ordinance adopted in 1904 provided that the city secretary should receive for performing the duties of city treasurer certain commissions on moneys received and disbursed. A resolution adopted December 31, 1909, provided that for the ensuing term the salary of the city secretary and treasurer was fixed at $10 a month “and fees as set by ordinance” up to $2,000 per annum, and that any amount exceeding $2,000 per annum should he paid into the city treasury. Held, that the resolution did not repeal the ordinance specifying the commissions to be paid the secretary and treasurer, as, in view of the statute, that ordinance was not temporary and ceased to operate at the expiration of the tertn, especially where the council acted by again fixing the compensation.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 266%, 267; Dec. Dig. <&wkey;>115.]</p> <p>3. Municipal Coepoeations &wkey;>124 — Officers — Compensation — Statutory Peo visions.</p> <p>The resolution complied with the statute by fixing the amount of the fees and compensation to which the secretary and treasurer was entitled, as the computation of the commission was not changed except as the amount was limited, and if the ordinance had expired the resolution was clear and unambiguous as to the amount the secretary and treasurer should receive, while, if it merely limited the amount to be received out of the commissions allowed the secretary and treasurer, the council had the right for the ensuing term to fix a less amount than the maximum which might accrue under the ordinance.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 290-297; Dec. Dig. i&wkey;>124.]</p> <p>4. Municipal Coepoeations &wkey;5l62 — Offi-cees — Compensation — Construction of Resolutions — 1 ‘Eee. ’ ’</p> <p>The salary and fees which the resolution provided should not exceed $10 a month and fees not to exceed $2,000 included commissions, as the primary meaning of the word “fee” includes compensation in the nature of commissions.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dee. Dig. <&wkey;162.</p> <p>Eor other definitions, see Words and Phrases, Eirst and Second Series, Eee.]</p> <p>5. Statutes <&wkey;219 — Construction — Practical Construction.</p> <p>While the construction placed upon a statute by the officers whose duty it is to execute it is entitled to consideration, the courts are not bound to accept sucb construction when the act is clear and unambiguous.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 296, 297; Dec. Dig. <S=»219.]</p> <p>6. Municipal Coepoeations &wkey;*162 — Officers — Compensation — Approval of Reports.</p> <p>Under Rev. St. 1911, art. 81Í, providing that the city treasurer shall make payments of moneys belonging to the city upon the order of the mayor attested by the secretary, where a city secretary and treasurer made reports to the city council showing commissions on moneys received and disbursed in excess of the amount to which his commissions were limited by ordinance and resolution, the approval of such reports did not indicate an intent to allow him the entire commissions unless they were paid by him on the order of the mayor properly attested and reported as so paid, as otherwise the council would not necessarily know that he intended to appropriate all of such commissions to his individual use.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dec. Dig. <&wkey;162.]</p> <p>7. Municipal Corporations <&wkey;>162 — Recovery Back — Mistake of Law.</p> <p>Under Rev. St. 1911, art. 811, providing that the city treasurer shall make payments of the city’s money upon the order of the mayor attested by the secretary, and that no order shall be paid unless it shows upon its face that the city council has directed its issuance and for what purpose, where a city treasurer did not pay to himself upon the order of the council commissions in excess of those to which he was entitled, but simply retained them from money received by virtue of his office, there was no payment of the money by the city under a mutual mistake of law so as to prevent recovery by the city.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dec. Dig. <&wkey;>162.]</p> <p>8. MUNICIPAL CORFORATIONS &wkey;>162 — OFFICERS — COMPENSATION—Payment.</p> <p>If an ordinance and resolution of a city council did not warrant a payment to the city treasurer of certain commissions claimed by him, the mayor could give no order therefor under Rev. St. 1911, art. 811.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dec. Dig. &wkey;162.]</p> <p>9. Municipal Cokpobations @=>173 — Offi-cebs — Liability op Subeties.</p> <p>Rev. St. 1911, art. 800, provides that when the term for which any city officer was elected or appointed has expired he shall deliver to his successor all books, papers, and fixtures pertaining to his office. A resolution of a city council provided that the city treasurer should receive fees fixed by ordinance up to $2,000 and that any amount exceeding $2,000 should be paid into the city treasury. Séld that, under a bond conditioned that the treasurer would faithfully receive and disburse all moneys belonging to the city in accordance with the laws of the state and the ordinances of the city, he and his bondsmen were liable for any sum retained by him as commissions above the amount allowed him, though the resolution only fixed his salary and did not require any disbursement of the money, as the law made it Ms duty to turn it over to his successor.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 399-409; Dec. Dig. &wkey;173J</p> <p>10. Municipal Cokpobations @=>172 — Offi-cebs — Duty to Turn Over Funds to Successor.</p> <p>Under Rev. St. 1911, art. 800, an outgoing city treasurer is required to turn over funds belonging to the city and is liable in a civil suit in case of failure as well as for other penalties.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 396-398; Dec. Dig. &wkey;172J</p> <p>11. Municipal Corporations &wkey;>173 — Officers — Actions on Bonds — Evidence.</p> <p>In an action on a city treasurer’s bonds which were substantially set out in the original petition and the execution of which was admitted by the answers, there was no injury or error in admitting them in evidence.</p> <p>[Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 399-409; Dec; Dig. &wkey;173J</p> <p>12. Appeal and Error <&wkey;1045 — Harmless Error — Challenges to Jury.</p> <p>The refusal to allow a peremptory challenge to the jury, if error, was harmless, where the court took the case from the jury and instructed a verdict.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. •§§ 4124-4127; Dec. Dig. <&wkey;> 1045.]</p> <p>On Motion for Rehearing.</p> <p>13. Municipal Corporations <&wkey;120 — Ordinances — Construction — Practical Construction.</p> <p>An ordinance provided that the city secretary as city treasurer should receive certain commissions on moneys received and disbursed and that the city secretary acting as treasurer should not be entitled to any commissions for receiving moneys from his predecessor or paying them to his successor. A resolution subsequently passed provided that the salary of the city secretary and treasurer for the ensuing term was thereby fixed at $10 a month and fees “as set by ordinance” up to $2,000 per annum. No other ordinance setting up any fees for such officer acting in the dual capacity of secretary and treasurer was disclosed in the record. Held, that, even though there were other ordinances prescribing and designating fees referable to Ms position as city secretary, he had to refer to the ordinance in question to obtain a rate for his compensation so far as his revenue derivable from the collection and payment of moneys was concerned, and the resolution evidently referred to the same ordinance, and hence there was no ambiguity authorizing a resort to an executive interpretation of the meaning of the resolution.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 274r-280; Dec. Dig. @=>120.]</p> <p>14. Municipal Corporations @=>173 — Officers — Liability of Sureties.</p> <p>Where a city secretary and treasurer executed separate bonds as secretary and as treasurer, if bé as treasurer permitted himself as secretary to receive and retain as commissions an amount to which he was not entitled, the treasurer and his bondsmen were liable, as he as secretary necessarily received and retained the money from himself as treasurer, and as treasurer he had no lawful justification for permitting this.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 399 — 409; Dec. Dig. @=>173.]</p>

<p>1. Appeal and ERrob &wkey;>1039 — Land—Title bt Limitation — Harmless Error.</p> <p>Where, in an action by the city of El Paso to try title to a strip of ground alleged to be part of a street, the jury found that defendant had acquired title by imitation prior to the taking effect of Rev. St. 1911, § 5683, providing title by adverse possession cannot be acquired to any part of a lot, street, etc., an issue which had been raised as to dedication and record title became immaterial, and the errors assigned in respect to such issues, were rendered harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. <&wkey; 1039.]</p> <p>2. Trial <&wkey;296 — Instructions—Burden oe Proof — Cure of Error.</p> <p>On the submission in such action of the issue of limitation, “Do you find from a preponderance of the evidence that defendant * * * has had continuous possession and adverse possession * * * for a period of ten years? * * * ” ■ the requirement with respect to preponderance of the evidence sufficiently imposed the burden of proof on defendant, thereby curing the failure to instruct directly that the burden of proof was upon defendant to establish his title by limitation.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. &wkey; 296.]</p> <p>3. Appeal and Error &wkey;>1050 — Evidence-Harmless Error.</p> <p>The admission of evidence offered by defendant relevant only to an issue not submitted was not reversible eiTor, where it was not apparent that plaintiff was injured by its admission.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <©^1050. ]</p> <p>4. Adverse Possession &wkey;>7 — Grant bx State — Patent—Failure to Issue — Effect.</p> <p>In an action to try title, it appeared that the state, by an act of the Legislature of 1858, relinquished the premises to a grantee, but the patent therefor was not issued until 1887. Held, that title passed under the former act, so that limitation could begin running against plaintiff; the fact that a formal patent did not issue until the year 1887 being immaterial.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 2A-42; Dec. Dig. <&wkey;7.]</p> <p>5. Trial &wkey;j244, 260 — Instructions — Requests — Adverse Possession.</p> <p>In action to try title to land, where the defense was title by limitation, a charge directing the jury to find against defendant on such issue if he absented himself from the property during the period covered by his plea of limitation was rightly refused, where the subject-matter was fully covered by the general charge, and an issue submitted, and the charge requested gave undue prominence to plaintiff’s contention that defendant’s possession had not been continuous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581, 651-659; Dec. Dig. &wkey;244, 260.]</p>

<p>Appeal from Fannin. County Court; S. F. Leslie, Judge.</p> <p>Action by L. E. Erwin against tlie Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Bexar County Court for Civil Cases; Ed. II. Wickes, Special Judge.</p> <p>Action by O. G. Carter against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

T. Lyttleton, Judge. Action by Mrs. Daisey Conway against the Texas & Pacific Railway Company. Prom a judgment for plaintiff, defendant appeals. Train No. 105, from St. Louis, Mo., to Palestine, Tex., known as the “Past Mail,” was operated by appellant over its line of railway from Texarkana, by Marshall, to Long-view Junction, and by the International & Great Northern Railway Company over its line of railway from Longview Junction to Palestine.

