Volume 184 — South Western Reporter

Action by Emma A. Cassady and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiffs, defendant appealed to the Court of Civil Appeals, which affirmed the judgment. 175 S. W. 796. To review its judgment, defendant petitions for writ of error.

<p>Appeal from District Court, Houston County ; John S. Prince, Judge.</p> <p>nart Austin was convicted of robbery, and appeals.</p>

<p>Appeal from Dallas County Court, at Law; T. A. Work, Judge.</p> <p>Charley Large was convicted of aggravated assault, and he appeals.</p>

<p>Appeal from District Court, Travis County ; Geo. Calhoun, Judge.</p> <p>Action by tbe State of Texas against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for defendant, and the State appeals.</p>

<p>Appeal from District Court, Comal County; Frank F. Roberts, Judge.</p> <p>Action by Albert Vogel against the International &■ Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Motley County Court; C. B. Whitten, Judge.</p> <p>Action by C. W. Warren against the Quan-ah, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

F. Ezell, Judge. Action by Francis J. Bowen and others against A. B. Heard and another, who im-pleaded John D. Sipple, on whose death pending suit the cross-action was revived against Tracy D. Sipple, independent executrix. From a judgment for plaintiffs and a judgment over for the first-named defendants against the cross-defendant, all defendants appeal.

Action by the Texas Fidelity & Bonding Company against the General Bonding & Casualty Insurance Company and others. From a judgment in favor of the corporate defendant but against the individual defendants, plaintiff appeals.

<p>1. Trial <@=>357 — Verdict — Special Findings — Responsiveness to Issues.</p> <p>In an action for injuries to land by water seeping, through an embankment of defendants on plaintiff’s land, where the court submitted the issue what was the reasonable value of plaintiff’s land immediately after the act complained of, the answer, “No immediate market value for agricultural purxioses,” was not responsive, and was insufficient to sustain judgment on the theory that the value of the land was entirely destroyed.</p> <p>[Ed. Note. — For other cases, see Trial, Ctent. Dig. § 855; Dee. Dig. <@=>357.]</p> <p>2. Waters and Water) Courses <@=>178(2)--Injuries to Land — Damages.</p> <p>The measure of damages for injuries to land by seepage through an embankment of defendants on plaintiff’s land is the difference in the market value of the land immediately before and immediately after the injury, but in arriving at the market value the permanency or temporary nature of the damage should be considered.</p> <p>[Ed. Note. — For_ other cases, see Waters and Water Courses, Cent. Dig. § 255; Dec. Dig. <@=>178(2); Damages, Cent. Dig. § 270%.]</p> <p>3. Waters and Water Courses <^=178(1)— Injuries to Land — Actions—Evidence.</p> <p>In an action for injuries to land by seepage of water through defendants’ embankment, the defendant, in order to show the market value of the land after the water had soaked into it, should be allowed to prove that it had regained its normal state.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 251-254; Dec. Dig. <@=>178(1) 5 Damages, Cent. Dig. § 276%.]</p> <p>4. Waters and Water Courses <@=>178(1)— Injuries to Land — Damages — “Permanency. ”</p> <p>.In determining damages to plaintiff’s land from water seeping through defendants’ embankment, an injury that lasts for a time only, even though it be several years, cannot be deemed permanent, since “permanency” carries with it the idea of something durable, lasting, that never changes.</p> <p>_[Ed. Note. — For other cases, see Waters and</p> <p>Water Courses, Cent. Dig. §§ 251-254; Dec. Dig. <@=>178(1); Damages, Cent. Dig. § 276%.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Permanency.]</p> <p>5. Waters and Water Courses <@=>179(6)— Damage from Seepage — Verdict—Special Issues — Questions to be Submitted.</p> <p>In an action for injuries to land by water seeping- through defendants’ embankment, the jury should, in order to arrive at the permanency of the injuries, have been required to answer as to the condition of the land at the time of the trial or before that time.</p> <p>[Ed. Note. — For other cases, see Water’s and Water Courses, Cent. Dig. <]§ 256, 258, 259, 264; Dec. Dig. <@=>179(6); Trial, Cent. Dig. § 858.]</p> <p>On Motion for Rehearing.</p> <p>6. Judgment <@=>256(2) — Verdict — Special Issues — Responsiveness op Answers.</p> <p>It is fundamental error for a judgment to be rendered on an answer of a jury which is not responsive to the issue without which there is no basis for the judgment.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 447; Deo. Dig. <@=>256(2).]</p> <p>7. Appeal and Error <@=>934(2) — Review — Scope and Extent.</p> <p>In an action for injuries to land by water seeping from defendants’ embankment, while the statement of facts might be consulted to sustain the judgment if an issue had not been submitted to the jury whether the value of the land was totally destroyed, this cannot be done where the issue was submitted.</p> <p>[Ed. Note — For other cases, see Appeal and Error, Dee. Dig. <@=>934(2).]</p>

<p>1. Specific Performance &wkey;>58 — Contract fob Sale of Land.</p> <p>Where a contract for the sale of land provided in its concluding clause that if the purchaser failed or refused to perform by the payment of the purchase money as provided, without default of the vendor, then the purchaser should “as a full penalty and liquidated damages for his breach of this contract forfeit to [the vendor] the first payment of $500 this day made upon the land herein contracted for,” such contract was alternative, and gave the purchaser the choice of paying for the land or of failing or refusing to do so and forfeiting the first payment, in view of the declaration that the penalty should be in payment of liquidated damages in case of breach, so that specific performance of the contract at the purchaser’s suit could not be decreed after default in the payment of the balance of the price.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 179, 180; Dec. Dig. &wkey;?58.]</p> <p>2. Specific Peefobmance <&wkey;126(2) — Alteb-NATIVE CONTRACT TO SELL LAND.</p> <p>A decree for specific performance of a contract to sell land must follow the substantial, if not the precise, terms of the contract, so that it cannot be entered where the contract is alternative in favor of the purchaser, permitting him to perform or to forfeit a payment for breach.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Dec. Dig. <§=»126(2).]</p> <p>3. Specific Peefobmance <&wkey;121(10) — Abandonment of Contract — Sufficiency of Evidence.</p> <p>In the purchaser’s suit for specific performance of a contract to convey land, evidence held sufficient to sustain the finding that the purchaser abandoned the contract.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Dee. Dig. <&wkey;>121(10).]</p> <p>4. Appeal and Eeeob &wkey;1010(l) — Review-Finding.</p> <p>The fact that the evidence will sustain a finding contrary to that of the trial court affords the appellate court no sufficient reason for interfering with the finding below, provided the evidence was also sufficient to sustain it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. <&wkey; 1010(1).]</p> <p>5. Specific Peefobmance <&wkey;121(10) — Abandonment of Contract — Intent.</p> <p>In the purchaser’s suit for specific performance of a contract to sell land, the fact that the vendors’ title was not good was not conclusive on the point whether the purchaser abandoned the contract by declining to proceed further with the trade.</p> <p>[Ed. Note. — For other cases, see Specific Performance, Dec. Dig. <&wkey;121(10).]</p>

C. Joiner, Judge. Action by W. F. Hill and others against the Commonwealth Bonding & Casualty Insurance Company, with plea of intervention by C. C. Cantrell, and cross-action by the defendant company. Judgment for plaintiffs and the intervener denying the defendant’s cross-action, and defendant appeals.

<p>1. BROKERS <&wkey;S6(3) — CONTRACTS — COMPENSATION — Action.</p> <p>In an action for compensation claimed by a real estate broker, evidence held to warrant a finding that the broker substantially performed his agreement.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 117; Dec. Dig. &wkey;86(3).]</p> <p>2. Brokers <&wkey;48 — Compensation — Right to.</p> <p>Where a landowner, who was disposing of a large tract in small parcels, availed himself of contracts procured by plaintiff broker and did not cancel the broker’s contract for nonperformance, he cannot defeat recovery of commissions on the ground that the broker did not comply with all terms of the contract.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 65; Dec. Dig. <&wkey;>48.]</p> <p>3. Evidence &wkey;>460(2) — Parol Evidence — Varying Written Contract.</p> <p>In an action for compensation due under a broker’s contract which prohibited plaintiff from selling lands in the territory of any other agent but did not specify plaintiff’s territory, parol evidence as to plaintiff’s territory is admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2116, 2124; Dec. Dig. &wkey;460</p> <p>4. Brokers <&wkey;65(l) — Compensation — Defenses.</p> <p>Where defendant, who was disposing of a large tract of land located in Texas, admitted that he made no objections to plaintiff broker’s handling other Texas lands, the broker’s right to compensation for sales made cannot be defeated on that ground.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 48; Dec. Dig. &wkey;65(l).]</p> <p>5. Brokers <&wkey;86(4) — Compensation — Actions — Evidence.</p> <p>In an action by a broker for commissions for sales effected through subagents, evidence held to show that the sales were not made by defendant directly through the subagents, but that he recognized such agents as being agents for the broker.</p> <p>[Ed. Note. — For other eases, see Brokers, Cent. Dig. § 117; Dec. Dig. &wkey;86(4).]</p> <p>6. Brokers <&wkey;55(l) — Compensation—Right to — Estoppel.</p> <p>Where a broker employed to sell lands in Arizona carried on a selling campaign in person for over a year and then turned the matter over to subagents, the broker is not estopped to claim compensation; the owner after objections acquiescing.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 82-84; Dee. Dig. <&wkey;>55(l).]</p> <p>7. Brokers <&wkey;86(2) — Compensation—Right to.</p> <p>In a suit for compensation for sales of land for defendant, evidence held not to show that defendant discharged the broker or his subagents, but that defendant recognized the continuing agency of such persons.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig'. §§ 117, 119; Dec. Dig. &wkey;86(2).]</p> <p>8. Brokers <&wkey;86(2) — Compensation — Actions — Evidence.</p> <p>In an action by a broker for compensation for sales of land effected through subagents, evidence held insufficient to show that the original contract was terminated before the sales were made.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 117, 119; Dee. Dig. &wkey;S8(2).]</p>

<p>Appeal from .District Court, McCulloch County; Jno. W. Goodwin, Judge.</p> <p>Action by L. M. Baker against the Gulf. Colorado & Santa Fé Railway Company. From a judgment dismissing his action, plaintiff appeals.</p>

<p>1. Carriers &wkey;>318(4) — Carriage op Passengers — Proximate Cause op Death— Sufficiency of Evidence.</p> <p>In a suit for a death against a railroad, evidence held sufficient to authorize finding that the negligence of the road’s servants in making a flying switch with the car on which decedent rode, and the injuries received by him as a result thereof directly and proximately contributed to produce his death.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 1307, 1308; Dec. Dig. &wkey;318(4).]</p> <p>2. Death &wkey;>17 — Proximate Cause.</p> <p>Where the injuries sustained by a shipper of household goods and live stock while riding therewith in a box car as a result of the road’s negligence in making a flying switch were the efficient cause of his death, together with injuries subsequently received by Mm from a fall off his wagon, even though such fall was not caused by sickness resulting from his previous injury, the damages caused by each accident not being separable, the road was liable for the death, since if an accident occurs from two causes, both together the efficient cause, ail persons whose negligent acts contributed to the accident are liable for the injury.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. §§ 19, 21; Dec. Dig. &wkey;>17.]</p> <p>3. Death <&wkey;103(2) — Proximate Cause — Question for Jury.</p> <p>In a suit against a railroad for a death, where the jury could have found that the negligence of the road’s servants in making a flying switch was the sole cause of the death, that it proximately contributed to cause the death, or that the injuries received by decedent from the flying switch and the injuries subsequently sustained by him in a fall from his wagon together were the efficient cause of the death, the court properly refused a peremptory instruction for the road, since the question of proximate cause is ordinarily for the jury, and only where the facts are undisputed and the inferences to be drawn from them perfectly plain is it the court’s ■duty to determine the question of negligence as a matter of law, a question ordinarily for the jury.</p> <p>[Ed. Note. — For other cases, see Death, Cent. Dig. § 141; Dec. Dig. &wkey;103(2).]</p> <p>4. Appeal akd Error t&wkey;934(2) — Failure to Submit Issue — Effect—Statute.</p> <p>By direct provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, where the case is submitted on special issues, an issue not submitted and not requested by a party must be deemed to have been found so as to support the judgment, if there was evidence to sustain such a finding."</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>934(2).]</p> <p>5. Appeal and Error <&wkey;1062(5) — Harmless Error — Submission op Issues.</p> <p>In a suit against a railroad for a death, error in submitting the issue whether the injuries received by decedent when riding in the road’s box car contributed to cause his death after he fell from a wagon, the answer to which could! fix no liability on defendant, furnished no ground for reversal of judgment for plaintiffs.</p> <p>lEd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4218; Dec. Dig. &wkey;10G2(5).]</p> <p>6. Trial <&wkey;213 — Refusal op Charge.</p> <p>In a suit against a railroad for a death, where the case was submitted on special issues, the refusal of a charge, embodying a declaration of law which could only be applied by the court to the facts found, and could have been of no material aid to the jury in determining the questions of fact submitted to them, was proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 480; Dec. Dig. <&wkey;>213.]</p> <p>7. Trial <&wkey;260(l) — Instructions.</p> <p>Charges need not be repeated.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;260(l).]</p> <p>8. Appeal and Error <&wkey;1062(l) — Harmless Error — Refusal of Special Issue.</p> <p>In a suit against a railroad for a death, the refusal of the issue, “Did the injuries received by deceased * * * as a result of a collision with a box caz, directly or proximately in a natural and continuous sequence, and unbroken by a new cause, produce his death?” was harmless to the road, where, had it been submitted and answered in the negative, the judgment against the road would have been authorized and supported by the evidence and other findings.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. <&wkey;>1062(l).]</p> <p>9. Trial <&wkey;350(l) — Submission of Useless Issue.</p> <p>In a suit against a railroad for a death, the refusal of an issue as to which neither an affirmative nor a negative answer would have relieved the road from liability was proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 828; Dec. Dig. &wkey;350(l).]</p>

<p>1. Evidence ¡§==>265(1) — Admissions—Denial.</p> <p>There is no rule which prevents a party from denying testimony of admissions alleged to have been made by him.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029, 1043, 10*44, 1046; Dec. Dig. ¡§=5265(1).)</p> <p>2. Evidence ¡§=265 (18) — Admissions — Weight.</p> <p>Admissions of a party as to a transaction are especially valuable in evidence.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1050 ; Dec. Dig. ¡§=265(18).]</p> <p>3. Witnesses ¡§=159(3) — Competency — “Transaction with Deceased.”</p> <p>A denial by an interested party that he had a certain “transaction with deceased” is evidence of-a transaction, and inadmissible under Rev. St. 1911, art. 3690, prohibiting testimony of transactions with persons deceased.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 669; Dec. Dig. ¡§=159(3).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Transaction.]</p> <p>4. Vendor and Purchaser ¡§=20*8 — Mutual Rights — Necessity of Written Agreement.</p> <p>Where the vendor, under an option contract for the sale of land, disposed of certain parcels within the term of the option, it was immaterial that there was no specific agreement to turn over to the option holder the amounts so derived, since the proceeds in equity belonged to him.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 424; Dee. Dig. <§= 208.]</p> <p>5. Appeal and Error ¡§=1056(2) — Harmless Error.</p> <p>Exclusion of testimony as to transactions of party interested with deceased and as to the existence of agreement between such parties held harmless, where its admission would not have benefited the defendant, who sought to introduce it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4188; Dec. Dig. ¡§= 1056(2).]</p> <p>6. Witnesses ¡§=159(1) — Transactions with Deceased — Representative Capacity.</p> <p>That a transaction with deceased was had in his representative capacity for a corporation does not affect the rule as to admission of testimony regarding it, since it is nevertheless a transaction with one deceased, which is always inadmissible.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 629, 664, 666; Dec. Dig. ¡§= 159(1).]</p> <p>7. Appeal and Error €=1067 — Harmless Error — Instructions.</p> <p>Error cannot be predicated on the refusal to instruct against liability of the defendant if the contract terminated on a certain date and was not renewed, where the evidence conclusively established that the contract was renewed.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. ¡§=1067; Trial, Cent. Dig. § 475.]'</p> <p>8. Trial ¡§=194(13) — Vendor and Purchaser <§=352 — Options—Right to Benefits— Instructions.</p> <p>Instruction on right of the holder of an option to purchase land to have stuns received from sale to other persons applied on his debt held not on the weight of evidence, nor calculated to confuse.</p> <p>[Ed. Note.' — For other cases, see Trial, Cent. Dig. § 402; Dec. Dig. @=>194(13); Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. @=> 352.]</p> <p>9. Alteration oe Instruments @=>29 — In-terlineations — VAEipiTr—Evidence.</p> <p>Evidence held to show that interlineations in a contract were made by the defendant, who denied it, and were of date concurrent with the contract.</p> <p>(Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 259-263; Dee. Dig. @=>20.]</p> <p>10. Trial @=>194(13), 240 — Vendor and Purchaser @=>352 — Option Contracts — Possession by Optionee — Character oe Possession.</p> <p>Instruction in action on an option contract of sale held not argumentative, ambiguous, or upon the weight of evidence on the issue whether the holder of the option held as a special tenant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 462, 561; Dec. Dig. @=>194(13), 240; Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. @=>352.]</p> <p>11. Vendor and Purchaser @=>352 — Options —Possession by Optionee — Evidence.</p> <p>Evidence held to justify the submission of an instruction on the character of the tenancy of the plaintiff’s predecessor in interest as a special tenancy.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 1059; Dec. Dig. @=> 352.]</p> <p>12. Appeal and Error @=>742(1) — Review-Province oe Court.</p> <p>Where a proposition under an assignment of error is insufficient, the court, on appeal, cannot reframe it to make it fit the record in order to properly present the issue.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. @=>742(1).]</p> <p>13. Appeal and Error @=>090(1) — Review— Exclusion oe Evidence — Sufficiency oe Exceptions.</p> <p>A bill of exceptions to the exclusion of evidence, reciting merely what the evidence would have been, is insufficient, where it fails to show the materiality of the testimony, which is apparently unconnected with the issues.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2897, 2904; Dec. Dig. @=> 690(1).]</p> <p>14. Appeal and Error @=>273(5) — Preservation oe Exceptions — 'General Exceptions.</p> <p>Whete an instruction 'embodies several propositions of law, some of which are accurate and not subject to objection, a general exception is insufficient to raise the propriety of a particular portion of the instruction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. @=>273(5); Trial, Cent. Dig. § 689.]</p>

F. O’Neal, Judge. Action by W. H. Erambert, Jr., against the Texas & Pacific Railway Company and others. From a judgment for plaintiff against the defendant named, it appeals. Appellee Erambert, living at Atlanta, Tex., was consignee of a shipment of trunks and hand bags from the Union Trunk & Bag Company at Richmond, Ya.

