Volume 183 — South Western Reporter

Umphres, Judge. Action by Thomas and J. J. Curry against the Commonwealth Bonding & Casualty Insurance Company and another. From a judgment for plaintiffs, the named defendant appeals.

<p>1. Appeal and Erbob <&wkey;>387 — Time bob Perfecting Appeal-Filing Bond.</p> <p>Rev. St. 1911, art. 2084, provides that an appeal may be taken during the term at which the final judgment is rendered by giving notice of appeal in open court within 2 days after final judgment or 2 days after judgment overruling a motion for a new trial, and by filing with the clerk an appeal bond or affidavit in lieu thereof within 20 days after the expiration of the term, and that, if the term of court may by law continue more than 8 weeks, the bond or affidavit shall be filed within 20 days after notice of appeal is given if the party taking the appeal resides in the county and within 30 days if he resides out of the county. Held, that where, in a case tried at a term of court which by law could not continue more than 5 weeks, the appeal bond was not filed within 20 days after adjournment, the appellate court did not acquire jurisdiction of the appeal. , [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. <&wkey;> 387.]</p> <p>2. Appeal and Ebbob <&wkey;387 — Time fob Peb-eecting Appeal — Filing Bond. '</p> <p>Under Rev. St. 1911, art. 2084, the 30 days allowed a nonresident appellant in which to file his appeal bond applies only in cases where the term of court may continue longer than 8 weeks, and in such cases runs from the date of final judgment, and not from the expiration of the term. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2064-2070; Dec. Dig. <&wkey;> 387.]</p>

<p>1. Appeal and Eebob <&wkey;'569 — Agreed Statement oe Facts — Faieube oe Judge to Sign oe Apeeove — Eeeect.</p> <p>Where appellant brought up on appeal what purported to be a statement of facts proven on the trial, agreed to and signed by the attorneys for both parties, but not signed or approved by the trial judge, the statement cannot be considered.</p> <p>(Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2530-2545; Dec. Dig. <&wkey; 569.]</p> <p>2. Judgment &wkey;>456 — Default—Equitable Relief after Teem — Laches.</p> <p>Plaintiff alleged that it had been assured by defendant that under certain circumstances no judgment by default would be taken. The assurance was such as to entitle plaintiff to have the default set aside had it moved therefor in time. Plaintiff did not discover the default until after two days had elapsed after the rendition of judgment. Though several weeks of the term still remained, plaintiff failed to move to set aside the judgment during the term, but commenced this action in the following term to enjoin the enforcement of the judgment. Held, that it was not entitled to such relief in view of the fact that, with proper diligence, it might have moved for a new trial during the term, since a suit to set aside a judgment after the expiration of tie term of its rendition is in the nature of a new suit, in which plaintiff must show that it exercised diligence in pursuing its remedy or an excuse for its delay.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 863-866; Dec. Dig. <&wkey;456.]</p> <p>3. Judgment <&wkey;447 — Suit to Set Aside aft-eb Teem — Requisite Showing.</p> <p>A suit to restrain enforcement of a judgment after the expiration of the term is in the nature of a new suit, in which the plaintiff must not only show sufficient cause to authorize the court to set aside the judgment, but must also show a good defense to the action.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 849-851; Dec. Dig. <&wkey;447.]</p> <p>4. New Tbial <&wkey;119 — Dibectoby Statute.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2023, requiring motions to set aside judgments to be made within two days of their rendition, is directory only.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 243; Dec. Dig. &wkey;>119.]</p> <p>5. New Tbial &wkey;>119 — Tbial — Statutes — Court’s Discretion.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2019, providing for the granting of new trials and setting aside of judgments, and article 2023, limitirfg the time in which motions for new trial, etc., shall be made, it is within the court’s discretion to grant motions for new trials after the two days specified by article 2023 have elapsed.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. § 243; Dec. Dig. <&wkey;>119.]</p>

Error from District Court, Maverick County; W. C. Douglas, Judge. Action by Ninfa Johnston Garcia Reyes and husband against Adolfo G. Johnston and others. From judgment for plaintiffs, defendants bring error.

<p>1. False Imprisonment &wkey;>15 — Acts o» Agent — Scope of Authority.</p> <p>Where a detective of a railroad company procured the arrest of plaintiff, an employs, on a charge of larceny, the railroad company was liable for all damages resulting; the arrest being unlawful, because without a warrant, and the detective acting within the scope of his authority.</p> <p>fBd. Note. — For other cases, see False Imprisonment, Cent. Dig. §§ 5-67; Dec. Dig. <&wkey;> 15.]</p> <p>2. False Imprisonment t&wkey;25 — Actions— Evidence.</p> <p>In an action for damages for unlawful arrest and incarceration on a charge of larceny, evidence as to plaintiff’s reputation for honesty is properly admitted; the injury to reputation being the principal one.</p> <p>[Ed. Note. — For other cases, see False Imprisonment, Gent. Dig. § 102; Dec. Dig. <&wkey;> 25.]</p>

<p>Appeal and Error <&wkey;>1135 — Record—Questions Presented.</p> <p>Where the record contained no assignment of error, motion for new trial, or bill of exceptions, and no fundamental error is suggested or observed, the judgment will be affirmed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4454, 4455; Dec. Dig. <&wkey;> 1135J</p>

<p>1. Sales <&wkey;81 — Delivery—1Tike.</p> <p>Ordinarily, where delivery is to be made within a certain period, as within a designated month, the seller has until the last day of the month to make delivery.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 217-223; Dec. Dig. <&wkey;81.]</p> <p>2. Sales <&wkey;81 — Duty of Buyer to Furnish Cars — Performance.</p> <p>Where the buyer of goods has the right within a designated period to furnish cars or other receptacles for receiving the goods sold, delivery of the receptacles by him to the seller at any time before the expiration of the designated period, at most allowing a reasonable time for loading, is a compliance with the contract.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 217-223; .Dec. Dig. &wkey;81J</p> <p>3.Sales <&wkey;81 — Duty oe Buyer to Furnish Cars.</p> <p>AVhere ten tank cars of cotton seed oil were sold for shipment in January, the sale being made subject to the rules of the Cqtton Seed Crushers’ Association, which obligated the buyer to furnish at the seller’s mill empty tank cars for the delivery and shipment of the oil in time for its loading within January, and giving the seller 48 hours to load after delivery of the cars before he could be held in default, the seller had the right to cancel the contract as to five tank cars which did not reach it in time for it to have 2 full working days of 48 hours for loading them within the month of January.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. ⅞⅛. §§ 217-223; Dee. Dig. &wkey;81J</p>

Error from District Court, Hale County; R. C. Joiner, Judge. Garnishment proceedings by the Nunn Electric Company against L. C. Wayland, in which Ira W. Hall intervened. To review a judgment for the garnishee, the intervener brings error.

Error from Callahan County Court; L. L. Blackburn, Judge. Action by the Cisco Oil Mill against M. A. Shepherd, begun in justice court, and appealed by defendant to the county court. From a judgment of the county court in favor of defendant, plaintiff brings error.

<p>Appeal from District Court, Travis County; Geo. Calhoun, Judge.</p> <p>Action by C. W. Walsh against the Houston & Texas Central Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

Action by the Avis Hardware Company, a partnership, against J. P. Daggett and another. Judgment for plaintiff on answers of the jury to special interrogatories, and defendant Daggett appeals.

<p>Appeal from District Court, Knox County; J. A. P. Dickson, Judge.</p> <p>Action by J. A. Moody and another against Louis Chesser and others. From a judgment for defendants, plaintiffs appeal.</p>

H. Davidson, Judge. Suit by J. E. Josey and others against the Beaumont Waterworks Company. From a judgment for the defendant, plaintiffs appeal. This suit was instituted by the plaintiffs (appellants) against the defendant (appellee) to recover the value of their buildings and other property located in the city of Beaumont, which were destroyed by fire on September 7, 1913, which plaintiffs alleged were of the reasonable value of $77,032.18.

W. Nicholson, Judge. Action by Homer Johnson, by his father and next friend, S. Johnson, against the Atlas Supply Company, a corporation. From a judgment dismissing the action on plaintiff’s refusal to amend after sustaining a demurrer to the petition, plaintiff appeals.

C. Joiner, Judge. Petition filed by W. H. Fuqua in adminis tration proceedings on the estate of O. T. Reeves, of which Mrs. Minnie Reeves was ad-ministratrix, to foreclose a lien. From a judgment foreclosing the lien Mrs. Reeves appealed to the district court, and from the judgment of the district court, she appeals to the Court of Civil Appeals, and Fuqua moves to dismiss the appeal.

<p>Appeal from District Court, Jefferson County; W. H. Davidson, Judge.</p> <p>Action by W. W. Whitley against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Cooke County; C. F. Spencer, Judge.</p> <p>Injunction by G. W. Bruce against the City of Gainesville. From an order refusing to grant a temporary injunction, plaintiff appeals.</p>

<p>Appeal from District Court, Guadalupe County; M. Kennon, Judge.</p> <p>Action by the Staples Mercantile Company against the Avery Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

ft. Price, Judge. Action by H. E. Brown against W. W. Fink and others to recover for personal injuries. Judgment for plaintiff, and defendants appeal.

Goodwin, Judge. Action by U. Henderson and others against Avery Turner and another, receivers of the Ft. Worth & Rio Grande Railway Company, and the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff against the receivers and in favor of the Gulf, Colorado & Sante Fé Railway Company, and the receivers appeal.

<p>Appeal from District Court, Newton County; A. E. Davis, Judge.</p> <p>Action by Emma G. Adams and others against W. H. Stark and others.</p>

<p>1. Railboads &wkey;»243 — Ordinances— Rail-boad Grossings — Gates and Watchmen.</p> <p>The power granted by Rev. St. art. 764, to a city incorporated under the general law to pass ordinances needed for the general welfare authorizes an ordinance requiring railroads to construct gates or keep a flagman at each crossing.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent Dig. §§ 754, 757; Dee. Dig. &wkey;243.]</p> <p>On Motion for Rehearing.</p> <p>2. Evidence &wkey;>20 — Railboads &wkey;>243 — Obdinances — Railboad Crossings — Watchmen “All During the Day.”</p> <p>An ordinance requiring a railroad to keep a watchman at each crossing, who shall remain there “all during the day,” that is, the whole 24 hours, is void as unreasonable on its face; the court judicially knowing that trains do not run at all times on any railroad in the state.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 24; Dec. Dig. <&wkey;>20; Railroads, Cent. Dig. §§ 754, 757; Dee. Dig. &wkey;243.]</p>

<p>Appeal from Coleman County Court; T. J. White, Special Judge.</p> <p>Suit by M. Simon against Arthur Mueller. From a judgment for plaintiff, defendant appeals.</p>

F. Perritte, Judge. Action by the Commercial Guaranty State Bank against J. P. Clevenger and others. From a judgment for plaintiff against all the defendants, and for some of the defendants against defendant named and another, and in favor of defendant named against the other defendant, the' defendant named appeals.