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>On appellant’s and appellee’s motions for rehearing.</p>

<p>Appeal from Franklin County Court; O. L. Reaves, Judge.</p> <p>Action by S. N. Massey against C. C. Du-pree, who counterclaimed, begun in justice court and appealed by plaintiff to county court. From a judgment there for plaintiff, defendant appeals.</p>

<p>1. Constitutional Law <§=>65 — Legislative POWERS — DELEGATION — COUNTIES — POOL Hall Law.</p> <p>The pool ball law (Acts 33d Leg. c. 74 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6319a-6319n]), providing for a petition to the commissioners’ court of a county and requiring it to order an election on a petition signed by the requisite number of voters of a county precinct, or political subdivision, on the question of prohibiting the maintenance of pool halls within the territory for which the election is held, and providing that, where the election is in favor of prohibition, any person thereafter operating a pool hall therein shall be subject to fine or imprisonment, is not unconstitutional as a delega-1 tion of the legislative power to enact a law, which the Legislature must alone exercise.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 116; Dec. Dig. @=65.]</p> <p>2. Constitutional Law <§=>65 — Legislative Powers — Suspension oe Laws — Counties —Pool Hall Law.</p> <p>Such law does not violate Const, art. 1, § 28, restricting the power to suspend laws to the Legislature, and especially prohibiting the exercise of such power by any other body; since, if there be any suspension of the law, it is a law passed by the Legislature that is suspended on the happening of the contingency of a vote against its operation.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 116; Dec. Dig. <§=>G5.]</p> <p>3. Constitutional Law <§=>70 — Judiciary Department-tEncroachment on Legislative.</p> <p>Courts have no right to strike down laws enacted by the Legislature, no matter how unwise they may deem them, unless they can find an inhibition in the Constitution.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dee. Dig. <§=>70.]</p> <p>4. Ceiminal Law <§=>1018 — Court op Criminal Appeals — Jurisdiction.</p> <p>The Constitution expressly places in the Court of Criminal Appeals, and not in the Supreme Court, the final jurisdiction in all criminal cases.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2577; Dec. Dig. @=31018.]</p> <p>5. CONSTITUTIONAL LAW <&wkey;48 — CONSTRUCTION — PRESUMPTIONS.</p> <p>If there is a doubt as to the constitutionality of a law, it must be solved in favor of its validity; and it is only where a law is manifestly in violation of some provision of the Constitution that a court may declare it void.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. <&wkey;>48; Statutes, Cent. Dig. § 56.)</p> <p>Davidson, J., dissenting.</p>

<p>1. Public Lands <&wkey;173 — School Lands— Failure to Repurchase — Resale — Fixing Day — Duty of Land Commissioner!.</p> <p>Where the purchaser of school land, forfeited for failure l'o pay interest as provided for by Rev. St. 1911, art. 5423, failed to exercise his repurcht.se right after having given notice to the Commissioner of the General Land Office, as provided for by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5423a, it was the Commissioner’s duty in reselling the land under Rev. St. 1911, art. 5423, providing for such resale under that section or any future law, to fix a day for such resale at a date not less than 90 days after the 'expiration of such repurchase period on analogy to his duty so to do in the case of canceled leases provided for by Rev. St. 1911, art. 5408, and the provision of the last-named section placing expired leases on the open market at the date of their expiration has no application.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]</p> <p>2. Public Lands &wkey;>173 — School Lands — Failure to Repurchase — Resale—Application to Purchase — Validity.</p> <p>Where in an action of trespass to try title it appeared that plaintiff bought public free school land, but failed to meet interest when clue on the unpaid balance of the purchase price, whereupon the land was declared forfeited by the Commissioner of the General Land Office, who informed the county clerk of such failure; that thereupon plaintiff advised the Commissioner of his intention to repurchase under his right so to do within 90 days provided for by Vernon’s Sayles’ Ann. Civ. St. 1914, § 5423a; that the board of appraisers appraised the land and notified plaintiff, who failed to exercise his repurchase right within 90 days; that some months later the Commissioner published and sent out his list of free school land, in which was listed the land in question as coming on the market at a day fixed at three months after the issuance of the list; that on the day preceding the day fixed for the sale the Commissioner approved the previous classification and appraisement, and mailed a copy thereof to the county clerk, who received it on the morning of the day set for the sale; that on the previous day plaintiff had filed an application to purchase the land, and after the day set for the sale plaintiff and defendant each on the same day filed applications to purchase, and the land was subsequently awarded to defendant, who had made the high bid; that more than 90 days after the date set for the sale and after the award to defendant, plaintiff filed still another application, which was rejected because of the award to defendant — held, that the land did not automatically come on the open market upon the expiration of the 90-day repurchase period entitling plaintiff to an award as first applicant under his application made on the day previous to the day fixed for the sale.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]</p> <p>3. Public Lands <&wkey;173 — Repurchase — Privilege — Nionexercise—Resale—Fixing Day — Proper Time.</p> <p>The Land Commissioner was not compelled to name a day for such resale after the expiration of plaintiff’s repurchase period not less than 90 days after the receipt of notice by the county clerk of the reclassification and reap-praisemcnt of such land, since, the land being already classified and appraised at the time of the expiration of plaintiff’s repurchase period, it was not necessary, on analogy to the provision of Rev. St. 1911, art. 5408, for notice to the clerk of the cancellation of leases and the sotting of a day not less than 90 days thereafter for the filing of purchase applications, that a reclassification and reappraisement be made and the clerk notified thereof.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. <@=»173.]</p> <p>4. Public Lands <&wkey;173 — Forfeiture — Resale — Rejected Application — Trying Title.</p> <p>Since the law does not fix any definite date when school land, offered for sale after failure to exercise a repurchase privilege, will come on the market, but gives the Land Commissioner power to fix a day, plaintiff was not entitled to an award on his last-made application for the purchase of such land, since, if the date set by the Commissioner was legal, such application came too late, and, if illegal, it stood on no better footing than the application of defendant, to whom, the land was awarded.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. &wkey;173.]</p>

T. Brown, Special Judge. Action by P. B. Broom and others against John Pearson and others in trespass to try title. From judgment for defendants, plaintiffs appeal.

<p>Appeal from District Court, Lamar County; A. P. Doaoney, Judge.</p> <p>Action by Elmer L. Arminger against the City National Bank of Paris, which counterclaimed. From a judgment for defendant, plaintiff appeals.</p> <p>October 30, 1912, appellee, while operating a box manufacturing plant in Paris, which, being a creditor of the bankrupt, it had purchased at the trustee’s sale of property belonging to the Paris Box & Lumber Company, bankrupt, contracted with appellant to sell and deliver to him on board the cars at Paris, on orders therefor to be made by him before May 1, 1913, 50 carloads of egg cases. Appellant, who was the plaintiff below, claimed that appellee after delivering 19 carloads of the cases as agreed upon, failed and refused to deliver the remaining 31 carloads thereof, to his damage in the sum of $2,480. He further claimed that in an accounting had between him and appellee in February, 1914, the latter agreed it was liable to him for said sum of $2,480, less $749, representing his indebtedness to it for cases it had delivered to him and then promised to pay him the sum of $1,731, the amount of his, said damages, less said sum of $749. The suit was to recover of appellee said $1,731. Ap-pellee denied that it had breached the contract as charged against it, or had promised to pay appellant said sum of $1,731 as charged by him, and alleged that in October, 1913, an accounting was had between it and appellant of the matters connected with the contract between them, and that it was then agreed that appellant was indebted to it in the sum of $749, which he promised to pay to it. By pleading in the nature of a cross-action appellee sought a recovery against appellant of said sum of $749. After hearing the testimony the trial court told the jury that appellee had failed to prove any breach of the contract by appellant, that the undisputed evidence showed that appellant was indebted to appellee in the sum of $749 and interest, and instructed them to find against appellant for said sum of $749 and interest. The appeal is from a judgment rendered on a verdict returned in accordance with said instructions.</p>

