Volume 186 — South Western Reporter

<p>1. Seduction t&wkey;45 — Evidence — Sueei-ciency.</p> <p>On a trial for the offense of seduction, evidence, though conflicting, held, to sustain conviction.</p> <p>[Ed. Note. — Eor other cases, see Seduction, Cent. Dig. §§ 80-82; Dec. Dig. <®^45.]</p> <p>2. Criminal Law &wkey;>747 — Review — Conflicting Evidence.</p> <p>Where evidence is conflicting, it is for the jury to determine.</p> <p>[Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. §§ 1714, 1727; Dec. Dig. &wkey; 747.]</p> <p>3. Seduction <&wkey;45 — Evidence—Character oe Female.</p> <p>In a criminal trial for seduction, evidence held to show prosecutrix’s good reputation for virtue.</p> <p>[Ed. Note. — For other' cases, see Seduction, Cent. Dig. §§ 80-82; Dec. Dig. &wkey;45.]</p> <p>4. Criminal Law &wkey;>1092(ll) — Appeal and' Error — Statement oe Facts.</p> <p>Where the court below in his qualification of accused’s bills of exceptions stated that he referred to the statement of facts for the testimony “on this question or subject,” the bills will be considered by the appellate court in connection with the testimony as shown by the statement of facts.</p> <p>[Ed. Note. — For other cases, see Criminal' Law,' Cent: Dig. §§ 2837, 2841; Dec. Dig. i&wkey; 1092(11).]</p> <p>5. Criminal Law <&wkey;419, 420(1) — Evidence—' Admissibility.</p> <p>In trial for seduction, held, not error to exclude evidence that prosecutrix’s father was told by the district attorney that a bill for seduction could not be procured against accused because she had testified that the acts of intercourse were without her consent, although the-prosecutrix immediately thereafter changed her testimony, remedying these defects; no offer being made to show that prosecutrix knew of the-conversation.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973, 975, 976, 980-983; Dec. Dig. &wkey;419, 420(1).]</p> <p>6. Seduction c&wkey;42 — Evidence—Admissibility.</p> <p>In trial for seduction, evidence of unchaste-conduct of prosecutrix’s sister in prosecutrix’s presence nearly two years after prosecutrix’s, seduction is, inadmissible.</p> <p>[Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 73-75; Dec. Dig. &wkey;42.]</p> <p>7. Seduction <&wkey;50(l) — Instructions — In General.</p> <p>In trial for seduction, instructions defining the crime held correct.</p> <p>[Ed. Note. — For other cases, see Seduction, Cent. Dig. § 89; Dec. Dig. &wkey;50(l).]</p> <p>8. Seduction <&wkey;50(3) — Instructions — Chastity oe Female.</p> <p>In a criminal trial for seduction, an instruction that an element of the offense was that prosecutrix was then “a virtuous and chaste woman, that is, that she had never before had sexual intercourse,” was not erroneous as implying that the fact of sexual intercourse is the sole criterion of virtue, where the testimony was conclusive that prosecutrix was chaste, and the charge as a whole gave a correct view of -the law.</p> <p>[Ed. Note. — For other cases, see Seduction, Cent. Dig. § 91; Dec. Dig. <§^50(3).]</p> <p>Davidson, J., dissenting.</p>

<p>1. Wills <@=>439 — Construction—Intent op Testator.</p> <p>A cardinal rule in the interpretation of wills is that the intent of the testator is the object to be ascertained.</p> <p>[Ed. Note. — For other cases, see Wills, Gent. Dig. §§ 952, 955, 957; Dec. Dig. <@=439.]</p> <p>2. Wills <§=x441 — Construction—Extraneous Circumstances — Substitution op Terms.</p> <p>While the extraneous circumstances attending execution of a will may be considered, the principle is never so extended as to substitute new words for those used in the will, or to add terms not inferable from the writing as a whole.</p> <p>LEd. Note. — For other cases, see Wills, Gent. Dig. § 958; Dec. Dig. <@=>441.]</p> <p>3. Wills <@=487(3) — Intent op Testator — Parol Evidence.</p> <p>In the absence of ambiguity in the terms of a will, previous conversations and other matters in parol will not be considered to ascertain testator's intent.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 1027; Dec. Dig. <&wkey;4S7(3).]</p> <p>4. Wills <&wkey;86o(4) — Lapsed Devises — Predecease of Devisee.</p> <p>Where a devise is made to two or more persons, and one or more of them die before the testator, and there are no words of survivorship in the will, the property, which by the terms of the will goes to such deceased pez-son or persons, lapses and becomes a part of testator’s undevised estate, and descends to his heirs regardless of the terms of the will; the surviving legatees taking only such part of the estate as is specifically bequeathed to them.</p> <p>[Ed. Note. — For other eases, see Wills, Cent. Dig. § 2198; Dec. Dig. &wkey;865(4).]</p> <p>5. Wills <&wkey;547 — Devise to Class — Predecease op Part.</p> <p>Where a devise is made to two or more persons as a class_, and one or more die before testator, the surviving legatee or legatees take testator’s entire estate, including such part as by the will was bequeathed to the legatee who predeceased testator.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1179-1181, 1185; Dec. Dig. &wkey;547.]</p> <p>6. Wills <&wkey;522 — Construction—“Class.”</p> <p>A “class,” as the word is used in the law of wills, is where several persons answer the same description, and sustain the same relation to the legacy, so that one word describes them all; each take an equal share in the property originally, and not by way of substitution or derivatively, and each takes absolutely; the gift must be an aggregate sum to a body of persons uncertain at the time of the gift, as to children, grandchildren, nephews, brothers, or sisters. (Quoting Words & Phrases, “Class.”)</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1114, 1128; Dec. Dig. &wkey;522.]</p> <p>7. Wills <&wkey;523 — Construction—“Gift to a Class.”</p> <p>“Gifts to a class,” as the tenn is used and understood in the construction of wills, refers to persons in the aggregate bearing a certain relation to testator or to each other, and a devise to one or two members of the class will not constitute them a class in legal contemplation, unless the will expressly declares that the individuals so selected from the class are to enjoy the rights of survivorship in the case of the death of any of them; and, unless the will so provides, the legacy so given to one of such members will lapse on his death before the testator.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 1115; Dec. Dig. <&wkey;>523.</p> <p>For other definitions, see Words and Phrases, Second Sez-ies, Gift to a Class.]</p> <p>8. Wills <&wkey;C23 — Devise to Class.</p> <p>Where testator’s will read that it gave, devised, and bequeathed to his beloved brothers (naming two of them) all of the property, both real and personal, which testator might die seis-ed and possessed of, wherever situated and located. such will did not make a devise to a class, since it was not a devise to all of testatoz*’s brothers, but to two only; and, where one devi-see predeceased testator, the surviving brother did not take the entire property.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 1115; Dec. Dig. <S&wkey;523.]</p> <p>9. Evidence <§=>65 — Knowledge of Law by Testator — Presumption.</p> <p>It must be presumed that testator knew the legal effect of the provisions of his will when he executed it.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 85; Dec. Dig. <&wkey;>65.]</p> <p>10. Pleading <&wkey;290(3) — Verieication — Repeal— Effect.</p> <p>Act March 3, 1913 (Acts 33d Leg. c. 127), providing that every allegation or fact relied upon as a cause of action or defense by either a plaintiff or defendant should be verified by affidavit, and that, in the absence of a verified denial of the facts so alleged, they should be considered as confessed, repealed 'by Act March 22, 1915 (Acts 34th Leg. c. 101), relating to a mere matter of procedure, is no longer available even on appeal.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 861, 886y2; Dec. Dig. &wkey;290(3)J</p> <p>11. Wills <&wkey;488 — Parol Evidence — Ambiguity.</p> <p>To the rule that parol proof will not be received to alter the terms of a will, an exception is made where there is ambiguity or uncertainty either in the terms, used in the writing itself or because of the existence of somo extraneous fact.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1024, 1025, 1033-1036; Dec. Dig. &wkey; 488.]</p> <p>12, Wills <&wkey;488 — Ambiguity.</p> <p>Where testator 'devised to two brothers named all of the property, both real and personal, which he might die seised and possessed of, wherever situated, and one of the named devisees predeceased testator, there was no ambiguity in the terms of the will or on account of the existence of extraneous facts.</p> <p>TEd. Note. — For other cases, see Wills, Cent. Dig. §§ 1024, 1025, 1033-1036; Dec. Dig. &wkey; 488.]</p> <p>13. Wills &wkey;481 — Date of Speaking.</p> <p>A will speaks from the death of testator, not as of the date of its execution.</p> <p>|Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 1005-1007; Dec. Dig. &wkey;4Sl.]</p> <p>Dunklin, J., dissenting.</p>

<p>Appeal and Error <@=5753(2), 773(4) — Af-firmance-Assignments op Error^-Briefs —Necessity.</p> <p>Where appellant filed no brief or assignments of error, and respondents filed briefs and prayed affirmance, under court rule 42 (142 S. W. xiv), declaring that where an appellant or plaintiff in error has failed to prepare the ease for submission the appellee or defendant in error may file a brief in the manner required of the appellant, except that his propositions will be shaped to show correctness of judgment, and the court may, in its discretion without further examination of the record, affirm the judgment, judgment will be affirmed: there being no fundamental error which could be considered in the absence of assignments.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3088, 30S9, 3104, 3109; Dec. Dig. &wkey;753(2), 773(4).]</p>

M. Tidwell, Judge. Action by J. M. Maloney against W. L. Greenwood and others. Judgment for defendants, and plaintiff appeals. Appellant was surety o-n a note for $625 made by appellee Greenwood to E. C. Cantrell.