<p>1. Principal and Subety @=3125 — Release of Subety — Extension of Time fob Payment.</p> <p>A mere forbearance to sue, without an agreement snot to do so, will not release a surety from liability for a debt.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Ceht. Dig. §§ 312-328; Dec. Dig. &wkey;3l25J</p> <p>2. PRINCIPAL AND SURETY <&wkey;>105 — RELEASE OF</p> <p>Surety — Extension of Time fob Payment. An agreement by the payee of a note with the principal maker, for a valuable consideration, to extend the time for payment for a definite time, made without the consent of the principal’s surety, will release the surety.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 191, 192, 196, 201-210; Dec. Dig. <&wkey;>105.]</p> <p>3. Principal and Surety <&wkey;108 — Release of Subety — Extension of Time — Consideration.</p> <p>The agreement whereby the payee of a note extends additional time to the principal maker for its payment, to release the principal’s surety, must be supported by a valid consideration.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 213-218; Dec. Dig. <&wkey;> 108.]</p> <p>4. Principal and Surety t&wkey;108 — Extension of Time fob Payment — Consideration.</p> <p>Where the payee of an interest-bearing obligation promises to forbear collection for a definite. time, and the principal debtor agrees to pay interest for such time, the mutual promises constitute valuable consideration, supporting the agreement, and incidentally ditecharging the principal’s surety, if made without his consent.</p> <p>[Ed. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 213-218; Dec. Dig. &wkey;></p> <p>5. Principal and Surety <&wkey;104 —Extension of Time foe Payment — Conditional Character.</p> <p>If the agreement between debtor and creditor for an extension of time for payment is conditional, it must be shown that such condition has been complied with, to effect the release of the debtor’s surety.</p> <p>LEd. Note. — For other cases, see Principal and Surety, Cent. Dig. §§ 186-190, 193-195, 197-200; Dec. Dig. &wkey;104.]</p> <p>6. Principal and Surety &wkey;>161 — Extension of Time foe Payment — Sufficiency of Evidence.</p> <p>In suit on a note, evidence as to plaintiff’s alleged agreement with the principal maker to extend the time for payment held, insufficient to sustain verdict for defendants, sureties for the principal maker.</p> <p>[Ed. Note. — For other cases, see Principal and Surety ]Oent. Dig. §§ 85, 439-441; Dec. Dig.</p>

<p>Appeal from Caldwell County Court; J. T. Ellis, Judge.</p> <p>Suit by A. .M. Clopton against Yan B. Flowers. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Joint Adventures <&wkey;l — Rescission of Contract — Misrepresentations as to Price.</p> <p>Where one person represents to another with whom he is in a confidential relation that he has a contract entitling him to purchase land at a certain price, and agrees that the other may have a half interest in the land by paying one-half of such price, his misstatement of the price constitutes fraud, entitling the other to rescind their agreement.</p> <p>[Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. § 1; Dec. Dig. &wkey;>l.]</p> <p>2. Action <&wkey;50 — Joinder oe Causes of Action-Parties Involved.</p> <p>In order to avoid multiplicity of suits, a suit in trespass to try title to land conveyed by two of the plaintiffs to a third under a warranty deed, and to cancel conveyances between defendants and notes given plaintiffs by one defendant, was properly brought by such plaintiffs against such defendant, who was alleged to have induced plaintiffs, by fraudulent representations as to price, to join with him in purchasing a half interest in the land, and against a person to whom this defendant had conveyed his interest.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. <S=350J</p> <p>3. Joint Adventures t&wkey;^ — Fraud—Waiver.</p> <p>Where purchasers with knowledge of false representations made to them as to the cost price of the land by one who thereby induced them to join with him in buying same, the entire tract being deeded to them pursuant to their contract with him, paid off the purchase-money notes and sold the land to a third person, they affirmed the contract in toto and waived their right to a rescission and cancellation of the contract so as to deprive their joint purchaser of his rights under it; their remedy in such case being by a suit for damages.</p> <p>[Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. §§ 3-6; Dec. Dig'. <&wkey;>4.]</p> <p>4. Joint Adventures <&wkey;5 — Purchase of Land — Misrepresentations as to Price-Measure op Damages.</p> <p>Where purchasers of a half interest in land are induced to buy, through misrepresentations of the purchaser of the other half interest as to the purchase price, the measure of damages recoverable by them from such other purchaser is the difference between the actual purchase price of the half interest and the amount which they have actually paid.</p> <p>[Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. § 7; Dec. Dig. t&wkey;>5.j</p> <p>5. Joint Adventures <&wkey;4 — Contract between Joint Purchasers — Construction-Conversion op Collateral.</p> <p>That the purchaser of a half interest in land had agreed with the purchasers of the other interest to whom the entire tract was deeded that in case he failed to sell the land within a certain time he would relinquish all claim to it did not entitle the other purchasers to retain and convert to their own use notes which he had pledged with them as collateral security.</p> <p>[Ed. Note. — For other cases, see Joint Adventures, Cent. Dig. §§ 3-6; Dec. Dig. <&wkey;>4.]</p>

<p>1. Indemnity 15 — Liabilities oe Tenant —Injury to Pkoberty — Action—Pleading.</p> <p>A petition alleging that plaintiff consented to defendant’s occupancy of a shed on condition that in case of loss by fire defendant would be responsible, and that the defendant then promised that he would be responsible for such damage, and that, relying on that promise, plaintiff consented to the use of the shed, and that the use was a valuable right, shows a good cause of action based on the special contract of the tenant to indemnify the landlord in case of loss by fire, since it sufficiently alleges the contract.</p> <p>[Ed. Note. — For other eases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. ⅞⅜=>15.)</p> <p>2. Indemnity ®=>3 — Contract — Consideration — Sueeiciency.</p> <p>Where plaintiff permitted the defendant to use a building of. his temporarily for the purpose of drying cotton, and the defendant agreed to indemnify him in case of loss by fire, the fact that the liability greatly exceeded the value of the use of the building did not vitiate the contract, since the liability was remote and contingent, and the use present and certain.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. §§ 2-6; Dec. Dig. <§==3.]</p> <p>3. Indemnity t@=»15 — Contract—Evidence.</p> <p>Evidence held to show that a tenant using a building with the permission of the landlord entered into a special contract to indemnify the landlord for loss in case of fire.</p> <p>[Ed. Note. — For other eases, see Indemnity, Cent. Dig. §§ 36-40, 42-47; Dec. Dig. <£=>15.]</p>

Action by A. Lensing and T. J. Bennett, co-partners against W. T. Caswell and another. From a decree for plaintiffs, the named defendant appeals.

Goodwin, Judge. Action by H. G. Ratliff against the Western Union Telegraph Company. Judgment for defendant sustaining general demurrer and special exception to the petition, and plaintiff appeals.

<p>Appeal from District Court, Jasper County; A. E. Davis, Judge.</p> <p>Action by W. A. Hardy against the Kirby Lumber Company. From a verdict for the plaintiff, the defendant appeals.</p>

<p>1. Carriers <§=>381 — Ejecting Passenger-Provocation — Mitigatino Damages.</p> <p>In plaintiff passenger’s suit against defendant railroad to recover for excessive force used by defendant’s conductor in ejecting him from a train, whefe plaintiff’s indecent offensive language incensed the conductor so that he was provoked into using such extra force, defendant was entitled to have such provocation considered by the jury in mitigation of damages.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1473-1476, 1479-1482; Dec. Dig. <§=>381.]</p> <p>2. Trial <§=>260 — Passenger — Provoking Conductor — Right to Special Instructions.</p> <p>In such action defendant was entitled to its requested instruction grouping the facts upon which it relied as entitling it to such mitigation, notwithstanding that the court’s general charge might in a general way lay down the rule of law applicable thereto.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <§=>260.]</p>

<p>1. Witnesses <§=>240 — Examination—Leading Question.</p> <p>Unless some exception exists, leading questions as to a material fact are not allowable; therefore, in an action for commissions for effecting a sale of land, it is improper to allow leading questions to the plaintiff broker as to whether defendant did not promise under stated circumstances to pay the commission.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. <§=>240.]</p> <p>2. Evidence <§=>213 — Admissions — Oompro-mise.</p> <p>In an action for commission for securing a purchaser for land, the broker is not entitled to show that he offered to arbitrate the controversy, but defendant refused; such testimony tending to prejudice defendant before the jury.</p> <p>[Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 745-751, 753; Dec. Dig. <§=>213.]</p> <p>3. Appeal and Error <§=>1170 — Review — Harmless Error.</p> <p>In an action for commission for effecting a sale of land, where the evidence as to plaintiff’s right to commission was conflicting, the impropriety of allowing leading questions to plaintiff as to defendant’s promise cannot be held harmless under rule 62a (149 S. W. x) and the judgment affirmed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dee. Dig. <§=>1170.]</p>

<p>1. Pleading ⅞=318 — Petition—Allegations —Sufficiency.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1827, providing that the petition shall set forth a full statement of the cause of action, a petition, alleging that defendants, as owners and promoters of a land company, contracted with plaintiff’s assignor for the erection of seven buildings in a town named, and to do “certain other work” in and about the town site, as a mechanic, was insufficient, because not definite enough to enable defendants to prepare their defense, or to put them on notice of the matters expected to be proved.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 39, 64; Dec. Dig. <S=»18.]</p> <p>2. Pleading <©=3330 — Issues, Peooe, and Variance.</p> <p>Where a verified account attached to the petition contained items other than those set forth in the petition, the account was inadmissible, as tending to establish a different contract from the one sued on.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 996-1002; Dec. Dig. <©=3330.]</p> <p>3. Assignments <©=3138 — Actions by As-signee — Evidence—Instructions.</p> <p>Where, in an action by an assignee of a claim, plaintiff alleged in the petition that the claim sued on was transferred to it for a valuable consideration, and the assignor testified that he .sold the claim to plaintiff for a specified sum, and the written transfer was introduced in evidence, refusal to submit to the jury the question whether plaintiff was the owner of the claim sued on was not erroneous.</p> <p>[Ed. Note. — Por other cases, see Assignments, Cent. Dig. §§ 235-238; Dec. Dig. <©=j138.]</p> <p>4. Judgment <©=>683 — Actions by Assignee —Conclusiveness.</p> <p>A judgment for an assignee, suing an assignor and the debtor on the account assigned, is conclusive as to the ownership of the claim, and is binding on the assignor.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 1206; Dec. Dig. <©=3683.]</p> <p>5. Limitation "ox Actions <©=>127 — Amendments — New Cause ox Action.</p> <p>Where the original petition filed before the running of limitations alleged that defendants contracted with plaintiff’s assignor for the erection of houses in a town and for other work in and about the town site, as a mechanic, that defendants agreed with plaintiff’s assignor to pay him for the work the amounts mentioned in an itemized account attached, and the account, attached as an exhibit, contained the item, “meals provided at opening, $300.00,” the petition and the exhibit showed that the suit was brought to recover for meals furnished, and an amended petition, alleging that defendants agreed to pay plaintiff’s assignor 50 cents per meal for persons coming to. the town-site opening conducted by defendants, and that in pursuance thereof plaintiff’s assignor prepared 600 meals for which defendants became liable to pay, did not set forth a new cause of action barred by limitations.</p> <p>[Ed. Note. — For other eases, see Limitation of Actions, Cent. Dig. §§ 543-547; Dec. Dig. @=> 127.]</p> <p>6. Limitation of Actions @=>123 — Running of Limitations — Pleadings.</p> <p>⅛ An original petition, though insufficient on general demurrer, prevents the running of limitations.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 539; Dec. Dig. @=> 123.]</p> <p>7. Contbacts @=>346 — Issues, Pboof, and Variance — Quantum Meruit.</p> <p>One suing on an express contract may not recover on a quantum meruit.</p> <p>[Ed. Note.' — For other cases, see Contracts, Cent. Dig. §§ 1714, 1718-1751; Dec. Dig. @=> 346.]</p>

<p>1. 'Party Wauls <⅜=?7—Agreements—Com-pensation.</p> <p>Where plaintiff consented to defendants using the wall of his building as a party wall for a structure they erected on the other side, and plaintiff received full compensation, he cannot enforce an agreement of the feme defendant, made by her husband, that he should have the use of a stairway in defendants’ building.</p> <p>[Ed. Note.—Por other cases, see Party Walls, Cent. Dig. §§ 19-23; Dec. Dig. <®=^7.]</p> <p>2. Set-Off and Counterclaim <S=»41—Subject-Matter op Set-Ofp.</p> <p>A husband who obtained money from plaintiff on fraudulent representations cannot set off, as against an action for that sum, injuries to his wife’s property by plaintiff.</p> <p>[Ed. Note.—Por other cases, see Set-off and Counterclaim, Cent. Dig. §§ 76-79, 81; Dec. Dig. <@=»41.]</p>