<p>1. Venue <&wkey;5 — Tbust Deed — Suit to Avoid —Injunction.</p> <p>Where plaintiff sought to have a trust deed declared void as an attempt to create a lien on his homestead and prayed an injunction against the trustee to prevent a sale of the land to satisfy the debt secured, the action was properly brought in the county where the land lay under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, subd. 14, laying the venue of suits involving title to lands in the county where the land lies, instead of being brought in the county of the residence of the trustee, or that of the beneficiary, under the requirement of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4653, that certain writs of injunction be brought in the county of defendant’s domicile, since the injunctive relief sought was merely ancillary to the main purpose of avoiding the deed.</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 4-11; Dec. Dig. <&wkey;>5.]</p> <p>2. Homestead <&wkey;216 — Trust Deed — Ques- ■ tion eor Jury.</p> <p>In an action to set aside a trust deed securing a debt, evidence held to require submission to the jury of the issue as to whether land was a homestead.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §| 400-403; Dec. Dig. &wkey;216.]</p>

<p>Appeal and Error <&wkey;373 — Bonds—Necessity.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2113, declaring that the transcript shall contain a copy of the final judgment and notice of appeal bond, an appeal from an order denying a temporary injunction must be dismissed, where the transcript does not show or contain the appeal bond and none was filed within 15 days from the order of refusal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2001-2004; Dec. Dig. <&wkey; 373.]</p>

<p>1. Witnesses ^3208— ‘Privileged Communications” — ATTORNEY AND CLIENT.</p> <p>A communication to an attorney was not a privileged one, where the parties had the same attorney and made communications in the presence and hearing of all for the information of all.</p> <p>TEd. Note. — For other cases, see Witnesses, Cent. Dig. §§ 761, 764, 765; Dec. Dig. <&wkey;>206.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Privileged Communication.]</p> <p>2. Trial <&wkey;25 — Right to Open and Close.</p> <p>It is the province of the court alone to determine the right to open and conclude the argument.</p> <p>[Ed. Note. — For other cases, see Trial, C&nt. Dig. §§ 44-75; Dec. Dig. &wkey;>25.]</p>

Short, Judge. Action by the Spaulding Manufacturing Company against G. I. Trammel, in which Mrs. G. I. Trammel intervened as a claimant of property attached. From judgment for claimant in the county court on appeal from justice court, plaintiff appeals.

<p>Appeal from Panola County Court; Geo. Harkrider, Judge.</p> <p>Action by R. E. Trabue against C. B. Duke and wife; begun in justice court, and appealed by defendants to the county court. There R. C. Trabue appeared as plaintiff. Prom a judgment in his favor, defendants again appeal.</p>

<p>1. CORPORATIONS <©=>404 — AUTHORITY OB Peesident — Contract to Sell Lands.</p> <p>Under the law of Louisiana as well as this state, the president of a corporation has no authority to contract for the sale of corporation lands, in the absence of authority conferred on him by the directors.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1626-1628, 1633-1639; Dec. Dig. i&wkey;>404.]</p> <p>2. CORPORATIONS <&wkey;432 — Authority ox President — Evidence.</p> <p>Evidence held insufficient to show that defendant corporation held out its president as its agent having authority to contract for the sale of its lands.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1717, 1718, 1726-1735, 1737,1743, 1762; Dec. Dig. <®==v432.]</p> <p>3. Corporations <&wkey;432 — Contract by President — Ratification—Knowledge.</p> <p>The evidence did not show ratification by a corporation of a contract by its president to sell its lands, where it did not show knowledge of the corporation, through some other officer or agent beside the president, of the facts relating to the transaction.</p> <p>[Ed. Note. — For other cases, see Corporations* Cent.'Dig. §§ 1717, 1718, 1724, 1726-1735, 1737, 1743, 1762; Dec. Dig. &wkey;432.]</p>

<p>Appeal from Franklin County Court; O. L. Reaves, Judge.</p> <p>Action by the W. K. Henderson Iron Works & Supply Company against J. M. Wilkins. There was a judgment for plaintiff for part of its claim, and it appeals.</p>

<p>Appeal from District Court, Ward County; S. J. Isaacks, Judge.</p> <p>Action by J. W. Ogburn against the Loop Land & Irrigation Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Smith. County; W. R. Heath, Judge.</p> <p>Action by W. T. Braly against Walter Connally and another. Judgment for defendants, and plaintiff appeals.</p> <p>Appellant brought the suit to recover double usurious interest alleged to have been paid by him to appellees. The trial was before the court without a jury, and judgment was rendered in favor of appellees.</p> <p>The facts found by the trial court are supported by the evidence and are here adopted:</p> <p>“That W. T. Braly on February 3, 1911, executed and delivered to Elwood E. Carlton and Walter Connally his two certain promissory notes for the sum of $2,639.90 each, duo one and two years from date, respectively, bearing 10 per cent, interest per annum from date, the interest payable semiannually, and in case any installment of accrued interest was not paid when due, the accrued interest should become as principal and draw interest at the rate of 10 per ■cent, per annum; also for 10 per cent, of the amount of the accrued interest and principal to be added in case of suit, or if placed in the hands of attorney for collection, and that failure to pay the first note should mature both notes.</p> <p>“That to secure the payment of said notes, W. T. Braly executed deed of trust ou certain lands in Smith 'county, Tex.</p> <p>“That the notes were executed for a loan by Carlton and Connally to Braly of $4,479.77, and said amount was the real consideration for which the notes were executed.</p> <p>“That in the fall of 1912, the first of the notes having matured, Carlton and Connally sued on same in the district court of Smith county, Tex., and prayed for' a foreclosure of the deed of trust lion on the land to secure the payment of same.</p> <p>“That on January 9, 1913, while said suit was pending, J. A. Bulloch bought said notes and paid to Carlton and Connally $7,075.89, the amount of said notes, principal, interest, and attorney’s fees, and on said day Carlton and Con-nally transferred said notes to said Bulloch by indorsement without recourse.</p> <p>“That of the amount paid by Bulloch to Carlton and Connally there was $1,914.55 usury. (But Mr. Bulloch had no knowledge or notice of any usury in the amount.)</p> <p>“That in the transaction by which J. A. Bul-loch purchased the notes from Carlton and Con-nally, he was acting for himself and not as the agent of W. T. Braly.</p> <p>“That some time after the purchase of the notes by Bulloch from Carlton and Connally, Braly deeded to him (Bulloch) the land which was given to secure the payment of said notes, and J. A. Bulloch thereafter sold the said land.</p> <p>“That from the proceeds of the sale of the land J. A. Bulloch retained the amount he had paid Carlton and Connally, together with expenses in making the sale of the land, and gave to Braly one-half of the remainder.</p> <p>“That Carlton and Connally understood they were selling, and in fact sold, the notes to Bul-loch individually and not as the agent of Braly, and Bulloch took an assignment of the notes and lien to secure same from said Carlton and Con-nally in order that he might be subrogated to the rights of Carlton and Connally for his protection against certain judgments held against Braly by other parties, which judgments had been abstracted in Smith county and under which execution had been issued and levied on the said land.</p> <p>“That Braly never paid to Carlton and Con-nally anything on the notes held by them and transferred to Bulloch, but the payment made by Braly was made to Bulloch in satisfaction of the debt he (Braly) owed to Bulloch and not to Carlton and Connally.</p> <p>“That after the sale and transfer of the notes by Carlton and Connally to J. A. Bulloch, Carlton died, leaving a will, which has been duly probated, wherein Sid Carlton and R. Bergfeld were made his independent executors, without bond, and his said estate is being administered by them, independent of the probate court.</p> <p>“I find that any payment or satisfaction of the notes in question was made by Braly to Bulloch, the owner and holder of the notes, and not to Carlton and Connally, and that said Braly is not entitled to recover from Carlton and Connally any usurious penalty.”</p>

<p>Judgment @=>255 — Pleading and Pboof.</p> <p>Judgment for plaintiffs in an action for destruction of grass by cattle cannot be sustained, the' complaint being based solely on defendant having taken down the fence, and there being no testimony in support thereof, but positive testimony to the contrary.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 445; Dec. Dig. @==>255. J</p>

<p>1. Justices of the Peace @=3l74r — Appeal-Pleading — Defense to Oeoss-Action.</p> <p>On appeal to the county court in an action on a note given in part payment for two mules, wherein defendant files a cross-action for damages for breach of warranty of the soundness of one mule, plaintiffs may plead purely as a defense to the cross-action settlement of the controversy by arbitration, thoush such defense was not presented in the justice court.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 665-698; Dec. Dig. @=>174.]</p> <p>2. Witnesses @=>74^-Competency — Arbitrator.</p> <p>An arbitrator is a competent witness to show what was in controversy before the arbitrators, what matters entered into their decision, and whether they were fair and impartial.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 188; Dec. Dig. @=>74.]</p> <p>3. Appeal and Ekkob @=>263, 500 — Presentation Below — Instbuctions.</p> <p>Where it appears that objections to the charge were made but does not appear how the court ruled on the objections, or that appellants excepted to the court’s ruling as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061, an assignment of the error complaining of the charge cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532, 2295-2298; Dec. Dig. @=>263, 500.]</p>

Denton, Judge. Action by W. H. Smith against the Texas & Pacific Railway Company. From a judgment sustaining exceptions to plaintiff’s pleadings and dismissing the suit on plaintiff’s failure to amend, he appeals.