<p>1. Carriers c&wkey;31S(2) — Duties to Invitees— Obstructions at Stations — Negligence —Evidence.</p> <p>Evidence held to show that defendant railway negligently failed to have station platform sufficiently lighted to enable passengers to use same with reasonable safety.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1307; Dec. Dig. &wkey;318(2).]</p> <p>2. Carriers <&wkey;318(2) — Duties to Invitees— Obstructions at Stations — Negligence —Evidence.</p> <p>Evidence held to show that defendant railway company’s negligence in failing to have its station platform properly lighted was the proximate cause of the injury to the plaintiff’s wife.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1307; Dec. Dig. <&wkey;>318(2).]</p> <p>3. Carriers <&wkey;304(l) — Duties to Invitees.</p> <p>In the absence of regulation to the contrary, a person who goes to the depot of a railway for the purpose of accompanying a departing passenger is deemed as going upon the premises of the company under an implied invitation of the company.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1110; Dec. Dig. &wkey;>304(l).]</p> <p>4. Carriers <&wkey;304(2) — Duties to Invitees— “Invitee.”</p> <p>Where a woman hotel keeper at the request of a guest accompanied her to the station for the purpose of assisting her, the railway company was liable for negligence in failing to properly light the platform, by reason of which the hotel keeper was injured, since she was, under the circumstances, an “invitee.”</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1110; Dec. Dig. <&wkey;304(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Invitation.]</p>

<p>Appeal from District Court, Freestone County; A. M. Blackmon, Judge.</p> <p>Action by I. H. Bonner against Robert Pitts.' From a judgment for defendant, plaintiff appeals.</p>

A. Nabers, Judge. Suit by Mrs. D. A. Collett and husband against the Houston & Texas Central Railroad Company, the Corsicana Petroleum Company, and others. From judgments for the Railway Company and the- Petroleum Company, plaintiffs appeal.

<p>1. Payment @=46(1) — Application.</p> <p>Where plaintiff sued on a note secured by mortgage and an account, and the defendant admitted the cause, but pleaded payment of the note and account in full by boarding plaintiff for a given period, facts held insufficient to show error in failing to apply the claimed set-off to the extinguishment of the note, and the balance, if any, to the extinguishment of the account.</p> <p>[Ed. Note. — For other- cases, see Payment, Cent. Dig. § 125; Dec. Dig. @=?46(1).]</p> <p>2. Costs ©=»23 — Allowance to Defendant —When Peopee.</p> <p>Under Rev. St. 1911, art. 2042, providing that, where the plaintiff’s demand is reduced by payment to an amount which would not have been within the jurisdiction of the court, the defendant shall recover his costs, where the judgment in the county court was reduced by set-off to $78.30 and costs, with foreclosure of a mortgage lien, the defendant, on motion, should have been allowed his costs.</p> <p>[Ed. Note. — For other cases, see Costs, Cent Dig. §§ 74r-81; Dec. Dig. <@=>23.]</p>

<p>1. Appeal and Error ®=»172(S) — Review—Issues Waived When Not Submitted to Juey.</p> <p>In an action for trespass to try title and for damages for cutting timber, where no questions of the amount or value of timber cut are submitted to the jury, those issues on appeal will be treated as having been waived.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1074, 1075; Dec. Dig. <§= 172(3).]</p> <p>2. Appeal and Ebeor <§=]07S(1) — Joint Assignments of Ebeor.</p> <p>Where appellants joined in the appeal and brief, and the only assignment of error urged affects but one of the appellants, the court will not consider any error committed against the others.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 4258; Dec. Dig. <§=1078(1).]</p> <p>3. Frauds, Statute of <§=68 — Parol Partition.</p> <p>A parol partition is not a conveyance of land, in a sense that it must be evidenced by an instrument in writing, under the statute of frauds.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 109, 110; Dec. Dig. <§=68.]</p> <p>4. Trespass to Try Title <§=6(1) — Parties in Interest.</p> <p>Where plaintiff by parol partition accepted a tract of land in full settlement of his interest in his father’s estate, he had no further interest in such estate, and could not recover in trespass to try title involving other lands of the estate.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-7, 9, 15, 16; Dec. Dig. <S=>6(1)J</p>

<p>Error from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by C. J. Jackson against the Houston Hot Well Company. From a judgment for defendant, plaintiff brings error.</p>

<p>Appeal froni District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by A. D. Truss against the Texas Midland Railroad Company. Judgment for plaintiff, and defendant appeals.</p> <p>The appellee, intending to board appellant’s train as a passenger, was injured on the depot platform at Cash by striking his heaa against an iron rod that was maintained to operate the signal board for the trains, ihe rod extended out of the ticket and. telegraph office -of the depot building, and connected with the signal post located on the platform between 3 and 4 feet from the wall of the building. The rod was 5 feet 7 inches aboye the ground. Appellee sues for damages, alleging that his injuries were proximately caused by the negligent failure of appellant company to have and maintain the operating rod at sufficient height" above the depot platform to enable passengers to safely use the platform. The appellant denied the allegations, and pleaded that appellee himself was guilty of negligence, in that he failed to use care to see the signal post and iron rod, which were in plain view and obvious to every one, and the accident occurred in the daytime, and, further, that appellee was guilty of negligence, in that there was ample space between the signal post and the outer edge of the platform for the public to pass and transact business, and that it was not intended, as appellee in fact knew, for passengers to pass between the signal post and the building. The defendant further pleaded that if appellee was injured, such injury was slight and temporary. The case was tried before a jury, and the verdict was in favor of the plaintiff.</p> <p>The railroad runs north and south. The depot is on the west side of the main line, and fronts east. North of the white waiting room, and opposite and between 3 and 4 feet from the telegraph office, is the signal post. The operating signal rod, which is 5 feet 7 inches above the ground, is about the size of a man’s thumb. Appellee was a man 6 feet tall. Appellee testified, in substance, that on the morning of March 1, 1914, he went to the depot to take the train for Green-ville, but he arrived too late for the steam passenger train and waited for the motor car. The motor car lacked 20 minutes of being due. He bought a ticket. "While he was standing there the agent asked him if he would take some silver and have the bank exchange it for currency, which he agreed to do. He then went to Mr. Stiles’ store, which was west and in the immediate rear of the depot; and, after remaining at the store some 15 or 20 minutes, hearing the motor car coming, he returned to the depot hurriedly, passed around its south end, and then turned north to go to the telegraph office to get the money from the agent, and in going between the signal post and the depot building his head struck forcibly against the operating rod. Appellee testified that he had been to the agent to take the train about three times before this time, and had seen the signal post standing on the depot platform, but had not noticed that an operating rod was there; that at the time he struck his head on the rod he was going fast, and did not notice that it was there, or that he was at that point. Appellant proved that in a previous written statement by appellee he said:</p> <p>“I knew the rod was there, but I ran around the depot in a hurry to get the agent’s money and forgot about it being there.”</p> <p>But appellee denied that he stated that he “knew the rod was there.” When passenger trains stopped for this station they usually stopped east of the waiting room. The surface of the depot platform between the signal post and the depot building was the same, and all parts of the platform and this space were commonly and customarily used by the public.</p>

<p>Error from District Court, Harris County; John A. Read, Judge.</p> <p>Suit by S. Joachim and others against H. Hamilton and another. To review a judgment for defendants, plaintiffs bring error.</p>

<p>Appeal from District Court, Houston County; John S. Prince, Judge.</p> <p>Action by T. W. Thompson and another against the American National Insurance Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by Eliza Fowler and husband against George Qualls. From a judgment for plaintiffs, defendant appeals.</p>

<p>Error from District Court, Harris County ;■ John A. Read, Judge.</p> <p>Suit by Mitchell Bros, against J. W. Matthews and others. From a judgment for plaintiffs, defendants appeal.</p>

A. Ward, Judge. . Suit by the First National Bank of Atlanta, Tex., against the North Texas Dumber Company. Judgment for plaintiff, with lindings of rent and damages due plaintiff, and defendant appeals.

Bend County. Proceeding to contest an election by J. O. Westley and others against W. I. McFar-lane and others. From a judgment sustaining the contest and ordering a new election, contestees appeal.

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action to try title by G. C. Smith, against Rosina Ludtke and others. Judgment for plaintiff, and defendants appeal.</p>

Error from District Court, Jones County; John B. Thomas, Judge. Suit by J. J. Steele against the Continental Oil & Cotton Company and others, with count in the form of trespass to try title and a count for the foreclosure of a vendor’s lien. Judgment against ttie Continental Oil & Cotton Company, and it brings error.

D. Hawkins, Judge. Action by Edward Reagor, by next friend, and another, against the Southern Traction Company. From a judgment for plaintiffs, defendant appeals. Mrs. Reagor, with her boy Gordon, aged about 4V2 years, and her boy Edward, aged about 22 months, were at appellant’s regular station .on Commerce street, in Dallas, for the purpose of taking passage on the inter-urpan car to Waxahachie. The car reached the station and was stopped.

<p>1. Justices oe the Peace <S=>90—Pleading.</p> <p>Under Vernon's Sayles’ Ann. Civ. St. 1914, art. 2326, providing that pleadings in justices’ courts shall be oral, but a brief statement thereof may be noted on the docket, if from all that is stated, oral or written, the court can ascertain what rights plaintiff asserts or what defense defendant interposes, the pleading is sufficient.</p> <p>[Ed. Note.—-For other cases, see Justices of the Peace, Cent. Dig. § 306; Dec. Dig. t§^90.]'</p> <p>2. Costs <&wkey;173(l) — Attorney’s Pees Under Statute.</p> <p>By provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2178, to be entitled to attorney’s fees as costs plaintiff must establish Ms claim, and obtain judgment “for the full amount thereof, as presented for payment.”</p> <p>[Ed. Note. — Por other cases, see Costs, Cent. Dig. § 688; Dec. Dig. &wkey;173(l).]</p>

Action by Ben M. Richardson against Jake Thompson and another. From a judgment for plaintiff, defendants appeal. This is an action by appellee against appellants in trespass to try title to 320 acres of land situated in the southwest corner of the John F. Hollien survey in Henderson county. The Plollien survey was patented October 23 1S45, and the appellee was, as proved, the owner in fee simple of the land sued for, by regular chain of deeds from the patentee to himself.