<p>1. Drains <S=»2 — Drainage District — Right to Vote.</p> <p>As Const, art. 3, § 52, merely secures to the people of a drainage district the right to vote on whether to issue bonds, Vernon’s Say les’ Ann. Civ. St. 1914, arts. 2477-2625r, preserib-ing the method of issuing drainage bonds, are not invalid; vote being provided for.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. § 17; Dec. Dig. <§=>2.]</p> <p>2. Drains <§=>20 — Drainage Districts— Statutes.</p> <p>While Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2597a, prohibits the institution of any suit which seeks to enjoin or contest the validity of the formation of any drainage district, or bonds issued, except in the name of the state by the Attorney General, a citizen taxpayer may attack the constitutionality of drainage laws or enjoin the issuance of drainage bonds where the officers issuing them have not complied with the law.</p> <p>[Ed. Note. — For other eases, see Drains, Dec. Dig. <§=>20J</p> <p>S. Constitutional Law <§=>143, 190 — Retro-activIü Legislation — 'Validity.</p> <p>Where the law under which issuance of bonds by a drainage district was voted provided that the commissioners’ court should not sell the bonds for less than their face par value and accrued interest, such law became part of the contract, and Acts 34th Leg. c. 33, providing that where drainage districts already organized have authorized the issuance of bonds, the county judge may sell bonds at not less than 90 per cent, of their face value and accrued interest, is retroactive, other provisions of the law showing that it was not to apply to'bonds to be issued in the future, and so is invalid under Const, art. 1, § 16, prohibiting bills of attainder, ex post facto law, or retroactive law, or any other law impairing the obligation of a contract.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 84CL-348, 531-533; Dec. Dig. <§=>143, 190.]</p> <p>4. Drains <§=>18 — Drainage Bonds —Issuance.</p> <p>Unless the county judge has given the bond required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2601, providing that before the county judge shall be authorized to sell any drainage bonds he shall execute a bond to the commissioners of such district for an amount not less than the amount of the bonds issued, conditioned upon the faithful discharge of his duties, he may be enjoined from disposing of drainage bonds.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 11, 13; Dec. Dig. <§=>1&]</p> <p>5. Drainage <§=>18 — Drainage Bonds — Issuance.</p> <p>"Where drainage bonds to run 40 years were authorized by vote of taxpayers, the commissioners’ court cannot issue bonds running only 25 years.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. §§ 11,13; Dec. Dig. <§=>18.]</p> <p>6. Drains <§=>66 — Bonds—Taxes.</p> <p>As Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2603, makes it the duty of the commissioners’ court, when any drainage bonds have been voted, to levy and cause to be collected a tax on all property within the district to pay the interest on such bonds and provide a sinking fund, such tax should be levied as soon as the bonds have been voted, and where they were voted in the middle of the year, the assessment cannot be attacked on the ground that it was levied for only part of the year, notwithstanding assessments for taxes are made on all property held by the owner on January 1st of each year.</p> <p>[Ed. Note. — For other cases, see Drains, Cent. Dig. § 177; Dec. Dig. <§=366.]</p> <p>7. Appeal and Error <§=>916 — Presumptions —Pleadings not Denied.</p> <p>Where the averments of a petition praying a temporary injunction were not denied, they must, for the purposes of an appeal from a judgment denying the writ, be treated as true.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3699-3705; Dec. Dig. <§=> 916.]</p>

<p>1. Boundaries ⅞=>37 — Establishment — Testimony oe Surveyor.</p> <p>Where, in a suit to recover a narrow strip of land claimed by adjoining owners, it conclusively appeared that the title of neither party could be based on limitations, and that the east boundary line of plaintiff’s tract called for the west boundary line of defendant’s tract, and it appeared probable that defendant’s lines and corners could be definitely ascertained by a proper survey, a surveyor’s testimony that in running lines of plaintiff’s land he began at her northwest corner and ran the distance called for in her field notes for her northeast corner and then ran the course and distance called for in her deed for her east line, was insufficient to identify plaintiff’s east line where it appeared that her field notes called for no distance for either of these lines.</p> <p>P3d. Note.—For other cases, see Boundaries, Cent. Dig. §§ 184-194; Dec. Dig. <§=3⅞7.]</p> <p>2. Appeal and Error <®=^562—Presentation eor Review—Evidence—Maps.</p> <p>Where it is sought to present for review evidence consisting largely of testimony of witnesses, wherein they made constant references to maps, the statement of facts should show the maps in connection with the references made thereto, so that the testimony may be intelligible to the reviewing court.</p> <p>[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2495-2499; Dec. Dig. 562.]</p>

<p>1. Railroads <⅜=>108 — Construction of Track — Culverts—Statutory Provisions.</p> <p>A railroad company failing to construct, as required by Rev. St. art. 6495, necessary culverts in an embankment is liable for all damages of which the failure was the proximate cause, and the company should have reasonably anticipated that water accumulating for want of necessary culverts would wash away the embankment, and in so doing not only dirt, but Johnson grass roots, if any, in the embankment, would be carried on the adjacent land below, to the damage of the owner thereof.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 333-336; Dec. Dig. ⅞=>108.]</p> <p>2. Trial <§=3260 — Instructions—Requests.</p> <p>Where, in an action against a railroad company negligently failing to construct necessary culverts in an embankment which was washed away and on the adjacent land, the court submitted to the jury the issue whether the market value of the land was injured by the spread of Johnson grass carried with the embankment onto the land, so" that the jury could not have found for plaintiff without finding a depreciation in the market value of the land by reason of the spread of Johnson grass on it, the refusal to charge that, though the jury found that the company was negligent in the construction of the embankment, and that by reason thereof Johnson grass had been washed on plaintiff’s land, yet, unless they found that the negligence injured the market value of plaintiff’s premises, the verdict must be for the company, was not erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dee. Dig. ©=260.]</p> <p>3. Railroads <®=>114 — Construction of , Railroad Track — Negligence—Evidence —Instructions.</p> <p>Where, in an action against a railroad company for negligently failing to construct culverts in an embankment which, with Johnson grass thereon, was carried by flood on the land of plaintiff, the evidence showed that there was a large amount of Johnson grass roots deposited on plaintiff’s land immediately after the flood, and that there was an increased amount of the grass growing on his land in the season following, and a witness testified that he cultivated the land adjoining plaintiff’s land, and that his land was overflowed, and a part of the embankment was washed thereon, that by cultivating his land he kept the grass thereon down in a large measure, and that, if plaintiff’s land had been cultivated in the same manner, the grass there in a large measure could have been destroyed, it was not error to refuse to charge that, if the jury found that there was more Johnson grass on plaintiff’s land after the flood than there was before, but such increase was caused from plaintiff not properly working his land, the verdict should be for the company, was not erroneous; for, if the increase of the grass could have been prevented by an increased amount of cultivation, "plaintiff, under a proper pleading, could have recovered the increased cost of cultivation rendered necessary by the deposit of the grass on the land.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 365-371; Dec. Dig. «=>114.]</p> <p>4. Trial «=>191 — Instructions—Weight oit Testimony.</p> <p>An instruction in an action against a railroad company negligently failing to construct culverts in an embankment which was by flood washed on plaintiff’s land that, if the rainfalls, surface or flood water that caused the embankment to crumble, if it did, and that washed up Johnson grass and roots thereof onto plaintiff’s land, “as alleged,” was such an unprecedented, etc., was not objectionable as assuming that the Johnson grass roots were washed on plaintiff’s land; for the words “as alleged” did not assume that the facts as alleged were proven.</p> <p>[Ed.. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. «=5191.]</p> <p>5. Railroads «=>114r — Construction of Embankment — Culverts — Negligence — Evidence.</p> <p>Evidence held to justify a finding that a railroad company negligently failed to construct culverts in an embankment on which there was Johnson grass, and that in consequence thereof the embankment and the grass were washed by flood on plaintiff’s land.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 865-371; Dec. Dig. «=>114.]</p>

<p>Error from District Court, Reeves County; S. J. Isaacks, Judge.</p> <p>Action by Newton Eastman against P. Albert Cooney and others. There was a judgment for plaintiff, and defendant Cooney brings error.</p>

<p>Appeal from District Court, Deaf Smith County; M. J. R. Jackson, Special Judge.</p> <p>Action by G. H. Porter against the Pecos & Northern Texas Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Trover and Conversion <§=1 — “Conversion’ ’ — Definition.</p> <p>Conversion is any unauthorized act of dominion or ownership which deprives a man of his personal property permanently or for a definite length of time.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 1, 2; Dec. Dig. <3=1.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Conversion.]</p> <p>2. Trover and Conversion <3=22 — Taking— Assent or Ratification.</p> <p>Where the owner expressly or impliedly assents to or ratifies, the taking, use, or disposition of his property, he cannot recover for conversion thereof.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 152-162, 167-169; Dec. Dig. <§=22.]</p> <p>3. Trover and Conversion <3=1 — “Conversion” — Intent—Positive Act.</p> <p>To constitute a conversion there must not only be an intent to convert, but such intent must be accompanied by a 'positive act of conversion.</p> <p>[Ed. Note. — For other eases, see Trover and Conversion, Cent. Dig. §§ 1, 2; Dec. Dig. <3=1.]</p> <p>4. Trover and Conversion <3=35 — Unauthorized Taking — Intent—Presumption.</p> <p>Where an act of conversion is unauthorized by the owner, the intent to convert will be conclusively presumed.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 215, 216; Dec. Dig. <§=35.]</p> <p>5. Trover and Conversion <3=7 — Train Damaging Automobile — Repairing and Holding for Owner.</p> <p>Plaintiff’s automobile was struck on a highway crossing by defendant’s train. Plaintiff left the automobile on the right of way for several days refusing to remove it. Thereafter the company’s claim agent consulted plaintiff’s attorney as to the disposition of the car, suggesting that the company be allowed to take it to another town for repair, and was advised that he would have to “back his own judgment.” The car was taken and repaired as suggested, and was afterwards held for the owner’s instructions with notice to the owner. The company held the automobile in storage for some time while futile negotiations for settlement took place, which ended with the bringing of this action in conversion. Seld that, since defendant attempted to exercise no right of ownership over the car, and did not take it without the owner’s consent, defendant was not guilty of conversion.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 51-57; Dec. Dig. <3=7.]</p> <p>6. Trover and Conversion <3=10 — Automobile Damaged by Train — Holding for Owner — Illegal Use or Abuse.</p> <p>The fact that, while defendant held such car in storage awaiting plaintiff’s order for disposition, certain persons who were unauthorized tw the company took the automobile out and slightly damaged it, whereupon the defendant repaired the damage and immediately removed the automobile to its roundhouse, where it was locked up, was not such an illegal use or abuse ■of the automobile as constituted a conversion by ■defendant.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 84-94; Dec. Dig. ■<S=^>10.]</p>

<p>Appeal from District Court, Bell County; W. W. Hair, Special Judge.</p> <p>Proceeding by M. H. Shanklin and others against Neal Bassel, Mayor, and others, to contest an election on a city charter. From an ¡adverse judgment, defendants appeal.</p>

<p>1. Insurance @=>819 — Mutual Benefit In-sueance — Actions—Evidence.</p> <p>In an action on a beneficiary certificate providing that there should be no recovery if insured died in consequence of violation or attempted violation of law, evidence held to warrant judgment against the insurer not showing that insured so met his death.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 2006, 2007; Dec. Dig. @=>819.]</p> <p>2. Witnesses @=>293 ½ — Examination — Self-In crimination.</p> <p>The rule that a person cannot be compelled to give testimony which would incriminate him applies, not only to criminal cases, but to civil cases.</p> <p>[Ed. Note. — For other eases, see Witnesses, Cent. Dig. § 1011; Dec. Dig. @=>293½.]</p> <p>On Motion for Rehearing.</p> <p>3. Witnesses @=>307 — Examination — Incriminatory Statements.</p> <p>Where a witness unequivocally stated that to answer statements might incriminate him, the court properly refused to compel Mm to answer such, questions, though on cross-examination he became confused as to the incrimination.</p> <p>[Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1081-1064; Dec. Dig. <⅜=>307.]</p>

<p>Appeal from District Court, Coryell County; J. H. Arnold, Judge.</p> <p>Action by Mrs. T. J. Cosgrove against C. G. Smith and another. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Appeal and Ebbob <@=>880 — Pebsons Entitled to Allege Ebbob.</p> <p>Where, in an action on a note by an in-dorsee and to foreclose a chattel mortgage, brought against the maker and mortgagor, and a third person in possession of the mortgaged chattels, the payee intervened, claiming the equitable ownership of the note to permit the third person to litigate his cross-action, which he did not sustain, the third person could not object to judgment for plaintiff against him.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3584-3590; Dec. Dig. <@=> 880.]</p> <p>2. Appeal and Ebbob <@=>1073 — Pebsons Entitled to Allege Ebbob.</p> <p>Where an indorsee of a note brought suit thereon and sought to foreclose a mortgage on chattels in the possession of and claimed by the third person, who replevied the chattels seized by plaintiff under writ of sequestration, and the payee intervened as the equitable owner of the note, and the third person was not entitled to recover, a judgment on the replevy bond for plaintiff and the intervener jointly was not prej-udicially erroneous as against the third person, though the bond was payable only to plaintiff.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4240^4247; Dec. Dig. <⅞=> 1073.]</p> <p>3. Sequestbation <@>=20 — Bonds—Judgment —Rent.</p> <p>Rev. St. 1911, art. 7112, providing that in suits for the enforcement of the mortgage, if defendant replevies the property he shall not he required to account for the rents of the same, is intended for the protection of the mortgagor, in whom the ownership remains until the property is sold under foreclosure, and a person not in privity with the mortgagor, who takes possession of the property and, when sequestered, replevies the same, is responsible for the renta thereof.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 42-49; Dec. Dig. <@=>20J</p>

<p>On motion for rehearing. Former opinion (178 S. W. 1015) affirmed, and motion overruled.</p>