Pierson, Judge. Suit by D. E. McGrill against W. A. Smith and B. S. Waldrop, in which S. A. Nalls intervened. From a judgment for plaintiff against Smith and Waldrop, and for the in-tervener against Waldrop, the intervener appeals.

<p>Appeal from District Court, Titus County; J. A. Ward, Judge.</p> <p>Action by Emma Tates and others against Lucy Craddock and another.. Judgment for defendants, and plaintiffs appeal.</p> <p>Appellants sought to have partition made of a certain described tract of land, claiming that they owned a three-fourths and Lucy Craddock a one-fourth interest in the same. Lucy Craddock and her husband answered, denying that appellants had any interest in the land, pleaded in bar the ten-year statute of limitation, and by cross-action sought to recover the title to the land, averring that 'they had purchased the land of Emeline Stewart in virtue of a parol contract duly performed to take care of, feed, and clothe the aged parents of Emeline Stewart, and had gone into possession of the same, made valuable improvements, and had paid all taxes thereon. There was a trial before the court, and judgment was entered in favor of defendants for title and possession of the land.</p> <p>It was shown that Emeline Stewart, the owner of the land, died intestate in 1904. She was a widow without children. Adeline Turner was the mother of Emeline Stewart, and she died in 1913. Plaintiffs Turner and Bailey are the sister and brother, and plaintiff Tates is the niece, of Emeline Stewart. Defendant Lucy Craddock is the sister of Emeline Craddock. There is some evidence admitting of the inference that all of the above children of Adeline Turner were ’bastards. The evidence in respect to the entire case will not be set out:</p>

<p>Appeal from Harrison County Court; Geo. B. Hufman, Judge.</p> <p>Action by Sam Bell against First Texas State Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Fannin County Court; S. F. Leslie, Judge.</p> <p>Action by John Pipe against the First Texas State Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Sweet, Judge. Action by A. D. Ribble against J. B. Roberts. From a judgment of the county court, reversing a judgment of a justice of the peace for plaintiff, he appeals. Heard on motion to reform and correct judgment.

<p>Appeal from Karnes County Court; T. B. Smiley, Judge.</p> <p>Action by K. J. Polaseli against J. L. Bain. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and SeRvant <&wkey;330(3) — Master’s Liability to Third Persons — Evidence— Negligence of Servant — Proximate Cause.</p> <p>In an action for damages to a horse which became frightened at the actions of section bands on defendant’s railway and ran into a fence, evidence held to sustain findings by the jury that the acts of the hands were negligent, and that such acts were the proximate cause of the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1272; Dec. Dig. <&wkey;> 330(3).]</p> <p>2. Master and Servant &wkey;>302(2) — Master’s Liability to Third Persons — Acts of Servants Beyond Employment.</p> <p>A railway company is not liable for injuries to a horse which was frightened by section hands shouting, laughing, and waving their hands at it, even though at the time they were engaged in their duties, since such acts had no connection with their employment.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dee. Dig. <&wkey;302(2).]</p> <p>3. Master and Servant <&wkey;302(2) — Master’s Liability to Third Persons — Proximate Cause.</p> <p>Where a horse which was being driven along a lane adjoining a railroad right of way with other animals and which stopped when about to pass a section gang at work on the track and became frightened when the section hands began shouting, laughing, and waving their hands, jumped over a fence, and sustained fatal injuries, and there was. no evidence that the work of the section hands was being done in a negligent or improper manner, the fright of the horse must be attributed to the other acts of the hands for which the railway company was not liable.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dec. Dig. &wkey;302(2).]</p>

<p>1. Appeal and Error &wkey;>282 — Presentation op Questions in Trial Court — Motion por New Tbiai^Neoessity.</p> <p>Where a case is tried before the court without a jury, a motion for new trial is not a prerequisite to the perfection of an appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1662-1665; Dec. Dig. <&wkey;> 282.]</p> <p>2. Account, Action on <&wkey;10 — “Open Account” — Requisites.</p> <p>An account sued on, embracing numerous articles of merchandise purchased on a single date, properly itemized, which has not become an account stated, is an “open account,” proof of which by ex parte affidavit is permitted by Rev. St. 1911, art. 3712.</p> <p>[Ed. Note. — For other eases, see Account, Action on, Cent. Dig. § 31; Dec. Dig. <5&wkey;10.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Open Account.]</p> <p>3. Corporations <&wkey;>505 — Actions—Parties.</p> <p>A private corporation has the right to maintain an action in its own name.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1953-1957, 1975; Dec. Dig. &wkey; 505.]</p> <p>4. Corporations &wkey;>514(l) — Actions—Pleading.</p> <p>The petition, in an action by a private corporation, need not state the name of any officer of the corporation.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2052-2070; Dec. Dig. &wkey;514(l).J</p>

<p>Appeal from Ward County Court; Burch Carson, Judge.</p> <p>Action by the Hillside Land & -Irrigation Company against J. G. Ruiz. Judgment for defendant, and plaintiff appeals.</p>

<p>Insurance <&wkey;539(l) — Notice ob Peooe of Loss — Statutory Provisions.</p> <p>Tinder Rev. St. 1911, art. 5714, providing that no stipulation in a contract requiring notice of any claim for damages as a condition Íprecedent to the right to sue shall be valid un-ess reasonable, and that any such stipulation fixing the time at less than 90 days shall be void, a provision in a policy insuring against sickness, requiring that if the sickness continued for more than 30 days insured or his representative should, as a condition precedent to a recovery furnish the insurer every 30 days a report in writing from his attending physician or surgeon, stating his condition and the probable duration of his disability, was void.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1328, 1330, 1332, 1337; Dec. Dig. &wkey;539(l).]</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by George M. Holmes against William Harrell and others. From an order granting a temporary injunction, defendants appeal.</p>

<p>1. Injunction <§=>148(1) — Bonds.</p> <p>The issuance of a temporary injunction in a suit to restrain the sale of horses and cattle levied on under an execution, without requiring a bond, was null and void.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 323-330, 333; Dec. Dig. <§=» 148(1).]</p> <p>2. Courts <§=>480(3) — Jurisdiction—Injunction — Return.</p> <p>In such suit, where -it appeared that the judgment on which execution was levied was obtained in another county, the temporary writ of injunction, if legally granted, should, under Rev. St. art. 4653, have been returnable to the county court of such other county.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 1273; Dec: Dig. <§=>480(3).]</p>

Briggs, Judge. Suit for an injunction by Walter Jennings and others against the North American Dredging Company and others. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from District Court, Hardin County; L. B. Hightower, Judge.</p> <p>Action by J. J. Albums and another against the Gauss-Langenberg Hat Company. From a' judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Brazos County; J. C. Scott, Judge.</p> <p>Suit by Fountain Brothers against G. S. Ballard and others. From a judgment for plaintiffs, the named defendant appeals.</p>

<p>1. Homestead @=»141(1), 142(1) — Liabilities Enforceable — Express Liens.</p> <p>Under Rev. St. 1911, § 3422, providing for exempt property of an insolvent decedent’s estate to pass absolutely to the widow and children free from debts of the estate, express liens on a homestead give way to the rights of the widow and children, unless within exceptions named in the section.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 261-268, 269-273, 277-280; Dec. Dig. @=>141(1), 142(1).]</p> <p>2. Homestead @=>141(1), 142(1) — Liabilities Eneokceable — Express Liens.</p> <p>That an express lien was created on land before marriage of the owner does not affect the rule that express liens on the homestead of an insolvent are subject to the rights of the widow and children of the owner.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. g§ 261-268, 269-273, 277-280; Dec. Dig. @=>141(1), 142(1).]</p>

County Court; S. F. Leslie, Judge. Action by Mrs. E. G. MeSwain and others against the Steger Lumber Company, a corporation. From a judgment for plaintiffs, defendant appeals. The Steger Lumber Company, a corporation, filed suit on June 17, 1914, against H. M. Curtis, Shelby Hudson, and Mrs. E. G. MeSwain, doing business as partners, for a balance of $216.77 due on account.

B. M. Long, Judge. Action by the Atlantic Fruit Distributors against J. D. Payne and another, in which the defendants filed' a cross-bill against the Gulf, Colorado & Santa Fé Railway Company. Judgment for the plaintiff against the named defendant only and for that defendant against the cross-defendant, and defendant and cross-defendant appeal.

<p>1. Appeal and Eerob <&wkey;715(2) — Court oe Civil Appeals — Bower to Ascertain Jurisdiction — Statute.</p> <p>By direct provision of Vernon’s Say les’ Ann. Civ. St. 1914, art. 1593, the Court of Civil Appeals has power to ascertain by affidavit or otherwise such matters of fact as may be necessary to the proper exercise of its jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2965; Dec. Dig. &wkey;> 715(2).]</p> <p>2. Appeal and Error e&wkey;407(l) — Appeal by Writ of Error — Citation.</p> <p>A Court of Civil Appeals has no jurisdiction to entertain a writ of error, unless citation in error has been legally served on the defendant in error or service accepted.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2120, 2128, 2129, 2131, 2132; Dec. Dig. <&wkey;407(l).]</p> <p>3. Railroads <&wkey;24(2) — Receivers—Service of Process — Agent.</p> <p>The agent of the receivers of a railroad corporation under appointment of a court of competent jurisdiction is not the agent of the corporation for service of process, although before the appointment of the receivers he was the agent, and at the time of service of citation upon him he is serving the receivers as agent in the same capacity in which he served the corporation.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 54; Dec. Dig. <&wkey;24(2)J</p>

<p>1. Courts <&wkey;30 — Texas—District Court-Jurisdiction.</p> <p>Under Const, art. 5, § 8, giving the district court original jurisdiction of all suits for trial of title to land and for enforcement of liens thereon, the district court does not, where suit is in good faith brought to enforce a lien on land, lose jurisdiction because it develops on trial that there is no lien and the amount involved is less than $500, which is the jurisdictional limit of that court.</p> <p>[Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 119-128; Dec. Dig. <&wkey;30.]</p> <p>2. ARPEAD AND ERROR <&wkey;1172(3) — REVERSAL —Effect.</p> <p>In a materialman’s suit to enforce his lien and recover for the materials, where the district court improperly dismissed the suit upon it appearing that the materialman was entitled to no lien, the amount involved being- less than $500, that portion of the judgment holding that there was no lien, not having been complained of on appeal, will not be disturbed, though the rest of the judgment will be reversed, rule 62a for Courts of Civil Appeals (149 S. W. x), declaring that if an error affects only a part of the matter in controversy and the issues are severable, the judgment shall be reversed only as to the part affected by the error.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4557, 4558; Dec. Dig. &wkey;> 1172(á)J</p>

<p>1. Mortgages &wkey;>151(7) — Priority — Allowance to Widow.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3413, provides for the setting apart for the use and benefit of the widow and minor children all property exempt from execution, with the exception of exemption of one year’s supply of provisions. Article 3414 authorizes an allowance in lieu of such articles exempted which are not among the effects of the deceased. Article 3420 provides that no property on which liens have been given by the husband and wife, acknowledged in a manner legally binding upon, the wife to secure creditors, shall be set aside to the widow or children until the debts secured by such liens are discharged. Article 3422 provides that if the estate on final settlement is insolvent, the title of the widow to all property and allowances set apart is absolute, and cannot be taken for debts of the estate, except as provided by article 3428, which requires payment of funeral expenses and the expenses of the last sickness of the deceased. Before marriage, deceased gave a mortgage on certain property, in which the creditor did not have the wife join after the marriage. Held, that her right to the allowance was superior to the lien of the mortgagee, the provision of article 3420 providing an exception in favor of the creditor, within'whose terms he must clearly bring himself, so that, where the mortgage was not signed by the</p> <p>wife, the creditor had no lien as against her claim for an allowance.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 332-336; Dec. Dig. <&wkey;5l51(7)J 2. Executors and Administrators <&wkey;182 —</p> <p>Allowance to Widow — Priority — Insolvent Estates.</p> <p>In such case, if the estate was insolvent Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 3420, did not apply.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 651, 686-693; Dec. Dig. &wkey;>182.]</p>

W. Walthall, Judge. Suit by W. S. J. Russell against S. B. Hov-ey and another as receivers of the Kansas City, Mexico & Orient Railway Company of Texas and another. By an amended petition said railroad was made defendant in place of the receivers. From a judgment for plaintiff, defendant railroad appeals.

<p>1. Railroads <&wkey;390 — Injuries to Persons About Tbacks — Discovebed Peril.</p> <p>To render a railroad company liable for injuries received by one on or about its tracks under the theory of discovered peril, it must appear the engineer in charge of the train realized such person’s danger, and that he could not or would not extricate himself from the dangerous situation, yet failed to take precautions to avoid the injury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig.. §§ 1324, 1325; Dec. Dig. &wkey;390.]</p> <p>2. Railroads <&wkey;400(14) — Injuries to Persons About Tracks — -Actions—Evidence —Direct Question.</p> <p>In an action by a young boy hurt when a passing train struck the gate leading from a stock pen to the tracks, the question whether the engineer in charge realized the boy’s position of peril, but failed to take precautions to avoid injuries, held for the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Dec. Dig. &wkey;400(14).]</p> <p>3. Damages <&wkey;134(3) — Personal Injuries— Measure.</p> <p>Where a boy through the negligence of a railroad company suffered injuries consisting principally of a broken arm, an award of $800 cannot be held excessive on the theory that it did not appear such injury would diminish his earning capacity on reaching majority; there being evidence of mental and physical suffering and permanent injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 368, 389-392; Dec. Dig. &wkey;134 <3).] ...</p> <p>4. Trial <&wkey;352(6) — Special Issues — Leading Questions.</p> <p>Special issues submitted to the jury, though they be leading questions, are not improper, where they do not in any manner suggest the answer expected, but merely call for an unequivocal answer.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 842; Dec. Dig. &wkey;352(6).]</p>

Action by Edward Johnston against C. E. Ford and another. From a judgment for plaintiff, the defendant named appeals.

County Court; Jesse F. Odom, Judge. Suit by the Fidelity & Casualty Company against the Tyler Cotton Oil Company. From a judgment for defendant, plaintiff appeals. The appellant company issued to appellee an employers’ liability policy during the years, respectively, of 1908 and 1909. The amount of compensation paid employés for the period of the policy determined the amount of premium payable for the indemnity provided in the policy.

<p>Appeal from District Court, Harrison County; H. T. Dyttleton-, Judge.</p> <p>Suit by Mrs. Ada Griffin and others against the Texas & Pacific Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Appeal and Error <&wkey;78i7 — Grounds bob Dismissal — Failure to Pbosecute Proceedings.</p> <p>Where no transcript was filed until nearly six months after trial and no briefs were filed until four days before the time set for submission, the appeal will be dismissed for want of prosecution unless there was fundamental error iu the trial of the cause.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 3129, 3130; Dec. Dig. <&wkey;> 787.]</p> <p>2. Easements <&wkey;18(l) — Wat ob Necessity— Statute — Construction — Intention ob the Legislature.</p> <p>Where the defendants’ land was bounded on three sides by the Rio Grande river and on the fourth by the land of one of the plaintiffs, they could not invoke the provisions of a law enacted in 1884 (Gammel’s Laws Tex. vol. 9, pp. 600-602), requiring a right of way be left across land surrounding the land of another, as that law did not by its terms apply to the defendants’ tract, and the court had no authority to extend the law to include land evidently not eontemr plated by the Legislature.</p> <p>[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 50, 52, 55; Dec. Dig. <&wkey;>lS(l).]</p> <p>3. Statutes <&wkey;167(l) — Repeal — Acts Not Carried Into Revisal.</p> <p>Where, in adopting the Revised Statutes of 1895 and of 1911, it was in each case provided that all civil statutes of a general nature in force when the Revised Statutes took effect and not included therein or not expressly continued in force were repealed, a law enacted in ]S84 (Gammers Laws Tex. vol. 9, pp. 600-602), which was not carried into either Code and which was not in either case among the exceptions to the repealing clause, was repealed.</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 242; Dec. Dig. <S=»167(1).]</p>

F. Leslie, Judge. Action by Hugh Sherlin against the Western Union Telegraph Company. From a verdict for plaintiff, the defendant appeals. The action is by appellee for damages, founded upon mental anguish, for the negligent failure, as alleged, to transmit and deliver the following telegram: “Chattanooga, Tennessee. October 10, 1913. J. T. Haney, H. M. Bonham, Texas.

B. Price, Judge. Action by A. M. Elias against the Missouri, Kansas & Texas Railway Company of Texas and another. From a judgment against the named defendant alone, and in favor of its codefendant, defendant appeals.

Odom, Judge. Action by Harlan & Harlan, a corporation, against the Mayfield Company and another, with garnishment against the Mayfield Company and W. E. Nunnellee. From an adverse judgment, the garnishees appeal.

Odom, Judge. Action by I. H. Crutcher & Son against M. T. Sheets, with garnishment against the May-field and another. From an adverse judgment, garnishees appeal.