<p>1. Appeal and Error <&wkey;1012(l) — Review-Questions of Fact — Findings of Court— “Preponderance of Evidence.”</p> <p>The Court of Civil Appeals will not set aside a judgment rendered by the lower court simply on a matter of a preponderance of evidence, which is not the number of witnesses, but the weight and value that is given to the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992; Dec. Dig. <&wkey;> 1012(1).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Preponderance.]</p> <p>2. Appeal and Error t&wkey;1151(2) — Action for Damages — Attorney’s Fees — Evidence —Judgment.</p> <p>In an action for damages to a car of potatoes injured in transit where the record shows no evidence as to the employment of attorneys or as to the value of their services, a judgment allowing plaintiff an attorney’s fee was without basis in the evidence, and will be reformed by striking out the amount so allowed.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4498-4500, 4508-4505; Dec. Dig. &wkey;1151(2).]</p>

<p>Evidence <&wkey;441(ll) — Paeol — Contempora- . neotjs Collateral Agreement — Bills and Notes.</p> <p>In a suit on a note payable unconditionally at a time certain, a contemporaneous agreement to postpone the time of payment cannot be proved by parol, notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, art. 589, providing that the payor in a note may plead and prove want or failure or partial failure of consideration while the same remains in the possession of the original payee or when it shall have been transferred after maturity or with actual notice of the defense.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1799-1812, 2043, 2044; Dec. Dig. &wkey;441(ll).]</p>

<p>Appeal from District Court, Galveston County; Robt. ,G- Street, Judge.</p> <p>Suit by Frank Celli and O. Del Papa, composing the firm of Celli & Del Papa, against the Galveston Brewing Company. Prom a Judgment for defendant, plaintiffs appeal.</p>

C. Wren, Judge. Action by John Dowell against W. E. Ret-tig and others. Defendant appealed to county court from a judgment for plaintiff in justice court, and from a judgment in that court for defendant on trial de novo, plaintiff appeals.

Error from District Court, Orange County ; A. E. Davis, Judge. Suit by Charles R. Goodman and others against William F. Schwind and others. To review a judgment for defendants, plaintiffs bring error.

<p>Appeal from Gregg County Court; J. H. McIIaney, Judge.</p> <p>Charlie Medlock was convicted of violation of the prohibition law, and he appeals.</p>

.Read, Judge. Suit by Bessie Campbell Galbraith against John F. Baber and another, executors, and others. From a judgment for plaintiff for a sum of money, and for Street & Graves, defendants, and their assigns, for the land in suit, etc., plaintiffs, the executors, and others appeal.

D. Owens, Judge. Action by Caldwell, Hughes & Patterson against C. R. Yarbrough. Judgment for defendant, and plaintiff appeals. Appellee owned a tract of land in Henderson county, and, it seems from his testimony, in September or October, 1912, verbally agreed with Tom'Dewberry and Sam McDonald to sell same to them.

<p>1. Sales <&wkey;38(2) — Remedies oe Purchaser-Misrepresentation — 1 ‘Fraud . ’ ’</p> <p>Where a seller makes material misrepresentations, intending them to be relied on by the purchaser, the seller is guilty of “fraud,” though he believed the representations and the purchaser, having acted thereon, may recover.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 66; Dec. Dig. t&wkey;38(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Fraud.]</p> <p>2. Sales <&wkey;355(l) — Remedies oe Buyer-Pleading— Sufficiency.</p> <p>In action on a note, given for the price of machinery to be used in a gravel pit, defendant’s answer averred that plaintiff’s agents in making the sale misrepresented the character of the machinery; that they were familiar with the pit, and that the machines purchased would perform the work expected; that defendants were unfamiliar with the machinery; and that they purchased relying on such representation. The answer further prayed a recovery of sums expended in attempting to operate the machinery and of amounts already paid. Held, that the answer was sufficient to apprise plaintiff of the defense of fraudulent misrepresentations, and to warrant the admission of parol evidence thereof, though the contract was written.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1025, 1027-1035; Dec. Dig. &wkey;355(l)J</p> <p>3. Sales <&wkey;355(l) — Actions — Breach oe Warranty.</p> <p>In such action, defendants’ answer held sufficient to warrant proof of breach of warranty.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1025, 1027-1035; Dec. Dig. &wkey;355(l).]</p>

<p>Appeal from District Court, Matagorda County; Samuel J. Styles, Judge.</p> <p>Action by W. IT. Broughton and another against the Gulf, Colorado & Santa Fé Railway Company and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by W. C. Inbau against the Noa Spears Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Suit for injunction, by the Queen Insurance Company and another against C. A. Keller and others, trustees of the Travis Park Methodist Episcopal Church South. From an order denying temporary injunction, plaintiffs appeal.</p>

Porter, Judge. Action by the Colonial Trust Company to foreclose a judgment lien against tbe American Exchange National Bank of Dallas and others. Judgment for plaintiff, and defendants appeal. The suit was brought by the Colonial Trust Company to foreclose a judgment lien owned by W. J. Moon and to have such judgment lien declared to be first and prior to the lien of a deed of trust on the same land executed by W. J. Moon to Nathan Adams, trustee.

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Action by E. M. Carraway against the Et Paso Sash & Door Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Vendor and Purchaser ¡@==?13 — Requisites oe Contract — Consideration eor Sale.</p> <p>By a written instrument defendant agreed, in consideration of $1, to convey within a fixed period certain land to any one designated by plaintiff upon the payment of a stated sum to defendant. Held, there was no lack of consideration, since that instrument fixed the price to be paid.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 14; Dec. Dig. <®=j13.]</p> <p>2. Contracts <@=wl0(5) — Mutuality—Sale oe Land.</p> <p>Although plaintiff tendered his' check for $1 upon the above instrument’s execution, the writing was lacking in mutuality, being merely an unaccepted offer to sell.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 21; Dec. Dig. <@¿310(5); Vendor and Purchaser, Cent. Dig. § 89.]</p> <p>3. Vendor and Purchaser <S=»16(1) — Requisites oe Contract — Revocation oe Option.</p> <p>Plaintiff tendered his check for $1" upon the above instrument’s execution, and later tendered the additional specified sum and demanded a deed, but between such dates defendant had notified plaintiff that conveyance of the land would be refused. Held that, since the ihstru-merit lacked mutuality, defendant was at liberty to thus withdraw his offer to sell at any time prior to its acceptance by plaintiff.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 17 ; Dec. Dig.</p> <p>4. Vendor and Purchaser <&=»349 — Action foe Breach of Contract by Purchaser-Pleading.</p> <p>Since the instrument here involved is merely an offer to sell, the petition, in order to state a cause of action, should allege sufficient facts to show an acceptance of such offer.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1033, 1039-1042; Dec. Dig. <g^>349.]</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by A. G. Ferris and wife against J. C. 'White and others. From an order granting a temporary injunction, defendants appeal.</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Suit by the Galveston & Western Railway Company against the City of Galveston. From a judgment for defendant, plaintiff ap--peals.</p>

<p>Appeal from Hays County Court; J. R. Wilhelm, Judge.</p> <p>Action by the Continental & Commercial National Bank of Chicago against George Meister and others. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Appeal and Error <&wkey;263(l) — Presentation op Grounds op Review in Court Below — Bills op Exception — Necessity.</p> <p>Under Rev. St. 1911, arts. 2058-2060, and art. 2061, as amended by Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061), declaring that when either party is dissatisfied with any ruling he may except thereto, and that rulings in the giving, refusing, or qualifying of instructions shall be deemed approved unless excepted to, assignments of error complaining of instructions given, cannot be considered where, though plaintiff in error filed elaborate written objections to the instructions when they were submitted in accordance with article 1971, Vernon’s Sayles’ Ann. Civ. St. 1914, no bills of exceptions were taken.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1516, 1520, 1522, 1523, 1525, 1529-1532; Dec. Dig. &wkey;263(l)J</p> <p>2. Appeal and Error <&wkey;263(3) — Review-Presentation op Grounds op Review in Court Below.</p> <p>Assignments of error, complaining of the refusal of requested charges, cannot be reviewed, where no bills of exception were taken.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1518, 1525; Dec. Dig. 263(3).]</p> <p>3. Exceptions, Bill op &wkey;>39(2) — Filing-Time of.</p> <p>While under Acts 32d Leg. c. 119, § 7 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073), fixing the time for filing the transcript, statements of fact and bills of exception, the transcript and statements of fact may be filed at any time within 90 days after the adjournment of the district court, bills of exception must be filed within the time fixed by the court, and cannot be filed thereafter, though it be within 90 days after adjournment; the statute not providing that bills of exception may then be filed.</p> <p>[Ed. Note.- — For other cases, see Exceptions, Bill of, Cent. Dig. §§ 55, 56; Dec. Dig. <&wkey; 39(2).]</p> <p>On Motion for Rehearing.</p> <p>4. Appeal and Error <&wkey;263(l) — Errors Reviewable — Fundamental Errors.</p> <p>Where not presented by bills of exception, errors in the charge, though they be fundamental, cannot, under Acts 33d Leg. c. 59, § 3 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2061), be considered on appeal unless jurisdictional; the statute specifically requiring bills of exception.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516, 1520, 1522, 1523, 1525, 1529-1532; Dec. Dig. &wkey;263(l).]</p>

D. Mayes, Judge. Action by S. H. Bnrris against the Galveston, Harrisburg & San Antonio Railway Company. From an order dismissing the appeal to the county court for want of actual approval and filing by the justice of an appeal bond, defendant appeals.