<p>Appeal from District Court, Freestone County; H. B. Daviss, Judge.</p> <p>Action by James T. Lunsford against the Trinity & Brazos A'alley Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1.Appeal and Error <©=>1066 — Prejudicial Error — Instructions — Applicability to Evidence.</p> <p>In a suit for damages to a shipment of cattle from unreasonable delay, etc., a charge that, if the unreasonable delay caused the cattle to get to market a day later, and there was a decline in that market, the jury should find for plaintiff the amount of damages thereby sustained, was reversible error, where the evidence did not show that there was any decline in the market between the day when the cattle should have arrived and the day on which they did arrive, and where, for aught the court could tell, the jury might have based their verdict for plaintiff on such item of damages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dee. Dig. <©=>1066.]</p> <p>2. Appeal and Error <©=>1050 — Prejudicial Error — Evidence.</p> <p>In such action the admission of extracts in the nature of market notes or review, showing on their face that they were no part of the market quotations, was prejudicial error, though plaintiffs might have established market value by market reports from publications regarded and recognized as correct.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <©=>1050.]</p> <p>3. Carriers <©=230 — Injury to Shipment oe Cattle — Instruction—Damages.</p> <p>In such suit the charge directing a verdict for defendant carrier on the ground that no measure of damages had been shown was properly refused, as, notwithstanding there was no sufficient evidence on the measure of damages, plaintiffs were entitled to recover nominal damages.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 961, 962; Dec. Dig. <©=>230.]</p> <p>4. Trial <©=>191 — Instructions—Assumption oe Fact.</p> <p>In a suit for damages to a shipment of cattle from unreasonable delay, etc., a charge that the measure of damages was the difference between the value of the cattle as they were when they reached the market and their value if they had arrived in good condition and in reasonable time was objectionable, as assuming that there was a difference between the value of the cattle when they arrived and their value had they arrived earlier.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. <©=>191.]</p> <p>5. Trial <©=>191 — Instructions.</p> <p>Such instruction was objectionable, in that it assumed that the cattle were' damaged, and that they failed to arrive in good condition and in reasonable time.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. Dig. <©=>191.]</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and Error <©=>1173 — Disposition —Aepirmance.</p> <p>Where one of two carriers, defendants in action for damages to a shipment of cattle, had an instructed verdict in its favor, and the other suffered judgment and alone appealed, the judgment, though reversed and remanded as to the appellant, would be affirmed as to such defendant.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. <©=>1173.]</p>

<p>1. Master and Servant <©=5286 — Injuries to Servant — Actions — Evidence — Sueei-ciency.</p> <p>In an action by a switchman injured between the runnihg boards of two cars, evidence held to raise the issue of negligence with respect to defective drawheads or coupling appliances allowing the cars when switched to come too close together on striking, and so that issue was properly submitted. •</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <@=286.]</p> <p>2. Master and Servant <@=286 — Injuries to Servant — Negligence.</p> <p>In an action by a switchman injured when a car was let down against the cars on which he was riding, the question of negligence in propelling the last car at an excessive speed, held not raised by the evidence and improperly submitted.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <@=286J</p> <p>3. Master and Servant <@=139 — Injuries to Servant — Negligence.</p> <p>Where the railroad company let down a car against those on which plaintiff, a switch-man, was riding without a switchman to control the movement of the last car contrary to its rules, such negligence does not, where that car was not moving at an excessive speed and the impact was not unusual, warrant recovery for injuries which plaintiff sustained by being crushed between the running boards of the ears, such negligence not being the proximate cause of the injury.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 275, 282, 289, 296; Dec. Dig. <@=139.]</p>

<p>1. Commerce <®=>8 — Interstate Commerce— Resulations.</p> <p>When ears or locomotives which are required to be equipped with safety appliances under the federal Safety Appliance Act March 2. 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1913, §§ 8605-S623), are used upon or pass over a railroad -which, is used for interstate commerce, the federal act applies and is supreme.</p> <p>[Ed. Note. — Eor other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <®u=>8.]</p> <p>2. Evidence <®=j20 — Judicial Notice.</p> <p>The state courts will take judicial notice that practically all of the railroads in the state are engaged in interstate commerce.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 24; Dec. Dig. <®=o20.]</p> <p>8. Commebce <§=m8 — Interstate Commerce-Federal Regulations.</p> <p>The federal Safety Appliance Act, enacted under Const U. S. art. 1, § 8, subd. 3, giving Congress power to regulate interstate commerce, declares that nothing in the act shall apjfiy to trains composed of four-wheel ’ cars, or trains composed of eight-wheel standard logging cars, where the height of such car from the top of the rail to the center of the coupling does not exceed 25 inches, or to locomotives used in hauling such trains when such cars or trains are exclusively used for the transportation of logs. The journals of Congress show that the exception as first offered was intended to prevent regulations from requiring reshipment of coal loaded on mine cars, and that it was later extended to ordinary logging trains. Texas Safety Appliance Act (Rev. St. 1911, arts. 6709, 6710), declaring that it shall apply only to carriers engaged in intrastate commerce, purports to regulate the brakes on logging trains, etc. Seld that, as to a railroad engaged in interstate commerce, the state laws are inoperative; Congress by its inaction and the exception clearly showing that no regulation of logging trains should be made by the states.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. <®=»8.]</p>

<p>1. Monopolies <®=17 — Combinations in Restraint op Trade — Exclusive Right to Sell Beer — Statute—“Monopoly.”</p> <p>A contract whereby a brewing company, in consideration of plaintiff’s payment of a $2,400 debt owing to it by its agent, agreed to give plaintiff the exclusive right to sell its beer in Orange county, plaintiff to pay a fixed price, ordering the beer as he sold it and paying storage and selling expenses, there being no limitation upon the price he might charge his customers, not the retail consumer but saloon men, nor any prohibition upon his purchasing and selling the product of other breweries, was not violative, as a conspiracy in restraint of trade, of the Texas Anti-Trust Act (Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 7796, 7797, and 7798), defining trusts, a “monopoly” as a combination or consolidation of two or more corporations, and providing what acts shall constitute a conspiracy in restraint of trade.</p> <p>[Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. <§==>17.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Monopoly.]</p> <p>2. Frauds, Statute of <§=49 — Agreement Not to be Performed Within One Year-Agency Contract.</p> <p>An oral contract whereby a brewing company, in consideration'of plaintiff’s assumption of a debt to it, agreed to give him the exclusive right to sell its beer in Orange county, there being no express agreement as to the length of time the agreement should run, though for plaintiff to reimburse himself it would have to run for two or three years, was not invalid under the statute of frauds as a contract not to be performed within a year.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 74; Dec. Dig. <§=49. ]</p>

<p>Appeal from Haskell County Court; A. J. Smith, Judge.</p> <p>Action by R. W. Cole against the Kansas City, Mexico & Orient Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Peter Jones was convicted, and appeals.</p>

<p>Appeal from District Court, El Paso County ; Dan M. Jaclison, Judge.</p> <p>Habeas corpus by Lillie White against J. A. White and others. Relief denied, and applicant appeals.</p>

<p>Attachment <§=319 — Persons Liable — Code-msndants.</p> <p>Though more than one defendant is sued, it is not necessary that an attachment should apply to more than one of them.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent Dig. § 51; Dec. Dig. <⅞=⅞19.]</p>

Error from District Court, Bexar County; S. G. Tayloe, Judge. Action by W. C. Moore and wife against S. S. Beakley. Judgment on directed verdict for defendant, and plaintiffs bring error.

<p>Appeal from Hays County Court; J. R. Wilhelm, Judge.</p> <p>Action by Lauda & Storey against the International & Great Northern Railway Company and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.</p> <p>Suit by E. H. Barfield and others against S. E. Emery and others. Erom a judgment for plaintiffs, defendants appeal.</p>

<p>1. Action <§=>57 — Consolidation — Propriety.</p> <p>The court did not err in consolidating two suits in trespass to try title, where the parties and issues in both were the same.</p> <p>[Ed. Note. — For other cases, see Action, Cent. Dig. §§ 632-675; Dec. Dig. <§==>57.]</p> <p>2.Husband and Wise <§=>131 — Conveyance —Presumption op Gift.</p> <p>Where title to land, the community property of husband and wife, is passed by two simultaneous deeds for nominal consideration by the husband to a third person, and by such third person to the wife, the conveyances are equivalent to a deed from the husband to the wife and raise the presumption that there was a gift by the husband to make the land the wife’s separate property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 203-209; Dec. Dig. <§=></p> <p>3. Contracts <§=>104 — Simultaneous Contracts — Construction.</p> <p>In construing simultaneous contracts, the court should seek the inteution of the parties from the words used, the subject-matter, and the purpose of the contracts, reconciling conflicting clauses, if any, and consider the instruments in the light of surrounding circumstances, so as to give them fair and customary construction.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 746-748; Dec. Dig. <§=>164.]</p> <p>4. Deeds <§=>99 — Simultaneous Deeds — Construction.</p> <p>Two deeds executed at the same time between tlie parties thereto, both referring to the same subject-matter, are to be taken as parts of the same contract, and as forming one entire agreement.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 261-265; Dec. Dig. <§=>99.]</p> <p>5. Vendor and Purchaser <§=242 — Bona Fide Purchasers — Burden of Proof.</p> <p>Where .a wife held the legal title to lands, and conveyed it away, the burden was upon the heirs of her husband, seeking to assert their equitable title in trespass to try title, to show that the purchasers of the legal title from the wife were not innocent purchasers.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 469-473; Dec. Dig. <§=>242.]</p>

<p>Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.</p> <p>Action by J. J. Breen and wife against W. P. McLean, Senior, trustee, and others. Judgment for plaintiffs, and defendants appeal.</p>

W. Swayne, Judge. Action by Mrs. Josie Belle Dykes, who married J. E. Mitchell pending suit, and others against W. S. Essex, the Mutual Home Association, and others. From a judgment for plaintiffs, the named defendants appeal.

