Volume 188 — South Western Reporter

<p>Error from District Court, Navarro County; H..B. Daviss, Judge.</p> <p>Action by J. E. Whiteselle, executor, .against the Northwestern Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p> <p>December 29, 1891, plaintiff in error issued to J. O. Shook a policy on Ms life for $5,000, payable at bis death to his wife, Carrie B. Shook, if she survived him, and to Ms executors, administrators, or assigns if she did not. By a decree rendered December 8, 1908, and on appeal affirmed February 26, 1910, Carrie B. 'Shook was granted a divorce. January 1, 1912, plaintiff .in error, on the security of the policy it had issued, loaned $1,116 to J. O. Shook, and January 3, 1912, at Ms request and without the knowledge and consent of Carrie B. Shook, so changed the policy as to make it payable at his death to Ms executors, administrators, or assigns, instead of to Carrie B. Shook, without reference to whether she survived him or not. This suit was commenced by Carrie B. Shook and was prosecuted by her until she died. It has since been prosecuted by defendant in error as her executor. In her petition Mrs. Shook alleged that the premiums on the policy were paid with funds belonging to the community estate between herself and her divorced husband, J. O. Shook, and that by the judgment in the divorce suit it was determined that she was the owner of an undivided one-half of the policy. She further alleged that the plaintiff in error, before it made the loan to J. O. Shook and before it so changed the policy as to make it payable to Ms executors, etc., instead, of to her, knew the premiums thereon had been paid with community funds, and knew that the court had determined by its judgment in the divorce suit that she was the owner of one-half of the policy, and promised and agreed it would not, without her consent, make any change in the policy or any settlement involving it with J. O. Shook. She further alleged that plaintiff in error, disregarding its promise, conspired with J. O. Shook, whom it knew, she alleged, to be insolvent, to deprive her of her rights with reference to the policy, and without her knowledge and consent loaned him the $1,116 and changed the policy as stated, and so converted her interests in the policy. She prayed for judgment against plaintiff in error for $2,500, one-half the válue of the policy, or, in the alternative, for a sum equal to one-half the sum of the premiums paid on the policy to February 26,1910, or for a sum equal to one-half the paid-up value of the policy at the date of the alleged conversion thereof, interest on the sum she was found to be entitled to, and statutory damages and attorney’s fees. In its answer plaintiff in error admitted that it made the loan to J. O'. Shook and changed the policy as charged; denied that it thereby was guilty of conversion; denied knowledge of the fact that the premiums on the policy were paid with community funds of the marriage, as alleged by Mrs. 'Shook; denied that she owned an interest in the policy, or that the court by the decree in the divorce suit had so determined ; and alleged that if she owned an interest in the policy, it did not exceed one-half of the value thereof, to wit, $1,072.20, at the date the divorce was granted, to wit, December 8, 1908. The trial court was of opinion that the effect of the judgment in the divorce suit was to determine that the policy was property belonging to the community estate, and therefore “was owned jointly” by J. O. Shook and Carrie B. Shook. As in his opinion this was decisive of the rights of the parties, he instructed the jury to find in defendant in error’s favor, “for one-half the accumulated value of said policy on February 26, 1910, to wit, $618.70, and for interest thereon at the rate of 6 per cent, from January 3, 1912, to this date, to wit, $125.15.” On a verdict returned as instructed, judgment was rendered in favor of defendant in error against plaintiff in error for the sum of $743.85.</p>

<p>Appeal from Delta County Court; J. N. Viles, Judge.</p> <p>Action by D. C. Moore against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Franklin County; H. F. O’Neal, Judge.</p> <p>Action by M. W. McMinn against the West-chester Fire Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Jefferson County; E. A. McDowell, Judge.</p> <p>Action by W. M. Horwitz against the Jefferson County Traction Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Wxtkesses <&wkey;48(4) — Competency — Conviction of Murder.</p> <p>One who has been convicted of murder . is incompetent as a witness, although he is plaintiff in an action of trespass to try title to land which ha claims as a homestead.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 114; Dec. Dig. <g¿348(4).'J</p> <p>2. Depositions <&wkey;91 — Competency oe Deponent at Time oe Trial.</p> <p>The deposition of a witness whose conviction for murder was suspended by appeal at the time of the taking of the deposition becomes incompetent for use at a trial after such conviction has been affirmed. ■</p> <p>[Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 261-265; Dec. Dig. &wkey;91J</p> <p>3. Homestead &wkey;>173 — Abandonment—Election by Bringing Partition.</p> <p>Suit to partition homestead by a widower was such an election no longer' to use or occupy it as homestead that he could not, by amendment of his petition changing the suit to one of trespass to try title, resume, as against answering defendants, the. right he had abandoned.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 340; Dec. Dig. ¿=173.]</p>

L. Hawkins, Judge. Action by the Houston & Texas Central Railroad. Company against the Diamond Press Brick Company. Judgment for defendant, and plaintiff appeals.