<p>1. Malicious Peosecution <@=>72 — Probable Cause — Malice and Intent — Insteuction.</p> <p>In an action for malicious prosecution, an instruction that the burden was on plaintiff to establish that defendant made the complaint in the criminal proceedings without probable cause, and with malice and intent to injure plaintiff, was not bad as requiring plaintiff to prove all three elements thus depriving him of the benefit of the presumption of malice and intent which arises from the want of probable ■cause, since the want of probable cause is merely the basis for an inference of fact, and does not establish malice and intent as a matter of law.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173; Dee. Dig. <@=>72.3</p> <p>2. Malicious Peosecution <@=>72 — Malice— Intent — Insteuction.</p> <p>While such instruction was open to criticism for legal redundancy, it was not misleading, as tending to inform the jury that defendant could be actuated with malice while without intent to injure plaintiff.</p> <p>[E'd. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173; Dec. Dig. <@=>72.]</p> <p>3. Malicious Peosecution @=>72 — LANDLORD’S Lien — Instruction—Propriety.</p> <p>In a suit for malicious prosecution, where defendant had instituted criminal proceedings on a charge of the theft of a bale of cotton which plaintiff had sold under an alleged landlord’s lien on the crop of his tenant, but as to which defendant had a lien for certain advances to plaintiff, an instruction that the relation of landlord and tenant did not exist between plaintiff and his tenant was not objectionable because taking the issue of plaintiff’s lien from the jury, or as limiting plaintiff’s lien right to advances to the tenant only when it also covered rents, where the evidence showed that plaintiff, at the time of selling, was in the position of a mortgagee without possession or the right thereto, or that he had no landlord’s lien.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 168-173; Dec. Dig. <@=>72.3</p> <p>4. Malicious Peosecution <@=»59 —Landlord’s Lien — Collateral Issue.</p> <p>Such issue as to plaintiff’s lien was collateral to the main issue, and could be considered by the jury only on the question of plaintiff’s right to sell the cotton and defendant’s probable cause in instituting the criminal proceedings.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §§ 125-137; Dec. Dig. <@=>59.]</p> <p>5. Landlord and Tenant <@=>110 — Growing Crop — “Abandonment.”</p> <p>Where a tenant left the land rented while the crop was yet ungathered, for the purpose of moving from the state, but contracted with a third person to gather and dispose of the crop for him, the leaving was not an “abandonment” of the crop giving the landlord the right to possession of the land and crop and to have the latter gathered and sold.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 366-369, 371; Dec. Dig. <@=>110.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Abandonment.!</p> <p>6. Malicious Prosecution <@=>72 — Probable Cause — Instruction.</p> <p>In a suit for malicious prosecution, the instruction that in determining defendant’s probable cause for making the criminal complaint, the jury should consider only such facts as were known to defendant at the time he made the complaint, and that they should not consider any facts not then known to defendant which tended to, or which would, exonerate plaintiff from the charge of theft, was not misleading as limiting the jury on the question of defendant’s malice to facts known by him when instituting the criminal proceedings, when as a fact he appeared and testified against plaintiff at the trial, after ascertaining facts exonerating plaintiff.</p> <p>[Ed. Note. — For other cases, see Malicious Prosecution, Cent. Dig. §'§ 168-173; Dec. Dig. <@=>72.3</p> <p>7. Appeal and Eeror <@=>1068 — 1¿Harmless Error — Instruction—Cúre by Verdict.</p> <p>The refusal to charge in such suit that the jury should consider plaintiff’s attorney’s fees in defending himself against the criminal charge as an element of damages was harmless, where the jury by finding for defendant impliedly found that the essential elements of malicious prosecution, to wit, malice and want of probable cause, were not proved.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dee. Dig. <@=>1068.3</p> <p>8. Appeal and Eeeoe <@=>739 — Assignment of Error — Duplicity.</p> <p>An assignment of error that the court erred in refusing to give plaintiff’s special charges numbered 1 and 2 cannot be sustained regardless of the correctness of either special charge standing alone, since such assignment must be considered as duplicitous, or as complaining that the court erred in refusing to give both charges.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3034r-3036; Dec. Dig. <@=> 739.3</p>

<p>Appeal from ’ District Court, Harrison County; H. T. Lyttleton, Judge.</p> <p>Action between John C. Sanders and others and W. IP. Bledsoe. Appeal from an order overruling a motion to dissolve a temporary writ of injunction.</p>

<p>Appeal from Shelby County Court; J. S. Stephenson, Special Judge.</p> <p>Action by R. K. Cartwright against R. M. Ray. From a judgment sustaining demurrer to the answer, defendant appeals.</p>

J. Isaaoks, Judge. Action to quiet title by the Arno 'Co-operative Irrigation Company and Christine F. Werner against the Trans-Pecos Land & Irrigation Company and others, with cross-action by defendant company against plain'tiff Werner. Judgment on the verdict returned for plaintiff company against defendant company and others, and default judgment for defendant company against plaintiff Werner, and defendant company appeals.

<p>Appeal from District Court, Grayson County; W. J. Mathis, Judge.</p> <p>• Action by B. F. Smith against the Texas Traction Company. Judgment for defendant, and plaintiff appeals.</p> <p>The action is by appellant against appel-lee for damages for alleged personal injuries claimed to have been sustained while a passenger on an interurban car. The grounds of negligence alleged in the petition are: (1) Failing to have or furnish a light at Willow Grove station, the night being very dark, to enable plaintiff and other passengers to clearly see how to alight from the car; (2) negligently causing the car to pass beyond the usual stopping place at the station without notifying plaintiff, and causing him in endeavoring to alight to fall at a place where the distance between the ground and the car step was far greater than at the usual stopping place; and (3) knowing that plaintiff was endeavoring to alight from the step of the car, negligently starting the car forward without notice to him, causing him to fall. The case was submitted to the jury on special issues, and the court on the findings and the evidence entered judgment in favor of ap-' pellee.</p> <p>Appellant entered the interurban car at Denison at 11:15 o’clock p. m. to go to Willow Grove station; his home being about 400 feet south of the station. The night was dark, and there was lightning and drizzling rain. The car reached Willow Grove station between 11:30 and 11:40 o’clock p. m., and stopped for the passengers to alight at a point beyond the usual and customary place for stopping the car. The distance from the step of the car to the ground at the place of stopping was, according to plaintiff’s evidence, between 3 and 5 feet. On conflicting evidence the jury made the findings that the car stopped and remained standing; that plaintiff had a reasonable time in which to get off before the train started, and the car was not operated and did not start while the plaintiff was on the step; that plaintiff was not thrown or caused to fall by the starting or jerking of the car; and that he did not sustain his injury by reason of the starting or jerking of the car, but that plaintiff fell in alighting from the ear when it was standing still, and his fall was accidental, resulting without negligence on the part of the traction company or the plaintiff himself.</p>

<p>1. Appeal and Ebkob <&wkey;854 — Review — Right Decision on Wkong Ground.</p> <p>Where the judgment is right on the case made by the pleadings and evidence, the fact that the trial court may have based it on the wrong ground is no reason for reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3403, 3404, 3408-3424, 3427-3430; Dec. Dig. &wkey;>854.]</p> <p>2. Vendob and Purchases <&wkey;38 — Remedies oe Vendob — Rescission—Featjd.</p> <p>In a- vendor’s suit to cancel a deed and to recover the land, where it appeared that he took in payment a note payable to the purchaser and indorsed by him “without recourse,” secured by a mortgage on a horse sold by the purchaser to the maker, and that the purchaser knew that the horse had an incurable disease of which the vendor was ignorant and concealed it, the vendor, who would not have accepted the note had he known that the mortgage security was worthless, was entitled to cancel the deed and recover the land, notwithstanding the note was so entirely valueless as to justify judgment in his favor on the ground of no consideration for his deed.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 61-65; Dec. Dig. <5&wkey; 38.]</p> <p>3. Featjd <&wkey;17 — Misrepresentations—Concealment.</p> <p>Each party to a contract is bound to communicate to the other his knowledge of material facts, where he knows the other party is ignorant thereof, and they are not open or equally within his observation, and his concealment of such fact is as much a fraud as if the existence of the fact were expressly denied or the reverse of it expressly stated.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 15; Dec. Dig. &wkey;>17.]</p>

Error from Bowie County Court; Lee Tid-well, Judge. Action by the Arkansas Motor Company against Dr. E. L. Beck. Judgment for plaintiff was rendered in the justice court, and defendant procured a writ of certiorari, from the dismissal of which, on motion, he brings error.