<p>1. Removal oe Causes <§=>3— Railroads — Action eor Injuries — Statute.</p> <p>. Under U. S. Comp. St. 1913, § 8662, providing that the jurisdiction of the courts of the United States under the Employers’ Liability Act shall be concurrent with that of the courts of the several states, -and no case arising under the act and brought in any state court of competent jurisdiction shall be removed to any court of the United Statesman employé’s suit for injuries against a railroad incorporated by act of Congress was. not removable from the state to the federal court on the-ground that it involved a question of law arising under a federal statute.</p> <p>[Ed. Note. — For other cases, see Removal of Causes, Cent. Dig. §§ 4, 5; Dec. Dig. <§=>3.]</p> <p>2. Appeal and Error <§=>1059(1) — Admission oe Evidence — Failure to Object — Estop-pel.</p> <p>In a suit for personal injuries, the improper admission of evidence relative to plaintiff’s physical condition was not ground for reversal, where the witness, without objection, was allowed to testify to substantially the same effect.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. §§ 1068, 1069, 4153, 4157, 4166; Dec. Dig. <§=>1050(1).]</p> <p>3. Trial <§=>85 — Evidence — Objection to •Evidence Admissible in Part.</p> <p>In an action for injuries, a lawyer’s testimony in answer to a question whether he was a physician that he supposed he was simply a layman in regard to surgery or medicine, but that he had tried so many personal injury cases and decided so many of them as a federal judge that the knowledge he had obtained in listening to physicians, together with whatever study of medical jurisprudence he had made, perhaps gave him a better knowledge of the human body and its injuries than the average man, was not improperly admitted over objection that it is argumentative, since only a part of the testimony was subject to such criticism.</p> <p>[Ed. Note. — For other cases, see Trial, Cent, Dig. §§ 222-225; Dec. Dig. <§=>85.]</p> <p>4. Appeal and Error <§=>1048 — Harmless Error — Argumentative Testimony.</p> <p>In a railroad employé’s action for injuries, in the absence of any testimony of a lawyer relative to plaintiff’s injury, the admission of his argumentative qualifying testimony that perhaps from experience in personal injury cases he was better qualified than the average man in regard to knowledge of the human body and its injuries was harmless error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. <§=>1048.]</p> <p>5. Evidence <§=>528 — Opinion Evidence — Medical Expert.</p> <p>In an action for personal injuries, testimony of -a medical witness, when asked if he could give any definite opinion as to whether or not the injuries to plaintiff were permanent, that the unexpected might happen, but that, if his diagnosis was correct, there was no authentic history of any case of such nature recovering, was not improper as being argumentative and involving extraneous matters.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2335-2337; Dec. Dig. <§=>528.]</p> <p>6. Evidence <§=>553 — Experts — Result oe Injury.</p> <p>In a railroad employé’s action for injuries, testimony of a medical expert that, if plaintiff fell from the top of the car and struck the ground on his back, the blow would have been sufficient to result in paralysis, was properly admitted in view of other testimony, though plaintiff testified that he did not know how he struck the ground.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. <§=>553.]</p> <p>7. Master and Servant <§=>256 — Injury to Servant — Pleading—Statutory Cause oe Action.</p> <p>In a railroad employé’s action for injuries, the allegations of the petition as to insecurity of a handhold on a car, which broke when plaintiff grasped it, and that the statutes of the state required the road to see that its cars were equipped with safe handholds, and made it unlawful to use cars not so equipped, were sufficient, particularly in the absence of general demurrer, to plead a cause of action under Yer-non’s Sayles’ Ann. Civ. St. 1914, art. 6713, providing that it shall be unlawful for any common carrier to use in moving interstate traffic any car unprovided with secure handholds.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 809-812, 815; Dec. Dig. <§=>250.]</p> <p>8. Commerce <§=>27 — Injury to Servant — Federal Statute — Engagement in Interstate Commerce.</p> <p>A railroad employé injured by the breaking of a defective handhold while setting the brakes on a car loaded with intrastate freight, which was part of a string of cars, being switched at the time, loaded with interstate freight, had a cause of action under the federal act as well as under state statutes requiring that cars be equipped with secure handholds.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. <§=>27.]</p> <p>9. Master and Servant <⅜=286 — Injury to Servant — Masters’ Negligence — Question eor Jury.</p> <p>Under the common-law rule for establishing negligence, where there w.as evidence that the railroad car on which a switchman was injured by breaking of a defective handhold had been delivered to his employing company very recently, and that the defect could not have been discovered by a customary, careful inspection, the question of the road’s negligence in using the car was for the jury.</p> <p>[Ed. Note. — Dor other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. <§=33286.]</p> <p>10. Master and Servant <§=3lll — Injury to Servant — Negligence op Master — 'Violation op Federal Sapety Appliance Act.</p> <p>A violation.by a railroad of the Federal Safety Appliance Act (U. S. Comp. St. 1913, § 8618 et seq.) is negligence per se.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. <§=>111.]</p> <p>11. Master and Servant <§=>111 — Injury to Servant — Negligence op Master — Failure to Comply with Appliance Act.</p> <p>A railroad’s failure to comply' with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6713, making it unlawful for carriers to use .any car unprovided with sufficient handholds, is negligence per se.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 215-217, 255; Dec. Dig. <§=3lll.]</p> <p>12. Trial <§=>139, 140 — Credibility op Witnesses — Question por Jury.</p> <p>By express statutory provision the jury are the exclusive judges of the credibility of a witness and the weight to be given to his testimony.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 332-335, 338-341, 365; Dec. Dig. <§=3 139, 140.]</p> <p>13. Damages <§=?185 — Injury to Servant — Extent op Injuries — Suppiciency op Evidence.</p> <p>In a switchman’s action for injuries against his employing railroad, evidence held sufficient to support a finding that plaintiff sustained permanent injuries to his back and spinal column resulting in paralysis of his legs and certain organs.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 503-508; Dee. Dig. <§=>185.]</p> <p>On Motion for Rehearing.</p> <p>14. Trial <§=375 — Objection to Evidence— Waiver.</p> <p>In switchman’s action for injuries against his employing railroad, the defense waived the right to object to a hypothetical question to a medical witness, as to whether the accident to plaintiff could or probably would result in paralysis, by its failure to object to other testimony to the same effect.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 171-182, 252; Dec. Dig. <§=>75.]</p> <p>Dunklin, J., dissenting.</p>

<p>Appeal from District Court, Harris County ; J. W. Woods, Special Judge.</p> <p>Suit by J. H. McCardell against the E. Al-kemeyer Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Corporations <©=>423 — Torts—Slander.</p> <p>A corporation is liable for a slander uttered by its employé within the scope of his employment, as well as for other torts involving malice.</p> <p>[Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 1692-1695, 1903, 1906; Dec. Dig. <©=>423.]</p> <p>2. Courts <§=>89 — Rules op Decision — Au • thorities — Text-Books.</p> <p>Text-books are at bést only secondary authority, and their value depends on the care with which their authors examined the cases cited and their ability to draw correct conclusions therefrom.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 311, 312; Dee. Dig. <S=>89.]</p> <p>3. Corporations <©=>423 — Torts — Acts oe Employé — Scope oe Authority.</p> <p>A slander uttered by the manager of a corporation in giving an employé the reason for her discharge is within the scope of the manager’s employment, though he was not authorized to slander her.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1692-1695, 1903, 1906; Dec. Dig. <@=>4⅛3.]</p> <p>4. Libel and Slander <©=>33 — Actions—Evidence.</p> <p>In an action for slander, proof of special damages is not necessary where the words constitute slander per se.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 112, 277; Dec. Dig. <©=></p> <p>5. Libel and Slander <®=>7 — Words Actionable-Slander Per Se.</p> <p>Statement by the manager of a telephone company to an employé that the company did not allow girls to work for it who were not ladies ; that she and her roommate had had men in their room at night — were slanders per se.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. <§=>7.]</p> <p>6. Telegraphs and Telephones <©=>48 — Slander by Manager — Slander.</p> <p>A telephone company is liable for a slander, uttered by its manager in discharging an em-ployé, as a violation of its duty to protect young ladies employed by it from insult and slander by its manager in the conduct of its business.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 30; Dec. Dig. <©=> 48.]</p> <p>7. Libel and Slander <&=80 — Actions — Pleading.</p> <p>In an action against a telephone company for slander by its manager in discharging an em-ployé, where the employé does not sue for damages for her discharge, a special exception to allegations in the petition that she satisfactorily performed all of the duties required of her should be sustained.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 184-186; Dec. Dig. <§=> 80.]</p> <p>8. Libel and Slander <§=>107 — Right oe Action — Damages.</p> <p>In an action for slander, whether plaintiff was rich or poor was not material to either her right of action or measure of damages.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 209-303, 305, 351; Dec. Dig. <®=>107.]</p> <p>9. Libel and Slander <§=>80 — Actions — Pleading.</p> <p>In an action against a telephone company for slander by its manager in discharging plaintiff, an employé, where no damages are claimed for being compelled to leave the office of the company, an exception to allegations that the plaintiff left the telephone office because she feared that the manager would assault .her should be sustained.</p> <p>[Ed. Note. — Eor other eases, see Libel and Slander, Cent. Dig. §§ 184-186; Dec. Dig. <§=> 80.]</p> <p>10. Libel and Slander <§=>89 — Actions — Pleading. '</p> <p>In an action for slander, the facts as to impairment of plaintiff’s health by reason of the slander should be alleged.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 213, 214; Dec. Dig. <§= 89.]</p> <p>11. Appeal and Error <§=>1060 — Review — Prejudicial Eeeect oe Error — Remarks oe Counsel.</p> <p>Where there was a verdict for $20,000 for slander, the Court of Appeals will not hold that improper and highly inflammatory remarks of counsel for plaintiff do not constitute reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <§=>1060.]</p> <p>12. Telegraphs and Telephones <§=>48 — Slander by Manager — Scope oe Employment.</p> <p>A slander, uttered by the manager of a telephone company in offering employment to another in place of plaintiff, who was discharged, and giving the reason for the discharge, was not within the scope of the manager’s employment.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 30; Dec. Dig. <§=> 48.]</p> <p>13. Pleading <§=>369— Motions — Election Between Causes.</p> <p>In an action against a telephone company and its manager for slanders uttered by the manager within the scope of his employment and outside the scope of his employment, the plaintiff should be compelled to elect whether to proceed against both parties jointly for the slander uttered by the manager as agent for the company or for those uttered by the manager in his individual capacity.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 1199-1209; Dee. Dig. <⅜=369.]</p> <p>14. Libel and Slander <§=>28 — Actions — Damages.</p> <p>Where words constitute slander per se, the damages are not limited to utterances by the de-r fendant alone, their repetition being the natural and probable result of the original slander.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 104; Dee. Dig. <®=>28.]</p> <p>15. Torts <§=>15 — Proximate Cause.</p> <p>Every one is responsible for injuries of which his own wrong is the proximate cause.</p> <p>[Ed. Note. — Eor other cases, see Torts, Cent. Dig. §§ 19-22; Dec. Dig. <§=>15.]</p> <p>On Motion for Rehearing.</p> <p>16. Appeal and Error <§=>1173 — Disposition oe Cause — Eeeect as to Copartners.</p> <p>Under Rev. St. 1911, art. 1997, providing that there shall he but one judgment, on an appeal by one defendant from a judgment against both, a reversal as to the appellant will operate as a reversal of the judgment as to both defendants, notwithstanding the consent of the other defendant to an affirmance as against him, to which the plaintiff refuses to consent.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. <§=>1173.]</p>

<p>1. Trial <g=»12l(2) — Argument of Counsel— Evidence to Sustain.</p> <p>In an action for general damages for slander, remarks by plaintiff’s counsel that: “Slander goes upon wings and is scattered; slander gets wings and never stops” — were proper; proof of the natural consequences of an act shown by the testimony not being necessary to warrant counsel to refer to them.</p> <p>[Ed. Note. — Por other_cases, see Trial, Cent. Dig. §§ 294-298, 300; Dee. Dig. @=»121(2)J</p> <p>2. Evidence ⅞⅝»121 — Competency—Res Ges-T-as.</p> <p>In an action against a telephone company for slander uttered by its manager, in stating that the company did not allow girls who were not ladies to hang around the office, the response of plaintiff that she was as pure as the manager’s wife was competent as part of the res gestae.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. <©=>121. ]</p> <p>3. Libel and Slander <§=>105 — Actions — Evidence.</p> <p>In an action for slander, where it is shown that defendant’s manager at his house told plaintiff and her roommate that they were discharged ; that defendant company did not allow girls to work for it that were not ladies; that they had had men in their room at night, and later at the company’s office told them to get out; that defendant did not allow girls who were not ladies to hang about the office, whereupon plaintiff said that she was as pure as the manager’s wife — his reply that if she were a man he would slap her downstairs was competent, as tending to show that he meant by his language at the house to charge her with having had carnal intercourse with men.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 282, 283, 292-294; Dee. Dig. <©=>105J</p> <p>4. Libel and Slander <§=>88 — Pleading — Petition.</p> <p>Allegations, in a petition for slander, that plaintiff would henceforth be debarred from honorable employment; that she had suffered in her reputation among the people of the community ; that she would henceforth be looked upon with scorn and ridicule, and would always be excluded from the society of respectable people, not knowing the falsity of the imputations cast upon her — are not objectionable as being vague and uncertain, nor as alleging remote and speculative damages.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 212; Dec. Dig. <§=88.]</p> <p>5. Libel and Slander <§=88 — Pleading— Damages.</p> <p>In an action for general damages for slander, the petition need not itemize the elements of damages as to what amount was claimed for loss of employment, what for loss of society, etc., hut may allege the damage in the aggregate.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 212; Dec. Dig. <§=>88.]</p> <p>6. Libel and Slander <§=124 — Instructions.</p> <p>In an action against a corporation for slander by its manager, instructions, authorizing recovery if the manager was the agent of the company and was then acting for it within the scope and authority of his employment, is not objectionable as permitting a recovery merely because the language was uttered contemporaneously with the manager’s employment by defendant.</p> <p>[Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 365-370, 372, 373; Dec. Dig. <§=124.]</p> <p>7. Libel and Slander <®=4 — Elements — “Actual Malice.”</p> <p>“Actual malice” includes an unlawful act done in reckless disregard of the rights of another.</p> <p>[Ed. Note. — Eor other cases, see Libel .and Slander, Cent. Dig. § 111; Dec. Dig. <§=4.</p> <p>Eor other definitions, see Words and Phrases, Second Series, Actual Malice.]</p>

Styles, Judge. Action by E. Watkins and others against the Northern Irrigation Company. From a judgment on a directed verdict for the plaintiffs, the defendant appeals.