P. Doboney, Judge. Action by John Cornelius against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff and an order denying a new trial, the defendant appeals.

B. Daviss, Judge. Action by Patrick Garvin and wife against Joseph L. Garvin and others. From a judgment for plaintiffs, both plaintiffs and defendants appeal. Patrick Garvin was the owner of 255% acres of land, and he, joined in the deed by his wife, conveyed the tract of land to the appellee, their son, on June 15, 1895. The deed is in ordinary form, and recites the consideration to be the assumption of an outstanding vendor’s lien note in favor of Chas.

Porter, Judge. Action by the Planters’ Cotton Oil Company against the Guaranty State Bank of Mer-tens, wherein defendant filed a cross-bill. Judgment against plaintiff in the original action, and for defendant on its cross-bill, and plaintiff appeals.

<p>1. INNKEEPERS &wkey;>13—LÍEN EOR HOTEL BILL' —“Hotel/’</p> <p>A rooming house, where both furnished and unfurnished rooms are rented by the day, week, or month, and bell-boy service, lights, water, heat, phone and laundry service furnished, held a “hotel” within Vernon’s Sayles’ Ann. Civ.</p> <p>St. 1914, art. 5663,' providing hotel keeper’s lien for unpaid hotel bill.</p> <p>[Ed. Note — For other cases, see Innkeepers, Cent. Dig. §§ 42-46; Dec. Dig. <S&wkey;13.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Hotel.]</p> <p>2. Innkeepers <&wkey;13 — Lien eob Unpaid Hotel Bill — “Guest.”</p> <p>A person who rented an unfurnished room at such hotel by the month, and furnished the same with his own furniture, and received the other services of such hotel, held a guest, and his property subject to a lien for his unpaid hotel bul.</p> <p>[Ed. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 42-46; Dec. Dig. <@==513.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Guest.]</p> <p>3. Innkeepers <&wkey;13 — Lien—Ownership oe Property — Notice of Proprietor.</p> <p>Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 5663, property in the possession of hotel guest is subject to a hotel keeper’s lien, though it belonged to a third person, if the proprietor had no notice of the true ownership.</p> <p>[E'd. Note. — For other cases, see Innkeepers, Cent. Dig. §§ 42-46; Dee. Dig. <§=>13.]</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by L. H. Powell and another against the Fire Association of Philadelphia, in which Ray Carroll intervened. From an adverse judgment, defendant appeals.</p>

B. Davis, Judge. Suit by Sandifer Milner against the Brewer-Monaghan Mercantile Company. Judgment for defendant in part, and plaintiff appeals. Appellant by his petition alleges that he has suffered damages in the refusal to transfer ten shares of capital stock in his name on the stock books of the appellee company.