<p>'Appeal from El Paso County Court; Adrian Pool, Judge.</p> <p>Action by the Western Picture Frame Company against 'Foutz & Zinkler. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Bowie County Court; Lee Tidwell, Judge.</p> <p>Action by Fish Johnson against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Bowie County Court; Lee Tidwell, Judge.</p> <p>Action by H. W. Rea against the Texar-kana & Ft. Smith Railway Company. From a judgment for plaintiff, defendant appeals.</p> <p>Appellant’s line of railway through Tex-arkana runs nearly north and south. While the principal business and residence parts of the city lie east 'of said line of railway, large parts of same, known as Rose Hill, lie west thereof. One of the most used thoroughfares between the part of the city west of said line of railway and the part east thereof is Seventh street. Said street runs nearly east and west where it crosses said railway. Appellee lived on Rose Hill. About 9 o’clock of the night of January 8, 1914, as appellee was in the act of crossing-said railway, while traveling in an automobile over said Seventh street, going to his home from the part of the city east of said railway, the automobile was struck and injured by one of appellant’s cars then being moved north across said street, over appellant’s track, by means of a locomotive operated by appellant’s employes. On the theory that appellant in so moving said car was guilty of negligence (1) in not having a watchman at the crossing to warn appellee of the approach of the train, (2) in not having a light and some person on the car as it moved towards and over the crossing to so warn appellee, and (3) in so moving the car without either ringing the bell or sounding the whistle of the engine to warn appellee before starting same and while it was pushing the train towards and over the crossing, appellee sought by his suit to recover of appellant damages suffered by him because of the injury,to the automobile, which he alleged to be the sum of $315.10. Appellant in its answer to appellee’s petition denied that it had been guilty of negligence as charged- against it, and alleged that whatever damage and injury appellee sustained was due to his own negligence, in that “he carelessly and negligently, and without regard for his own safety, drove upon the track, and occasioned in that way the collision,” which resulted in the injury to his automobile complained of. The trial was to the court without jury, and resulted in a judgment in favor of appellee against appellant for the sum of $155.10.</p>

<p>1. Insukance <&wkey;388 — Industrial Insurance-Estoppel.</p> <p>Where a policy, insuring a master on account of injuries received by employés, provided that if an employé sue on account of an accident, the master should notify the insurer, which would settle or defend the suit, whether groundless or meritorious; that the moneys expended in the defense should not be included within the liability fixed in the policy; that the insured should not incur any expenses for legal proceedings; and that no action would lie under the policy, unless it should be brought for loss or expense actually sustained and paid in satisfaction of a final judgment — the insurer, where it absolutely refused to conduct the defense, claiming that it was not liable for the particular accident, is, the premiums having been paid, estopped to deny liability for the necessary legal expenses and set up the provision that no suit should be maintained except for loss or expense actually sustained and paid in satisfaction of the final judgment.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1026, 1027, 1030, 1035, 1040, 1057; Dec. Dig. ©=3388.]</p> <p>2. Insurance <&wkey;512 — Industrial Insurance-Actions.</p> <p>Where a policy was conditioned to indemnify a master against loss and expense arising from claims on account of bodily injuries accidentally suffered by employés, and provided that the insurer would, at its expense, settle or contest the claim, and that sums expended in defense should not be included within the indemnity fixed in the policy, the master, the insurer having denied all liability and expenses for conducting a defense having been contracted, may, by cross-action in the employe’s suit in which the insurer was joined, recover the amount of such expenses together with a conditional recovery of the amount of the indemnity in ease the servant should obtain judgment.</p> <p>[Ed. Note. — For other cases, see Insurance, Dec. Dig. <&wkey;512.]</p> <p>3. Pleading <&wkey;406 — Misjoinder—Waiver.</p> <p>In a servant’s action for injuries against a master and an industrial insurer, the insurer may waive the misjoinder of an action over against it on the policy by the master.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1355-1359, 1361-1365, 1367-1374, 1386; Dec. Dig. <&wkey;>406.1</p> <p>4. INSURANCE <&wkey;145 — Industrial Insurance-Extension oe Policy — Conditions.</p> <p>Where a contractor orally arranged that an industrial policy should be extended on payment of premiums, he is not bound by a limitation of liability in the new policy which was not delivered, and which the agent merely told him was more extensive.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 276-291; Dec. Dig. <&wkey;>145.]</p> <p>5. Trial <&wkey;252 — Instructions — Applicability to Evidence.</p> <p>In an action on an industrial policy which had been verbally renewed and which covered the accident, an instruction that the minds of the parties must have met, and intended that the accident should have been included, is inapplicable to the facts, the company claiming that a subsequent policy, which was not delivered and did not cover the accident, was the one in force.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. &wkey;252.]</p> <p>6. Appeal and Error &wkey;>742 — Assignments —Propositions.</p> <p>A proposition that a tort cannot be joined with a contract is not germane to an assignment that suit was premature.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;>742.]</p> <p>On Motion for Rehearing.</p> <p>7. Appeal and Error i&wkey;>750 — Assignments —Sufeioienoy.</p> <p>Where, in a servant’s action against the master and an industrial insurer, the master sought recovery over against the insurer, an assignment, complaining that under the contract of insurance there could be no liability until the master had suffered loss by reason of paying judgment, is insufficient to raise the question of misjoinder of actions.</p> <p>[Ed. Note. — For other cases, see Anneal and Error, Cent. Dig. §§ 3074^3083; Dec. Dig. <&wkey;> 750.]</p>

<p>1. Receivers <&wkey;174 — Action Against — Leave oe Court.</p> <p>Absent permission of the federal court, which appointed him, a receiver of a railroad cannot, under the federal statute, be sued in a state court for an injury caused by the road before his appointment.</p> <p>[Ed. Note. — Por other cases, see Receivers, Cent. Dig. §§ 333-343; Dec. Dig. &wkey;174.]</p> <p>2. Carriers &wkey;>347 — Injury to Passenger Alighting from Moving Train — Contributory Negligence.</p> <p>That a passenger alights from a train moving slowly does not show contributory negligence per se, at least when done with the knowledge, assent and encouragement of the carrier’s employds.</p> <p>[Ed. Note. — Por other cases, see Carriers. Cent. Dig. §§ 1346, 1350-1886, 1388-1397, 1402; Dec. Dig. <&wkey;347.1</p> <p>3. Garetees <&wkey;333 — Injury to Passenger-Alighting from Moving Train — Contributory Negligence.</p> <p>Though a train is passing a passenger’s station, yet for him to alight when it is going fast, the danger from which should have been obvious to him, is contributory negligence, absent a showing that the danger was not apparent to him, and that he was induced by an employé of the carrier to do so.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1385, 1386, 1388-1397; Dec. Dig. <&wkey;>333.]</p> <p>4. Carriers &wkey;>321 — Duty of Passenger-Instruction.</p> <p>An instruction as to the duty of a carrier to a passenger can be given without the use of the word “possible,” as in the expression “the highest degree of care possible.”</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. <&wkey;321.)</p> <p>5. Trial <&wkey;304 — Misconduct of Jury — Discussing Pees of Plaintiff’s Attorney.</p> <p>It is misconduct of the jury, in a personal injury case, to discuss or consider the fees of plaintiff’s attorney.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 725-727; Dec. Dig. &wkey;304.]</p>

N. Browning, Judge. Action by R. E. Morris against M. C. Vaughn and others, with cross-petition by Vaughn against certain other parties. Judgment for plaintiff and for cross-defendants, and defendant Vaughn appeals.