<p>1. Cotjbts ©=>52^Gounty Courts — Jurisdiction — Distbict Cóubts — Appellate Coubts.</p> <p>Where Acts 34th Leg. c. 125, § 2, conferring upon the county courts the civil jurisdiction of ordinary county courts, and repealing the act of the Twenty-Third Legislature, divesting such courts of practically all of their jurisdiction save probate jurisdiction, went into force at the time an appeal from justice court was pending-in the district court, the jurisdiction of the district court terminated.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 184-192; Dec. Dig. ©=>52.]</p> <p>2. Appeal ahd Ebeob ©=>20 — Jurisdiction oe Lowee C'ouet — Necessity.</p> <p>Where the district court had no jurisdiction of an appeal from a justice of the peace, the Court of Civil Appeals has no jurisdiction of a further appeal from the district court, except to reverse and direct the transfer of the cause to the county court having jurisdiction of the appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 81-87; Dec. Dig. ©=>20.)</p>

<p>Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.</p> <p>Claude Clark was convicted of burglary, and appeals.</p>

<p>Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.</p> <p>Action by E. D. McMillen and another against the Texas & Pacific Bailway Company. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, El Paso County, Ballard Coldwell, Judge.</p> <p>Action by Roscoe Hawkins, by next friend, against Dudley & Orr. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Eeeoe <$=51040 — Haemless Eeeoe — Rulings on Pleading.</p> <p>Though plaintiff might have made plainer how he sought a recovery, overruling an exception to the petition, on the ground that the action was against, a firm, and not its members, .Aeld harmless, if error, one of the partners having sworn to the answer, and both having testified ; and Rev. St. 1911, art. 1863, authorizing in suits against partners, on service of one partner, judgment against him and the firm.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4089 — 4105; Dec. Dig. <$=> 1040; Pleading, Cent. Dig. §§ 284, 400, 423, 450, 490,- 567, 568.]</p> <p>2. Tkovee and Conveesion <$=>40 — Damages —Evidence—Value oe Secondhand Goods —“Pbactically.”</p> <p>Relative to damages for conversion of secondhand goods, it not being shown that there was a market therefore or one where they could be bought, evidence that they cost, when new, ■$680, and that they were “practically”' as good -as new, is sufficient proof of the value to warrant a judgment for $250, “practically,” in the sense here used, meaning almost or nearly as valuable as when new.</p> <p>[Ed. Note. — For other cases, see Trover and Conversion, Cent. Dig. §§ 232-244; Dec. Dig. <g=>40.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Practical.]</p> <p>On Motion for Rehearing.</p> <p>3. Chattel Moetgages <$=>148 — Fixtubes — Foreclosure — Pkioe Execution Sale oe House — Notice—Sheriff’s Retubn.</p> <p>One foreclosing a mortgage on fixtures in a house, and removing them, is not charged with notice of what was shown by the sheriff’s return on a prior execution sale of the promises; the deed not being recorded, and papers in a case in court not being constructive notice, except where specially provided for, as in case of lis pendens.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 243 ; Dec. Dig. <$=>148.]</p> <p>4. Chattel Moetgages <$=>149 — Fixtures— Foeeclosuee — Peiob Execution Sale — Notice — Possession by Tenant.</p> <p>One foreclosing a mortgage on fixtures in a house, and removing them, is not charging with notice of the right of a purchaser of the premises at execution sale, because he has a tenant in possession, such tenant being ‘the prior owner, who gave the mortgage.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 245; Dec. Dig. <$=>149.]</p> <p>5. Estoppel <$=>94^-Judicial Sale — Failuee to Give Notice op Ownebship.</p> <p>One who, after purchasing a house at execution sale, was attorney for the former owner in a suit by another to foreclose a mortgage given by such former owner on fixtures in the house, and gave no notice of his having an unrecorded deed, but approved the judgment of foreclosure, stating that the lien of the mortgage, as it existed at date of its execution, was still in force, and gave no notice at the sale thereunder, is estopped to assert title against the mortgagee, who purchased at the sale under the judgment, and removed the fixtures.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 245-247, 276-284; Dec. Dig. <$=> 94.]</p>

Error from District Court, Deaf Smith County; D. B. Hill, Judge. Action by R. N. Mount against the General Bonding & Casualty Insurance Company and another. There was a judgment for plaintiff, and defendants bring error.

<p>Appeal from District Court, Austin County ; Frank S. Roberts, Judge.</p> <p>Suit by R. T. Walton against Bertba Hari-gel and others. From a verdict for the defendants, the plaintiff appeals.</p>

<p>1. Banks and Banking <S=o154 — Deposits— Actions — Sufficiency of Evidence.</p> <p>In an action by an insurance company to recover an alleged balance of a deposit with a trust company claimed by plaintiff to represent the selling price of stock sold to the trust company, in which the trust company claimed that the credit was fictitious and that it was acting as a trustee in collecting notes given by subscribers to stock in the plaintiff company, and did not itself buy the stock, evidence held sufficient to support a jury finding that there was a bona fide sale of the stock for a consideration paid by a deposit certificate with an agreement that the debt evidenced by the deposit slip might be canceled by the delivery of the stock to makers of the notes and delivery of the amounts collected on the notes to plaintiff.</p> <p>[Ed. Note. — Eor other eases, see Banks and Banking, Gent. Dig. §§ 502-512, 515, 516, 518-533; Dec. Dig. <⅞=15⅜.]</p> <p>2. Tbial <§=^260 — Instructions — Repudiation.</p> <p>In an action by an insurance company against a trust company to recover the balance of a deposit which the insurance company claimed represented the price of stock sold the trust-company, where the court defined the term “sale,” and no objection was made to the definition, it was unnecessary to give another abstract definition of such term.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. <S=>260.]</p> <p>3. Trial <⅜^>242 — Misleading Instructions.</p> <p>In an action ,by an insurance company against a trust company to recover the balance of an alleged deposit claimed by plaintiff to represent the price of stock sold the trust company, in which defendant claimed that it was acting as trustee in collecting stock subsqrip-tions, and did not itself purchase the stock,’the court charged that in order to constitute a sale the agreement to sell and to pay must be unconditional ; but, in charging as to what must be found to warrant a finding for plaintiff, it merely charged that it must be found that plaintiff agreed to sell, and not that it unconditionally agreed to sell. Seld that, if it was proper to use the term “unconditional” at all in view o£ the fact that there was no issue as to any conditional sale, the jury could not have been misled by the failure to receive such term, as they must have understood that they were required to find that the agreement was absolute and unconditional.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. <§=>242.]</p> <p>4. Tbial <§=>256 — Instructions — Necessity of Requests.</p> <p>In such action, it would not have been proper for the court to charge, unless requested, that the transaction was not a sale if defendant was only to make payment out of collections on notes of subscribers to plaintiff’s stock, as this theory was not pleaded, and such an instruction might have been considered an intimation that the testimony showed some kind of a sale, and not an agreement to hold the stock as trustee.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. <§=>256.]</p> <p>5. Appeal and Eeeob <§=>1041 — Haemless Eeeob — Amendment of Pleadings.</p> <p>Defendant was not injured by the granting of permission to plaintiff to file a trial amendment after the verdict had been returned, where, in rendering judgment, the court refused the prayer of such amendment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4106⅛109; Dec. Dig. <§=> 1041.]</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Suit by C. S. Hunter against E. G. Hicks. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Harris County Court; C. C. Wren, Judge.</p> <p>Action by John B. Capers against the First Texas State Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

G. Ohambliss, Judge. Action by Elizabeth McCurdy, executrix of W. O. McCurdy, deceased, against the General Bonding & Casualty Insurance Com- pany and another. From the judgment against the named defendant, it appeals, and plaintiff complains of judgments in favor of interveners.

<p>Appeal and Ebbob <®=»54 — Coubt op Civil Appeals — Jubisdictional Amount — Intee-est — Statute.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4977, providing that on all written contracts ascertaining the sum payable when no specified rate of interest is agreed upon by the parties to the contract, interest shall he allowed at the rate of 6 per cent, per annum from the time the sum is due and payable, the Court of Civil Appeals had no jurisdiction of an appeal from the judgment of a county court for plaintiff suing for disability indemnity due under a policy amounting to $100, exclusive of interest, on which plaintiff prayed interest, since interest upon plaintiff’s demand was interest eo nomine, and not interest as damages.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 175; Dec. Dig. <S=54.]</p>

<p>Appeal from District Court, Grimes County; S. W. Dean, Judge.</p> <p>Suit by Mrs. Lucy P. Wilson against Wm. Downs and wife. From a judgment for the plaintiff, the defendants appeal.</p>

<p>Appeal from District Court, Burleson County; Ed. A. Sinks, Judge.</p> <p>Action by Luella Phillips and others against the Gulf, Colorado & Sante Fé Railway Company. From a judgment for certain of the plaintiffs, defendant appeals.</p>

<p>1. Garnishment <S=5>164 — Judgment—Peooe —Affidavits.</p> <p>Where plaintiffs’ affidavits for garnishment stated that they had recovered a judgment against their debtor, and that the same was unsatisfied to the best of the knowledge and belief of plaintiffs’ counsel, there being no evidence as to the matter, in the absence of admission on the part of defendant that any such judgment had been recovered, or that, if recovered, it was unsatisfied, the court was not authorized to render judgment against the garnishee, since the affidavits for garnishment cannot be used as pri-ma facie evidence of the existence of the judgment or of its not having been satisfied.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent Dig. § 302; Dee. Dig. <⅜=>164.]</p> <p>2. Appeal and Error <3=272 — Reservation op Grounds op Review-^Reptjsal to Permit Proop.</p> <p>Plaintiff can take advantage of the court’s refusal to permit Mm to introduce evidence in support of his Case only by excepting to such refusal at the time, which exception must be shown by a bill of exceptions, duly approved by the trial judge, and properly filed in the trial court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 1611-1619; Dec. Dig. <3= 272; Trial, Gent. Dig. § 254.]</p> <p>3. Appeal and Error <®=544 — Bill op Exceptions — Necessity.</p> <p>In the absence of a bill of exceptions challenging the finding of the trial court that no evidence was offered by either party and that plaintiff’s counsel demanded judgment upon the pleadings without evidence, such finding of the trial court must be accepted as true.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2435, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. <3= 544.]</p>

Error from District Court, Colorado County; M. Kennon, Judge. Action by John Matthews and others against John Thatcher and others. Judgment for plaintiffs, and defendants bring error.

<p>Appeal from District Court, Jefferson County; W. H. Davidson, Judge.</p> <p>Suit by J. J. Broussard against R. W. Wilson and others for injunction. From a judgment for defendants, plaintiff appeals.</p>

Roberts, Judge. Proceeding by J. B. Lewis to probate a will contested by Oscar Wolnitzek and others, who offered a different will for probate. From a judgment probating the will offered by Lewis, the contestants appeal.

<p>1. Master and Servant <§=>278 — Injuries to Servant — Sufficiency of Evidence — Negligence-Proximate Cause.</p> <p>In a freight brakeman’si action for injuries through breaking of a handhold, evidence held sufficient to support the jury’s affirmative answers, favorable to plaintiff, to the special issues on defendant’s negligence and proximate cause of injury.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. I>ig. §§ 954, 953-958, 960-969, 971, 972, 977; Dec. Dig. @~>27&]</p> <p>2. Damages <S=> 130 — Personal Injuries — Excessive "Verdict.</p> <p>In a freight brnkeman’s suit for injuries when a handhold broke, precipitating him to the ground with great force and violence, verdict for $12,500 was not so excessive as to show that the jury was actuated by an improper motive.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 357-3G7, 370; Dec. Dig. <S==>130.]</p> <p>3. Trial 33 — Remark oe Counsel.</p> <p>In a freight brakeman’s action for injuries, where counsel for tho railroad mentioned that an annuity equal to the full earning power of plaintiff could be purchased for $10,000 or $11,-000, whereupon one of plaintiff’s attorneys stated that he would like to know in that connection who would buy an annuity for Mm, but thereafter stated to court and jury that lie made the remark in jest, and withdrew it, requesting the court to instruct the jury not to consider it, which was done, there was no error, there being nothing in the Size of the verdict showing the jury were influenced.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec; Dig. <S=>133.]</p>

<p>1. Insurance <©=>33 — Issuance of Stock for Note — Constitution.</p> <p>The issuance of stock by an insurance company in return for a noto and a deed of trust and the note so given were void, being in violation of Const, art. 12, § 6, providing that no corporation shall issue stock except for money paid, labor done, or property actually received, although a third person subsequently sold property to the corporation, taking the note in part payment.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 38; Dec. Dig. <©=>33.]</p> <p>2. Insurance <§=>33 — Insurance Companies —Issuance of Stock for Note — Statute.</p> <p>The issuance of stock by an insurance company for a note secured by deed of trust, and the note itself, were void, as in violation of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4725, 4726, 4728, touching the organization of insurance companies, and providing that the amount of an insurance company's capital stock must bo subscribed and fully paid up and in the hands of the corporators before articles of incorporation are filed, etc.</p> <p>[Ed. Note. — Por other cases, see Insurance, Cent. Dig. § 38; Dec. Dig. <©=>33.]</p> <p>3. Bills and Notes <©=>375 — Note Violative of Statute — Right of Holder.</p> <p>A note executed in violation of a statute is void, even in the hands of one who would otherwise be a bona fide holder.</p> <p>[Ed. Note. — Por other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dee. Dig. <®=5 375.]</p> <p>4. Bills and Notes <©=>277 — Indorser's Liability-Liability on Void Note.</p> <p>An insurance company which issued its stock, in contravention of Constitution and statute, in return for a note secured by deed of trust, and before maturity indorsed the note to a third person as part consideration for property transferred to it, was liable to the third person on its indorsement, though the note was void as between it and the maker, since an indorsement warrants the validity of the instrument and is a separate and independent contract.</p> <p>[Ed. Note. — Por other cases, see Bills and Notes, Cent. Dig. § 626; Dec. Dig. <@=>277J</p> <p>On Motion for Rehearing.</p> <p>5. Appeal and Error <©=51175 — Disposition —Rendering Judgment — Statute.</p> <p>By direct provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1626, where the judgment below is reversed, and there is no matter of fact to be ascertained, damage to be assessed, and the matter to be decreed is not uncertain, the court will render such judgment as the court below should have rendered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4673-4587; Dec. Dig. ©=» 1175.]</p>