<p>Monopolies <&wkey;17(2)—Right to Recover on Contract in Restraint op Trade.</p> <p>Under anti-trust laws (Acts 28th Leg. c. 94), recovery cannot be had upon a contract wherein defendant agrees to sell no other goods than those sold him by plaintiff, to sell such goods at prices to be indicated by plaintiff, and to have no other business or employment.</p> <p>[Ed. Note.-—For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. <&wkey;>17(2).]</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by Conrad Wenzel against Alex Riedel. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.</p> <p>Action by Pat Manning against the Beaumont, Sour Lake & Western Railway Company and others. Judgment for plaintiff, and defendant named appeals.</p>

<p>Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.</p> <p>Suit by Joe Joiner against the Citizens’ National Bank and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Van Zandt County Court; R. M. Lively, Judge.</p> <p>Action by the Salt City Company against Joe Padgett and another. FTom the judgment rendered, plaintiff appeals.</p>

<p>Appeal from District Court, Hall County; J. A. Nabers, Judge.</p> <p>Suit by S. M. King and another against J. M. Lane. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Evidence <&wkey;332(7) — Documentary Evidence — Court Records — Other States.</p> <p>In an action by heirs, to obtain recognition as stockholders in defendant company, where a share of stock, with others which were later disposed of, was issued in 183S to plaintiff’s ancestor, documentary evidence of probate .proceeding's in the city of New Orleans in 1840, showing that the share had been owned by a party in New Orleans at the time of his death and sold by his representative, pursuant to order of court, was admissible 75 years later for consideration in determining whether plaintiffs’ ancestor, to whom the share of stock was issued, did or did not dispose of it.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1245; Dec. Dig. &wkey;>332(7).]</p> <p>2. Corporations <S=^130 — Stockholders — Tránsese oe Stock — Sueeicibncy oe Evidence.</p> <p>In an action by heirs to obtain recognition as stockholders in a corporation in which their ancestor purchased a share of stock, evidence hold to authorize finding that such ancestor had transferred or otherwise disposed of his share.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 467, 469; Dec. Dig. <&wkey;139.]</p> <p>3. Corporations &wkey;>114 — Sale oe Stock— Transeer oe Certificate.</p> <p>A share of stock in a corporation may be sold by parol, or pass by delivery of the certificate whereby the ownership is evidenced.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 466, 470-478; Dec. Dig. &wkey;114.]</p> <p>4. Evidence &wkey;>353 (3) — Recitals in Ancient Deeds — Sale oe Personalty.</p> <p>Recitals in ancient deeds are admissible as tending to prove a sale of personalty, such as corporate stock, without showing of possession under the recited transfer, the assertion of a claim of title thereunder, or enjoyment of the property transferred for a long period of time.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1408; Dee. Dig. &wkey;353(3).]</p> <p>5. Corporations <&wkey;139 — Transfers of Stock — Record Evidence — Identification of Corporate Stock.</p> <p>In suit by heirs to obtain recognition as stockholders in a company in which their ancestor purchased stock, instruments, admitted in evidence for defendants, tending to show that in 1840, two years after the ancestor purchased, he had sold a share of the stock, having disposed of the rest, to a New Orleans decedent, whose personal representative sold it pursuant to order of court, were admissible as sufficiently identifying the stock referred to as being the certificate in controversy, where the stock was described as being “in the City of Galveston,” the certificates describing the corporation as “the City of Galveston,” and the language describing the certificates transferred being identical with the language in the face of the certificates, etc., though the instruments recited the value of the stock, when no par value was stated in the certificate.</p> <p>[Ed. Note. — For other cases, see Corporations, Gent. Dig. §§ 467, 469; Dec. Dig. <&wkey;139.]</p> <p>6. Joint-Stock Companies <&wkey;8 — Transfer of Stock — Passing Title.</p> <p>Where there was no rule or by-law of a stock company, not a corporation, requiring its stock to be transferred upon its books, or othex1-wise regulating the manner of sale, the legal title to a share passed by transfer and delivery of the certificate, by the person to whom it was issued, to another.</p> <p>[Ed. Note. — For other cases, see Joint-Stock Companies, Cent. Dig. § 8; Dee. Dig. &wkey;>8.]</p> <p>7. Corporations <&wkey;>170 — Stockholders — Rights as Such.</p> <p>Where the party, to whom a share of stock in a joint-stock company, which later became a corpox'ation, was issued, sold to another person, so that either legal or equitable title to the stock passed, the heirs of the seller thereafter had no such title to the stock of the corporation thereafter chartered as authorized them to maintain suit for recognition as stockholders, etc.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 624^632; Dec. Dig. <&wkey;170.]</p> <p>8. Appeal and Error <&wkey;>1068(5) — Harmless Error — Failure to Charge.</p> <p>In an action by heirs for recognition as stockholders, error in failing to charge that identity of persons is presumed from identity of name, plaintiffs’ ancestor having the same name as a party to whom defendant corporation issued shares, was harmless, where the jury necessarily found, under their general verdict, that plaintiffs’ ancestoi-, to whom a stock certificate was issued, transferred or otherwise disposed of it.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4230; Dee. Dig. <&wkey;> 1068(5); Trial, Cent. Dig. § 475.]</p> <p>9. Appeal and Error <&wkey;1071(3) — Harmless Error — Finding.</p> <p>In suit by heirs for recognition as stockholders, where the evidence justified the jury in finding that plaintiffs’ ancestor had sold his certificate of stock, error in their finding against the manifest weight and preponderance of the evidence that plaintiffs’ ancestor was a different person of the same name as the one to whom the certificate of stock was issued, was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4236; Dee. Dig4. <5&wkey; 1071(3).]</p>

<p>1. Judgment "&wkey;151 — Default— Opening— Sufficiency of Petition.</p> <p>A petition to open a default judgment stating that defendant held a release of plaintiff’s claim, and that in telephone conversation with parties claiming to be attorneys of plaintiff they stated the case would go no further, hold good against a general demurrer.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 296-298, 727, 730; Dec. Dig. &wkey; 151.]</p> <p>2. Judgment <&wkey;143(17) — Default—Opening —Excuse—Statement of Adverse Attorney.</p> <p>Whenever a plaintiff or his attorney, by an act or agreement, causes defendant to relax diligence, which is otherwise required, the failure of defendant to present a defense cannot be urged as a sufficient reason for denying opening of judgment entered upon such default.</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. § 290; Dec. Dig. <&wkey;143(17).]</p>

A. Works, Judge. Suit by the Combination Fountain Company against Cecil Rogers and others. From a judgment for the named defendant, setting aside a default judgment previously rendered against him, reinstating the cause upon the docket, expressly granting defendant permission to file his answer, and ordering the case to be tried as if answer had been originally filed, plaintiff appeals.

<p>New Trial c&wkey;40(3) — Instructions—Objections — Necessity.</p> <p>The statute requiring objections to be made to the charge and exceptions saved to the ruling thereon applies to a peremptory instruction; therefore objections to a peremptory instruction cannot be made for the first time on motion for new trial.</p> <p>[Ed. Note. — For other cases, see Now Trial, Cent. Dig. § 65; Dec. Dig. &wkey;40(3).]</p>

<p>1. Judgment <&wkey;<520 — Collateral Attack— Revivad.</p> <p>The rules against collateral attack of a judgment apply in a proceeding to revive it.</p> <p>[Ed. Note. — For other cases, see Judgment, Dec. Dig. @=3520.]</p> <p>2. Judgment <&wkey;497(l) — Collateral Attack —Want of Citation.</p> <p>A judgment is not void, so as to be subject to collateral attack, 'because rendered without bringing defendant into court, unless the want of authority over him appears in the record.</p> <p>[Ed. Note. — For other eases, see Judgment, Cent. Dig. § 937; Dec. Dig. <&wkey;>497(l).]</p> <p>3. Process <&wkey;149 — Return—Impeachment.</p> <p>Return in due form of a sheriff on a citation cannot be impeached by the testimony of one witness only.</p> <p>[Ed. Note. — For other cases, see Process, Cent. Dig. §§ 202-205; Dec. Dig. &wkey;149.]</p> <p>4. Justices of the Peace <&wkey;133 — Revival of Judgment — Limitation.</p> <p>Judgment of a justice may be revived within 10 years of its rendition; the 4-year statute of limitations not applying.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 413-417; Dec. Dig. &wkey;133.]</p>

<p>1. INSURANCE <&wkey;665(3) — Actions—Evidence —Waiver.</p> <p>In an action on life insurance policy, which was extended by notes for the premium until a short time before the death of insured, evidence held not to show an agreement to extend the payment of premium note and the policy insurance during the month in which insured died.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1711-1716; Dec. Dig. &wkey;>GG5(3).]</p> <p>2. Insurance <&wkey;384r-WAivER — Acceptance oe Note eor Premium.</p> <p>A letter of insurer to insured that a note would be accepted “as settlement of premium” did not alter the legal effect of provisions in note and policy that on nonpayment of note at maturity, the policy insurance would cease.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1019; Dec. Dig. &wkey;384.]</p> <p>3. Insurance &wkey;>384 — Written Waiver.</p> <p>Formal notice that if a policy were in force on a day (its annual premium date), a certain premium amount would be payable, having written on the back that it was not a waiver of any default, sent out by a subordinate employe having no authority to extend time of payment of notes for premiums, did not waive right to forfeit the policy on nonpayment of note given for premium.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. § 1019; Dee. Dig. <i&wkey;384.]</p> <p>4. Insurance <&wkey;3G5(2) — Rights oe Beneei-ciary — Incorporating New Conditions.</p> <p>After a life policy has lapsed by its terms for nonpayment of premium, the act of insured in executing a note, containing a new forfeiture condition in order to obtain a reinstatement of the policy, is binding on the beneficiary.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 933; Dec. Dig. &wkey;365(2)J</p>