<p>1. Trial <&wkey;251 — Instructions—Conformity to Pleading — Admission by Failure to Deny.</p> <p>Where a clause in a contract for an advertising scheme was pleaded as a part of the contract, and its presence therein not denied, but defendants disputed its truth as a representation, the submission of its truth or falsity to the jury was not error, since, under Vernon’s Sayles’ Ann. CSv. St. 1014, art. 1902, providing that defendant must plead to each fact alleged in the petition, and that facts not so pleaded to shall be taken as confessed, the statement was properly in the case as admitted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.]</p> <p>2. Contracts i&wkey;94 — Construction — Rep-resen tatio ns — Falsity.</p> <p>Where a contract for an advertising scheme contained the statement, “We are doing [business] at the rate of $180,000.00 a year,” and the evidence showed that sum to be an estimate, based on the sales for 30 days preceding the contract, it was not error to instruct the jury to find that the statement was true, on evidence that the sales for that period, if continued for 12 months, would exceed that sum.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent Dig. §§ 42(1-430, 1160, 1164, 1165; Dec. Dig. <&wkey;94J</p> <p>3.Contracts <&wkey;22 —Consent to Terms — Knowledge.</p> <p>Where a contract for an advertising scheme-contained the statement. “We are doing [business] . at the rate of $180,000.00 a year,” written m above the printed words, “Our last twelve months’ sales were $-,” the defendant must be held to have understood the words m accepting the contract as being only an estimate based on sales for a period directly preceding the contract, and not a statement of actual sales for the preceding year, and failure of his agent to communicate the basis of the estimate would not provide a defense.</p> <p>ula- ■^:0t6;.T'J£or other oases, see Contracts, Cent Dig- §§ 67, 82-92, 104-108; Dec. Dig.</p> <p>4.Corporations &wkey;447 — Contracts—Ultra Vires Acts.</p> <p>The contract of a hardware company for an- advertising scheme to extend its sales is in furtherance of its usual business and within its powers to make.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1786,1788,1807; Dec.Dig. &wkey;447.]</p> <p>5.Trial <&wkey;350 — Questions por Jury — Conflicting Evidence.</p> <p>It is not error to refuse to submit special questions fpr the jury, where the evidence on those questions is undisputed.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §| 828-833; Dec. Dig. &wkey;350.]</p>

<p>Appeal from Roberts County Court; J. E. Kinney, Judge. t</p> <p>Action by G. M. Moon against Orvale Thorn-burg. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Shelby County; W. C. Buford, Judge.</p> <p>S. E. Lawson was convicted, and appeals.</p>

<p>1. Exchange cur Property &wkey;>3 — -Contracts —Rescission—Fraud .</p> <p>Where defendant materially misrepresented the character and quality of his land, and plaintiff believed and relied thereon, and would not have entered into a contract for the exchange of lands but for them, the representations were ground for relief by rescission in a court of equity; in such case it is the actual misrepresentation of the lands that constitutes the gist of the action, and it is immaterial whether the representations are fraudulent or made through mistake, or that defendant told plaintiff he had never seen the land.</p> <p>[Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. §§ 3, 7; Dec. Dig. <&wkey;>3.]</p> <p>2. Exchange op Property <&wkey;13 — Cancellation — Instructions.</p> <p>In a suit to rescind a contract for the exchange of .lands and to cancel a deed executed by plaintiff to defendant, on the ground of fraud and mutual mistake, as to the character of defendant’s land, a charge that if all of defendant’s representations as to each and all of the lands were true the verdict should be for him, was not objectionable as placing too great a burden on him, and as calculated to mislead the jury.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 25-29; Dec. Dig. <&wkey;> 13.]</p>

<p>Appeal from District Court, Goliad County; John M. Green, Judge.</p> <p>Marshall Beverly was convicted of murder, and appeals.</p>

F. Leslie, Judge. Action by Mrs. L. A. Provine against the First National Bank of Honey Grove and others. From the judgment so far as favorable to the bank, plaintiff appeals.

<p>1. Warehousemen <&wkey;25 — Delivery by Warehouseman.</p> <p>A warehouseman, issuing for cotton stored nonnegotiable receipts stating no time of delivery, is under obligation to redeliver the cotton on seasonable demand therefor.</p> <p>[Ed. Note. — Eor other cases, see Warehouse-men, Cent. Dig. §§ 38-47; Dec. Dig. <&wkey;25J</p> <p>2. Warehousemen &wkey;?15 — Nonnegotiable Receipts — 1Transfer.</p> <p>Where goods are placed in a warehouse and nonnegotiable receipts are issued therefor, the bailor may make a valid transfer of the receipts. (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5S3.)</p> <p>[Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 31-34, 37; Dec. Dig. <§^15.]</p> <p>3. Warehousemen &wkey;>16 — Receipts—Transfer-Symbolic Delivery oe Goods.</p> <p>The transfer of nonnegotiable warehouse receipts by the bailor operates as between the parties as a symbolic delivery of the goods, and carries the title and constructive possession to the transferee.</p> <p>[Ed. Note — Eor other eases, see Warehouse-men, Cent. Dig. § 35; Dec. Dig. <@=?16.]</p> <p>4. Warehousemen <&wkey;25 — Conversion oe Goods.</p> <p>A warehouseman notified through its manager of the transfer of nonnegotiable warehouse receipts converts the goods where the manager thereafter delivers the goods on the mere order ■of the bailor to one not a holder of the receipts.</p> <p>[Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. §§ 38-47; Dee. Dig. <S&wkey;25.)</p> <p>■5. Warehousemen <&wkey;25 — Conversion — Transfer oe Business.</p> <p>A warehouseman holding cotton as bailee without definite time for delivery, breaches its obligation to redeliver by turning over its business to a .successor without the consent of the bailor, and hence is liable for a conversion by the successor.</p> <p>[Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. §§ 38-47; Dec. Dig. &wkey;>25.]</p> <p>■6. Warehousemen <&wkey;25 — Transfer oe Business-Liability oe Successor' for Conversion — Public Warehouseman.</p> <p>Where the manager of a private warehouseman has knowledge that nonnegotiable receipts for cotton have been transferred, and thereafter the manager, as successor to the warehouseman, ■becomes a public warehouseman under bond, and voluntarily assumes custody of the cotton, with■out the knowledge of the holder of the receipts, the manager holds the cotton subject to the ■original bailment contract, and not as a public warehouseman, and for -his act in delivering ■the cotton to one not producing the receipts, though on order of the bailor, the manager is jointly liable with the private warehouseman.</p> <p>[Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. §§ 38-47; Dec. Dig. <&wkey;25J</p> <p>-7. Warehousemen <&wkey;15 — Receipts—“Negotiable Receipt.”</p> <p>Under Acts 33d Leg. 2d Called Sess., e. 5. § 42, providing that the landlord’s lien shall continue so long as the cotton is stored in a warehouse, provided a negotiable receipt has not issued therefor, a simple receipt in form stating no time of delivery of cotton stored, but merely the date of storage, number of the receipt, weight, class, and number of bales, is not a “negotiable receipt.”</p> <p>[Ed. Note. — For other cases, see Warehouse-men, Cent. Dig. §§ 31-34, 37; Dec. Dig. <&wkey;></p> <p>•8. Constitutional Law <&wkey;161 — Landlord and Tenant &wkey;>25iL-LANDLOED’s Lien on Cotton — Statutes — Obligation of Contract.</p> <p>Acts 33d Leg., 2d Called Sess., c. 5, §. 42, providing that the landlord’s lien on cotton shall ■continue so long as the cotton is in storage in any warehouse, provided a negotiable warehouse receipt has not issued therefor, is applicable to cotton stored before the act took effect, but at a time when the landlord’s lien had not expired under Vernon’s Sayles’ Civ. St. ' 1914, art. 5477, terminating the lien when the cotton is off the rented premises more than a month, and such retroactive construction of the statute is not a violation of the obligation of contracts.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 494, 495; Dec. Dig. <S=» 161; Landlord and Tenant, Cent. Dig. §§ 986, 1034^-1044; Dec. Dig. &wkey;254.]</p> <p>9. Landlord and Tenant <&wkey;254 — Landlord’s Lien — Termination.</p> <p>Where a subtenant ginned cotton on which there was a landlord’s lien and hauled it to his own home, which was not the rented premises, and there kept it for two months, the lien was lost under Vernon’s Sayles’ Ann.' Civ. St. 1914, art. 5477, terminating a landlord’s lien when the cotton is off the rented premises more than a month, and that the tenant turned over his lien on the cotton to his landlord would not affect the termination.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 986, 1034-1044; Dec. Dig. &wkey;>254.]</p> <p>10. Landlord and Tenant <&wkey;254r — Landlord’ s Lien — Termination—‘ ‘Preparation for Market.”</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5478a, providing that a landlord’s lien shall not be lost by removal of agricultural products for the purpose of being prepared for market, storing cotton when ginned and baled for future sale is not a removal for the purpose of “preparation for market.”</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 986, 1034-1044; Dec. Dig. <&wkey;>254.]</p> <p>11. Warehousemen <&wkey;18 — Public Ware-housemen — Bonds—Right of Individual.</p> <p>There can be no recovery on a statutory bond of a public warehouseman at the suit of a private individual.</p> <p>[Ed. Note. — For other eases, see Warehouse-men, Cent. Dig. § 18; Dec. Dig. <&wkey;>18.]</p> <p>12. Appeal and Error <&wkey;846 — Record — Special Findings.</p> <p>In the absence of findings of fact by the trial court, the special findings cannot be reviewed.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3347-3362, 3366; Dec. Dig. &wkey;>846.]</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Suit by W. H. Knott against Gus Thomas and another. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Municipal Corporations <&wkey;1008 — Claims — Pbesentation.</p> <p>Where the special charter of a city declared that it should not be held liable for injury to persons or property unless the person claiming the same should within 30 days after the injury serve written notice upon the board of commissioners giving the time and place where the injury occurred and its nature, it is necessary, in order to charge the city with the negligence of the engineer in giving incorrect grades for the laying of cement walks which necessitated the relaying of the walks, to give notice to the board of commissioners; the fact that the city engineer knew of his own negligence not showing that the board of commissioners had knowledge thereof.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Gent. Dig. § 2179; Dec. Dig. c&wkey;> 1008.] -</p> <p>2. Appeal and Error <&wkey;970 — Review—Discretion op Trial Judge.</p> <p>The discretion of the court on motion to reopen a cause after the court has announced it will direct a verdict will not be reviewed unless an abuse appears.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 3849-3851; Dec. Dig. &wkey;> 970.]</p> <p>3. Trial <&wkey;68 — Reopening op Cause.</p> <p>In an action against a city, where the defense was that proper notice of claim had not been filed within time, it was an abuse of discretion after plaintiffs had closed, and it had announced that it would direct verdict for defendant, to refuse to permit the reopening of the cause to allow plaintiffs to give evidence showing proper presentation of their claim, where it did not appear that defendant’s witnesses who could contradict plaintiffs were absent, or that the trial would be delayed.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 158-163; Dec. Dig. &wkey;s68.]</p>