<p>1. Continuance &wkey;>23 — Right to — Denial.</p> <p>In an action for the purchase price of horses, where it was not shown that cattle transactions between the parties were material, the denial of a continuance on account of the absence of witnesses who could testify as to such transactions was not error.</p> <p>[Ed. Note. — Por other cases, see Continuance,. Cent. Dig. §§ 68^-71; Dee. Dig. <&wkey;>23.]</p> <p>2. Continuance <&wkey;46(4) — Application — Statement op Conclusion.</p> <p>A mere statement of a conclusion as to what would be proven by an absent witness is not a compliance with the statute entitling a-party to a continuance to procure such witness.</p> <p>[Ed. Note. — For other cases, see Continuance,. Cent. Dig. § 132; Dec. Dig. &wkey;46(4).]</p> <p>3. Continuance &wkey;>22 — Absent Witnesses— Right to.</p> <p>In an action for the purchase price of horses, where defendant counterclaimed for duty paid on the horses, and the evidence showed that neither the seller nor one of his agents had anything to do with the payment of duties, the denial of a continuance requested on the ground of the absence of the seller and such agent, whom it was claimed could testify as to such matters, was not error; for in disposing of such a question the appellate court may consider the evidence.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent. Dig. §§ 58-67; Dee. Dig. &wkey;22.]</p> <p>4. Principal and Agent <&wkey;119(l) — Agency —Scope—Peesumptions.</p> <p>Agency, when once shown to exist, is presumed to be general, and not special.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 391, 393, 398, 399, 401; Dec. Dig. &wkey;119(l).]</p> <p>5. Evidence &wkey;>75 — Presumption—Failure to Produce Evidence.</p> <p>A party’s failure to produce evidence or introduce a witness who is present raises a presumption that such evidence was not favorable to him, and that such witness would not have testified in his behalf.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 95; Dec. Dig. <&wkey;75.]</p> <p>6. Principal and Agent <&wkey;123(10) — Ac-tio ns — Evidence—Sufficiency.</p> <p>In a suit for the purchase price of horses, where defendant claimed plaintiff was bound to recompense him for duties paid on the animals,, evidence held to warrant a finding that defendant’s brother, to whom the duties were paid, was defendant’s agent authorized to receive payment.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 429; Dec. Dig. &wkey;123(10)J</p>

Prince, Judge. Suit by J. B. Berry against Bert G. Buck and another, in which O. D. Yaden was im-pleaded. From a judgment for plaintiff against defendants, and in favor of the defendants and plaintiff against the party im-pleaded, the latter appeals.

<p>Appeal from District Court, McCulloch County; Jno. W. Goodwin, Judge.</p> <p>Action by Thomas Bell against James T. Mann and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Nacogdoches County Court; J. F. Perritte, Judge.</p> <p>Attachment by Fuller, Hanna & Co. against George Rogers, in which Silas Rogers appeared and claimed the property. From a judgment of the county court, on appeal from a justice court, plaintiffs appeal.</p>

<p>1. Evidence i&wkey;399 — Actions on Contracts —Evidence Admissible under Pleadings.</p> <p>Plaintiff sued a county on an alleged written contract for safe doors. Defendant denied the contract, and alleged that the doors were furnished a contractor erecting a courthouse. By supplemental petition plaintiff pleaded the contents of the minutes of the county commissioners’ court showing a written contract between the commissioners’ court and plaintiff, and to this supplemental petition no answer was filed. Held, that it was error to admit pa-rol evidence that the commissioners’ court was only selecting the doors for the contractor, and not purchasing them, since, if it was permissible at all to alter or abrogate the contract, except by motion in the commissioners’ court to amend its minutes, this could not be done without a plea of fraud or mistake.</p> <p>[Ed. Note. — For other eases, see Evidence, Gent. Dig. §§ 1772-1777; Dec. Dig. &wkey;399.]</p> <p>On Motion for Rehearing.</p> <p>2. Appeal and Error <&wkey;1173(l) — Disposition op Cause — Granting Relief to Par-tv Not Appealing.</p> <p>In an action against a county for the price of safe doors, it denied liability, and asked that a contractor and its surety be made parties,. and that it have judgment against them if plaintiff recovered any judgment against it. The trial court rendered judgment in favor of all the defendants, and plaintiff appealed. The judgment was reversed, and judgment was rendered for plaintiff against the county. Held that, as the judgments in favor of the contractor and the surety were apparently rendered upon the theory that, as the county had been adjudged not indebted to plaintiff, it could not maintain any cross-action against them, such judgment would be reversed, and the cause remanded for a new trial as between the county and them; as the power to give relief to an appellant by changing the judgment carries with it the power and necessity to make such other changes as justice to the other parties demands.</p> <p>[Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 4562-4567, 4569, 4656; Dec. Dig. &wkey;1173(l).]</p>

.Appeal from District Court, Fannin County; Ben H. Denton, Judge. Suit by Mary A. Cox and others against Dula George and others for the construction of a will. Decree construing the will in favor of the defendants, and plaintiffs appeal. C. Z. Bridge married four times during his lifetime.

<p>Appeal from District Court, Bexar County; .R. B. Minor, Judge.</p> <p>Action by A. N. Moses against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appéals.</p>

<p>Appeal from Hardeman County Court; D. E. Magee, Judge.</p> <p>Action by T. M. Hansard against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by J. K. McAmis against the Gulf, Colorado & Santa Fé Railway Company. From a judgment denying temporary injunction, plaintiff appeals.</p>

Action by tlie Outcault Advertising Company against the Bogata Mercantile Company. Judgment for plaintiff, and defendant appeals. Appellant, a Texas corporation, carried on its mercantile business at Bogata, in this state. Appellee, an Illinois corporation, carried on its advertising business at Chicago, in that state.

<p>Appeal from District Court, Fannin County ; Ben H. Denton, Judge.</p> <p>Action by George W. Winter against tbe Western Union Telegraph Company. Judgment for tbe plaintiff, and defendant appeals.</p> <p>Appellee’s brother, Gabe Winter, resided in Waco, Tex., but on July 2, 1914, died in a sanitarium at Chicago, Ill. On the morning of that day Erancis Winter, another brother to appellee, delivered to appellant at Houston, Tex., for transmission to appellee at Bonham, Tex., where he resided, a telegram as follows:</p> <p>“Houston, Texas, July 2, 1914. Geo._ W. Winter, Bonham, Texas. Gabe died Chicago this morning. Arrangements later. [Signed] Erancis.”</p> <p>The message was promptly transmitted to Bonham, but it was not delivered to appellee until Sunday morning, July 5th. In the meantime, to wit, at 4 o’clock on the afternoon of Saturday, July 4th, the remains of appellee’s brother Gabe, having been removed to Waco, were there interred. This suit was by appellee to recover damages resulting to him, as he alleged, from negligence of appellant in failing to promptly deliver to him the message set out above. The appeal is from a judgment in his favor for the sum of $500.</p>

<p>1. Carriers <@=>58 — Bill oe Lading — Trans-fer — Evidence.</p> <p>Where a bank purchased a seller’s bill of lading with draft attached, but on refusal of the buyer to accept the goods the seller gave its check to the bank for the amount of the draft, held, on the evidence, that at the time of a levy on the goods as the property of the seller the title was in the seller, and not in the bank.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. <@=58.]</p> <p>2. Execution <@=>90 — Form — Omission oe WORD.</p> <p>Execution issued out of the county court of Houston county directing the officer making the levy to make return “Before said court at the courthouse thereof in Houston within 60 days,” etc., was not void for the omission of the word “County” after “Houston.”</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. § 185; Dec. Dig. <@=>90. ]</p> <p>3. Execution <@=>182 — Claims by Third Persons — Attack upon Validity.</p> <p>A claimant in execution cannot without pleading or proof attack the validity of the execution.</p> <p>[Ed. Note. — For other cases, see Execution, Cent. Dig. § 547; Dec. Dig. <@=>182.]</p>

<p>Appeal from Travis County Court; Wm. Von Rosenberg, Jr., Judge.</p> <p>Action by R. D. Shofner against F. D. Griffith, From a judgment for plaintiff, defendant appeals.</p>

Kinney, Judge. Action by H. D. Gunter against W. H. Brown and another, with garnishment against Jones Hardware & Furniture Company. Judgment against the garnishee by default, motion to set aside judgment overruled, and the garnishee appeals.

Suit by E. J. Riley and others against the Town of Trenton and others. Judgment for the defendants, and plaintiffs appeal.

D. Guinn, Judge. Action by Mrs. Lizzie Hooper and others against the Houston East & West Texas Railway Company. Prom a judgment for plaintiffs, defendant appeals. Mrs. Lizzie Hooper was a passenger on appellant’s regular passenger train, and as she was alighting from the coach at nighttime at the station of her destination she fell from, or down, the steps of the coach and was seriously injured.

<p>1. Mandamus @=57(1) — Transcript —Duty op Court — Statute.</p> <p>Under Acts 32d Leg. c. 119, touching the duties of court stenographers, where plaintiff in an action filed an affidavit of inability to pay the costs of appeal or give security therefor, which affidavit the judge of the county court, upon contest, hold sufficient, correct, and true, and ordered that plaintiff be allowed to appeal on such affidavit without giving a cost bond, etc., it was the duty of such judge compellable upon refusal by mandamus, to order the special stenographer, appointed for the trial, to transcribe Ms shorthand notes of the proceedings without charge. ,</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 114, 115, 117-120; Dec. Dig. @= 57(1).]</p> <p>2. Mandamus @=57(1) — Courts Op Civil Appeals — Jurisdiction.</p> <p>Under Rev. St. 1911, art. 1592, conferring upon Courts of Civil Appeals the power to issue writs of mandamus to enforce jurisdiction, such a court has power to issue such writ to compel the official stenographer of a county court to prepare a transcript free of charge in connection with a pauper appeal, as required by Acts 32d Leg. e. 119.</p> <p>[Ed. Note. — For other cases, see Mandamus, ■Cent. Dig. §§ 114, 115, 117-120; Dec. Dig. @= 57(1).]</p> <p>3. Mandamus @=57(1) — Stenographer — Compelling Preparation op Transcript.</p> <p>A court stenographer may be compelled by mandamus to transcribe his shorthand notes of proceedings in court taken by him by virtue of his appointment.</p> <p>[Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 114, 115, 117-120; Dec. Dig. @= 57(1).]</p> <p>4. Mandamus @=57Cl) — Officers — Stenographer — Pauper’s Appeal — Preparation op Transcript.</p> <p>A special stenographer in a county court appointed under Acts 32d Leg. c. 119, to act in a .single case, who did so for three days, receiving his pay of $15 could be compelled thereafter by mandamus to prepare a transcript for the plaintiff, a pauper, free of charge, since under 'the statute it is the stenographer’^ legal duty to make such transcript, so that he does not cease to be an officer of the court when his pay ceases.</p> <p>[Ed. Note. — For other cases, 'Cent. Dig. §§ 114, 115, 117-126 57(1).] see Mandamus, ; Dec. Dig. @=</p>

<p>Appeal from District Court, Hardin County; J. Llewellyn, Judge.</p> <p>Action by the Texas Lumber Manufacturing Company and others .against Mrs. Julia A. Keppler and others. From a judgment for plaintiffs, defendants appeal.</p>

Calhoun, Judge. Action by the San Benito Sugar Manufacturing Company against T. Schriver & Co. and others. From the final judgment, the defendants I-Iooven-Owens-Rentschler Company and others appeal.

A. Nabers, Judge. Trespass to try title by S. K. Powers and others against C. E. Crews and others. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from District Court, McLennan County; Edwin J. Clark, Special Judge.</p> <p>Suit by Roy E. Lane against Joe Snaman. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hopkins County; R. L. Porter, Judge.</p> <p>Action by J. C. Watkins against L. B. Minter and others. Erom a judgment for defendants sustaining general demurrer to petition and dismissing the case, plaintiff appealed, and questions presented were certified to the Supreme Court. Questions answered (180 S, W. 227).</p>

<p>Cbiminal Daw <&wkey;1090(l) — Statement op Facts and Bill op Exceptions — Necessity.</p> <p>In the absence of statement of facts or bill of exceptions, no question is raised for review on appeal in a criminal case.</p> <p>[Ed. Note. — For other oases, see Criminal Law, Cent. Dig. §§ 2653, 2805-2807, 2825-2827, 3204; Dec. Dig. &wkey;1090(l).]</p>

<p>Appeal from Young County Court; W. P. Stinson, Judge.</p> <p>Cleve Barnes was convicted of selling intoxicating liquors, and he apppeals.</p>

<p>Criminal Raw <&wkey;1090(16) — Appeai>-Neces-sity of Statement of Pacts and Bill of Exceptions.</p> <p>Questions raised in a motion for a new trial cannot be reviewed where the record contains no statement of facts or bills of exceptions.</p> <p>[Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2322, 2948, 3204; Dec. Dig. &wkey;1090(16).]</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Action by Leonard Krower against S. J. Martin for au injunction. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Counties @=>98(1) — Oeítcers—Liabilities on Bonds.</p> <p>Under Sp. Laws 1903, c. 25, § 1, creating a special road law for San Augustine county, making the members of the commissioners’ court ex officio road commissioners of their respective districts, requiring them to execute bonds as such road commissioners, and limiting the amount of compensation they should receive, a county commissioner and the sureties on his official bond as such are not liable for amounts coming into the hands of the commissioner for road purposes in excess of the amount permitted by law; no bond having been given by him as road commissioner.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 141, 142; Dec. Dig. @=>98(1).]</p> <p>2. Counties @=>206(1) — County Board — Conclusiveness or Decisions.</p> <p>. Under Rev. St. 1895, art. 1537, giving commissioners’ courts authority to approve and settle all accounts against the county, the orders of the court are conclusive, unless appealed from, and are not subject to collateral attack if the court has jurisdiction, but, when the court exceeds its jurisdiction, the order is subject to collateral attack.</p> <p>[Ed. Note. — Eor other cases, see Counties, Cent. Dig. §§ 322, 323, 326, 327; Dec. Dig. @=> 206(1).]</p> <p>3. Counties @=>101(6) — Oeficeks—Actions— Pleading.</p> <p>Though Rev. St. 1895, art. 1535, requires each member of the county commissioners’ court to take oath that he will not directly or indirectly be interested in any contract with or claim against the county except for his fees of office, where a petition alleges that a commissioner collected sums to which he was not entitled, and set out the names of the persons to whom the warrants were issued, the number of warrants, the dates issued, the dates paid, and that they were for services rendered for the county, but failing to allege that the commissioner was interested in any of the claims, or that he had any assignment of any of them, or that he collected them for himself as owner, and not showing that he did not collect the claims for the real owners, it was insufficient to state, a cause of action.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 157; Dec. Dig. @=>101(6).]</p> <p>4. Counties @=>101(6) — Officers — Liabilities on Bond.</p> <p>A petition by a county against a county commissioner for amounts collected from the county to which he was not entitled for services rendered to the county did not show liability of sureties on his bond, even though he were personally liable.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 157; Dee. Dig. @=¿101(6).]</p> <p>5. Counties @=>101(6) — Officers — Liabilities.</p> <p>In a petition against a county commissioner for sums paid to him in excess of the amount allowed by law for road purposes and sums collected by him on warrants to various persons for services to the county, a paragraph alleging liability for money had and received is insufficient to show liability in the absence of a showing of liability in the paragraphs setting out the facts relating to amounts received by him.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 157; Dec. Dig. @=>101(6).]</p>

<p>Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.</p> <p>Action by T. C. Bailey against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by R. L. Tolbert against tbe Zavala Land & Water Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Errori <&wkey;1185 — Jurisdiction —Finality op Judgment in Lower Court —Setting Aside Affirmance.</p> <p>If the trial court’s judgment was not final, tho Court of Civil Appeals did not acquire jurisdiction, and its judgment of affirmance is a nullity, and should be set aside.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4636-4641; Dec. Dig. <5&wkey; 1185.]</p> <p>2. Appeal and Error <S&wkey;1185 — Jurisdiction —Judgment in Lower Court — Setting Aside Affirmance.</p> <p>Motion to set aside a judgment of affirmance, on the ground that the trial court’s judgment was not final, and that therefore the appellate court never acquired jurisdiction, may be made at a subsequent term.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4636-4641; Dec. Dig. <S= 1185.]</p> <p>3. Appeal and Error 79(2) — Jurisdiction-Final Judgment — Disposition of Parties —Implication.</p> <p>Even if plaintiff’s amended petition, stating that he dismissed his suit as to all defendants except N., and complaining of N. only, did not ipso facto, operate as a discontinuance as to all defendants except N. without formal order, the plain and necessary implication from' the order then made — not specifically naming defendant R., but reciting that plaintiff says he will not prosecute his suit against named defendants, and dismisses his suit as to all defendants except N., and ordering the dismissal as to the-named defendants, and that the cause stand for trial with N. as defendant, and from the judgment against N. after trial, reciting that plaintiff having therefore entered a dismissal of his cause against all the defendants except N., plaintiff and defendant N. announced ready for trial — is that the suit was discontinued as to all defendants except N., which is all that is necessary as regards there being a complete disposition of parties.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 485 — 487; Dec. Dig. @=79 (2).]</p> <p>4. Appeal and Error <&wkey;80(l) — Jurisdiction — Final Judgment — Disposition op-Subject-Matter — Amendment of Petition.</p> <p>Relative to the judgment disposing- of the subject-matter, and so being final, for purpose of appeal, amendment of the petition reducing plaintiff’s claim to five of the many acres claimed by the petition, of itself eliminated all the-rest of the subject-matter of his claim.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 494-500, 50-3, 505-509; Doc. Dig. @=80(1).]</p> <p>5. Appeal and Error. <&wkey;80(l) — Jurisdiction — Final Judgment —Disposition of-Cross-Action.</p> <p>The cross-action of defendant for the land sued for by plaintiff is by necessary implication-disposed of and adjudicated against him by the judgment for plaintiff therefore.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§. 494-500, 503, 505-509; Dec. Dig. @=80(1).]</p> <p>6. Dismissal and Nonsuit @=19 (3) — Dismissal of Suit — Effect on Cross-Action.</p> <p>Plaintiff’s dismissal of his suit as to certain defendants did not affect any cross-action-pleaded by them.</p> <p>[Ed. Note. — For other cases, see Dismissal and Nonsuit, Cent. Dig. § 36; Dec. Dig. @=19(3).]</p> <p>7. Appeal and Error @=80(1) — Jurisdiction-Final Judgment — Disposition op Cross-Action.</p> <p>Disposition of any cross-action pleaded by defendants as to whom he dismissed his suit is essential to finality of the decree or judgment.</p> <p>[Ed. Note. — For other cases, see Appeal and' Error, Cent. Dig. §§ 494r-500, 503, 505-509;. Dec. Dig. @=80(1).]</p> <p>8. Trespass to Try Title <&wkey;22 — Cross-Action — Pleading—Limitations.</p> <p>Answer of defendants in trespass to try-title, though not containing some formal allegations appropriate to a cross-action therein, is, in the absence of special exceptions, sufficient to-constitute a cross-action, and afford basis on which to predicate a right to affirmative relief, thereby asked, facts being alleged, the legal effect of which is to vest in such defendants title by limitations; a plea of limitations, as distinguished from one of not guilty, necessarily implying that title is vested in defendants, and' so, under appropriate prayer, authorizing affirmative relief.</p> <p>[Ed. Note. — For other cases, see Trespass to-Try Title, Dee. Dig. ©=522.]</p> <p>9. Appeal and Error <&wkey;80(l) — Jurisdiction— Final Judgment — Disposition of Cross-Action.</p> <p>There is an implied disposition, by discontinuance or dismissal, of the other defendants’ cross-action, in the order that plaintiff’s suit was dismissed as to them, “and that this cause stand for trial with M. as plaintiff, and N. as defendant.”</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 491-500, 503, 505-509; Dec. Dig. <@==>80(1).]</p> <p>10. Appeal and Erkiob <@=>80(1) — Jurisdiction — Final Judgment.</p> <p>Whether dismissal of the cross-action of defendants, as to whom plaintiff dismissed his suit, was rightful, is immaterial, relatively to there having been a disposition of the issue, making the judgment final, and so giving the appellate court jurisdiction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 494-500, 503, 505-509; Dec. Dig. <@=>80(1).]</p>

Wren, Judge. Action by J. & G. Lippman, a corporation, against the Jeffords-Schoenmann Produce Company. From a judgment for defendants as to the cause of action set forth in plaintiff’s petition, and for plaintiff as to defendants’ cross-action, plaintiff appeals.