<p>1. Railroads &wkey;>446(10) — Injuries to Animal Near Track — Question eor Jury as to Precautions Taken.</p> <p>Whether defendant railway company used all available means to avoid a collision between its train and plaintiff’s horse and wagon which were awaiting- freight at a station, after discovering' the damage of such a collision, held, on the facts, to be a question for the jury.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 1637; Dec. Dig. <&wkey;446(10)J</p> <p>2. Railroads &wkey;>419(4) — Injuries to Animal Near Track — Duty to Stop.</p> <p>Where the engineer saw that a horse attached to a wagon and awaiting freight at a station was frightened by the approaching train, he should have stopped the train to avoid injury, and this duty would exist even if plaintiff’s horse and wagon had been trespassers, instead of invitees, on the station grounds.</p> <p>[Ed. Note. — Eor other cases, see Railroads, Cent. Dig. § 1496; Dec. Dig. <&wkey;419(4).]</p> <p>3. Appeal and Brrob &wkey;3931(4) — Finding by Court Presumed.</p> <p>It will be presumed the court itself determined there was no general market for such articles as plaintiff’s horse and wagon at place of collision with defendant’s train, where there was evidence supporting such a conclusion and the question of market value was not submitted to the jury.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3764; Dec. Dig. &wkey;>931(4).]</p> <p>4. Appeal and Error <&wkey;216(l) — Objection to, and Request eor, Instruction Necessary to Preserve Grounds for Appeal.</p> <p>Where defendant neither objected to the lack of, nor requested, an instruction submitting the question of market value to the jury, as required by statute, objection to the court’s action will be considered waived.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Dec. Dig. 4&wkey;216(l); Trial, Cent. Dig. § 627.]</p> <p>5. Appeal and Error &wkey;>1062(2) — Harmless Error — Failure to Submit Question oe Market Value to Jury.</p> <p>Where the market value of plaintiff’s property, according to the evidence, was at least equal to its intrinsic value as found by the jury, the defendant was not prejudiced by the court’s failure to submit the question of market value to the jury.</p> <p>[Ed. Note.- — Eor other cases, see Appeal and Error, Cent. Dig. § 4213; Dec. Dig. &wkey;1062(2).]</p> <p>6. Evidence &wkey;113(l) — Facts Tending to Prove Intrinsic Value of Property Admissible.</p> <p>Where the real value of plaintiff’s property was proper to be determined, there was no error in submitting testimony of facts and conditions tending to prove the intrinsic value.</p> <p>[Ed. Note. — Eor other cases, see Evidence, Cent. Dig. § 259; Dec. Dig. &wkey;113(l).]</p>

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Action by Ira T. Moore against A. D. Hodges and others. From a judgment for plaintiff, the named defendant appeals.</p>

F. Ezell, Judge. Action by Scott & Dodson against the Merchants’ Ice Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

Error from District Court, Tyler County; A. E. Davis, Judge. Suit by Alta Kirkland and another against George O. Matthews and another. From a judgment for plaintiffs, defendants bring error.

<p>1. Damages &wkey;132(l) — Personal Injuries— . Excessive Verdict.</p> <p>In an action by husband and wife against a railroad for personal injuries to the wife while alighting 'from a train, a verdict for $6,000 was not excessive, where plaintiff, a strong, vigorous woman, free from pain, was confined to her bed much of the time and had her capacity to perform her usual duties impaired, her sufferings being intense from the time of the injury for two years and a month, to the date of last trial, the suffering and diminished capacity having grown worse and being permanent.</p> <p>[Ed. Note. — Eor other cases, see Damages, Cent. Dig. § 372; Dec. Dig. <&wkey;>132(l).]</p> <p>2. Assignments c&wkey;129 — Parties—Attorney as Party — Agreement to Pay Contingent Eee.</p> <p>The agreement of a husband, who employed an attorney to take the case against a railroad company for injuries to his wife, to pay half the amount recovered, after expenses wore paid, there being no written assignment of any interest in the cause of action, was a mere agreement to pay a contingent fee, not rendering the attorney a necessary formal party to the suit.</p> <p>[Ed. Note. — Eor other cases, see Assignments, Cent. Dig. §§ 213-219; Dec. Dig. <&wkey;>12&.]</p> <p>3. Carriers <&wkey;348(G) — Carriage oe Passengers — Action for Injuries — Instruction.</p> <p>In an action against a railroad for personal injuries while alighting from a car, an instruction that if the jury found that a person of ordinary prudence would not have attempted to alight at the place where plaintiff attempted to, in the manner in which she attempted to, they would find verdict for defendant, notwithstanding they found that defendant was negligent in some or all of the respects complained of, fully submitted the issue of plaintiff’s contributory negligence in the manner of leaving the car.</p> <p>[Ed. Note. — Eor other cases, see Carriers, Cent. Dig. §§ 1403, 1405; Dec. Dig. &wkey;34S(6).]</p>

D. Davis, Judge. Action by the Hughston Grain Company and others against the St. Louis Southwestern Railway Company of Texas and another. Judgment for plaintiffs, and defendants appeal.

B. Allred, Judge. Action by Robert Wilson and others against the Missouri, Kansas & Texas Railway Company of Texas. To an order overruling defendant’s exception to the amended petition on appeal to the county court, defendant appeals.

Clark, Judge. Suit by C. C. Meyers against the Liberal Loan & Realty Company. From a judgment for plaintiff, reversing a judgment in justice court for defendant, defendant appeals.

<p>1. Bills and Notes <&wkey;373 — Rights of Innocent PUECHASER — FRAUD.</p> <p>Where plaintiff secured a promissory note before maturity and without notice of any defense or defect, giving a valuable consideration therefor, he was entitled to recover from the maker, who, while admitting his signature, claimed fraud in procuring the execution of the note, and in detaching it from a written contract of which it formed a part; Vernon’s Sayles’ Ann. Civ. St. 1914, art. 582, providing that one who so obtains a negotiable instrument can be compelled to allow only just discounts against himself.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 966-970; Dec. Dig. <®=^ 373.]</p> <p>2. Bills and Notes &wkey;378 — Actions—Defenses — Innocent Purchasers.</p> <p>The rule that the maker of a note, secured by fraud, should suffer rather than an innocent purchaser, protects the latter, where the payee or junior assignee filled in the date, which had been left blank, even if it resulted in materially changing the maker’s liability.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 985-992; Dec. Dig. <&wkey; 378.]</p> <p>3. Bills and Notes <§=360 — Execution — Date — Presumptions.</p> <p>Where the date of a promissory note is left blank by the maker, the presumption is that any holder has implied authority to insert the true date.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 85-94; Dec. Dig. &wkey;60.]</p>

Error from District Court, Hill County; Tom D. McCullough, Judge. Action by the Hillsboro Independent School District and others against Da Moth & Rose and others. Judgment for plaintiffs, and certain defendants bring error.

<p>1. Injunction i&wkey;122 — Pleading—Answee —Sufficiency on Verification.</p> <p>Since Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4663, provides that defendant in an injunction proceeding may answer as in other civil actions, but that no injunction shall be dissolved before final hearing because of a denial of the material allegations of the plaintiff’s petition, unless the answer denying them is verified by defendant, and article 4649 provides that no writ of injunction shall be granted unless the applicant presents a petition verified by his affidavit, the test of sufficiency of an affidavit under article 4649 being whether an indictment for perjury would lie if the oath is false, an answer denying the allegations of a properly verified petition for injunction, if supported only by an affidavit on information and belief, is insufficient as a denial, since it is to be tested by the same rule as is applicable to the petition, and an affidavit on information and belief being insufficient to support an indictment for perjury, though false.</p> <p>[Ed. Note. — Por other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. &wkey;122.]</p> <p>2. Injunction <&wkey;122 — Pleadins — Sufficiency of Verification.</p> <p>The general rule is that an affidavit on mere information and belief, without supporting affidavits of the informants, is not sufficient in injunction cases.</p> <p>[Ed. Note. — Por other cases, see Injunction, Cent. Dig. §§ 262-268; Dee. Dig. &wkey;122.]</p> <p>3. Appeal and Error <&wkey;954(2) — Review-Discretionary Orders — Temporary Injunction.</p> <p>Since the granting of a temporary injunction is a matter resting very largely in the sound discretion of the court, its refusal, especially when it is asked on the sworn petition of the complainant unsupported by other testimony, will not be disturbed on appeal, unless it clearly appears that such discretion has been abused.</p> <p>[Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 3818; Dec. Dig. &wkey;954(2).]</p> <p>4. Injunction <&wkey;14&wkey;TEMPORAitY Injunction — Pleadins—Sufficiency.</p> <p>i. _ Where the petition of a corporation for an injunction against other corporations and individuals, claiming that they were engaged in a partnership or joint enterprise, showed merely that the plaintiff and defendants entered into separate contracts with the same third person, and exhibited with the petition were other contracts purporting to change their rights under the alleged contracts which were not signed by any of the parties defendant, and the petition sought to restrain action under an alleged exclusive contract between defendants, but failed to set out such alleged contract or state the reason for such failure, it was not sufficiently clear in showing a joint enterprise or a partnership as to show abuse of the court’s discretion in refusing a temporary injunction.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. &wkey; 144.]</p> <p>5. Partnership <3&wkey;120 — Pleading—Sufficiency.</p> <p>The petition of a corporation alleging partnership relations between it and the defendant corporations and individuals, which failed to allege that plaintiff and defendants, or either of them, had entered into an agreement to jointly work and conduct their businesses, and failed also to allege charter powers in either of the corporations to enter into private partnerships, is insufficient to show partnership.</p> <p>[Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 182, 183; Dec. Dig. &wkey;120.]</p> <p>6. Corporations <&wkey;379 — Powers—Partnerships.</p> <p>Without express charter power to enter a private partnership, a corporation would be unauthorized to do so.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 153S; Dec. Dig. &wkey;379.]</p>