<p>Appeal from District Court, Collin County; M. H. Garnett, Judge.</p> <p>Action by Rufus Brown against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

R. Owen, Judge. Action by the Oil City Iron Works against Rice Common School District No. 2 and others. Erom a judgment against them, the School District and the defendant Fidelity & Deposit Company of Maryland appeal.

<p>1. Railroads <&wkey;398 — Intoxicated Trespasser — Discovered Peril — Negligence — SUFFICIENCY OF EVIDENCE.</p> <p>Evidence in an action for the death of an intoxicated trespasser from being run over by a train while he was lying on the track within the limits of a village at a place where the track was habitually used as a foot path held, to show that the operatives of defendant’s locomotive were willfully and wantonly negligent in failing to use the proper means to avert danger to deceased after discovering his position of peril.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent.Dig. §§ 1356, 3358-1303; Dcc.Dig. &wkey;398.]</p> <p>2. Railroads <&wkey;37G — Intoxicated Trespasser — Duty to Keep Lookout.</p> <p>A railroad company owes the duty as to a drunken trespasser lying on the track within the limits of a village at a place where the track is commonly used as a footpath to keep a reasonable lookout on its locomotives.</p> <p>i[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dee. Dig. <&wkey;376J</p> <p>3. Railroads &wkey;>376 — Intoxicated Trespasser-Discovered Peril.</p> <p>The duty of the operatives of a locomotive to use reasonable care to avoid injury after discovering the presence of a trespasser lying on the track is not destroyed or weakened by the fact that the trespasser is drunk.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dec. Dig. &wkey;376.]</p> <p>4. Trial <&wkey;351 — Refusal of Special Issue.</p> <p>The refusal of a special issue on a matter presented by the court was not error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834-839; Dec. Dig. &wkey;351.]</p> <p>5. Appeal and Error <&wkey;1062 — Harmless Error — Submission of Issues.</p> <p>In an action for the death of an intoxicated trespasser from being run over by a train while he was lying on the track within the limits of a village, the submission of the issue whether the operatives of the locomotive were negligent in failing to keep a lookout while running through the village, if error, was harmless, where th’e jury found that sufficient effort was not made to stop the train after the peril of deceased was discovered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent.Dig. §§ 423,2-4218; Dec.Dig. <&wkey;1062.]</p> <p>6. Railroads i&wkey;351 — Injury to Trespasser —Submission of Issues —Duty to Keep Lookout — Passway.</p> <p>The issue whether the track was used as a passway at the place of the accident was material to the question of defendant’s duty to keep a lookout, and hence was properly submitted, though deceased was lying down when struck by the train.</p> <p>TEd. Note. — For other cases, see Railroads, Cent. Dig. §§ 1193-1211, 1213-1215; Dec. Dig. *§ — 1351.)</p> <p>7. Appeal and Error <©=^1060 — Argument of Counsel — Cure of Error — Verdict.</p> <p>Remarks of counsel which were not supported by the evidence were not prejudicial, where they were promptly withdrawn by the court, and the small verdict returned indicated that the jury were not influenced thereby.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <&wkey;1060.)</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by T. G. Moss and. wife against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

Error from Hidalgo County Court; W. H. Gossage, Judge. Action by the Mercedes Lumber Company against the Heidelberg Amusement Club and others. Judgment for plaintiff, and certain defendants bring error.

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Action by A. J. Gibson against the Texas & Pacific Coal Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Railroads &wkey;>60 — Depots—Location.</p> <p>Rev. St. 1911, art. 6550, relating to the surveys of railroad companies and the location of depot grounds, which declares that a depot, having been designated, shall not be changed, applies only to the construction of new railroads, and does not, where public interest necessitates, preclude the straightening of a railroad or the changing of a passenger depot in a town when for the benefit of the public.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 134, 136; Dec. Dig. t&wkey;>60.]</p> <p>2. Railroads <&wkey;60 — Depots — Changes — Burden oe Proof.</p> <p>Where a railroad seeks to change its established depot on the ground that it is for public benefit, it has the burden of proving such benefit in an action to restrain such removal.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 134, 136; Dee. Dig. <&wkey;60.]</p> <p>3. Evidence &wkey;>82 — Record—Verity.</p> <p>Where the order granting a temporary injunction recited that the case was submitted on the pleadings, it must be presumed to state the truth, and is binding; no effort being made to correct it.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 104; Dec. Dig. <§»82J</p> <p>4. Injunction <&wkey;144 — Temporary Injunction-Issuance.</p> <p>Where the cause was submitted on the pleadings and there was enough of the petition undenied to warrant temporary injunction, it may be granted, notwithstanding the rule that the court shall not grant an injunction upon a sworn bill and answer without hearing evidence supporting the allegations of the bill.</p> <p>[Ed. Note. — Por other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. &wkey;144.]</p> <p>5. Estoppel <&wkey;67 — Equitable Estoppel.</p> <p>Where a railroad company, after receiving a conveyance of land which contained no restrictions as to the location of. its depot, accepted a deed containing restrictions, placed it on record, and built a depot according to the restriction, it is thereafter estopped to set up the unrecorded conveyance, though its possession of the land was notice of the unrecorded deed; purchasers of other land from the grantor having relied on such conveyance.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 163, 164; Dec. Dig. <&wkey;>67.]</p>

<p>Error from District Court, Eastland County; Thomas L. Blanton, Judge.</p> <p>Action by J. S. Davis against C. R. Miller. Judgment for plaintiff, and defendant brings error.</p>

<p>1.Appeal and Error &wkey;>742 — Assignments op Error — Propositions.</p> <p>Under rules 30 and 31 for the Court of Civil Appeals (142 S. W. xiii), declaring that, following the assignments of error shall come propositions of law, and that following the propositions of law shall come a brief statement, in substance, of the proceedings contained in the record sufficient to explain the proposition, assignments not subjoined by propositions or statements cannot be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>742.]</p> <p>2. Appeal and Error <&wkey;264r-J,RESENTATioN op Grounds op Review in'Court Below— Necessity.</p> <p>The law, requiring reservation of exceptions to the charge and to the giving or refusing of charges, does not apply to the action of the court in submitting, or refusing to submit, special issues of fact to the jury.</p> <p>_ [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1533-1535; Dec. Dig. &wkey;</p> <p>3. Appeal and Error <&wkey;742 — Assignments op Error— Sufficiency.</p> <p>To entitle an assignment of error to consideration, a statement showing, in substance, the_ proceedings complained of sufficient to explain and support any proposition urged under the assignment should be subjoined so as to save the court the labor of searching the transcript, and where the assignment complained of the refusal to submit additional questions, the questions, as well as the substance of the evidence on those issues, should be shown.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Dec. Dig. &wkey;?742.]</p> <p>4. Appeal and Error &wkey;>719 — Assignments op Error — Fundamental Error.</p> <p>A statement in argument that plaintiff alleged and proved defendant had unlawfully dispossessed plaintiff of his easement and alleged the forfeiture of such right, where those matters were not submitted to the jury, does not disclose error apparent on the record, since enough is not stated to make out an error of law without requiring the court to search the record.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. &wkey;719.]</p>