<p>1. Stipulations <@=»18(1) — Effect.</p> <p>Where the mortgagee of a nursery company secured a money judgment, with a foreclosure of its lien upon the land, providing that an order of sale would issue, in course of the nursery company’s receivership, commanding the property to be sold on execution subject to approval of the court, and such mortgagee’s assignee stipulated in court, as recited in the order of sale of the property, that the title to the nursery stock should not pass with the sale of the land, and acquiesced in the order of the court that the sale of the land should be made subject to the right of the receiver or his assignees to remove the stock, such assignee, after sale of the land to itself, could not enjoin the sale or removal of such stock.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. §§ 41, 45, 47, 54; Dec. Dig. 18(1).]</p> <p>2. Injunction <§=>7 — Foreclosure — As-signee of Judgment — Remedy by Appeal.</p> <p>Where the assignee of a foreclosure judgment against a nursery company in the hands of a receiver was not satisfied with the terms of the order of sale requiring the land and nursery stock to be sold separately and denying its right of lien upon the stock, its remedy was to appeal, and not to buy in the land and then seek to enjoin the receiver from selling or removing the stock.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 6, 34; Dec. Dig. <S==>7.]</p> <p>3. Mortgages <®=»133 — Extent of Lien — Nursery Stock.</p> <p>Whether nursery stock, prima facie a part of the realty, is subject to the lien of a mortgagee of the land depends upon the intention of the parties at the time the mortgage was executed.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig*. §§ 260, 264, 265; Dec. Dig. @=?133.]</p> <p>4. Mortgages ©=ol33 — Extent of Lien — Nursery Stock — Intention.</p> <p>Where a nursery company mortgaged its land, if it was contemplated by the parties that the company should have the right each year to sell the nursery stock without accounting to the mortgagee for the proceeds, and such right was exercised by the company, it was the intention of the parties that the nursery stock was to be regarded as personalty not subject to the mortgage.</p> <p>[Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 260, 264, 265; Dec. Dig. <S=wl33.]</p> <p>5. Mortgages <3=^133 — Property Covered-Chops.</p> <p>Crops grown upon land covered by a mortgage are personal property of the mortgagor, and not subject to the mortgage.</p> <p>[Ed. Note. — For other eases, see Mortgages, Cent. Dig. §§ 260, 264, 265; Dec. Dig. <3^>133.]</p>

<p>1. Counties <§=>98 (1) — Officers— Liability of Official Bond — Statute.</p> <p>Under Sp. Acts 28th Leg. c. 25 (Special Road Law for San Augustine County) § 1, providing that the members of the commissioners’ court of the county shall be ex officio road commissioners of their respective districts, and that one shall, before entering upon the duties of his office, in addition to his required bond as commissioner, execute a bond of $1,000, with sureties, conditioned that he shall faithfully perform all duties required of him by law or the commissioners’ court, etc., the sureties on the official bond óf a county commissioner as such were not responsible for his illegal drawing or receiving money from the county as ex officio road commissioner.</p> <p>[Ed. Note — For other cases, see Counties, Cent. Dig. §§ 141, 142; Dec. Dig. <§=»98(1).]</p> <p>2. Counties <§=>101(6) — Officers—Liability foe Default — Pleading and Proof.</p> <p>In suit by the treasurer of San Augustine county,_ where the petition showing upon its face an action laid against a county commissioner and the sureties on his bond for the unlawful collection of moneys as such commissioner, does not warrant recovery against him individually for defaults committed by him as ex officio road commissioner under the special road law for the county (Sp. Acts 28th Leg. c. 25).</p> <p>[Ed. Note. — Eor other cases, see Counties, Cent. Dig. § 157; Dec. Dig. <§=>101(6).]</p> <p>3. Courts <§=>120 — District Courts — Jurisdictional Amount.</p> <p>The district court had no jurisdiction of the county treasurer’s suit against a county commissioner to recover $120 unlawfully collected from the county; the amount being below its jurisdiction.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-436; Dec. Dig. <§=>120.]</p> <p>4. Counties <§=>101(6) — Liability of Officer — Illegal Collection of Money — Pleading.</p> <p>In suit by the treasurer of San Augustine county against a county commissioner and his sureties to recover moneys unlawfully collected, the allegation of the petition “that said account [of parties for road work] was approved and ordered paid by the county commissioners’ court, and on the same date county warrant No. 477 was issued and delivered to said defendant in payment therefor, and that said warrant was paid on the same date by treasurer’s check No. 390,” was insufficient as failing to charge that the warrant was issued in favor of defendant commissioner, that he collected it, or that he had pecuniary interest in it.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. § 157; Dec. Dig. <§=>101(6).]</p> <p>5. Counties <§=>206(1) — Claims—Allowance —Conclusiveness—Void Order — Statute.</p> <p>Under Const, art. 5, § 8, providing for appeals from commissioners’ courts to district courts with such exceptions as may be provided by law, and in view of Vernon’s Sayles’ Ann. Civ. St. art. 6866,- providing for an appeal to the district court from a judgment of the commissioners’ court, assessing damages after taking land for public roads, the only provision for appeal from a judgment of the commissioners’ court to the district court, where the commissioners’ court of San Augustine county ordered and allowed to a county commissioner without legal authority amounts claimed by him connection with roadwork, such judgment of the commissioners’ court, in excess of its jurisdiction, allowing and ordering illegal warrants, was subject to collateral attack.</p> <p>[Ed. ' Note. — For other cases, see Counties, Cent. Dig. §§ 322, 323, 326, 327; Dec. Dig. 206(1).]</p>

B. Muse, Judge. Action by H. D. Peck against Murphy & Bolanz, in which Herman Kruegel, assignee of the judgment for plaintiff, moved for a recovery of the amount thereof against J. Roll Johnson, as former sheriff, and the sureties on his official bond. Motion dismissed, and Kruegel appeals.

Error from District Court, Coleman County ; John W. Goodwin, Judge. Suit by the W. T. Rawleigh Medical Company against R. P.* Fitzpatrick and others. To review a judgment for defendants, plaintiff brings error.

<p>1. Corporations <&wkey;487(l) — Powers—Ultra Vires Acts — Validity.</p> <p>It is not every ultra vires act of a corporation that is void.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1893, 1898; Dec. Dig. <&wkey;>487(l).]</p> <p>2. Corporations <&wkey;426(l) — Acts op Agents —Ratification .</p> <p>An act, ultra vires, though not void, may be ratified either by acquiescence of those charged with management of the corporation or by affirmative ratification.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1596, 1702; Dec. Dig. &wkey;426(l).J</p> <p>3. Corporations <&wkey;462 — Powers — Mercantile Corporations. ;</p> <p>The mere fact that the buyer of notes was a mercantile corporation would not make ultra vires its act in buying such notes from which it might largely profit.</p> <p>[Ed. Note. — For other cases, see Corporations. Cent. Dig. §§ 1816-1819; Dec. Dig. &wkey;462.] ■</p> <p>4. Corporations <&wkey;426(10) — Acts op Officers — Liability.</p> <p>Where money obtained from a loan from the plaintiff bank was placed to the. credit of the defendant corporation and credit entered in its passbook, and used to purchase collateral notes for the benefit of the corporation, it could not escape liability on the loan on the ground that it was the independent act of an officer.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1702, 1704, 1714; Dec. Dig. &wkey; 426(10).]</p> <p>5. Corporations <&wkey;414(2) — Acts of Officers — Liability.</p> <p>Where a note was executed by the president of the defendant corporation within the apparent scope of his authority, it was immaterial on the liability of the corporation how the money was to be used.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. § 1641; Dec. Dig. <&wkey;>414(2).]</p> <p>6. Corporations (&wkey;370(3) — Powers — Implied Powers.</p> <p>A corporation is not restricted to the actual wording of its charter, but has implied powers reasonably necessary or usually incident to its business.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1517, 1518; Dec. Dig. &wkey;370(3).J</p>

<p>Appeal from Floyd County Court; E. P. Thompson, Judge.</p> <p>Action by the Lockney State Bank against H. S. Bolin. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Panola County; W. C. Buford, Judge.</p> <p>■ Action by Mrs. M. E. Gully against T. R. Gully. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hemphill County; Frank Willis, Judge.</p> <p>(Suit for injunction by L. M. Carson against J. L. Jennings, as County Judge, and others. Decree for the plaintiff, and defendants appeal.</p>

G. Chambliss, Judge. Action by H. A. Blair against the San Antonio & Aransas Pass Railway Company. Plaintiff dying during its pendency, the action was revived in the name of Mrs. Lula Blair, administratrix. From a judgment for plaintiff, defendant appeals.

<p>Appeal from District Court, Garza County; W. R. Spencer, Judge.</p> <p>Action by G. R. McCamy against the Pos-tex Cotton Mill Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Bills and Notes <&wkey;357 — Negotiation and Transfer—“Holder for Value.”</p> <p>A bank to which notes were indorsed as collateral security for a valuable consideration without notice was a holder for value and entitled to the same protection as if the transfer had been an absolute sale.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 909-912, 961; Dec. Dig. &wkey;357.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Holder for Value.]</p> <p>2. Bills and Notes <&wkey;35S — Negotiation and Transfer—Bona Fide Holders.</p> <p>A valid antecedent debt is a valuable consideration for the transfer of a note as collateral security.</p> <p>[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 913-923, 961; Dec. Dig. <®¿o358.)</p> <p>3. Cancellation of Instruments <&wkey;4 — REFORMATION OF INSTRUMENTS <&wkey;19(l) — ’Grounds — Mistare.</p> <p>An instrument will not be set aside or reformed on the ground of mistake of one of the parties unless superinduced by the fraud of the other.</p> <p>[Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. § 1; Dec. Dig. ; Reformation of Instruments, Cent. Dig. §§ 74, 76-78; Dec. Dig. &wkey;19(l).]</p>

<p>Error to District Court, Ochiltree County; Frank P. Greever, Judge.</p> <p>Suit by J. M. Blasingame against the Cattlemen’s Trust Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error &wkey;>739 — Assignment oe Error — Grouping Refusal to Give Several Peremptory Charges.</p> <p>An assignment of error is not objectionable in that it groups four separate requests for peremptory charges which the court refused, the four requests having been made upon different reasons, since, it not being incumbent on the court to assign any reasons in giving a peremptory charge, such four charges were in legal effect but a single request.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3034^3036; Dec. Dig. &wkey;></p> <p>2. Appeal and Error <®=^719(8) — Assignment oe Errors — Findings—Judgment.</p> <p>Where, in a personal injury case by an em-ployé against a railroad, there were findings of fact by the jury establishing plaintiff’s injury through the negligence of defendant and without contributory negligence, and there was no assignment of error that the findings were not supported by the evidence which strongly tended to so support, the findings will be adopted on appeal as the facts in tlio case, requiring affirmance of judgment for plaintiff in the absence of any error of law.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2976, 2977, 3499; Dec. Dig. &wkey;719(8).]</p> <p>3. Trial <&wkey;139(1) — Personal Injury — Evidence — Peremptory Charge — Refusal.</p> <p>Where in such case there was evidence sufficient to raise the issue of defendant's negligence, it was not error to refuse peremptory charges requested by defendant.</p> <p>[Ed. Note. — For other cases, see Trial, Cent." Dig. §§ 332-334, 338-341; Doc. Dig. <&wkey; 139(1).]</p> <p>4. Negligence <&wkey;101 — Comparative Negligence-Injuries to Servant.</p> <p>In an action by the servant against his master for injuries received through the master’s negligence, contributory negligence is not a complete defense to the action under the statutes, but only reduces the damages in proportion to such contributory negligence. Vernon’s Sayles’ Stat. art. 6649.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 85, 163, 164, 167; Dec. Dig. &wkey; 101.]</p> <p>5. Appeal and Error <&wkey;664(4) — Evidence-Excluding Custom — Statement oe Fact Conflicting with Bill of Exceptions.</p> <p>Where error was assigned on the refusal of the court to allow a witness to testify whether defendant railroad had a custom of allowing its men to work between and under cars, and the bill of exceptions showed that the witness would have testified that there was no such custom, but the statement of facts showed that the witness did so answer, the statement of facts will control.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2859; Dec. Dig. <&wkey;>664(4).]</p> <p>6. Trial <&wkey;85 — Reception of Evidence — Partly Incompetent Evidence — General Objection.</p> <p>The admission of evidence partly admissible and partly inadmissible, over an objection to such evidence as a whole is not reversible error.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]</p> <p>7. Trial <&wkey;85 — Evidence Partly Incompetent-Exclusion.</p> <p>Where, in an employé’s personal injury case against a railroad, the defendant offered in evidence a written statement made by an employé shortly after the injury occurred, a small part of which was .admissible while part was clearly inadmissible, it was not error to exclude such evidence on objection thereto, since it is not the duty of the court or the opposing side to separate the competent from the incompetent evidence upon an objection to the offer.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. &wkey;85.]</p>

<p>1. Trial @=>348 — .Instructions—Submission of Special Issues.</p> <p>Where the case is submitted upon special issues, it is improper to submit a special charge calling for a general Yerdict.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ S22, 823, 827; Dec. Dig. @=348.]</p> <p>2. Master and Servant @=217(1), 235(7)— Duty of Servant — Inspection.</p> <p>A servant assumes no duty of inspection of the tools he uses, assuming only the risk of a danger of which he has actual knowledge and of hazards of which he might learn by exercise of that ordinary circumspection which a prudent man uses since he may rely upon the assumption that the master will do his duty.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574, 714; Dec. Dig. @= 217(1), 235(7).]</p> <p>3. Master and Servant @=217(25) — Injubiy to Servant — Assumption of Risk.</p> <p>A carpenter who used a sawing machine without a cut-off guide, knowing its purpose, and that it was dangerous to operate without one, as he testified, “taking a chance,” assumed the risk of injury when so performing the work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 593, 594; Dec. Dig. @= 217(25).]</p> <p>4. Appeal and Ebeior @=1170(9) — Disposition — Immaterial Error.</p> <p>Under rule 62a of the Oourt of Civil Appeals (149 S. W. x), providing that judgment shall not be reversed for error which did not result in the rendition of an improper judgment, in a servant’s action for injuries, where it was apparent from his own testimony that he assumed the risk, error in submitting a special charge calling for a general verdict, where the case was submitted upon special issues, was not cause for reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4543; Dee. Dig. @= 1170(9).]</p> <p>On Rehearing.</p> <p>5. Master and Servant @=276 (4) — Injury to Servant — Proximate Cause — Sufficiency of Evidence.</p> <p>In a carpenter’s action for injuries while operating a mechanical saw, evidence held insufficient to prove that the rough table top caused or contributed to cause the injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959; Dec. Dig. @= 276(4).]</p>

Suit by J. W. Carpenter against the National Equitable Society of Belton. Judgment for plaintiff, and defendant appeals. The suit was by appellee against appellant. It was to recover baclr $110 paid by the former to the latter for and on one of its “loan contracts,” and was commenced in a justice court.

<p>1. Fraud <@=20 — Knowledge of Pacts.</p> <p>Plaintiff, who before signing an application for a loan contract with defendant loan society read and studied its terms, and knew that they stated that its agent had no authority to change the terms of the written contract or make any oral agreement not in the written contract, and that the agent’s statement that she could get a loan within 30 days, and not over 60 days, was not authorized, if conflicting with the contract, which expressly stated that loans would be made only when the society’s accumulation was sufficient, thus haying knowledge of the incorrectness or falsity of the agent’s statement before she acted upon it, had no ground for an action for damages against the society for the agent’s alleged fraud, as she could not be said to have been deceived.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 17, 18; Dec. Dig. <@=20.]</p> <p>2. Building and Loan Associations <@= 26 — Rescission of Contract — Fraud.</p> <p>Such suit, if treated as a suit to rescind the contract and to recover the money paid under it, could not be maintained, as plaintiff could not be said to have been actually misled by the statement or opinion of the agent into accepting the ■contract as it was written.</p> <p>[Ed. Note. — For other eases, see Building and Loan Associations, Dee. Dig. @=26.]</p>

<p>.. kraud @=58(l) — Action to Recove® Monet Paid — Evidence.</p> <p>In a suit to recover the sum paid to the defendant loan society under an agreement for a future loan as damages from the fraudulent representations of its agent, evidence held insufficient to sustain a judgment for the plaintiff.</p> <p>[Ed- Note. — For other cases, see Fraud, Cent. Dig. § 55; Dec. Dig. @=358(1).]</p> <p>2. Fraud @=>50 — Burden oe Prooe.</p> <p>In such suit, plaintiff had the burden of proving that he was entitled to the relief sought.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Eig. §§ 46, 47; Dee. Dig. @=>50.]</p> <p>3. Building and Loan Associations @=26 —Loan Contract — Rescission—Time.</p> <p>Plaintiff, if entitled to reject the contract of the defendant loan society when tendered, because it materially differed from what its agent said it would be, was required to act promptly upon a discovery of the fraud or variance.</p> <p>[Ed. Note. — For other cases, see Building and Loan Associations, Dec. Dig. @=>26.]</p>

R. Spencer, Judge. Suit for injunction by George Cleveland and another against J. T. Gainer and others. From an order dissolving a temporary injunction in vacation, petitioners appeal.