<p>1. Criminal Law <@=>290 — Former Jeopardy —Waives op Objection.</p> <p>Former jeopardy by reason of conviction of the same offense must be pleaded before trial and cannot be raised for the first time on a motion for new trial.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 666; Dec. Dig. <@=>290.]</p> <p>2. Criminal Law <@=>200(4) — Former Jeopardy — Identity op Offenses — Liquor Law Violation.</p> <p>Unlawfully engaging in the business of selling intoxicating liquors is a crime separate and distinct from that of a single unlawful sale, and a conviction for one is no bar to a conviction for the other.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 397; Dec. Dig. <@=3200(4).]</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>, Action by E. E. Paris against J. A. Reeves. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Scurry County Court; O. R. Buchanan, Judge.</p> <p>Action bj" W. T. Thompson against J. F. Wilson and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Husband and Wife <&wkey;265 — Community BltOPEKTY — INTEREST OF WIFE.</p> <p>A married woman has as much interest in the community property as her husband, and has an equal right to its beneficial use.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 896, 917-924; Dee. Dig. <&wkey;> 265.]</p> <p>•2. Husbani) 'AND Wife <&wkey;209(6) — Community Property — Husband’s Right of Action.</p> <p>A husband^ right to sue alone for the recovery of community property is incidental to his statutory right to the exclusive management thereof based on the assumption that he will discharge his obligations as the head of the family, and not on any legal disability of the wife,' so that when the husband leaves his wife, the reason for his control over community property ceases, and an action by the wife alone for damages for slander was not so fundamentally defective that her petition would be disregarded and her suit treated as a nullity.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 771; Dec. Dig. <S^o209(6)J</p> <p>3. Husband and Wife &wkey;j230 — Capacity to Sue — Objection—Waivee.</p> <p>Where the defendant, in an action by an abandoned wife to recover damages for slander, made no effort to abate the suit upon the ground of her coverture, he could not, after judgment on the merits, first raise that objection; that being a defense which he might waive.</p> <p>[Ed. Note. — For other cases, see I-Iusband and Wife, Cent. Dig. §§ 804, 83S, 840, 842; Dec. Dig. @=5230.]</p> <p>4. I-Iusband and Wife <&wkey;209(6) — Community Pkopeety — Action by Wife — Damages fob Slander.</p> <p>In a suit by a wife who had been abandoned by her husband, to recover damages for slander, where it was not alleged that she was separated ■from her husband, and that he had refused to join her in the suit, or that she was in need of the community funds for which the suit was brought, but it appeared that she had been abandoned without cause, driven from her husband’s home, and compelled to seek shelter at her father’s house, it was not essential to her right to sue alone that the husband should have expressly refused to bring a suit, as the jury might conclude that if she had not brought it, it would not have been brought, and that any damages recoverable would have been lost, and ■that she was dependent on her own resources or the generosity of her parents for support.</p> <p>[Ed. Note. — For other cases, see Husband and Wife,. Cent. Dig. § 771; Dec. Dig. @=5209(6).]</p> <p>5. Husband and Wife <&wkey;260 — Chose in Action — Use of Proceeds — Support. ■</p> <p>In such case, and although it did not appear that the husband had participated with his father in the slander for which his abandonment of his wife was indirectly responsible, the right to recover damages for the slander constituted a chose in action, and, whether community property or not, was such property as the wife might resort to for the support of herself and child.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 912; Dec. Dig. @=5260.]</p> <p>6. I-Iusband and Wife <&wkey;270(l) — Abandonment of Wife — Community Property Suit.</p> <p>In such case, it was not necessary that the wife should bo in actual want before she could sue for community property alone, and she might be empowered to sue alone to prevent the loss of her community interest by collusion between her husband and defendant, his father, though no fraud or collusion was alleged.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 968-971, 973; Dec. Dig. &wkey;270(l).]</p> <p>7. Libel and Slander <&wkey;7(16) — Actionable Words — Imputation of Unciiastity.</p> <p>The statement by the father of plaintiff’s husband, made to her father,-that she was four months advanced in pregnancy when she had been married only about seven weeks was slanderous per se, without any innuendo to show the defamatory character of the statement.</p> <p>[Ed. Note. — For other cases, se.e Libel and Slander, Cent. Dig. §§ 71, 73, 74; Dec. Dig. &wkey;7(16)J</p> <p>8. Libel and Slander <&wkey;100(2) — Damages —Special Damages.</p> <p>In an action for damages for words slanderous per se, it is not necessary to prove special damages.</p> <p>[Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. § 248; Dec. Dig. <&wkey;>100(2).]</p>

<p>Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.</p> <p>Action by J. M. Lanier against Lee Bivins. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Frio County Court; Mason Maney, Special Judge.</p> <p>Action by J. E. Bandy against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court,' Aransas County; F. G. Chambliss, Judge.</p> <p>Action by H. W. Mullan and others against the San Antonio •& Aransas Pass Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Dallas County ; Kenneth Foree, Judge.</p> <p>Action by J. Dawson Matthews against M. C. Kersh and another. From a judgment against the named defendant, he appeals.</p>

<p>Appeal from District Court, Hardin County; J. Llewellyn, Judge.</p> <p>Action by the Houston Oil Company of Texas against the Village Mills Company and others. From a judgment for plaintiff, defendant Village Mills Company appeals.</p>

<p>Appeal from District Court, Limestone County; A. M. Blackmon, Judge.</p> <p>Action by Ruby and Emmett Hardwick against M. D. Hardwick, guardian, and the American Surety Company of New York. Judgment for plaintiffs, and defendant Surety Company appeals.</p>

<p>1. Carriers @=>218 (5) — Live Stock — Limitation oe Liability — Validity.</p> <p>The limitation upon the carrier’s liability contained in a contract for an interstate shipment of live stock at a reduced rate prescribed by the interstate commerce commission was valid and enforceable. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696; Dec. Dig. &wkey;218(5).] 2. Cabbiers @=>218(7) — Damage to Live Stock — Amount—Construction of Bill of Lading. Under a bill of lading stipulating that in case of total loss of any Eve stock covered by the contract for which the carrier should be liable the value was the actual cash value at the time and place of shipment, in no case to exceed $10 for each calf, and that in case of injury or partial loss the amount claimed should not exceed the same proportion, a recovery on findings of the jury that there was a depreciation of 5 per cent, on a valuation of $30, or $1.50 per head, limited the shipper’s recovery to 5 per cent, of the agreed valuation, or 50 cents per head. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 946; «Dec. Dig. <&wkey; 218(7).] 3. Cabbiers <&wkey;218(7) — Carbiage of Stock-Shipping Contract — Construction. Such agreement in the shipping contract could have no application in the case of the deliberate conversion of an animal or its proceeds by defendant or its agents, so that it was not a loss within the meaning of the contract. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 67^-696, 946; Dee. Dig. 218(7).] 4. Cabbiers @=>229 (2) — Ihve Stock — Conversion — Damages. In such case, the defendant railroad was liable for the value of the converted animal at destination in the condition in which it would have arrived but for its «negligence or conversion. [Ed. Note. — For other eases, see Carriers, Cent. Dig. § 964; Dec. Dig. &wkey;229(2).] 5. Careiers <&wkey;229(2) — Injury to Live Stock — Damages. A carrier of live stock, in the absence of any special contract, is liable for the full amount of its depreciation caused by its negligence. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 964; Dee. Dig. @=>229(2):] 6. Carriers @^218(7) — Live Stock — Action for Damages — Classification—Estoppel. • In an action for damages to a shipment of live stock, party under a written contract at a reduced rate in consideration of a reduced valuation, the shipper having classified them in the contract 'as calves, could not claim that they should have been properly classified as older animals. [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 946; Dec. Dig. &wkey; 218(7).]</p> <p>7. Evidence @=>472(4) — Conclusions—Pro v=--,-ince of Jury. ' - ( In an action for damages to a shipment of live stock, plaintiff’s testimony, as to the value; of the cattle at destination when they should , have arrived if handled in the usual ordinary' time and with due dispatch, was a mixed question, of law and fact, invading the province of, the jury, and inadmissible. [Ed. Note. — For other cases, see Evidence,, Cent. Dig. § 21S9; Dec. Dig. &wkey;472(4).] . . 1 8. .Carriers @=>226 — Live Stock — Action for Damages — Parties. A joint owner of a shipment of live stock-, was properly joined as plaintiff in a suit fot. damages to the shipment; nothing in the Car-mack Amendment (Act June 29, 1908, c. 3591,= § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. StB 1913, § 8592]) depriving him of his right to join,, in the suit and recover. [Ed./Note. — For other cases, see Carriers, Dec. Dig. @=>226.] • , . . 9. Carriers &wkey;22S(3) — Injury to Live”' Stock — Evidence. ¡ Plaintiff's testimony that there was no at-! tempt to feed and water the stock at any other; than a certain place, in view of his 36-hour re-’ lease, whereby the carrier was authorized to, keep the stock in the cars for that time without-feed, water, or rest if necessary, was inadmissible. [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. @=>228(3).] ,•= 10. Appeal and Error =@=31051 (3) — Harm-., less Error — Admission of Evidence-^Ad-' mitted Fact. ■ In such case, where it was admitted that defendant had not attempted to feed .and water the cattle at any other than at a certain place,, it could not have been reversible error to permit plaintiff to testify to that fact. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4164, 4167; Dec. Dig. @=> 1051(3).] 11. Evidence <&wkey;258(l) — Declarations—Ah-' MISSIBILITY. In an action for damages to a shipment- of live stock,.testimony of plaintiff, as to a conver-, sation which he heard between the conductor of his train and some employés of the road’s receivers relative to the cause of the wreck which’ delayed the shipment, was inadmissible, .where the conductor was not shown to be authorized to make such statements. , [Ed. Note. — For other cases, see Evidence,’ Cent. Dig. § 1006; Dec. Dig. @=3258(1).] 12. Carriers @=>212 —Live Stock — Negli-’ gence. It is the duty of a carrier of live stock: to deliver it with a reasonable degree of care and caution. ’ y [Ed. Note. — For other cases, see Carriers,, Cent. Dig. §§ 918, 919; Dec. Dig. &wkey;212.] 13. Appeal and Error @=>768 — Assignments of Error — Statement — Assumption of, Truth. Where an assignment complained of the-submission of an issue as to what was an ordinarily reasonable time for the transportation of cattle between two points, because there was no evidence as to what was an ordinarily rea--sonable time for such transportation, and such) statement of fact was not contested by the apt pellee, the court, under the express provision, of rule 41 for Courts of Civil Appeals (142 S.' W. xiv), would assume it to be true. ’ ' [Ed. Note. — For other cases, see Appeal find-Error, Cent. Dig. § 3103; Dec. Dig. @=>768.}!</p> <p>14. Trial <&wkey;252(7) — Instructions — Evi- . DEJNCE. In an action for damages to a. shipment of live stock, where there was no evidence as to what was an ordinarily reasonable time. for the transportation of cattle between two points, the issue as to reasonable time should not have been ■submitted. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 602; Dec. Dig. &wkey;252(7).] 15. Appeal and Error <&wkey;231(l) — Objection — Issues. Where the objection urged to the submission of an issue was too general, an assignment of error in its submission would be overruled. [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1352; Dec. Dig. &wkey;231(l); Trial, Cent. Dig. §§ 194, 689, 690.] 16. Trial <&wkey;251(2) — Instructions—Issues. In an action for damages to a shipment of live stock, a requested instruction that,' when the train came back to a point where the stock was watered, the receivers of the carrier then operating the road were required by the federal statutes to give the train crew not less than 10 hours consecutive rest, was properly'refused, because irrelevant to the issues. [Ed. Note. — For other cases, see Trial, Cent. Dig. § 589: Dec. Dig. &wkey;251(2).] 17. Trial <&wkey;240 — Argumentative Instructions. Argumentative instructions are properly refused. , [Ed. Note. — For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. &wkey;240.] 18. Trial &wkey;194 (1) — Instructions—Weight oe Evidence. Requested instructions on the weight of the evidence are properly refused. [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 413, 436, 439, 440, 450; Dec. Dig. <&wkey; 194(1).]</p>