<p>1. Adverse .Possession <&wkey;9 — Operation or Limitations — Title oe Municipal Corporations.</p> <p>Limitations run against the title of a city acquired by patent from the state as they would had it acquired land by purchase from an individual.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 42, 50; Dee. Dig. <&wkey;>9.]</p> <p>2. Adverse Possession <&wkey;8 — Operation oe Limitations — Title oe Municipal Corporations — Streets.</p> <p>Under Rev. St. 1911, art. 5683, providing that no person shall acquire by adverse possession any title to any portion of any street belonging to any city or which shall have been dedicated for public use to any city, where a city has platted all the land granted to it into lots, blocks, streets, and avenues, and sold lots with reference to the plat, limitations do not run against it as to the streets shown on the plat.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. Dig. <&wkey;S.]</p>

Styles, Judge. Action by George Green against the St. Louis, Brownsville & Mexico Railway Company and Frank Andrews, receiver. From a judgment rendered on a directed verdict for defendant Frank Andrews, and on a verdict for the plaintiff, the defendant railroad company appeals.

<p>1. Statutes <&wkey;113 — Title — Constitutionality.</p> <p>Acts 3Sd Leg. c. 105 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4874b), entitled “An act to prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy or contract of insurance where the act breaching such provision has not contributed to bring about the loss and declaring an emergency,” providing that no breach by the insured of any of the provisions of any fire insurance policy upon personalty shall render void the policy or constitute a defense to a suit for loss thereon, unless such breach contributed to bring about the destruction of the property, is not violative of Const, art. 3, § 35, providing that no bill shall contain more than one subject, expressed in its title.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 141-144; Dec. Dig. <&wkey;>113.]</p> <p>2. Constitutional Law <&wkey;>48 — Constitutionality — Construction in Favor of.</p> <p>It is the duty of the court to ascertain the intention of the Legislature in enacting a statute whose constitutionality is in question, and to sustain the law if it can be done by fair construction.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. <&wkey;>48; Statutes, Cent. Dig. § 56.]</p> <p>3. Statutes <&wkey;211 — Construction — Title.</p> <p>In construing a statute, it is permissible to refer to the caption for explanation, and it is equally permissible, in the construction of the caption, to refer to the body of the act.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 288; Dec. Dig. <©=>211.]</p> <p>4. Statutes <&wkey;105 — Titles of Acts — Constitutional Provision — Construction.</p> <p>Const, art. 3, § 35, providing that no bill shall contain more than one subject, expressed in its title, should be construed liberally rather than to embarrass legislation by a strict construction unnecessary to the accomplishment of the beneficial purposes of the provision.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 117, 118; Dec. Dig. &wkey;105.]</p> <p>5. Insurance <&wkey;333 — Fire Insurance — Immaterial Breach of Policy — Statute.</p> <p>Under Acts 33d Leg. c. 105 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4874a, 4874b) providing that no breach by the insured of any of the provisions of any fire insurance policy upon personalty shall render void the policy or constitute a defense to a suit for loss unless such breach contributed to bring about the destruction of the property,, a policy of fire insurance on personalty, providing that the keeping of gasoline on the premises should avoid the policy, and that an act increasing the hazard by means in the control of knowledge of the insured should do so likewise, was not avoided, and insured’s recovery thereon was not prevented, by his keeping gasoline on the premises where such breach did not contribute to bring about the destruction of the property.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. S3 842-846; Dec. Dig. <&wkey;333.]</p> <p>6. Insurance <&wkey;335 — Fire Insurance — Breach of Policy — Statute.</p> <p>Such provision has no application to permit the insured, who has broken the stipulation of his policy insuring his stock of goods that he should keep books, etc., in an iron fireproof safe, to recover on the policy, although the failure to keep the books did not contribute to bring about the destruction of the property, since the statute was passed to prevent insurance companies from escaping liability on the ground that insured had violated the policy only where the breach could have, but in fact did not, contribute to bring about the loss.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 852, 853; Dec. Dig. &wkey;335.]</p> <p>7. Insurance <&wkey;335 — Fire Insurance — Material Breach of Policy.</p> <p>Insured’s failure to substantially comply with the provision of a fire insurance policy by not keeping his books in a fireproof safe will defeat his recovery on the policy; the provision being material.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 852, 853; Dec. Dig. &wkey;>335.]</p> <p>8. Appeal and Error <&wkey;268 — Review — Findings.</p> <p>Where the trial court found that a matter of fact was proved by the undisputed evidence, and so instructed the jury, and the party to whom the finding was adverse did not except thereto, or assign error thereon, the Court of Appeals cannot look into the statement of facts to ascertain what facts were brought forward upon the issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1596-1604, 1606; Dec. Dig. <©=>268.]</p> <p>9. Trial <&wkey;256 — Instructions—Requests.</p> <p>In an action on a fire policy covering household goods, the court’s charge, directing the jury to ascertain the value of the goods, instead of the actual cash value, as provided in the policy, being correct so far as it went, was not reversible error in the absence of a request for a special charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. <©=>256.]</p>

<p>1. Vendor and Purchaser &wkey;>176 — Sale by Acre — Abatement for Shortage — Innocent Misrepresentations.</p> <p>Where land is sold by the acre, and there . is a material shortage, the purchaser is entitled to a proportional abatement of the purchase price, and is not limited to an action for rescission, though the misrepresentations as to quantity were innocently made, and there was a mutual mistake respecting it.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. &wkey;il76.]</p> <p>2. Dismissal and Nonsuit <&wkey;42 — Cross-Action — Codeeendants.</p> <p>A defendant’s cross-action against a code-fendant being dismissed, the case stands as though it had never been filed, as regards the eodefendant’s right to plead in offset and cross-action against him.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 75-83; Dec. Dig. <&wkey;>42.]</p> <p>3. Dismissal and Nonsuit <&wkey;12 — Cross-Action.</p> <p>A defendant has the right to dismiss at any time his cross-action against a codefendant.</p> <p>[Ed. Note. — For other eases, see Dismissal and Nonsuit, Cent. Dig. § 27; Dec. Dig. <&wkey;12.]</p> <p>4. Principal and Agent <&wkey;156 — Referring Matter to Another.</p> <p>A vendor by referring the purchaser to a surveyor, by whom he stated the tract had recently been surveyed, for confirmation of the fact that it contained a certain number of acres, makes him his agent for purpose of the reference, and so is bound by his answer, as regards liability for deficiency.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. <&wkey;> 156.]</p> <p>5. Vendor and Purchaser &wkey;>176 — Shortage — Abatement oe Price.</p> <p>The question, What is the character of the soil? having reference to the entire tract sold, - is immaterial relative to the contention that the shortage was in the less valuable part of the land, and that therefore the abatement of purchase price on account thereof should not be based on acreage alone.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. &wkey;176.]</p>

Error from District Court, Fayette County; Frank S. Roberts, Judge. Action by Mrs. Isolda Zapp against Y. F. Mossop. Judgment for plaintiff, and defendant brings error. Brief of plaintiff in error stricken on the court’s motion, and plaintiff in error given 20 days to file new brief. 179 S. W. 685. Transferred from the Court of Civil Appeals of the First Supreme Judicial District. Brief stricken from the files.

<p>Appeal from District Court, Harris County.</p> <p>Action by the Hawkins-Halff Company against T. D. Waugh. Pending suit, plaintiff! changed its corporate name to the Halff Company. Judgment for defendant on his cross-action, and plaintiff appeals.</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Action by F. J. Marti against the Galveston, Harrisburg & San Antonio Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Jackson County ; John M. Green, Judge.</p> <p>Action by P. C. Robinson against John Lingner. From a judgment dismissing the action, plaintiff appeals.</p>

T. Stubbs, Judge. Action by C. H. Alexander against John N. Simpson and others. From an order appointing a receiver, on motion of the plaintiff, the defendants appeal.

<p>1. Wills @==>487(1) — Construction — Evidence.</p> <p>Testatrix, after making numerous devises and bequests, declared that an agreement relating to a banking partnership of which testatrix was a member should be carried out, and that the residue of her property should be used by the trustees to erect a suitable main building for a college or a suitable boys’ dormitory; the remainder to be used by the trustees as a permanent fund of the college in the manner and for the same purposes as its present permanent fund. Plaintiffs contended that as heirs they ■were entitled to the testatrix’s share in the banking firm, which, under the agreement, was to be continued for five years after her death. This agreement, which was probated with the will, declared that at the expiration of five years all stock and interest held or deposits owned by the party dying should be delivered by the surviving members of the firm to the heirs of the party dying or to his or her legal representatives. Held, that evidence of the value of the testatrix’s estate was admissible to show that plaintiffs were not entitled to such interest as heirs, for otherwise there would not be sufficient property to discharge all the bequests; such evidence not being inadmissible under the rule that parol evidence is not receivable to change the meaning oí the word “heir,” the law giving it a definite meaning, for the testatrix’s intent governs.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1023, 1029, 1031; Dec. Dig. @=>487(1).]</p> <p>2. Wills @=506(1) — Construction — Interest Devised.</p> <p>In such case, heirs of the testatrix not mentioned in a will are not entitled to her interest in the banking firm; the agreement declaring that it might go to the legal representatives of the deceased member as well as the heirs.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 1090; Dec. Dig. @==>506(1).]</p> <p>3. Charities @=>12 — Validity.</p> <p>In such case, the devise and bequest of the residue to the college was valid.</p> <p>[Ed. Note. — For other cases, see Charities, Cent. Dig. § 36; Dec. Dig. @=>12.]</p>

<p>Appeal from Motley County Court; O. B. Whitten, Judge.</p> <p>Action by F. F. Collett against the Quanah, Acme & Pacific Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; We. Masterson, Judge.</p> <p>Trespass to try title by W. E. Jones against Mrs. Augusta Hunting and others. Judgment in favor of plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Lubbock: County; W. R. Spencer, Judge.</p> <p>Action by the First National Bank of Garner, Iowa, against Morton J. Smith, who filed a cross-petition and attached the property of the Des Moines Silo Manufacturing Company. From a judgment for defendant against plaintiff and the impleaded defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Jeff Davis County; W. C. Douglas, Judge.</p> <p>Action by J. N. Groesbeeek against the unknown heirs of J. C. French and another, and S. S. Dawson and others intervene. From a judgment for plaintiff, the interveners appeal.</p>