<p>Appeal from District Court, Sabine County; A. E. Davis, Judge. .</p> <p>Action by the Angelina County Lumber Company against L. R. Hines and others. Judgment for defendants, and plaintiff appeals.</p>

F. O’Neal, Judge. Action by Louis Longinotti against John P. McShane. Judgment for defendant, and plaintiff appeals. The action is by appellant to recover of appellee damages for alleged- breach of a contract to sell appellant a certain lot in the city of Texarkana for $17,500 cash. The ap-pellee urged, among other things, the statute of frauds, requiring the agreement, or some memorandum, to be in writing.

<p>Appeal from District Court, Parmer County; D. B. Hill, Judge.</p> <p>Election contest by J. H. Aldridge and •others against J. D. Hamlin and others. From a judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Dallam County; D. B. Hill, Judge.</p> <p>Suit by Wm. Beverly against W. R. Cofer and another. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Advebse Possession <&wkey;114(l) — Evidence —Sufficiency.</p> <p>In an action to recover an undivided half interest in a tract of land on the ground that plaintiffs had acquired title by adverse claim and occupancy, evidence held sufficient to support a verdict for plaintiffs.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, ¿83; Dec. Dig. <S=o 114(1).]</p> <p>2. Appeal and Error &wkey;>1001(l) — Finding— Review.</p> <p>Where in such action there was conflicting evidence as to whether there had been a break in the continuity of plaintiff’s possession, a finding of the jury that there had been a ten years’ continuous possession, which was supported by competent testimony, will not be disturbed on appeal.</p> <p>[Ed. Note. — -For other cases, see Appeal and Error, Oent. Dig. §§ 3928-3933; Dee. Dig. 1001(1).]</p> <p>3. Appeal and Error &wkey;>1060(3) — Harmless Error — Statement to Jury.</p> <p>Where in such action plaintiff’s counsel was permitted to state to the jury that the statute of limitations was suspended during the time of such alleged break of continuity, such action of the court was harmless error, where the jury on competent testimony found a ten years’ continuous possession after such alleged break, and there was nothing in the. record to indicate any bias on the part of the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Oent. Dig. § 4135; Doc. Dig. 1000(3).]</p> <p>4. Appeal and Error &wkey;H051(l) — Harmless Error — Admission op Testimony on Former Trial.</p> <p>The admission on the second trial of such action of the evidence given by a witness on the previous trial, where he had been fully cross-examined, was not prejudicial error, whore such witness was physically unable to attend court or answer interrogatories, and there was no indication that he was to bo attacked as a witness by impeachment, and there was abundant evidence to support the finding of the jury without his testimony.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161, 4162, 4165, 4166; Dec. Dig. <&wkey;> 1051(1).]</p> <p>5. Trial <&wkey;133(2) — Conduct op Counsel — Statement to Jury.</p> <p>Where plaintiffs’ counsel in his opening argument stated to the jury, in effect, that the plaintiffs could not scour the county for witnesses as the defendant, being a corporation, had done for the purpose of finding witnesses to bolster up an unjust claim, and the trial court ruled that the statement was improper and withdrew it from the jury, with the instruction not to consider it, there was no ground for reversal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. &wkey;133(2).]</p>

<p>1. Appeal and Erbor <@=»188 — Reservation op Grounds — Defective Service of Process.</p> <p>On appeal from the denial of a motion to set aside a default judgment, the sufficiency of service will not be considered, where it was not raised in the original motion to vacate, nor in the answer, but is presented for the first time in an amended motion to vacate not properly verified.</p> <p>' [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1190-1204; Dee. Dig. <§==> 188.]</p> <p>2. Judgment &wkey;>145(2) — Setting Aside Default^— Sufficiency of Application.</p> <p>To set aside a judgment by default the motion must show a meritorious defense as well as a sufficient excuse for failure to appear and answer.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 271, 293; Dec. Dig. &wkey;145(2).]</p> <p>On Motion for Rehearing.</p> <p>3. Judgment <&wkey;17(2) — Judgment by Default — Requisites—Sebvice OE PROCESS.</p> <p>To authorize a judgment by default, the sheriff’s return must show service of citation upon defendants in the manner required by statute, even though the judgment shows that defendants were legally served.</p> <p>[Ed.- Note. — For other cases, see Judgment, Dec. Dig. (2).]</p> <p>4. Oobporations <&wkey;507(13) — Actions—Serv-aos of Process.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1860, requiring the citation in suits against corporations to be served on one of the officers of the company named therein or some agent of the company, a citation showing service only, upon the company by name is insufficient, since to be binding service must be upon the identical officer or agent or one of the officers or agents prescribed by the statute.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1995-1997, 2000; Dec. Dig. &wkey; 507(13).]</p> <p>5. Judgment <&wkey;17(10) — Judgment by Default — Service of Process.</p> <p>Where the petition or citation in an action against a corporation fails to direct upon whom service is to be made, then, in order to sustain a judgment by default, proof must be made when judgment is taken that the citation was served upon some one of the officers or agents named in the statute.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. &wkey;>17(10).]</p> <p>6. Partnership <&wkey;204r — Action — Process-Service.</p> <p>Jurisdiction to enter judgment by default against a partnership cannot be obtained by service on the partnership itself, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1863, requiring process to be served on a member of the firm.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 376-381; Dec. Dig. <@^204.]</p> <p>7. Judgment <&wkey;143(l), 145(2) — Setting Aside Default — Sufficiency of Application.</p> <p>Where no legal service is had upon defendant, a judgment by default may be set aside without showing a meritorious defense or a sufficient excuse for failure to appear; the judgment being void for want of jurisdiction.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 269, 271, 278, 279, 283, 285, 293; Dec. Dig. &wkey;143(l), 145(2).]</p> <p>On Appellee’s Motion for Rehearing.</p> <p>8. Chattel Mortgages <&wkey;229(2) — Conversion of Mortgaged Property — Actions— Answer.</p> <p>In an action on notes, and to establish a mortgage lien on live stock and cotton, and to recover for conversion of part of such stock and cotton, an answer alleging that, if defendants purchased any cotton on which plaintiff held a valid lien or mortgage, the money paid by them therefor to the seller was by the seller paid to plaintiff in partial satisfaction of the demands sued upon by plaintiff, and that the seller paid to plaintiff the market value of the cotton less the cost of picking it, stated a meritorious defense.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 481, 483; Dec. Dig. &wkey;> 229(2).]</p> <p>9. Judgment <&wkey;163 — Setting Aside Default — Form and Requisites of Application.</p> <p>On an application to set aside a judgment by default, it was proper for the court to consider the answer filed in connection with the motion in determining whether the motion disclosed a meritorious defense, though the verification of the answer was made on information and belief, without setting out the facts on which the belief was founded.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 323; Dec. Dig. <&wkey;163.]</p> <p>10. Judgment &wkey;>143(13) — Setting Aside Default — Form and Requisites of Application.</p> <p>A motion to set aside a judgment by default alleged that defendants lived 55 miles from C., the' place of trial, that the only available route was by rail via B., and in order to attend court they would have to spend a night in B. and proceed to C. the next day, that the trip was tedious and expensive, that their attorney assured them they could reach C. in time to answer and defend the suit by leaving home on the morning of the day the case was to be called, and that, if plaintiff’s attorney took judgment by default before their arrival, the court would set it aside, stating that he was well acquainted with the attorneys for plaintiff and had frequently exchanged courtesies with them, and that they would not insist upon judgment by default until after appearance cases were called for orders, that on the morning of September 8th they started for C. in an automobile, leaving home at 7 a. m., that a blowout delayed them for some little time, and that after repairing it they proceeded to C., arriving there a few minutes after the judgment was entered. Held, that this showed due diligence, and the motion to set aside the default judgment should have been granted.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 286; Dec. Dig. <&wkey;> 143(13).]</p> <p>11. Appeal and Error <&wkey;1173(l) — Disposition of Case — Reversal—Coparties.</p> <p>Where a member of a firm was sued only as a member of the firm, and therefore could not be held liable otherwise, and judgment was apparently rendered against him individually, pursuant to the statute making a judgment against a partnership collectible out of the individual property of the members of the firm served with citation, a reversal as to the firm required a reversal as to him, though he did not appeal, as plaintiff was not entitled to judgment against him, if not entitled to a judgment against the firm, and the statute prescribing that only one final judgment shall be rendered had application.</p> <p>[Ed. Note. — For other cases, see Appeal and Eryor, Cent. Dig. §§ 4562-4567, 4569, 4656; Dec. Dig. &wkey;1173(l).]</p> <p>12. Appeal and Error <&wkey;1173(2) — Disposition of Case — Reversal—Coparties.</p> <p>The reversal of a judgment against appealing defendants did not require the reversal of a judgment against nonappealing defendants upon separate and distinct causes of action, in which no recovery was sought or had against the appealing defendants, as the statute prescribing that only one final judgment shall be rendered did not apply.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4568, 4656; Dec. Dig. <&wkey;> 1173(2).]</p>

<p>1. Banks and Banking <&wkey;64 — Authority of Officers — Liquidation.</p> <p>The former president of the defendant bank became considerably indebted to the institution, whereupon land which he owned was conveyed to the bank. Thereafter 7 of the 15 directors, including the succeeding president, authorized him to convey such land to another, who paid into the bank $5,000 to be credited upon the former president’s obligations. After this was done, the bank went into liquidation, and lender, making the payment, demanded reimbursement, whereupon, the property being reconveyed, the succeeding president of the bank, who was its liquidating officer, executed its note which was indorsed by defendants, and out of the proceeds the indebtedness was paid. Rev. St. 1911, art. 378, declares that the board of directors of every bank shall meet at least once a month and pass on the business of the bank, and that no bills payable shall be made and no bills shall "be rediscounted by the bank without consent of the board of directors. Held that, in view of the fact that the original transaction was authorized only by 7 of the 15 directors, the bank did not become obligated to satisfy the note, and hence the second president as liquidating officer could not thereafter bind the bank by note executed to obtain funds to discharge the first, particularly as the _ subsequent note was not authorized by the directors; consequently, the indorsers having paid the note are not entitled to reimbursement.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. § 125; Dee. Dig. &wkey;>64.]</p> <p>2. Banks and Banking <&wkey;>64 — Authority of Officers — Liquidation.</p> <p>Where the assets of a bank are being liquidated, the liquidating officer, though its president, is not entitled to execute notes of the bank to take up former indebtedness.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 125; Dec. Dig. <&wkey;64.]</p>

C. Killough, Judge. Action by W. M. and A. S. Doss against W. H. James and another with plea in reconvention by defendant James. Judgment for plaintiffs, and defendants appeal.

<p>Appeal from District Court, Franklin County ; J. A. Ward, Judge.</p> <p>Suit by the City of Mt. Vernon against J. W. Joyce. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by the El Paso Electric Railway Company against the -¿Etna Life Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

Action for injunction by G. A. Bodenheim and another against C. E. Miles, Temporary injunction granted, and defendant appeals. This is an appeal, authorized by article 4644 et seq., Vernon’s Statutes, from a judgment granting a temporary injunction restraining appellant from closing an alley or way, hereinafter described, used by ap-pellees in reaching parts of the premises on which they, with their families, respectively resided in the city of Longview.

<p>Appeal from District Court, Collin County; M. H. Garnett, Judge.</p> <p>Action by Ed Yeatts against the St. Louis Southwestern Railway Company of Texas. Judgment for the defendant, and plaintiff appeals.</p>

B. Hill, Judge. Suit by the Parlin-Orendorf Implement Company and others against G. W. Barcus and others. From an adverse judgment, the defendant named appeals.

<p>Appeal from Nacogdoches County Court; J. P. Perritte, Judge.</p> <p>Suit by Marshall & Marshall against the Texas & New Orleans Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Public Lands <&wkey;177 — Resulting Trust —School Lands.</p> <p>Where plaintiff!, under Rev. St. 1895, arts. 4218j, 4218k, made application to purchase public land, and made oath that he was not purchasing for any other person, and entered into an obligation for the deferred payments, and received a patent reciting purchase and full payment, no trust would arise in favor of one who paid the purchase price, since such result would be a fraud on the state, and since no resulting trust can spring from an act contrary to public policy or to statute.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 576-578; Dee. Dig. &wkey;177.]</p> <p>2. Public Lands <&wkey;177 — Resulting Trust —Evidence.</p> <p>In trespass to try title to land patented to plaintiff and for damages for cutting timber, where defendants claimed under deeds from one alleged to have paid the purchase price, evidence as to whose money was used in the purchase held not so clear and satisfactory as to show any resulting trust in the defendants’ grantor.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 576-578; Dec. Dig. &wkey;177J</p>

<p>1. CARRIERS <&wkey;283(2) — Carriage oe Passengers — 'Violation oe Separate Coach Law —Statute.</p> <p>Tinder Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6753, providing that conductors shall have authority to refuse any passenger admittance to any coach or compartment in which he is not entitled to ride under the provisions of the separate coach law (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6746-6753), that it shall bo his duty to remove from a car any passenger not entitled to ride therein, and that, upon his refusal to do so knowingly, he shall be punished, a railroad is not relieved of liability for the consequences to a passenger of its conductor’s failure to separate white and negro passengers; the duty being imposed upon the conductor as such.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1121, 1122; Dec. Dig. &wkey;283(2).]</p> <p>2. Carriers <&wkey;283(2) — Carriage oe Passengers — Violation oe Separate Coach Law —Liability oe Road — Statute.</p> <p>Where the servants of a railroad knew, or by the exercise of due care might have known, that a white man was in a negro coach, in violation of the separate coach law, and was negligent in not removing such white person from the coach, the road was liable for injuries inflicted by him upon a negro .passenger.</p> <p>[E‘d. Note. — For other cases, see Carriers, Cent. Dig. §§ 1121, 1122; Dec. Dig. &wkey;283(2)J</p> <p>3. Appeal and Error <&wkey;548(5) — Preservation oe Exceptions — Ruling on Evidence.</p> <p>To take advantage on appeal of the wrongful admission of evidence over objection, a bill of exceptions, duly approved by the trial court, must have been preserved.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 2436; Dec. Dig. <&wkey;>548(5).]</p> <p>On Motion for Rehearing.</p> <p>4. Carriers <&wkey;284(l) — Carriage oe Passengers — Injury to Passenger — Liability oe Road.</p> <p>A railroad whose white passenger assaulted plaintiff’s negress wife was not liable therefor, aside from the separate coach law, unless the road should have reasonably foreseen, in time to have prevented the assault, that the white person would commit it.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1125, 1127; Dec. Dig. &wkey;2S4(l).]</p> <p>5. Appeal and Error &wkey;>1064(l) — Harmless</p> <p>Error — Instruction. , «</p> <p>In an action against a railroad for injuries to a negress, passenger in a coach for blacks, when a white passenger therein assaulted her, where it conclusively appeared that, one of the road’s employes knew that white men were in the coaches for blacks, error in an instruction that under the separate coach law, the road owed the duty to exercise a high degree of care to discover that white passengers were in the negro coach was harmless.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 4219; Dee. Dig. &wkey;>1064(l)J</p> <p>6. Carriers &wkey;>321(4) — Carriage oe Passengers — Violation oe Separate Coach Law —Instruction.</p> <p>In an action against a railroad under the separate coach law for injuries suffered by plaintiff’s wife, a negress, riding in a coach for blacks, when assaulted by a white person therein, instructions authorizing a finding against the road J if “its agents and servants” knew that a white passenger was in the negro coach, were not erroneous because of testimony that an employé of the road in no way connected with the operation of the train was on it at the time of the assault, where such employé’s testimony was that he had been an employé, but was- not working the day of the assault, and at the time of the trial, three years later, was still an employé.</p> <p>[Ed. Note. — For other cases see Carriers, Dec. Dig. &wkey;321(4)J</p> <p>Hodges, J., dissenting.</p>

<p>1. Appeal and Error <®=»882(8) — Review-Estoppel to Allege Error.</p> <p>In an action, for libel, defendant cannot complain of error in permitting plaintiff to testify that he was shot through his lung and shoulder and confined in the hospital, where defendant introduced in evidence a newspaper published by it stating substantially the same facts.</p> <p>[Ed. Note. — E’or other cases, see Appeal and Error, Cent. Dig. §§ 8597, 3598; Dec. Dig. <&wkey; 882(8).]</p> <p>2. Libel and Slander <&wkey;100(6) — Actions— Evidence — Admissibility.</p> <p>In an action for libel; where the petition alleged that prior to the publication of the libelous article plaintiff had always enjoyed the reputation of a peaceable and law-abiding and worthy citizen, and the answer denied sufficient information on which to base a belief, testimony as to the good reputation of plaintiff was admissible.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 256; Dec. Dig. <&wkey;> 100(6).]</p> <p>3. Trial <&wkey;296(l) — Instructions—Cure by Other Instructions.</p> <p>In an action for publication of a libelous charge that plaintiff had murdered another, where it was stipulated that the charge was false except as to the fact of the killing, and that plaintiff’s act was in self-defense, a charge that the article complained of was libelous and was false, untrue, and unauthorized, was not objectionable as stating that the whole article was untrue, where the court also charged that the undisputed fact was that plaintiff killed the other person and defendant had the legal right to publish that fact.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-707; Doc. Dig. &wkey;296(l).]</p> <p>4. Libel and Slander &wkey;>7(6) — Words Actionable — Charge of Crime.</p> <p>A charge published in a newspaper that plaintiff assassinated another is libelous per se.</p> <p>[Ed. Note. — For other eases, see Libel and Slander, Cent. Dig. §§ 81, 33, 36, 43, 66; Dec. Dig. (&wkey;7(6).]</p> <p>5. Libel and Slander &wkey;>120(2) — Actions— Exemplary Damages.</p> <p>On publication of a letter from the sons of a decedent referring to the decedent as their father, and accusing plaintiff of assassinating him, where the newspaper had already published an account showing that it had in its possession facts showing that the killing was in self-defense, malice may be inferred authorizing an award of exemplary damages, though the publisher was not actuated by a feeling of ill will.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 351; Dec. Dig. <&wkey;> 120(2).]</p> <p>6. Libel and Slander <&wkey;120(2) — Actions— Exemplary Damages — “Gross Negligence” —“Malice”—“Actual Malice.”</p> <p>If the publication and circulation of an article was done in such manner and under such circumstances as to show a reckless disregard of the rights of plaintiff and of the consequences to plaintiff, the jury were authorized to infer “malice,” since reckless disregard and want of care would amount to “gross negligence,” which is equivalent to “actual malice,” and exemplary damages might be allowed.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 351; Dec. Dig. &wkey;> 120(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Actual Malice; Gross Negligence; Malice.]</p> <p>7. Libel and Slander <&wkey;124(3) — Actions— Instructions — Actual Malice.</p> <p>In an action for libel, it was not error to refuse a special charge defining actual malice.</p> <p>[Ed. Note. — For other cases, see 'Libel and Slander, Cent. Dig. § 369; Dec. Dig. <5&wkey; 124(3).]</p> <p>8. Libel and Slander &wkey;>121(l) — Actions— Damages — Amount Awarded.</p> <p>An award of $4,000 actual damages for publication of a charge that plaintiff assassinated another was not so excessive as to show that it was the result of improper motive or of passion or prejudice of the jury.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 353; Dec. Dig. <&wkey;> 121(1).]</p> <p>Conley, C. J., dissenting.</p>