<p>Appeal from Harris County Court; Clark C. Wren, Judge.</p> <p>Action by the Spinner-Hay Lumber Company against J. Appelbaum and wife. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Scurry County; Jno. B. Thomas, Judge.</p> <p>Action by C. E. Brown against W. Y. P. Baker. Judgment for plaintiff, and defendant appeals.</p>

J. Isaacks, Judge. . Suit by T. H. Eastman, guardian of Jack Evans, a minor, against Mrs. Dora Evans, to set aside an order of the pi’obate court probating the will of J. W. Evans, deceased. Judgment for plaintiff setting the order of probate aside, and defendant appeals.

<p>1. Afpeal and Error &wkey;>757(l) — Briefs — Specification of Error.</p> <p>Where the record shows that certain rulings of the court below were attacked in a motion for new trial, and that such rulings constitute the assignments of error urged in this court, it is unnecessary that appellant’s brief should specifically so state.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. &wkey;>757(l).]</p> <p>2. Husband and Wife <&wkey;264^CoMMUNiTY Property — Transfer to Husband — Sufficiency of Evidence.</p> <p>Evidence examined, and held insufficient to go to the jury on the question whether certain community property had become the husband’s exclusive property prior to a levy thereon by his wife’s judgment creditor.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent Dig. § 916; Dec. Dig. <&wkey;264.]</p> <p>3. Pledges <&wkey;34 — Character of Transaction — Sufficiency of Evidence.</p> <p>Evidence examined, and held insufficient to go to the jury on the question whether certain cotton had been pledged before being levied upon.</p> <p>[Ed. Note. — For_ other cases, see Pledges, Cent. Dig. § 90; Dec. Dig. &wkey;34.]</p> <p>4. Appeal and Error <&wkey;562 — Statement of Facts — Essentials.</p> <p>The statement of facts need not show the value of the property in controversy when the trial court’s judgment recites that fact.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2495-2499; Dec. Dig. <&wkey;></p> <p>5. Husband and Wife &wkey;j2C8(l) — Community Property — Liability for Antenup-tial Debts.</p> <p>Community property is liable for the ante-nuptial debts of the wife.</p> <p>[Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 953, 957-960, 964, 967; Dec. Dig. <&wkey;>268(l).]</p> <p>6. Appeal and Error <&wkey;1175(l) — Reversal —Final Judgment.</p> <p>It is the duty of this court, under the statute, to render final judgment upon reversal when the case has been fully developed in the court below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4573, 4575, 4576, 4583-4587; Dec. Dig. &wkey;1175(l).]</p> <p>On Motion for Rehearing.</p> <p>7. Appeal and Error <@=^1177(1) — Reversal —Necessity of New Trial.</p> <p>Reversal held to necessitate another trial, since the record does not conclusively show that the case was fully developed in the court below.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604, 4610; Dec. Dig. &wkey;> 1177(1).]</p>

F. Ezell, Judge. Action by L. W. McLennan against Frank W. Wick, J. 6. Fowler, and C. S. Fowler, as partners in the Wick-Fowler Colonization Company, with counterclaim by defendants. Judgment for plaintiff against defendants, and for defendants Fowler over against defendant Wick, and defendants appeal.

<p>1. Carriers <&wkey;318<10)—Injuries to Passengers—Evidence—Suioticiency.</p> <p>Evidence examined, and held sufficient to support a verdict for defendant in an action by a passenger to recover for injuries alleged to have resulted from a sudden jerk of the train after slopping at a station.</p> <p>[Ed. Note.—For other cases, see Carriers, Cent. Dig. § 1313; Dec. Dig. &wkey;318(10).]</p> <p>2. Evidence &wkey;>327(2)—Res Gestas.</p> <p>A statement, “I am nearly killed,” made by a passenger injured on a train at the time of the injury and in answer to an inquiry, is admissible in action for damages as part of the res gestae.</p> <p>[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 379; Dec. Dig. <&wkey;>127(2).]</p> <p>3. Appeal and Ebeob ©=>1056(1) — Habmless Eeb'oe — Evidence—Res Gestee.</p> <p>• In an action for pergonal injuries, error in excluding testimony admissible as part of the res gestos held not prejudicial in view of all the testimony.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187, 4191, 4207; Dec. Dig. ©=>1056(1).]</p> <p>4. TBIAL <&wkey;2i)5(0) — .INSTEUCTIONS—CONSID-ERED as a Whole.</p> <p>Instructions must be read as a whole, and, if when so considered they correctly present the law, error cannot be predicated on a portion alone, which might be said to be on the weight o.f the evidence.</p> <p>[Ed. Noth. — For other cases, see Trial, Cent. Dig. § 711; Dec. Dig. &wkey;295(9).]</p> <p>5. Appeal and Ebeob <&wkey;692(l) — Evidence— 'Admissibility — Review.</p> <p>The action of the court in excluding answers to questions except on cross-examination will not be reviewed, in the absence of the bill of exceptions showing what the answers would have been.</p> <p>[Ed. Note. — For other case's, see Appeal and Error, Cent. Dig. §§ 2905, 2906; Dec. Dig. ©=> 602(1).]</p> <p>6. Appeal and Ebeob ©=51056(1) — Harmless Ebeob — Evidence.</p> <p>In a personal injury action, the refusal of the court to permit plaintiff’s witness, a physician, on redirect examination, to testify as to defendant’s custom of pacing its physicians annual salaries for services including testimony in court, held not reversible error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4187, 4191, 4207; Dec. Dig. &wkey;1056(l).]</p> <p>7. Evidence ©=>317(3) — Competency—Hearsay.</p> <p>Where defendant introduced evidence that plaintiff made no complaint of the injury received, the rule that statements made by plaintiff to others at or near the same time are admissible in rebuttal does not permit the introduction of hearsay statements made by others in reference to plaintiff’s injury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1176; Dec. Dig. &wkey;317(3).]</p> <p>8. Depositions <&wkey;95 — Admission op Part in Evidence — Competency op Remainder.</p> <p>That an answer to an interrogatory is responsive does not render admissible that portion of the answer which is hearsay.</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§. 276, 277; Dec. Dig. &wkey;95.]</p> <p>9. Trial &wkey;>43 — Evidence — Admission op Argument of Counsel.</p> <p>The admission o,f testimony pursuant to an offer made in answer to argument of opposing counsel is a matter of discretion with the court.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 123; Dec. Dig: <&wkey;>43.]</p> <p>10. New Trial ©=>142 — Misconduct op Ju-ey — Evidence.</p> <p>Under a statute authorizing the trial court to consider misconduct of the jury as ground for a new trial and requiring proof thereof to be made in open court, ex parte affidavits of jurors cannot be considered.</p> <p>TEd. Note. — For other cases, see New Trial, ■Cent. Dig. § 297; Dec. Dig. ©=>142.]</p> <p>11. Appeal and Error &wkey;>977(l) — Misconduct op Jury — Discretion op Coubt.</p> <p>Under a statute giving a trial court discretion to set aside a verdict and allow a now trial for misconduct of jury, the action of the</p> <p>court will not be reviewed unless there has been an abuse of discretion.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3860; Dec. Dig. <&wkey;>977 (1).]</p> <p>12. New Trial <&wkey;140(3) — Misconduct op Jury — Sufficiency op Evidence. Evidence held sufficient to sustain the order of the trial court refusing a new trial on the ground of misconduct of the jury.</p> <p>[Ed. Note. — For other cases, see New .Trial, Cent. Dig. §§ 287, 302; Dec. Dig. <@=5140(3).]</p>