<p>1. Judgment <@=o256 — Verdict—Validity.</p> <p>In an action against two defendants, each of whom sought affirmative relief against the other, by way of contribution as joint tort-feasors, where the verdict was in favor of plaintiff against one defendant, and for the other defendant, judgment was properly rendered thereon for the plaintiff against the first defendant and for the second defendant, decreeing further that neither defendant should take anything under his cross-petition against the other defendant.</p> <p>[Ed. Note. — Eor other eases, see Judgment, Cent. Dig. §§ 449, 450; Dec. Dig. <⅝»256.]</p> <p>2. Akpeal and Error ⅞=»1003 — Review — Verdict — Evidence.</p> <p>Where the evidence in an action for injuries received by a pedestrian in falling into a coal-hole justified the conclusion that the covering thereon was defectively constructed, it could not be said that the verdict against the property owner was against the preponderance of evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. 1003.]</p> <p>3. Indemnity <§=»13(1) — Streets — Obstructions — Liability.</p> <p>Where a property owner maintained a coal hole in the sidewalk which was dangerous, unless the cover was placed in a certain position, and he instructed one delivering coal to replace the cover in that position, and hq failed to do so, the property owner could recover from the active tort-feasor the amount recovered by the injured party from the owner, who was a mere passive tort-feasor.</p> <p>[Ed. Note. — For other cases, see Indemnity, Cent. Dig. §{j 29, 30, 33, 34; Dec. Dig. <$=> 13(1).]</p> <p>4. Municipal Corporations <$=>822 — Streets — Obstructions — Liability — Contribution-Instructions.</p> <p>Instruction in action for personal injuries by falling in coalhole negligently closed, held not affirmative error where it correctly stated certain conditions under which one defendant might recover from the other as a joint tort-feasor, but did not state that they were the only conditions.</p> <p>[Ed. Note. — Por other cases, see Municipal Corporations, Cent. Dig. §§ 175&-1762; Dec. Dig. <$=>822.]</p> <p>5. Municipal Corporations <$=>821(19) — Joint Tort-Feasors — Instructions—Proximate Cause.</p> <p>Plaintiff was injured by falling into a coal-hole in the walk abutting defendant association’s property. In his action the association contended that the cause of the injury was the negligent replacing of the cover by defendant coal company’s driver after delivering a load, contrary to instructions of the association. Held, that if the injury resulted from negligent replacing of the cover by the driver, such act was the proximate cause of the injury, and it was error to submit such question to the jury as an issse of fact.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1753; Dec. Dig. <®=> 821(19).]</p> <p>6. Trial <$=>228(3) — Instructions—Particular Words.</p> <p>Error cannot be predicated on the use by the court in an instruction of the word “slipped,” instead of the word “tilted,” as used in the petition, where the evidence on the nature of the injury was clear, and no prejudice could have resulted.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 512; Dec. Dig. <$=>228(3).]</p> <p>7. Municipal Corporations <$=>S22 — Streets — Obstructions — Liability — Contribution-Instructions.</p> <p>In an action for injury to a pedestrian from falling into a coalhole, error cannot be predicated on the giving of an instruction submitting the issue as to whether the crossbar designed to hold the lid in place, was in place, where the evidence thereon was controverted.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1758-1762; Dec. Dig. <$=>822.]</p> <p>8. Appeal and Error <$=>1033 — Review — Harmless Error — Error Favorable to Appellant.</p> <p>A party cannot complain of an instruction submitting an issue to the jury on which the evidence against him was undisputed, the instruction being more favorable to him than the evidence warranted.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. <$=> 1033; Trial, Cent. Dig. § 587.]</p> <p>9. Municipal Corporations <$=>817 — Streets —Injuries—Presumptions.</p> <p>Where a property owner is negligent in failing to maintain a coalhole properly, he must be presumed to have anticipated any injuries to pedestrians, such' as broken limbs, received in falling into the hole.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1725; Dec. Dig. <$=> 817.]</p> <p>10. Damages <$=>130 — Personal Injuries — Excessive Damages.</p> <p>Where plaintiff, 40 years of age, had been a bookkeeper for over 15 years, although he had been out of work 8 months prior to his injury, in which he received a compound, comminuted fracture of both bones of the leg just above the ankle, and was in the hospital for 3 months, and under the doctor’s care for 6 months, and had to use crutches for a long time, and at the time of the trial used a stick, and his broken leg was 1½ inches shorter than the other, and the log was very much weakened and stiffened, a judgment of $8,000 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. <g=>130.]</p> <p>11. Trial <$=>133(2) — Cure op Errors.</p> <p>Although plaintiff’s counsel made improper remarks, the error in admitting them was cured where on request the court instructed the jury not to consider them.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. <$=>133(2).]</p> <p>12. Appeal and Error <$=>1173 — Reversal— When Necessary.</p> <p>Although a judgment must be reversed as to the several liabilities of the defendants to each other, that does not require that it also be reversed as to the liability of one of them to the plaintiff.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent, Dig. §§ 4562-4572, 4656; Dec. Dig. <$=>1173.]</p> <p>Reese, J., dissenting in part.</p>

<p>1. Homicide @=286 — Trial—Error in Instruction.</p> <p>In a prosecution for murder, the insertion of the word “not” before the word “presumed,” in a charge otherwise correct under the statute, relating to the presumption of intent from the use of a deadly weapon, was reversible error.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. @=286.]</p> <p>2. Homicide <s=30O — •'Trial—Instructions.</p> <p>In a prosecution for murder, a charge on the subject of self-defense, that there must be evidence of some act manifesting an intention to execute the threats mentioned, but omitting the words “or that it so reasonably appeared to the defendant at the time,” was erroneous.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. @=300.]</p> <p>3. Homicide @=300 — Trial—Instructions.</p> <p>In a prosecution for murder, where the court had in its charge fully presented the proposition that. if defendant killed deceased, not to protect himself from some unlawful violence, and not because of reasonable apprehension of violence, he could not justify the act as done in lawful defense, it was error to unduly emphasize that element of the case by again charging thereon.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. @=300.]</p> <p>4. Criminal Law @=418 — Evidence—Admissions — Acquiescence or Silence.</p> <p>In a prosecution for murder, remarks made mostly out of the hearing of the defendant by the witness and a third person were inadmissible, though such remarks were related to the defendant in a friendly conversation which took place on the following day.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 968-972; Dec. Dig. @= 418.]</p> <p>5. Witnesses @=352 — Impeachment — Competency ojt Evidence.</p> <p>In a prosecution for murder, the fact that a witness, after testifying, was seen talking to his mother and sister in a “suspicious attitude,” without showing something that was said or done that would reflect on his testimony, was inadmissible to impeach the testimony of the witness.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1152; Dee. Dig. @=352.]</p> <p>6. Witnesses @=318 — Corroboration—Evidence — Hearsay.</p> <p>In a prosecution for murder, the testimony of a witness that neither of her daughters, also witnesses, had told her after a former trial that they were going to change their statements because they could not stand to see the defendant go to the penitentiary, was inadmissible.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. @=318.]</p> <p>7. Witnesses @=374^-Impeachment — Evidence.</p> <p>In a prosecution for murder, a letter addressed to a person not a witness, written by a witness who was adverse to defendant and a brother of the deceased, tending to prove that he was suppressing and fabricating the testimony, was admissible as showing the intent and interest of the witness in the case, as well as that he was trying to suppress or fabricate the testimony.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. @=374.]</p> <p>8.Homicide @=158(4) — Evidence — Other Offenses.</p> <p>In a prosecution for murder, evidence of the fact that the defendant had threatened to shoot his father-in-law on a former occasion was inadmissible.</p> <p>[Ed. Note. — For other cases, see Homicide, Cent. Dig. § 296; Dec. Dig. @=158(4).]</p> <p>Prendergast, P. J., dissenting in part.</p>

<p>Appeal from District Court, Presidio County; W. C. Douglas, Judge.</p> <p>Pancho Galindo was convicted of a violation of the local option liquor prohibition law, and he appeals.</p>

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Suit by J. S. Lewis against the Castleman Blakemore Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Counties <&wkey;99 — County Treasurer — Action on Bond — Defenses.</p> <p>In a suit on a county treasurer’s bond for an alleged shortage of funds, it is a defense to show that the shortage occurred during the term of his predecessor.</p> <p>[Ed. Note. — Eor other cases, see Counties, Cent. Dig. §§ 144 — 146, 148; Dec. Dig. <§=399.]</p> <p>2. Counties <&wkey;>99 — Officers’ Bonds — Liability of Sueety.</p> <p>In a suit on a county treasurer’s bond for an alleged shortage of funds, it is a defense that the funds were trust funds held by the treasurer, which without consent of the beneficiary he deposited in the county depository as county moneys; for the sureties are not responsible for moneys which did not come into the hands of their principal by virtue of his office.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 144-146, 148; Dee. Dig. &wkey;99.]</p> <p>3. Counties &wkey;>101(7) — Oofficees’ Bonds — Liability of Surety — County Commissioners — Determination.</p> <p>Where a county treasurer improperly deposited trust funds as county funds, and his report was approved by the county commissioners, such approval is not conclusive on the sureties on his bond that the funds were county funds.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 158; Dec. Dig. &wkey;101(7).]</p>

Error from District Court, McLennan County; Tom L. McCulloch, Judge. Action by the First National Bank of Waco against R. H. Kimsey and others, in which Charles L. Sanger filed a cross-bill against his codefendants. From a judgment for the cross-petitioner, defendants Frank McNeese and W. J. Duncan bring error.

<p>1. Carbiebs <$=>320(25) — Passengers — Duty to Assist — Question fob Juey.</p> <p>It is a question of fact for the jury whether a railroad owed to the plaintiff the duty of assisting her from its train, and is to be determined from a consideration of all the circumstances.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1244; Dec. Dig. @=>320(25).]</p> <p>2. Caeeiebs <$=>320(25) — Injuries to Passengers — Liability—Evidence.</p> <p>Evidence that plaintiff, 59 years of age and corpulent, weighing 175 to 180 pounds, having two bundles and a handbag, and having under her charge a 5 year old boys attempted to alight and fell because no employe of the railroad assisted her, raises the issue whether the railroad was negligent in the premises.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1244; Dec. Dig. @=>320(25).]</p> <p>3. Carbiers @=>318(9) — Injuries to Passengers — Liability—Evidence.</p> <p>Evidence held to show that it was the duty of employés of the carrier to assist passengers, who from the circumstances required assistance, from the trains of the defendant.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1314; Dec. Dig. @=>318(9).]</p> <p>4. Carriers <§=>303(8) — Injuries to Passengers — Liability.</p> <p>A carrier is chargeable with knowledge of the necessity of assisting a passenger from the train when she was 69 years old, corpulent, carried several bundles, and had in charge a small child.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1232; Dec. Dig. <§=>303(8).]</p> <p>6. Carriers <§=>280(1) — Duties to Passengers — Care Required.</p> <p>A carrier owes to every passenger the highest degree of care without regard to age, sex, or bodily infirmity, the degree of care to be determined by the circumstances of each ease.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1085-1088, 1102, 1106, 1109; Dec. Dig. <§=>280(1).]</p> <p>6. Carriers <§=>320(1) — Care Required — Questions eor Jury.</p> <p>It is a question of fact for the jury in each case whether or not the highest degree of care was exercised in the premises by the defendant carrier.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1315, 1317; Dec. Dig. <§=>320(1).]</p>

Proceedings between F. M. Lawrence and the Story & Clark Piano Company to determine the right of property in a piano levied upon while in the former’s possession. From a judgment for the latter, the former appeals.

<p>1. Damages <®=»130 — Injury to Passenger— Verdict — Evidence.</p> <p>In an action for personal injuries received while riding on ‘defendant’s train, evidence held sufficient to support a verdict for $1,500.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. <⅜=>130.]</p> <p>2. Appeal and Eeeoe <©=3548(4) — Improper Communication to the Jury — Affidavit— Record — Bill oe Exceptions.</p> <p>On appeal, error was assigned on the overruling of defendant’s motion for a new trial because of a communication made to the jury out of court, and the motion for a new trial had attached to it an affidavit of the person communicating with the jury setting forth the substance of the conversation. Held, in the absence of a bill of exceptions setting forth the fact that evidence was heard on such motion, and setting forth the evidence so heard, the assignment of error will be dismissed, under Rev. St. 1911, art. 2021, providing that the court- shall hear evidence on motion for a new trial because of a communication made to the jury; the statute requiring proof to be made by the personal appearance and examination of the witnesses in open court.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2439; Dec. Dig. <©=>548(4).J</p>

<p>1. Appeal and Error <©=ml011 — Review — Question op Fact.</p> <p>Where the evidence is conflicting and there is evidence to sustain the finding of the trial court, the court on appeal will not disturb the judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. <©=> 1011.]</p> <p>2. Evidence <g=>354(13) — Books op Account.</p> <p>Entries in books on information received by the witness from third person were not admissible in evidence.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1457,1458; Dec. Dig. <®^354(13).]</p>

Action by Stasny & Holub against A. E. Wilkerson and others, in which John Cer-venka intervened. Prom a judgment for plaintiff and against the intervener, defendants appeal.

W. Beall, Judge. Action by Lucy Currie, individually and as executrix of the last will of James Currie, and as next friend of minors, against Glass-cock County and others. From a judgment for defendants, plaintiff appeals.

On Motion for Rehearing. Appeal from Travis County Court; Wm. Von Rosenberg, Judge. Action by G. L. Peterson against the International Travelers’ Association. From a judgment by default which the court refused to vacate, defendant appeals.

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Rip Wiley was convicted, and appeals.</p>

<p>Appeal from Criminal Court, Taylor County; Thomas L. Blanton, Judge. Purna Cutbirth was con- and he</p>

<p>Appeal from District Court, Red River County; W. F. Moore, Special Judge. Will McCleary was convicted of crime, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. Jesse Payne was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge. Action by J. D. McGregor against A. L. Matlock and others. From a judgment for plaintiff, defendants appeal.</p>