<p>Mechanics’ Liens <&wkey;34— Improvement in Street — Contracts.</p> <p>Since a deed to a lot fronting on a public street, which shows that the lot abuts upon the street and was laid out with reference thereto, in the absence of some restriction in the deed, carries with it a fee simple to the center of the street, where the plaintiff contracted with the defendant to pave the street in front of a lot held under a warranty deed, the work was an improvement upon the entire lot, and the defendant was entitled to enforce a mechanic’s lien upon the lot, under the provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5631.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 39; Dec. Dig. <&wkey;>34.]</p>

<p>1. Courts <&wkey;36 — Jurisdiction — Probate Court.</p> <p>Probate courts are courts of general jurisdiction as to all matters within the scope of their powers, and all presumptions will be indulged as to their jurisdiction over such matters the same as in favor of the jurisdiction of any other court of record.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 142-144; Dec. Dig. &wkey;36J</p> <p>2. Judgement <&wkey;6 — Attack.</p> <p>Where a domestic judgment is attacked, it is necessary, in order to ascertain the rules applicable, to determine whether it was rendered by a court of general jurisdiction over the subject-matter, whether the attack is direct or collateral, whether the evidence is apparent on the face of the record, and, if not, whether outside evidence is competent, and whether the ground of the attack is one which goes to the power of the court or is a matter of procedure.</p> <p>[Ed. Note. — For other cases, see Judgment, Dee. Dig. &wkey;j5.]</p> <p>3. Executors and Administrators <&wkey;13— Appointment — Validity—Adjournment op Court.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3218, requiring all orders of the county court in probate matters to be rendered in open court and at a regular term, the fact that an order appointing a permanent administratrix was entered after the court had adjourned for the day, and without a formal reopening of the court, does not invalidate the appointment, especially as against attack in proceedings to sell property under a trust deed to satisfy a claim allowed against the estate on the approval of the administratrix.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. § 26; Dee. Dig. <&wkey;>13.j</p> <p>4. Executors and Administrators <&wkey;234— Allowance op Claims — Approval by Ad-ministratrix.</p> <p>Where the probate court allowed claims against the estate on the approval of a duly appointed permanent administratrix, the allowance was valid, though the same claims had been previously allowed on approval by the same parson as temporary administratrix under a void appointment, and the same verification of claim was presented to the permanent administratrix as to her as temporary administratrix.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 832-836%, 842, 842% ; Dee. Dig. &wkey;>234.]</p> <p>On Motion for Rehearing.</p> <p>5. Executors and Administrators <&wkey;234— Allowance op Claims' — Record.</p> <p>A record of claims allowed against an estate which showed an itemized list of the claims allowed to a certain creditor during, the temporary administration under a void appointment, followed by an entry showing an allowance of the total amount of those claims during the permanent administration, sufficiently shows that the claims were allowed during the valid permanent administration.</p> <p>[Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 832-836%, 842, 842% ; Dec. Dig. &wkey;234.]</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by J. H. Dowdy against the Southern Traction Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Insurance <&wkey;790 — Benefit Certificate-Right of Recovery.</p> <p>Under the constitution of a brotherhood providing that a member receiving any of enumerated injuries shall be considered totally and permanently disabled and entitled to receive the amount of his beneficiary certificate, and that any other claim for disability is addressed to the benevolence of the brotherhood, and shall not constitute the basis of any legal liability of the brotherhood, but shall be referred to the beneficiary board, and, if approved by it, the member shall be paid the amount of his certificate, a member whose claim for total disability of another nature than enumerated is rejected by such board has no right of recovery.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 1960; Dec. Dig. <&wkey;>790.]</p>

<p>1. Insueancb <@=>755(2) — Life Insurance — Waiver or Forfeiture — Powers oe Ofet-esRS — Materiality.</p> <p>Whether the local agent of an insurance company was authorized to waive the forfeiture provisions of the policy is immaterial, where the jury found that the general manager waived such conditions.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1908; Dec. Dig. <§==>755(2).]</p> <p>On Motion for Rehearing.</p> <p>2. Appeal and Error <@=>1070(2) — Fundamental Error — ‘Reversal.</p> <p>Where the judgment may be sufficiently supported by three unassailed special findings of the jury, a fourth finding, though it might be erroneous, is not fundamental error .and does not require reversal.</p> <p>[Ed. Note. — For other eases, .see Appeal and Error, Cent. Dig. §§ 4232, 4233; Dee. Dig. <@=> 1070(2).)</p> <p>3. Insurance <@=>755(1) — Life Insurance — Forfeiture — Estoppel.</p> <p>Where the policy or benefit certificate provides for termination on failure to pay premiums or dues, without affirmative act of the insurer, conduct of the insurer misleading the insured to his expense or harm may estop the insurer from asserting forfeiture.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1907; Dec. Dig. <@=>755(1).]</p> <p>4. Insurance <@=>755(1) — Life Insurance — Forfeiture — Estoppei^-Evldence.</p> <p>Where the insurer’s general manager sent duplicate notices of delinquency and treated deceased as a member until five days after her death although she failed to pay, and he failed to furnish blanks for reinstatement, as required by the policy, or to instruct the local agent as to procedure against delinquents, a strong case of estoppel to plead forfeiture was made out,' though the forfeiture provisions may have been self-executing.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1907; Dec. Dig. <@=>755(1).]</p>

H. Burney, Judge. Action by Mrs. Mollie Taylor and husband against Charles Sweeten, C. W. MeFadden, and others. From a judgment for plaintiffs, the named defendants appeal.

<p>1. Appeal and Error &wkey;>931(3) — Review-Presumptions.</p> <p>Where no findings of fact were filed in the trial court, an appellate court must assume that all issues of fact properly arising were resolved in favor of the appellee.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3764; Dec. Dig. <§=o931(3)j</p> <p>2. Contracts &wkey;>l47(2) — Construction—Intention oe Parties.</p> <p>The governing principle in the construction of contracts is that they are to be expounded in accordance with the intention of the parties, to be ascertained from the writing itself when its meaning is clear.</p> <p>[Ed. Note — For other cases, see Contracts, Cent. Dig. § 730; Dec. Dig. <§=>147(2).]</p> <p>3. Evidence <§=>448 — Parol Evidence Affecting Writings — Construction of Contract. .</p> <p>Where a written instrument is uncertain in meaning and its language ambiguous, or of doubtful construction, the intention of the parties must be obtained by proof aliunde.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082, 2084; Dec. Dig. &wkey; 448.]</p> <p>4. Contracts &wkey;170(l) — Construction — Practical Interpretation.</p> <p>Practical interpretation placed by the parties themselves on a contract of doubtful meaning is entitled to great, if not controlling, influence.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 753; Dee. Dig. &wkey;170(l).]</p> <p>5. Evidence <&wkey;450(4) — Parol Evidence Affecting Writings.</p> <p>Under a contract of assignment of a lease and option to purchase land, providing that the assignor agrees to proceed at once to survey and establish the exact boundary lines within three years from April 20, 1910, it cannot be determined from the language of the contract itself whether the assignor was obligated to proceed at once or could do so within the three-year period.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2070; Dec. Dig. &wkey;450(4).]</p>

<p>1. Carriers <&wkey;290(l) — Carriage of Passengers — Liability for Injuries.</p> <p>Where a carrier failed to keep its car comfortably warm, and plaintiff’s wife, who was in a delicate condition, contracted cold, which resulted in an impairment of her health, recovery cannot be denied on the ground that neither plaintiff nor his wife informed the carrier or its servants of the condition of his wife; for a carrier is bound to exercise the highest degree of care practicable for its passengers, and so such notification was not necessary to entitle plaintiff’s wife to have the car properly heated.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1183; Dec. Dig. &wkey;290(l).]</p> <p>2. Carriers <&wkey;320(ll) — Carriage of Passengers — Actions—Evidence—Jury Question.</p> <p>In an action for injuries to plaintiff’s wife resulting from cold contracted in an insufficiently heated car, evidence held insufficient to raise for the jury the question whether the carrier’s servants would have heated the car had they been informed of the wife’s delicate condition.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1190; Dec. Dig. <&wkey;>320(ll).]</p> <p>3. Carriers <&wkey;330 — Carriage of Passengers — Contributory Negligence.</p> <p>Though there was fuel and a stove in the ear in which plaintiff and his wife were riding, plaintiff’s failure to build a fire in the stove, the car becoming cold, and his wife being in a delicate condition, is not contributory negligence precluding recovery for injuries resulting to his wife from exposure.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1370, 1372, 1373; Dec. Dig. &wkey; 330.]</p> <p>4. Appeal and Error <&wkey;742(5) — Assignments of Error — Consideration.</p> <p>An assignment of error complaining, of the court’s refusal to submit an issue to the jury cannot be considered on appeal, where the accompanying statement merely stated that there was abundant evidence to establish appellant’s contention; the statement as to the evidence being a mere conclusion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. &wkey;>742(5).]</p> <p>5. Appeal and Error <&wkey;1062(2) — Review-Harmless Error.</p> <p>In an action for injuries to plaintiff’s wife, who contracted cold in an insufficiently heated car, the refusal of the court to submit the question whether plaintiff had exercised due care in furnishing his wife with suitable clothing for the trip was harmless, where the jury answered in the negative a question whether the wife was negligent in providing herself with suitable clothing.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4213; Dec. Dig. &wkey;>1062 (2).]</p> <p>6. Damages <®=»132(5) — Personal Injuries— Measure.</p> <p>In an action for injuries to plaintiff’s wife, who contracted cold in an insufficiently heated car, an award of $1,700 damages, one-half of which the jury specified was for damages to the present and the remainder for future damages, cannot be held excessive, where the cold settled in the wife’s internal organs, causing her to bloat and affected her menstruation and general health.</p> <p>[Ed. Note. — For other cases, see Damages. Cent. Dig. § 376; Dec. Dig. <&wkey;132(5).]</p>

<p>Appeal from District Court, El Paso County; Dan M. Jackson, Judge.</p> <p>Action by Josephine Crosby and others against H. B. Stevens and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Floyd County Court; E. P. Thompson, Judge.</p> <p>Action by A. G. Spencer and others against T. B. Tripplett. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Trial <&wkey;311 — Conduct or Juey — Misconduct of Juror.</p> <p>During deliberations as to alleged false representations the statement of one juror to the others of his knowledge of a “bogus check law,”- as bearing upon the deliberations, which statement probably influenced the jury, is conduct necessitating reversal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 739; Dec. Dig. &wkey;311.]</p> <p>2. Deeds <&wkey;25 — “Quitclaim.”</p> <p>Whether a deed is a quitclaim or not depends upon the intent of the parties appearing from the face of the instrument, the use of the word “quitclaim” not being absolutely decisive.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. <&wkey;25.]</p> <p>3. Deeds <&wkey;25 — “Quitclaim” — Intention of Parties.</p> <p>If it appears from the language of a deed that it was intended to convey the land itself, rather than such title as the grantor had, it is not a “quitclaim” deed.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. § 49; Dec. Dig. <&wkey;>25.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Quitclaim.]</p> <p>4. Deeds <&wkey;109‘-Quitclaim — Evidence.</p> <p>The terms of the deed, the adequacy of the price or other circumstances, are admissible to show whether the purchaser bought the land or merely the chance of title.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §j} 239, 280, 598-600; Doc. Dig. &wkey;109J</p> <p>5. Deeds <&wkey;120 — Title Conveyed.</p> <p>A deed conveying “just such title as was received from the said trustees” by a certain deed, Held to bind the grantor .to convey the same character of title as that possessed by the trustees.</p> <p>[Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 375-393, 401, 407-412, 416-454; Dec. Dig. <&wkey;>120.]</p> <p>6. Appeal and Eebob <&wkey;1069(l) — Harmless Ebeoe — Not Affecting Result.</p> <p>Where the case is one calling for a peremptory instruction in favor of appellee, misconduct of a juror is harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4136; Dee. Dig. <&wkey;> 1069(1).]</p>

<p>1. Corporations <@=>80(10) — Subscription to Stock — Fraud—Waiver—Renewal op Note por Price.</p> <p>Where a subscriber to corporate stock, induced thereto by misrepresentations as to its par value, after discovering the truth of the matter, renewed the note given for the pirice of the stock, he waived the fraud and acquiesced therein, and could not have cancellation of the note.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 262; Dec. Dig. <@=>80(10).]</p> <p>2. Corporations <@=>80(10)' — Subscription to Stock — Fraud — Waiver — Knowledge —Sufficiency of Evidence.</p> <p>. In an action by a subscriber to corporate stock, induced thereto by misrepresentations as to its par value, to cancel the note he gave for the price, evidence held, to show that plaintiff, when he renewed the original notq, not only had sufficient knowledge that the par value of the stock had been misrepresented, but had consulted with his attorneys, and told them the facts of the transaction.</p> <p>[Ed. Note. — For other cases,' see Corporations, Cent. Dig. § 262; Dec. Dig. @=>80(19).]</p> <p>3. Corporations @=>80(12) — Subscription to Stock — Misrepresentations — Question for Jury.</p> <p>In such suit, whether the party who negotiated the subscription contract with plaintiff represented. that he was offering the stock at par value, and that such value was $20- a share, held for the jury under the evidence.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 264; Dec. Dig. @=>80(12).]</p> <p>4.. Trial @=>213 — Refusal to Instruct — Un-contradicted Evidence.</p> <p>Where evidence on an issue was uncontra-dicted, so that the matter was purely a question of law, the action of the court, after stating and finding the facts on the issue and making conclusions of law in favor of defendant, in refusing to instruct on the issue as requested by defendant, was not erroneous.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 480; Dec. Dig. @=213.]</p> <p>5. Corporations @=>99(1) — Issuance of Stock for Note — Statute—“Issue.”</p> <p>Where a bank took a note for a subscription to its stock, which it issued in the subscriber’s ' name, but retained possession until the note should be paid, apportioning dividends to the subscriber from the earnings of the company from the date of making the certificate, and recognizing the subscriber’s proxy to vote the stock as valid, also sending Mm notices addressed to him as a stockholder, there was no violation of Const, art. 12, § 6, or Rev. St. 1911, art. 1146, providing that no corporation shall issue stock or bonds except for money paid, labor done, or property actually received; the stock not having been “issued.”</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 444; Dec. Dig. @=>99(1).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Issue.]</p>

J. North, Judge. Action by Jack and Don McLeod, copart-ners doing business as McLeod Bros., against P. E. Kirkland and another. From a judgment for defendants, plaintiffs appeal.

Error from Bexar County Court for Civil Cases; John H. Clark, Judge. Action by George Cox against the San Antonio Traction Company. Prom a judgment for the plaintiff, defendant brings error. Reversed and remanded.