<p>1. Stipulations <&wkey;14(5) — Abiding Other Suit — Right to Continuance.</p> <p>Where several suits by various plaintiffs against one defendant were pending and all parties agreed in one stipulation to await judgment in one of the suits, and take judgment in accordance therewith, the suits being independent and the result of one not being governed by the result of others, it was not error to refuse continuance asked in order to allow all the parties to be made parties, to one suit, since they were not necessary to its determination, and there was nothing in the stipulation indicating intention to consolidate the suits.</p> <p>[Ed. Note. — For other cases, see Stipulations. Cent. Dig. § 29; Dee. Dig. <&wkey;14(5).]</p> <p>2. Stipulations &wkey;ll — Validity.</p> <p>An action cannot be defeated as based on an invalid stipulation, where it was brought on a fraudulent contract for the sale of stock, and the stipulation was made only as a means of establishing the right to judgment.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. § 23; Dec. Dig. <&wkey;ll.]</p> <p>3. Stipulations <&wkey;ll — Validity—Unilateral Agreement.</p> <p>A stipulation by which defendant agreed to permit judgment against it in one suit if such judgment were rendered in a similar suit, and plaintiff, agreed to await judgment in the other suit before prosecuting his action, thus postponing immediate collection of moneys due, is not unilateral.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. § 23; Dec. Dig. <&wkey;ll.]</p> <p>4. Attorney and Client <&wkey;86 — Authority oe Attorney — Binding Eeeect.</p> <p>A client is bound by the act of his attorney in signing a stipulation filed in an action in which the attorney is employed.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 155-160; Dec. Dig. <&wkey; 86.]</p> <p>5. Stipulations <S=x>12 — Withdrawal—Time.</p> <p>That one party refuses to be bound by a stipulation signed by his attorney and filed in an action pending does not invalidate the stipulation as to other parties, after determination that there is no cause of action against such party.</p> <p>[Ed. Note. — For other cases, see Stipulations, Cent. Dig. § 66; Dec. Dig. <&wkey;>12.]</p> <p>6. Appeal and Error <S=»1052(5)' — Review-Harmless Error — Admission op Evidence.</p> <p>Where testimony objected to is rendered immaterial by the finding that the defendant, as to whom it was offered, was not liable to the plaintiffs in the action, its admission is no ground for reversal of the judgment against other defendants, where, without it, there is still sufficient evidence to sustain the judgment, which would not have been affected by its exclusion.</p> <p>.[Ed. Note. — For other cases,, see Appeal and Error, Cent. Dig. § 4175; Dee. Dig. &wkey;1052(5).]</p>

Error from Taylor County Court; E. M. Oversliiner, Judge. Suit by W. A. Tyer against R. A. Hart and another. From a judgment for plaintiff against both defendants, the named defendant appealed to the county court. From a judgment of the county court for plaintiff against defendant J. E. Wills only, by default, and that plaintiff take nothing against defendant R. A. Hart, defendant J. E. Wills brings error.

<p>Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.</p> <p>Ten separate actions by R. S. Brannin and by nine others against- the Commonwealth Bonding & Casualty Insurance Company. Judgments for plaintiffs in each case, and defendant appeals.</p>

<p>Appeal from Hamilton County Court; J. L. Lewis, Judge.</p> <p>Action by W. B. Stewart against the Stephenville North & South Texas Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error <S^v>1052(5) — Haemless Eeeob — Vebdict fob Appellee Probable in Ant Event.</p> <p>In an action for damages to automobile wrecked by a street ear, alleged error in admitting testimony held not reversible, where other testimony not objected to, and the amount of the verdict rendered it wholly improbable that the result would have been different had the testimony referred to been excluded.</p> <p>|Ed. Note. — For other cases, see Appeal and Error^ Cent. Dig. § 4175; Dec. Dig. <&wkey;></p>

<p>Appeal and Ebrob <&wkey;26S(3) — Review—Objections to Instructions.</p> <p>There being no formal bill of exceptions, and the record showing merely that, when the case was called, appellant presented written objections to the charge given, and requested a special charge, and the court merely indorsed on both documents his signature after the word “refused,” held, under the act of 1913 (Acts 33d Leg. c. 138) amending' the Revised Statutes in reference to objections to charges given and-refused and bills of exceptions, that appellant waived his objections to the court’s charge and the refusal of requested instructions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1518, 1525; Dec. Dig. <&wkey;> 263(3).]</p>

<p>1. Bilis and Notes &wkey;5lSl — Pleading—Admission— Effect oe.</p> <p>In an action on a note, where the answer did not deny the averments of the petition that plaintiff was a bona fide purchaser for value without notice and before maturity, but set up other facts as a defense, those averments were admitted, and unless the defense was good, the holder was entitled to judgment.</p> <p>[E'd. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1530-1532, 1559-1561; Dee. Dig. &wkey;>481.]</p> <p>2. Bills and Notes <&wkey;373 — Bona Fide Pcjb-chasers — Defenses.</p> <p>The defense that a note was procured through fraudulent representations, and that after execution of the note the payee refused to redeliver it, or to carry out his agreement, is not good as against a bona fide purchaser for value and without notice before maturity.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 966 — 970; Dec. Dig. 373.]</p>

<p>1. Municipal Corporations &wkey;>958 — Charter — Construction—Constitutional Provisions — ^“Barred.”</p> <p>Charter of San Antonio, § 123, providing that all taxes delinquent for ten years before any suit is filed to collect the same shall be barred by limitation, is not violative of Const, art. 3, § 55, providing that the Legislature shall have no power to release or extinguish, in whole or in part, any indebtedness, liability, or obligation to the state, or any county or other municipal corporation, since the word “barred” does not mean released or extinguished, but is a plea or peremptory exception of a defendant to destroy the plaintiff’s action; an impediment, obstacle, or preventive barrier.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2023-2037; Dec. Dig. &wkey;>958.</p> <p>For other definitions, see Words and Phrases, Barred.]</p> <p>2. Statutes &wkey;>120(2) — Construction—Constitutional Provisions.</p> <p>Charter of San Antonio, including section 123, is not violative of Const, art. 3, § 35, providing that, except appropriation bills, no bill shall contain more than one subject, which shall be expressed in its title, since Const, art. 11, § 5, in 1993, • read “cities having more than ten thousand. inhabitants may have their charters granted or amended by special act of the Legislature.”</p> <p>[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 169; Dec. Dig. &wkey;cl20(2)J</p>

<p>Error from Tom Green County Court; Oscar Prink, Judge.</p> <p>Action by the Arthe-Levy-Bernhard Company against C. C. McBurnett. Prom a judgment for defendant, plaintiff brings error.</p>

<p>Appeal from District Court, Comal County; Frank S. Roberts, Judge.</p> <p>Action by Otto Penshorn against the International & Great Northern Railway Company. Judgment for defendant, and plaintiff appeals.</p>

S. Shipp, Judge. Consolidated actions by W. A. Mills and another against the First State Bank of Holland, and by said bank against W. A. Mills and another. From a judgment for W. A. Mills and another, the bank appeals.

<p>Juey <&wkey;77(l) — Compensation — ADJOURNMENT.</p> <p>Under Rev. St. 1895, art. 8232, and Rev. St. 1911, art. 5169, providing for juror’s compensation for each day he may “serve or attend” as juror, and that jurors shall not be paid during the time they stand adjourned, where the court on Monday adjourns jurors to the following Wednesday in that term, they are not entitled to pay for Tuesday.</p> <p>[Ed. Note. — Por other cases, see Jury, Cent, ©ig. §§ 392-396, 399; Dec. Dig. &wkey;77(l).]</p>

<p>Appeal and Error <&wkey;1178(6) — Determination and Disposition op Cause.</p> <p>Under rule 62a for the Courts of Civil Appeals (149 S. W. x), where the issues in an action were severable, and the error affected only a part of the matter in controversy, the findings of the trial court not found to be prejudicial will be deemed conclusive, and judgment affirmed as to that part, and the cause remanded for trial of the issues affected by the error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4614, 4615; Dec. Dig. &wkey;> 1178(6).]</p>

<p>Appeal from District Court, Coryell County; J. H. Arnold, Judge.</p> <p>Suit by D. S. Schley against J. W. Ham-maek and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Action by Otto Wolter against John Walen-ta, Sr. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Collin County; M. H. Garnett, Judge. Foot Blair was convicted of forgery, and he appeals.</p>

<p>Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. Mose Gamble was convicted of larceny, and his motion for new trial was overruled, and he appeals.</p>

<p>Appeal from Gregg County Court; J. H. Me-Haney, Judge. Dave Adams was convicted of violating the local option law, and appeals.</p>

<p>Appeal from District Court, Marion County; P. A. Turner, Judge.</p> <p>Action by the McCall Company against J. J. Segal. Judgment for plaintiff and defendant appeals. On return of answers to questions certified by the Court of Civil Appeals to the Supreme Court (184 S. W. 188), judgment of trial court for plaintiff reversed.</p>

<p>Appeal from District Court, Fisher County; John B. Thomas, Judge. Habeas corpus by Alfred Rasberry. From a refusal of bail in such proceeding, he appeals.</p>