<p>Appeal from Young County Court; W. P, Stinson, Judge.</p> <p>Action by Mary S. Taylor against G. W. Jackson and another, in which defendant Jackson pleaded in reconvention. From judgment for defendant Jackson, plaintiff appeals.</p>

<p>Appeal from San Patricio County Court; M. A. CMlders, Judge.</p> <p>Action by J. W. Knowles against the St. Louis, Brownsville & Mexico Railway Company and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Error from District Court, Kinney County; W. C. Douglas, Judge.</p> <p>Action by H. G. Martin against Tom Perry. From a judgment for plaintiff, defendant brings error.</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Action by George Herder against the Rio Grande Fire Insurance Company, which counterclaimed. From a judgment for plaintiff denying defendant’s counterclaim, it appeals.</p>

<p>Appeal from Wood County Court; R. E. Bozeman, Judge.</p> <p>Action by H. W. Attaway against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Deeds @=>94 — Merger oe Previous Agreements.</p> <p>Where the seller of land executed a deed to the buyer, not naming such buyer’s partner, and the buyer alone executed notes covering the purchase price, his partner was not liable on such notes, since the rule that all prior verbal stipulations are merged in the final and formal contract executed by the parties applies to a deed based upon a contract to convey, which must alone be looked to to determine the rights of the parties.</p> <p>[Ed. Note. — Por other cases, see Deeds, Cent. Dig. § 266; Dec. Dig. @=>94,]</p> <p>2. Evidence @=>418 — Parol Evidence Affecting Writings — “Deed.”</p> <p>A deed is a contract under seal, and parol evidence to prove that the grantee’s partner, not named therein, was interested, was inadmissible to show such partner’s liability on notes given for the price by the grantee, and thus to vary the deed.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 1722, 1906-1911; Dec. Dig. ®=> 418.</p> <p>Por other definitions, see Words and Phrases, First and Second Series, Deed.]</p> <p>3. Evidence @=>418 — Parol Evidence — Parties — Deeds—Purchase by Partnership— Liability of Member.</p> <p>Where a partner purchased land, taking a deed naming himself alone as grantee and executing notes for the price signed by himself alone, under circumstances entitling his partner to assert a resulting trust in the land, such beneficiary partner was not liable to the holder of the notes, since the deed of conveyance, a sealed instrument, could not be varied by parol to show that the conveyance was to another as well as the named grantee.</p> <p>[Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 1722, 1906-1911; Dec. Dig. @=> 418.]</p>

<p>1. Witnesses <&wkey;255 — Examination—Use oe Documents.</p> <p>In an action to recover from a commission merchant and his surety the proceeds of a carload of cattle, the surety cannot complain that the commission merchant, who was examined as a witness, was allowed to refresh his memory as to the number* of cattle shipped and sold and the net sum due the shipper, hy examination of an account of sales prepared by his bookkeeper, where the witness testified that, having examined the account, he was able to testify from his recollection.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. &wkey;255.]</p> <p>2. Pbincipal and Subety &wkey;>160 — -Evidence —Admissibility.</p> <p>In an action against a commission merchant and his surety for the proceeds of a shipment of cattle, the account of sales and the check mailed to the shipper, which are admissible as original evidence against the merchant, can be received to establish as prima facie proof against the surety.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 486-^438; Dec. Dig. <®=»160j</p> <p>3. Stipulations <&wkey;18 — EmrECT on Stipulations.</p> <p>Where it was agreed between the parties that appellant’s hdnd should be considered as proved, recovery cannot be defeated because the statement of facts showed plaintiff merely “offered” the bond in evidence.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 41-54; Dec. Dig. <&wkey;18J</p> <p>4. Tbial- <&wkey;141 — Dieected Yebdict — Right to.</p> <p>Where the evidence was uncontradicted and defendant’s liability was clearly established, it was proper to direct a verdict for plaintiff.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. <&wkey;141.]</p> <p>Buck, X, dissenting.</p>

M. Oversliiner, Judge. Action by Henry James against C. P. Stevens and others, in which D. E. Adrian and another intervened. From a judgment for plaintiff against all defendants, for the in-terveners, and for defendant Dudley over against defendant Denman, said Denman, whose cross-action had been denied, appeals.

<p>1. Carriers <@=>30— Interstate Shipments— Rate Approved by Interstate Commeece Commission — Notice.</p> <p>A freight rate approved by the Interstate Commerce Commission- becomes effective immediately, though the carrier does not post the tariff in its local station.</p> <p>[Ed. Note. — Por other cases, see Carriers, Cent. Dig. § 81; Dec. Dig. <@=>30-. ]</p> <p>2. Carriers <@=>30 — Interstate Shipments— Wrong Quotation oe Rates — Right of Action.</p> <p>A wrong quotation by a carrier’s agent of lower rates for interstate shipments than that fixed by the Interstate Commerce Commission gives no right of action against the carrier to the shipper injured thereby.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 81; Dec. Dig. <@=>30.]</p> <p>3. Appeal and Error <@==>1071 — Statement of Pacts — Findings of Pact and Law.</p> <p>An approved statement of facts, showing no material conflict in the evidence, takes the place of, and dispenses with the necessity of- the filing of, findings of fact and law by the court, though request has been made for such findings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. <@=>1071.]</p> <p>4. Appeal and Error <@=>72-4 — Assignment of Error — Sufficiency.</p> <p>An assignment of error, stating that “the judgment * * * is contrary to the law * * * and the evidence, * v * ” being too general, will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. <@=>724.]</p>

J. Oxford, Judge. Action by the Cooper Grocery Company against Mrs. E. A. Neblett, executrix. Judgment for plaintiff against the named defendant, and she appeals.

B. Muse, Judge. Action by the Stein Double Cushion Tire Company, as assignor, for the use and benefit of the Mohawk Rubber Company, and the said Mohawk Rubber Company in its own behalf, against the William T. Fulton Company and the Southwestern Surety Insurance Company. From a judgment against defendants and in favor of the defendant Insurance Company against its codefendant, and orders overruling a motion for new trial, the defendant Insurance Company appeals.

W. Reese, Judge. Action for rent and foreclosure of landlord’s lien by Mrs. J. A. Lee against H. Horton. From a judgment for the amount of the rent and of foreclosure of the landlord’s lien, defendant appeals.

<p>Appeal from Tarrant County Court; Charles T. Prewitt, Judge.</p> <p>Action by the Ft. Worth Horse & Mule Company against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff for $125, and defendant appeals.</p>

<p>1. Banks and Banking <&wkey;96—Ultea Yibes CONTRACTS—SEPARABLE CONTEACTS.</p> <p>Where certain banks and an individual associated themselves to trade in cotton, and insured cotton in which they were to deal against certain perils, agreeing to pay premiums on the 15th day of each month for the preceding month, which agreement was reduced to writing and signed by “West & Co., Assured,” the name under which the hanks and their partner did business, they were liable on such agreement, since the contract for insurance was separate and apart from the partnership agreement, and was not in itself ultra vires.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 230; Dec. Dig. i&wkey;>96.]</p> <p>2. Banks and Banking <&wkey;96—Implied Con-teaot.</p> <p>Such banks were liable, apart from the question of ultra vires, upon quasi contract for premiums due under the policies.</p> <p>[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 230; Dec. Dig. &wkey;?96.]</p> <p>3. Banks and Banking <&wkey;>101 — Ultea Vires Contract — Formation of Firm — Recovery of Profits by Partner.</p> <p>Where banks made an ultra vires association with a natural person to deal in cotton, such natural person could recover from them his -share of any profits made by the firm, or, if the relation of principal and agent existed between the banks and himself, any compensation clue him, since corporations must perform the obligations imposed upon them by their ultra vires contracts fully executed by the other contracting party.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 237, 238; Dec. Dig. <§=» 101.)</p>

<p>Appeal from District Court, Johnson County; O. L. Lockett, Judge.</p> <p>Suit by A. C. Barber against the Cleburne Street Railway Company and others. Judgment for plaintiff against the other defendants, and against the Railway Company, with foreclosure of lien, and the Company appeals.</p>

<p>Appeal from District Court, Wise County; F. O. McKinsey, Judge.</p> <p>Action by J. M. Gibbon against the Jesse French Piano & Organ Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Karnes County; E. G. Chambliss, Judge.</p> <p>Action by Boxie Ethel Littleton, as ad-ministratrix and personal representative of the estate of J. B. Littleton, deceased, against the San Antonio & Aransas Pass Bailway Company. From a judgment for plaintiff, awarding damages to her individually and for the use and benefit of her children, defendant appeals.</p>