<p>Appeal from Hardeman County Court; D. E. Magee, Judge.</p> <p>Action by J. J. Perkins and others against the International & Great Northern Railway Company and others. Judgment for the plaintiffs in the county court on appeal from the justice court, and defendants appeal.</p>

<p>Appeal from Deaf Smith County Court; Jas. A. Hughes, Judge.</p> <p>Action by D. Baskin against B. M. Hester. From an order setting aside an order vacating a default judgment against defendant, he appeals.</p>

<p>Appeal and Error <©=>759 — Briefs—Assignment of Errors.</p> <p>Under rule 29 for the Courts of Civil Appeals (142 S. W. xii), requiring assignments of error to be copied in appellant’s brief, an assignment, reconstructed from two or throe assignments of error in the motion for new trial, will not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <§=>759.]</p>

<p>1. Husband and Wipe <@=>131(4) — Separate Estate of Wife — Actions — Burden of Proof.</p> <p>Where the wife, seeking to save certain lands from execution levied by the husband’s creditors, claimed that they were her separate lands, the burden was upon her to show what part, if any, of the land was paid for from her separate funds, in the absence of proof of which it would be presumed the property was that of the community.</p> <p>TEd. Note. — For other cases, see Husband and Wife, Cent. Dig. § 477; Dec. Dig. <@=>131(4).]</p> <p>2. Husband and Wife <@=>133(7) — Separate Estate of Wife — Evidence—Sufficiency.</p> <p>Evidence held to support a finding that the husband gave live stock and its increase to the wife, so as to defeat the lien claim of the husband’s creditors to land purchased with its proceeds.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 491; Dec. Dig. <@=>133(7).]</p> <p>3. Husband and Wife <@=>49% (8) — Separate Estate of Wife — Gifts—Evidence.</p> <p>While mere branding cattle in the wife’s name is insufficient to prove gift thereof to her, it is evidence which may be considered with the facts that the original stock was the wife’s, that the husband branded the increase for her, and would not sell them without her consent, which she gave on condition that the proceeds should be invested in land for her, which land she selected, and is sufficient to show a gift of the increase as well as its proceeds.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 254; Dec. Dig. <@=>49%(8).]</p> <p>4. Husband and Wife <@=>133% — Separate Estate of Wife — Evidence.</p> <p>Evidence held sufficient to carry to the jury the issue whether land claimed by the wife to be exempt from husband’s creditors was her separate property.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Dec. Dig. <@=>133%.]</p> <p>5. Husband and Wife <@=>133(1) — Separate Estate of Wife — Evidence.</p> <p>Evidence held to show that certain horses wore of the separate estate of the wife, so that their issue and proceeds were exempt from the husband’s creditors.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 487, 493; Dec. Dig. <@=> 133(1).]</p> <p>6. Husband and Wife <@=>266 — Separate Estate of Wife — Evidence.</p> <p>The husband may give or convey to the wife community property, and thereby make it her separate property, when it is not done in fraud of creditors, so that, where such gift was made prior to the time at which plaintiffs became creditors of the husband, the gift of community personalty to the wife was valid as against them.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 925-928; Dec. Dig. <@=> 266.]</p> <p>7. Husband and Wife <@=>121 — Conveyance to Wife — Husband’s Note for Price.</p> <p>Where the wife’s separate funds were used in a cash payment on the land, and the husband signed the note for the deferred payment, taking the land in the wife’s name under agreement that the note should be paid from her funds, the equitable title to the land vested in her, and she could defend against the lien claim of subsequent creditors of the husband.</p> <p>[Ed. Note — For other cases, see Husband and Wife, Cent. Dig. §§ 432, 435-441; Dee. Dig. <@=>121.]</p> <p>8. Appeal and Error <@=1068(5) — Harmless Error — Refusal of Instructions.</p> <p>Where the jury found that the whole of land claimed by the wife as exempt from the husband’s creditors had been paid for with her separate funds, it was not prejudicial error to refuse to submit the issue of the proportion paid by the wife.</p> <p>[Ed. Note. — For othor cases, se.e Appeal and Error, Cent. Dig. § 4230 f Dec. Dig. <@= 1068(5); Trial, Cent. Dig. § 475.]</p> <p>On Rehearing.</p> <p>9. Husband and Wife <@=121 — Separate Estate of Wife — Mingling of Funds — Effect.</p> <p>The mere fact that the husband mingled the wife’s separate money with his would not defeat her title to land purchased therewith.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 432, 435-441; Dec. Dig. <@=121.]</p> <p>10. Fraudulent Conveyances <@=95(5) — Gift to Wife — Validity.</p> <p>Subsequent creditors cannot attack a gift of stock to the wife on the ground that it was only in pursuance of an antecedent agreement which is invalid, where it was actually a gift of things in esse.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 268, 209; Dec. Dig. <@=95(5).]</p> <p>11. Husband and Wife <@=121 — Separate Estate of Wife — Wi-iat Property may be Held Separate.</p> <p>The mere fact that land purchased with proceeds of wife’s separate personal property was school land, and the purchase money on a deferred payment was due that fund, would not affect the wife’s right to hold it in severalty if it was paid for from her funds.</p> <p>[Ed. Note. — For other eases, see Husband and Wife, Cent. Dig. §§ 432, 435-441; Dec. Dig. <@=121.]</p>

<p>1.Trial <@=>352(1) — Presentation op Issues.</p> <p>In a salesman’s action for compensation due under an oral contract, where defendant claimed that his employment was under a written contract, the court’s statement in its formal presentation of the issues that plaintiff was suing upon an alleged oral contract, reciting its exact terms with reference to salary and commissions and how and when both were earned and payable, and that the defendant denied that, and said the contract was a written contract, omitting any reference to the terms of the written contract as pleaded, was not objectionable as confusing the jury or leading them to believe that the written contract alleged by defendant was not an issue in the case, as it was necessary to recite the terms of the oral contract, that the jury might, if finding for plaintiff, find in accordance with its provisions, and not necessary to state the provisions of the alleged written contract, since, if the jury believed that it was the true contract of payment, the verdict in view of a plea of payment, would be for defendant, without reference to its terms.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 840; Dec. Dig. <@=5352(1).]</p> <p>2. Appeal and Error <@=>1062(1) — Harmless Error — Presentation oe Issues.</p> <p>Such presentation, if objectionable, as confusing the jury or leading them to believe that the written contract alleged by defendant was not an issue in the case, was harmless, where the first interrogatory was whether plaintiff had an oral contract with defendant, or whether it was the written contract alleged by defendant.</p> <p>[Ed. Note. — For other 'cases, see Appeal and Error, Cent. Dig. § 4212; Dec. Dig. <§=> 1062(1).]</p> <p>3. Trial <@=>350(4) — Special Issues — Function.</p> <p>In a salesman’s action for compensation under an oral contract, wherein defendant claimed that his employment was under a written contract, the refusal to submit defendant’s requested special issue as to whether defendant on or about a certain date mailed plaintiff a contract in writing covering his employment was not error, though a dependent issue as to whether plaintiff accepted such contract should have been given, under the rule that the function of special issues is to have the jury determine from the evidence the existence of the material facts sought to be established by the respective parties.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 829; Dec. Dig. <@=>350(4).]</p> <p>4. Trial <@=>351(5) — Requested Issues — Submitted Issues.</p> <p>In such action, refusing to submit defendant’s requested special issue was not error, where the court by its first interrogatory asked the jury whether plaintiff had an oral contract with defendant, reciting its terms, or whether he was employed under the written contract set out in the defendant’s pleading.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 834; Dec. Dig. <@=>351(5).]</p> <p>5. Pleading <@=>177 — Admission—Statute.</p> <p>In a salesman’s action for compensation under an oral contract, where defendants in a paragraph of its answer alleged facts which, if true, constituted an acceptance by plaintiff of the alleged written contract of employment, and in a subdivision of such paragraph charged that such contract had been delivered to plaintiff, and that he entered the service of defendant thereunder for the year involved, plaintiff’s reply denying the existence of the written contract and asserting the oral contract sued upon, and specifically denying each paragraph of defendant’s pleading setting up the written contract, save the subdivision in reference to which he admitted receiving from defendant such written contract, but denied that ho accepted it, was a sufficient denial under the Practice Act, as amended in 1913 (Acts 33d Beg. c. 127), and since repealed (Acts 34th Beg. c. 101), in force at the trial, requiring'a reply to affirmative allegations of the answer to either admit or deny them or deny any knowledge or information in reference thereto sufficient to form any belief concerning them.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 354, 355; Dec. Dig. <@=>177.]</p> <p>6. Principal and Agent <§=>89(9) — 'Compensation— Question por Jury — Acceptance oe Written Contract.</p> <p>In a salesman’s action for compensation under an oral contract, where defendant pleaded that the employment was under a written contract, held, that whether plaintiff accepted the alleged written contract and acted thereunder was for the jury.</p> <p>[Ed. Note. — Por other cases, see Principal and Agent, Cent. Dig. §§ 216, 238; Dec. Dig. <@=> 89(9).]</p> <p>7. Trial ¡@=>85 — Evidence Admissible in Part — Scope oe Objection.</p> <p>An objection to evidence admissible in part should separate the admissible evidence from that which is inadmissible, and, unless it does so, the admission of the irrelevant evidence will not constitute reversible error.</p> <p>[Ed. Note. — Por other cases, see Trial, Cent. Dig. §§ 222-225; Dec. Dig. <@=>S5.]</p> <p>8. Witnesses <@=>39S(1) — Impeachment—Contradiction.</p> <p>It is always competent for a party to contradict his adversary’s witness by showing the facts to be otherwise than as testified to by him, and so discredit the witness.</p> <p>[Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 1267; Dec. Dig. <@=>398(1).]</p> <p>9. Appeal and Error <@=>1048(6) — Harmless Error — Examination oe Witnesses — Repetition oe Testimony.</p> <p>In a salesman’s action for compensation and salary under an oral contract, where defendant pleaded his employment under the terms of a written contract, and where defendant’s president on his direct and cross-examination denied the execution of the oral contract alleged by plaintiff, and where a deposition of the president’s former stenographer taken in behalf of plaintiff, in which he detailed a conversation between plaintiff and defendant’s president tending to support plaintiff’s contention, was not used, and the stenographer testified in person, the cross-examination of defendant’s president by reading the conversation as first detailed by the stenographer in his deposition and inquiring whether it occurred, which the witness denied, while not approved, because presenting the testimony of the witness to the jury twice, once by deposition and once orally, so as to give it undue prominence, was not so prejudicial as to warrant a reversal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4145; Dec. Dig. <@=> 1048(6).]</p> <p>10. Witnesses @==>398(2) — Impeachment — Contradictory Statement — Predicate,.</p> <p>In such case the statement taken from the deposition was proper and sufficient as a predicate for the contradiction of the testimony of defendant’s witness.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1274; Dec. Dig. <@==>398(2).]</p> <p>11. Witnesses <@=>374(2) — Credibility—Hostility.</p> <p>In a salesman’s action for compensation and salary under an oral contract, where defendant set up his employment under a written contract, a letter from defendant to another company which had inquired about the capability of the plaintiff, whom it contemplated employing, which was unfriendly to and biased against plaintiff, was admissible, as the bias or unfriendliness of a material witness toward a litigant may be shown as affecting the weight to be given the witness’ testimony.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1202; Dec. Dig. <@=>374(2).]</p> <p>12. Appeal and Error <@=>882(8) — Party Entitled to Allege Error — Admission oe Evidence.</p> <p>In such case the defendant, which proved the contents of the letter by its president before it was offered by plaintiff, was in no position to complain of its admission.</p> <p>[Ed. Note. — For’other cases, see Appeal and Error, Cent. Dig. §§ 3597, 3598; Dee. Dig. <@=> 882(8).]</p>

<p>1. Chattel Mortgages <@=>22 — Validity — Future Advances.</p> <p>A chattel mortgage to' secure future advances is valid and binding on the parties.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 68; Dec. Dig. <@=>22.]</p> <p>2. Chattel Mortgages <@=>138(1) — Rights of Mortgagee — Execution Purchaser.</p> <p>Property including a mule was mortgaged to secure future advances to make a crop. Thereafter the mule was sold under execution against debtor. At that' time the remaining property was more than sufficient to discharge any advances made. The mortgagee continued to make advances and then prayed foreclosure of the mortgage on the mule. Soli, that though Rev. St. 1911, art. 3744, permits a creditor, to levy on mortgaged property, yet, as it provides such levy shall be subject to the mortgage, and as the mortgagee under penalty of breach of contract was bound to continue making advances, the mortgagee took priority over the purchaser at execution sale.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 228, 229, 231-236; Dee. Dig. <@=>138(1); Mortgages, Cent. Dig. § 325.]</p>

<p>1. Sales <&=>38(1) — Buyeb’s Right to Rescind — In juey.</p> <p>Where the purchaser of a motor truck failed to show injury by fraud, if any, in the seller’s representations as to the capacity of the truck, he was not entitled to rescind.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 65; Dec. Dig. <®^38(l).j</p> <p>2. Sales <&aol26(l) — Buyer’s Action to Rescind — TIme.</p> <p>The buyer of an auto truck, even if the seller fraudulently represented its .capacity, after using it for six or seven months and negligently and recklessly injuring it, had no right to rescind the contract of purchase.</p> <p>[Ed. Note. — For other eases, see Sales, Cent. Dig. §§ 313, 315; D'ee. Dig. @^126(1).]</p> <p>3. Sales <@=»52(7) — Buyer’s Action to Rescind — Verdict.</p> <p>In a suit to rescind an executed contract for the purchase of a motor truck on the ground of the seller’s misrepresentations as to its capacity, verdict for plaintiff held without support in the evidence.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 149-144; Dec. Dig. <§=>52(7).]</p>

A. Ward, Judge. Suit by John Merrett against Carver Bros., a copartnership, and another. From a judgment for plaintiff, the named defendants appeal. The suit is by appellee, Merrett, seeking to recover the sum of $1,773.39 against appellants, a copartnership, and the Merchants’ & Planters’ National Bank.

Umphres, Judge. Action by Mrs. M. A. Wooldridge, as executrix of the will of J. C. Wooldridge, deceased, against H. C. Kerbow and others, in which R. B. Gatlin filed plea in intervention. From the judgment, defendants appeal.

<p>1. Bills and Notes <&wkey;>452(l) — Purchase erom Bona Fide Holder — Purchase eor Sbite.</p> <p>The legal and equitable owner and holder of a note, given to secure advancement of the purchase price of land, by indorsement and written transfer and assignment from the assignee of the original payee, for valuable consideration, could sue the makers, though he purchased the note for spite and not for profit or in the ordinary course of trade.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Dec. Dig. <&wkey;452(l).]</p> <p>2. Homestead <&wkey;81 — Interest Subject.</p> <p>When a guardian’s sale of land to husband and wife was confirmed by the county court, the title vested substantially in the purchasers, subject to the payment of the purchase money, who, before the execution and delivery to them of deeds by the guardian and a ward, had such an interest in the land that they" could impress a homestead upon it, since the homestead right may attach to an equitable estate, or an estate for life, or even a leasehold interest, while the confirmation by the court of the sale related back to and conveyed title from its date.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 114-118; Dec. Dig. &wkey;81J</p> <p>3. Homestead <&wkey;96 — Lien eor Attorney’s Fees.</p> <p>Where a vendor of land requires the purchaser to - stipulate in the original purchase-money note for the payment of attorney’s fees if the note is not paid at maturity, and it is placed in an attorney’s hands for collection, a lien on the land is created by the obligation to pay fees, which cannot be defeated by the subsequent establishment of a homestead.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. <&wkey;96.]</p> <p>4. Homestead <&wkey;96 — Lien eor Attorney’s Fees.</p> <p>Under the Constitution, protecting the homestead of a head of a family from forced sale for the payment of all debts except for the purchase money, etc., where buyers of land from a guardian, the sale being subsequently confirmed by the county court, gave a purchase-money note, stipulating for attorney’s fees, which was subsequently renewed, the notes having been given subsequent to the fixing of the buyers’ homestead upon the land, and the original contract not having stipulated for attorney’s fees, such fees could not be made a charge upon the land, since, when homestead property cannot be le-gaily incumbered, except for certain purposes specified, a liability not embraced in such purposes cannot become by contract a charge upon the property because coupled with another obligation with which the property may be charged.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. &wkey;96.]</p> <p>5. Guardian and Ward <&wkey;81 — Order oe Sale oe Land — Authority oe Court — Presumption.</p> <p>In the absence of contrary proof, every fact necessary to support the authority of the county court to make an order of sale, directing a guardian to sell the wards’ land, and to confirm the sale made thereunder, must be presumed.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 334r-336; Dee. Dig. <&wkey;> 81.]</p> <p>6. Guardian and Ward <&wkey;108 — Sale oe Land by Order oe Court — Title oe Ward.</p> <p>Where a county court ordered the sale by a guardian of her wards’ lands, such sale, and its confirmation, passed title to the buyers, subject only to the payment of the unpaid purchase money, leaving no title in a ward or her husband.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. §§ 369, 395-398; Dec. Dig.. <&wkey;108.]</p> <p>7. Guardian and ward <&wkey;98 — Sale oe Lands — Consummation.</p> <p>Where the court’s order of sale authorized a guardian to sell the wards’ land's for cash or half cash and balance on credit as to her should seem best for the interest of the estates of the minors, and the buyers, instead of paying a part of the purchase price cash and executing their notes for the balance, as originally agreed with the guardian, gave their note to a third person, who furnished the purchase money in cash to the guardian, the sale, as reported to the court and confirmed by it, was carried out, and the buyers acquired title through the confirmation, and not through a deed from a ward thereafter executed.</p> <p>[Ed. Note. — For other cases, see Guardian and Ward, Cent. Dig. § 369; Dec. Dig. (®=»98.]</p> <p>8. Bills and Notes <&wkey;445 — Election to Declare Due.</p> <p>Where the assignee of a note, given to secure the- advancement by the payee of the price of lands purchased by the makers, sold in his turn, with the understanding that the suit instituted by him thereon should be dismissed, its dismissal did not sot aside or annul his previous election to declare the entire note due for nonpayment of interest, or estop his transferee from such election and declaration after he purchased.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1311-1329; Dec. Dig. &wkey; 445.]</p> <p>9. Judgment <&wkey;675(2) — Binding Force on One Not a Party.</p> <p>Where a bank, to which a note was delivered as collateral security, returned the same to the pledgor or Ms counsel that suit might be brought upon it by the pledgor, an attorney of the bank bringing and prosecuting the suit to judgment, the judgment rendered was binding on the bank, and estopped it to maintain a suit on-the same cause of action.</p> <p>. [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1191; Dec. Dig. <§=>675(2).]</p> <p>10.. Abbeal and Error <&wkey;1036(3) — Immaterial Error.</p> <p>In suit on a note, where the judgment, under the circumstances, was binding on a bank not a party, error of the court in declining to continue the case to make the bank a party was immaterial.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. § 4071; Dec. Dig. <&wkey;1036 (3).]</p> <p>11. Husband and Wife <&wkey;238(3) — Judgment Not Personal Against Wife.</p> <p>In suit on a note renewing a note given by the purchasers of land at guardian’s sale to secure the advancement of the purchase price by the original payee, judgment decreeing that plaintiff recover of the purchasers, husband and wife, the amount sued for, with foreclosure of liens, and directing that, if the property condemned to pay the judgment should not sell for enough to satisfy it, plaintiff should have execution against the husband for the balance, but that no execution should ever issue against the wife, was not in proper form for a judgment other than personal against the wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 855; Dec. Dig. <&wkey;238(3).]</p>

Llewellyn, Judge. Action by J. B. Rodgers against the Foster Lumber Company and others. From a judgment for the plaintiff, the named defendant appeals.

B. Muse, Judge. Action by the Republic Trust Company against H. O. Taylor, with answer asking for appointment of a receiver. Receiver appointed, and plaintiff appeals.

<p>CORPORATIONS <§==>99(1) — CORPORATE STOCK— Purchase Price.</p> <p>Where plaintiff entered into an agreement to buy the stock of a corporation to be organized with a capital and surplus, and to pay the purchase price in money or in satisfactory securities, and plaintiff gave notes for the purchase money, which notes were renewed and the amounts varied, held that, the stock issued for the notes being void because being issued in violation of Const, art. 12, § 6, prohibiting the issuance of corporate stock for notes, the notes should be canceled.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 444; Dec. Dig. <§=>99(l).]</p> <p>Huff, C. J., dissenting.</p>

<p>1. Wills ©=>423 — Probate—Effect.</p> <p>Under Rev. St. 1911, § 3248, limiting the time for probating wills, the probate of a will at the instance of one not in default under that statute inures to the benefit of all of the heirs.</p> <p>[Ed. Note. — Eor other cases, see Wills, Cent, Dig. §§ 911-913; Dec. Dig. ©=423.]</p> <p>2. Wills ©=>324(1) — Limitations—Ignorance —Computation of Period — In Default.</p> <p>Under Rev. St. 1911, § 3248, limiting the time for probating wills, evidence that delay in discovering and offering for probate a holographic will was due to intrusting possession of testator’s papers to another of his children held, not insufficient as a matter of law to prove that the proponent was not in default.</p> <p>TEd. Note. — For other cases, see Wills, Cent. Dig. § 767; Dec. Dig. ©=>324(1).]</p> <p>3. Principal and Agent ©=>178(1) — Notice to Agent — Scope of Agency.</p> <p>The knowledge of one performing a mere ministerial duty is not imputed to his principal.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 680, 683, 683% 1 Dee. Dig. ©=>178(1).]</p> <p>4. Notice ©=>5 — To Agent — Scope of Agency.</p> <p>The knowledge of the contents of papers by one given physical custody thereof does not affect the person depositing the papers.</p> <p>[Ed. Note. — For other cases, see Notice, Cent. Dig. §§ 3, 8-12; Dee. Dig. ©=>5.]</p>

<p>Appeal from District Court, Ward County; 5. J. Isaacks, Judge.</p> <p>Suit by W. F. Borders and wife against Marvin Reinhardt. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Refugio County; John M. Green, Judge.</p> <p>Action by J. E. Power against B. J. Do-nada. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Suit by Mrs. E. E. Luten and others against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for defendant, plaintiffs appeal.</p>

McCullough, Judge. Action by the Rotan Grocery Company against Nick Woelfel and others. Judgment for the plaintiff, and the named defendant appeals.

<p>Appeal from. District Court, Pecos County; W. C. Douglas,' Judge.</p> <p>Suit by Walter Good and another against the Palomas Land & Cattle Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Cbiminal Law <&wkey;1000(l) — Appeal—Statement op Facts — Bills op Exception — Necessity.</p> <p>In the absence of statement of facts and bills of exception, nothing is presented for review.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2805; Dec. Dig. &wkey;>1090(l).]</p>

<p>Appeal from District Court, Coryell County ; J. H. Arnold, Judge.</p> <p>Baity Murrell was convicted of seduction, and appeals.</p>

J. Clark, Judge. Action by Lula West, by her guardian ad litem, against Annie Calvert Glisson and another, to construe a will. From a judgment construing the will in accordance with defendants’ contention, plaintiff appeals.

Error from District Court, Bexar County; W. P. Ezell, Judge. Suit by the Christian-Wathen Dumber Company against L. Kaufman and wife, in which defendants impleaded Lee Garcia and another. Prom a judgment that plaintiffs take nothing by their suit and defendants nothing by reason of their cross-action, defendants bring error.

<p>Appeal from Erath County Court; A. P. Young, Judge.</p> <p>Suit by Hi. L. Dyer against the Texas Grain & Elevator Company and others in the alternative. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Commerce <&wkey;33 — Railroads — “Interstate Commerce” — Injuries in Interstate Commerce.</p> <p>A shipment of coal billed to a point in another state, from which, although without reloading or unloading, it was then billed to a point within such state, was not interstate as to the second shipment.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 26, 81; Dec. Dig. <&wkey;33.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Commerce <&wkey;27 — Railroads—Injuries to Servant — “Interstate Commerce.”</p> <p>The mere fact that it does not appear whether cars were unloaded and reloaded within the state, or that the goods were in the same ears at a point without the state, is not determinative of whether the shipment was interstate, and where at the time of shipment a destination within the state only was contemplated the state statutes control the railroad’s liability for injury to a servant engaged in such shipment.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. &wkey;>27.]</p> <p>3. BIaster and Servant <&wkey;204(l) — Injuries to Servant — Deeenses — Assumption oe Risk — Common-Daw Rule.</p> <p>The common-law defense of assumed risk still obtains, except as limited by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6645.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 544; Dec. Dig. <&wkey;> 204(1).]</p> <p>4. Master and Servant &wkey;»295(l) — Injuries to Servant — Deeenses — Assumption oe Risk.</p> <p>Where the defense of assumption of risk is expressly limited under certain conditions by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6645, an instruction requested by defendant on the issue of assumption of risk, which failed to negative those conditions, is properly refused.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1168, 1169, 1179; Dec. Dig. <&wkey;295(l).]</p> <p>5. Negligence &wkey;>l/41(6) — Reduction oe Compensation.</p> <p>In a sex'vant’s action for injuries arising out of and in the course of his employment, defended on the ground of contributory negligence, the issue of the amount to which his compensation should be reduced by reason of such contributory negligence, must be submitted, no standard for determining whether the compensation allowed is excessive being otherwise possible.</p> <p>[Ed. Note. — Eor other cases, see Negligence, Cent. Dig. § 387; Dec. Dig. <&wkey;14l(6).]</p> <p>6. Appeal and Error <®=>934(2) — Scope op Review — Presumptions.</p> <p>Every reasonable presumption must be indulged in favor of the judgment rendered, and a special verdict should be liberally construed in order to sustain it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>934(2).]</p> <p>7. Trial <&wkey;352(l) — Special Verdict — Sufficiency.</p> <p>A special verdict must directly, fairly, and fully submit to the jury material issues and be sufficiently certain to stand as a final decision of the special matters with which it deals.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 849; Dec. Dig. &wkey;>352(l).]</p> <p>8. Negligence <&wkey;142 — Injuries to Servant —Amount oe Award.</p> <p>A special verdict in a servant’s action for injuries, defended on the ground of contributory negligence, awarding him $17,500 where the demand was $50,000, was too indefinite to stand, since it could not be determined in what amount his contributory negligence reduced the verdict if at all.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 400-403; Dec. Dig. <§=>142.]</p> <p>9. Master and Servant <&wkey;291(3) — Injuries to Servant — Actions — Instructions — Pleadings — Sueeiciency.</p> <p>An allegation that the master negligently furnished the servant with an engine out of repair as to its sand pipe, will support an instruction that it was the master’s duty to exercise ordinary care to furnish'an ordinarily safe engine and to have it inspected and repaired, especially where the specific duty was by later instruction specifically defined.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1136; Dec. Dig. <&wkey; 291(3).]</p> <p>10. Master and Servant <&wkey;270(15) — Injuries to Servant — Actions—Evidence—Admissibility.</p> <p>In an engineer’s action for injuries received when he attempted to replace a sand pipe with his foot while the engine was in motion, it is not error to permit him to testify that such was the custom since it might reasonably be presumed that the general custom was acquiesced in by the master.</p> <p>[Ed. Note. — For other cases, see Master and Servant. Cent.' Dig. § 925; Dec. Dig. &wkey;> 270(15).] __</p> <p>11. Master and Servant <&wkey; 135 — Injuries to Servant — Actions—Defenses—Custom.</p> <p>The master, in order to avoid the charge of negligence, cannot rely upon failure of others in similar circumstances to perform a duty, the violation of which is the subject of complaint.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 271, 281, 293; Dee. Dig. <5&wkey;135.j</p> <p>12. Master and Servant <&wkey;127 — Injuries to Servant — Liability—Negligence.</p> <p>A railway company is not guilty of negligence per se for failure to take precautions which other railways observed in keeping'their engines in repair.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent Dig. § 252; Dec. Dig. &wkey;>127.}</p> <p>13. Evidence <&wkey;539 — Expert Witness — Who are Expert Witnesses.</p> <p>Where an injured engineer testified to an experience with engines covering more than, 35 years, it is not error to permit him to testify that he did not believe a sand pipe could be displaced with a blow of the foot, since in so testifying he might be regarded as an expert.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2349-2352; Dec. Dig. &wkey;539.]</p>

<p>Appeal from Tarrant County Court; Chas. T. Prewitt, Judge.</p> <p>Suit by Edgar Kerr against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.</p> <p>Action by Morris & Daniel against the Mutual Film Corporation. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Coleman County Court; W. Marcus Weátherred, Judge.</p> <p>. Suit by the Germo Manufacturing Company against Coleman County. Judgment for ■defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Red River County; Ben H. Denton, Judge.</p> <p>Trespass to try title by J. A. White and another, in which, after White’s death, his nephew and children were substituted as parties plaintiff, against unknown heirs of Anderson King, in which W. O. Diffie filed a plea of intervention, asking affirmative relief against plaintiffs, and making P. D. Wilson a party defendant, and in which Wilson filed an answer and cross-bill. Judgment for defendants, and for the cross-complainant, and the intervener appeals.</p>

<p>1. Trial &wkey;>85 — Evidence—Objections.</p> <p>An assignment, complaining of the overruling of an objection to -the evidence, presents nothing for review, where the evidence was in part admissible.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 222-225; Dee. Dig. &wkey;85.]</p> <p>2. Carriers <&wkey;>133 — Carriage of Goods— Actions — Evidence.</p> <p>In an action for injuries to a shipment of peanuts, which plaintiff claimed was caused by want of ventilation, evidence that green peanuts, if confined before sufficiently dry, would necessarily be damaged is admissible.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 583-587, 606; Dec. Dig. &wkey;>133.]</p> <p>3. Evidence <&wkey;481(3) — Opinion—Carriage op Goods — Actions—Evidence.</p> <p>Where plaintiff claimed that a shipment of peanuts was injured because of delay in shipment and confinement in an unventilated car, testimony as to the time for transportation of such freight, not based on the operation of defendant’s trains or the witness’ personal knowledge is incdinpetent.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2251, 2254; Dec. Dig. <&wkey;481(3).]</p> <p>4. Evidence &wkey;>542 — Opinion—Carriage op Goods — Actions—Evidence.</p> <p>In an action for injuries to a shipment of peanuts, testimony that the peanuts, if in proper condition when shipped, would keep for a longer time than that of the shipment, given by experienced dealers, though not of the locality, is admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2355; Dec. Dig. &wkey;>542.]</p> <p>5. Appeal and' Error <&wkey;72S(l) — Assignment op Error — Sufficiency.</p> <p>An assignment of error to the exclusion of testimony too vague to show what testimony was excluded cannot be considered on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent Dig. § 3010; Dec. Dig. &wkey;>728(l)J</p> <p>6. Appeal and Error <&wkey;1058(2) — Review-Harmless Error.</p> <p>The exclusion of testimony already given by the witnesses is harmless.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4195, 4201; Dec. Dig. &wkey;> 1058(¿).]</p> <p>7. Evidence &wkey;>538 — Opinion Evidence — Admissibility.</p> <p>In an action for injuries to a shipment of peanuts, which it was claimed were confined too long in an unventilated car, testimony that the shipment could be made in a given length of time, if diligently handled, is inadmissible as an expression of opinion.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2348; Dec. Dig. <&wkey;>538.]</p> <p>8. Carriers <&wkey;132 — Carriage oe Goods— Actions — Burden of Proof.</p> <p>Where a shipper expressly alleged that the goods were in good condition when delivered to the carrier, it has the burden of proving that fact.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dec. Dig. &wkey;132.]</p> <p>9. Carriers <&wkey;137 — Carriage of Goods— Actions — Instructions.</p> <p>A charge in an action for injuries to a shipment of goods, that the burden of proof was on plaintiff to make out a case is not objectionable, on the theory that when a shipment is delivered in good condition, but arrives damaged, the burden is on the carrier to excuse the injury, the proof not showing without contradiction that the shipment was in good condition when .received, and plaintiff having alleged that it was delivered in good condition, for if the burden on that issue had shifted, such contention should have been presented by an appropriate request.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 594, 595; Dee. Dig. <&wkey;137.]</p> <p>10. Pleading <&wkey;127(2) — Admissions—Carriage of Goods.</p> <p>Where a shipper of peanuts contended they were damaged because the car furnished could not be ventilated, allegations, in the answer that the shipper was negligent in loading green peanuts into an unventilated car, do not admit that the car was not suitable.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 267; Dec. Dig. &wkey;127(2).]</p> <p>11. Appeal and Error <&wkey;1033(5) — Harmless Error — Instructions.</p> <p>In an action by a shipper for injuries to a shipment, the giving of numerous charges, declaring that under enumerated circumstances verdict should be for the shipper, but not declaring that a failure of proof would require verdict for the carrier, was not error to plaintiff’s injury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4056; Dec. Dig. <&wkey;> 1033(5); Trial, Cent. Dig. § 587.]</p> <p>12. Trial <&wkey;260(l) — Instructions—Refusal.</p> <p>The refusal of requests covered by the charges given is not error.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;260(l).]</p>

Error from District Court, Tarrant County; R. H. Buck, Judge. Action by Joella Sealey and others against the Mutual Land Company and others. Judgment for defendants, and plaintiffs bring error.

<p>Appeal from District Court, Clay County; J. W. Akin, Judge.</p> <p>Action by K. N. Hapgood against the Ft. Worth & Denver City Railway Company. From judgment for the plaintiff, defendant appeals.</p>

<p>1. Public Lanijs &wkey;>175(5) — Hands of States. ^■PmoKiTy of Location.</p> <p>Where a location of public lands is fixed by actual survey upon the ground, being the first or eldest in location, the lines so fixed upon the ground control.</p> <p>[Ed. Note. — For other cases, see Public Lands*. Cent. Dig. §§ 565, 566; Dec. Dig. <&wkey;>175(5).l ..</p> <p>2. Appeal and Error <&wkey;1002 — Review — Verdict on Conflicting Evidence.</p> <p>A verdict on conflicting evidence will not be disturbed.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. <§=> :1002.]</p> <p>Walthall, J., dissenting.</p>

Action by Mrs. C. B. McCormac and others against the Ferrell-Michael Abstract & Title Company and others, in which R. L. Davenport intervened, and to which George Vaught and another were made parties defendant, From a judgment for plaintiffs and intervener, the named defendant and the im-pleaded defendants appeal.

<p>Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.</p> <p>Suit by R. L. Lane and another against I. H. Kempner and another. From an order dissolving a temporary injunction, plaintiffs appeal.</p>

Error from Erath County Oourt. Suit by Mat Nelms and others against the Springfield Fire & Marine Insurance Company. To review a judgment for plaintiffs, defendant brings error.

S. Tillotson, Judge. Suit by E. A. Patterson and D. C. Nelson, composing the copartnership firm of Patterson & Nelson, against Lee Stafford. From a judgment for plaintiffs and denying defendant any recovery on his counterclaim, defendant appeals.

<p>Appeal from Wichita County Court; Harvey Harris, Judge.</p> <p>Action by Robert Elliott against W. B. Norton and another. From a judgment for plaintiff, defendant Norton appeals.</p>

<p>Appeal from Wise County Court; J. W. Walker, Judge.</p> <p>Action by A. C. Landon against V. 8. Hal-comb. Judgment for defendant, and plaintiff appeals.</p>

<p>Appead and Ekeok <$=>499(4) — Review—Necessity oí? Objection.</p> <p>An assignment of error in giving a peremptory instruction will not be considered where the record fails to show that an objection was made and exception reserved in the trial court, as required by the statute.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2298; Dec. Dig. <$=>499(4).]</p>

<p>Appeal from District Court, Hunt County; A. P. Doboney, Judge.</p> <p>Action by W. F. Hicks and wife against the Gulf, Colorado & Santa F6 Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Deaf Smith County Court; Jas. A. Hughes, Judge.</p> <p>Action by tbe Western National Bank of Hereford against N. A. Laughlin and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Navarro County Court; R. R. Owens, Judge.</p> <p>Suit by Osborne & Beck against I. A. Sanders. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Appeal and Error <@=3237(6) — Review — Evidence to Support Jury Finding — Motion to Set Aside.</p> <p>In the absence of a motion to set aside the jury’s finding's, an assignment of error based on the insufficiency of the evidence to support them will not be considered.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 1302%; Dec. Dig. <@=> 237(6).]</p> <p>2. Appeal and Error <@=»1008(1) — Review-Findings.</p> <p>A finding involved in a judgment must be treated with as much deference as if made by the jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3955; Dec. Dig. <@=> 1008(1).]</p> <p>3. Carriers <@==45 — Failure to Furnish Cars — Damages.</p> <p>Damages for breach of carrier’s contract to deliver cars at orchard for shipment of peaches is not to be limited to cost of hauling the fruit to the depot, where it does not appear that it could and would have been cared for if taken there, but rather the contrary.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120, 123-128; Dec. Dig. <@=>45J</p> <p>4. Carriers <@=>45 — Pleading—Variance— “On or About.”</p> <p>Plaintiff, alleging that “on or about” June 14th he demanded and defendant refused to furnish cars, proof that it was on that day of July is not a variance.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120, 123-128; Dec. Dig. <@=>45.</p> <p>For other definitions, see Words and Phrases, First and Second Series, On or About.]</p> <p>5. Carriers <@=>44 — Special Contract to Furnish Cars — Liability eor Breach.</p> <p>A carrier is liable for the consequences of its breach of contract to furnish cars within a shorter time than required by statute, though the result of inability was due to an unusual demand for cars.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 120-122, 230; Dec. Dig. <@=>44.]</p>

<p>Appeal from Johnson County Court; B. Jay Jackson, Judge. Will Criss was convicted of selling intoxicating liquor in prohibition territory, and he appeals.</p>

<p>Appeal from Nacogdoches County Court; J. P. Perritte, Judge. Will McElree was convicted of making an illegal sale of intoxicating liquor in prohibition territory, and he appeals.</p>

<p>Appeal from District Court, Galveston County; Robt. G. Street, Judge. Petition for mandamus by E. K. Marrast against Paul Waples and others, composing the Democratic State Executive Committee. The writ was awarded, and respondents appeal.</p>