<p>1. INSURANCE <@=»134(1) — Policy—Iron-Safe Clause.</p> <p>Where policy, which did not, on its face, describe the goods insured, but contained a blank for such description to be pasted in the face of the policy, was inclosed in an envelope and sent to the insured, together with a paper containing an iron-safe clause and a description of the goods, the paper containing the iron-safe clause was not a part of the policy.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 214, 215, 217; Dec. Dig. &wkey; 134(1).]</p> <p>2. Insurance <&wkey;136(5) — Iron-Safe Clause —Knowledge of Insured.</p> <p>The fact that insured did not know that there was to be an iron-safe clause in the policy would be immaterial, if it was in fact a part of the policy accepted by him.</p> <p>' [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 222-224, 229, 230; Dec. Dig. &wkey; 136(5).]</p> <p>3. Insurance <&wkey;133(l) — Contract and Description of Property.</p> <p>Where an application for a policy on furniture, etc., signed by insured, containing a full description of the goods insured, was attached to the policy and referred to in the face thereof, and made a part of it, the fact that the policy did not describe the goods insured, but contained a blank for such description to be pasted in, and that an iron-safe clause, which, together with a description of the goods, was contained in a paper sent with the policy to the insured, was not a part of the policy, did not prevent the making of a contract of insurance.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 203, 211; Dec. Dig. &wkey;133(l).]</p> <p>4. Insurance <&wkey;495(l) — Amount op Loss-Statute.</p> <p>Under Acts 31st Leg. (4th Called Sess.) c. 8, § 18, relating to the business of fire insurance, the insured, under a policy known as an 80 per cent, coinsurance clause, was a coinsurer entitled to recover that percentage of the policy, less the amount, of his premium note and the amount allowed by the court for expense of adjustment, etc., with interest.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1270-1272; Dec. Dig. &wkey;495(l).]</p> <p>5. Insurance &wkey;>558(l) —.Proof op Loss — Waiver — Time.</p> <p>The insurer’s waiver of formal proof of loss was to be dated from the time of its examination of the insured.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 1382, 1383, 1389, 1390; Dec. Dig. &wkey;558(l).]</p> <p>6. Insurance <&wkey;328(2) — Fire 'Insurance— Change in Ownership.</p> <p>Where an owner of furniture and a stock of goods had sold a half interest therein to his son, then 18 years of age, taking his note therefor on which nothing was ever paid, and the facts as to such transaction were stated to the insurer’s agent when he took the application for the policy, and where such owner always regarded himself as the owner, the policy was not void on account of a change in ownership.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 795: Dec. Dig. &wkey;328(2).]</p> <p>7. Insurance &wkey;>186(l) — Payment op Premium — Paid-Up Insurance.</p> <p>While there can be no such thing as a paid-up fire insurance policy in the sense that under the terms of such policy either party may have the policy canceled, yet where the court .deducted from the amount awarded to the insured the full amount of his premium note, including the amount due on a warehouse which was not destroyed, insured would hold a policy for the amount insured on the warehouse during the time for which the premium had been paid.</p> <p>[Ed. Note. — For other cases, see Insurance, Gent. Dig. §§ 396-398; Dec. Dig. &wkey;186(l).]</p> <p>8. Insurance <&wkey;573 — Amount op Recovery —Expenses op adjustment.</p> <p>In an action on a fire insurance policy, covering furniture, groceries, and a stock of goods, agents of the insurer, who attempted to make an adjustment and who were being paid by the insurer a salary for their time without reference to such adjustment, were properly disallowed their claim of $10 per day as expenses of adjustment.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1427; Dec. Dig. <¿=3573.]</p>

<p>Pending in Supreme Court on Certified Question.)</p> <p>Appeal from Coleman County Court; F. M. Bowen, Judge.</p> <p>On second motion for rehearing.</p>

<p>1. Mines and Minerals <&wkey;55(6), 74 — Oil and Gas Contracts — Nature oe Instrument-Liability oe Assignee.</p> <p>Where an instrument relating to oil and gas rights amounts to a conveyance of an interest in the fee subject to defeasance by condition subsequent, an assignee who did not specially agree to assume the burdens therein contained would not he bound; but, where the instrument is a mere lease contract, the assignee who accepts the assignment of the rights and privileges under the lease would be burdened with the obligations and covenants running with the land.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 156, 163, 164, 2"0'2; Dee. Dig. &wkey;55(6), 74.J</p> <p>On Appellee’s Motion for Rehearing.</p> <p>2. Mines and Minerals <&wkey;55(6) — Construction and Operation — Covenants Running with Land.</p> <p>In a conveyance of oil and gas in place under certain land, a reservation of title to one-eighth of the gas and oil is a covenant running with the land.</p> <p>[Ed. Note. — For other cases, see Mines and Minerals, Cent. Dig. §§ 156, 163, 164; Dee. Dig. <&wkey;>55(6).]</p> <p>On Appellee’s Second Motion for Rehearing.</p> <p>3. Mines and Minerals &wkey;>74 — Oil and Gas Contract — Nature oe Instrument — Liability oe Assignee.</p> <p>An instrument whereby the lessor grants, sells, conveys, and leases unto the lessees all the oil and gas in and under certain land for one year and as much longer as oil or gas is found in paying quantities, for which the lessees agree to deliver one-eighth part to the lessor and to begin operations for drilling of a well within six months, or to pay SO cents per acre in advance for one six months’ extension of the time for beginning operations, providing that all covenants between the parties shall extend to their assigns, is governed by the law relating to leases, and assignees of the lessees are liable to the lessor, where the operations for digging wells were not commenced within six months, for the 50 cents per acre.</p> <p>[Ed. Note. — Por other cases, see Mines and Minerals, Cent. Dig. § 202; Dee. Dig. &wkey;>74.]</p> <p>4. Mines and Minerals <&wkey;58 — Oil and Gas Contracts — Unilateral Contract.</p> <p>A conveyance and lease of all the oil and gas in and under certain land for one year and as much longer as oil or gas is found in paying quantities, for which lessees pay $1 an acre and agree to deliver to the lessor one-eighth of the oil or gas found and to begin operations for drilling a well within six months, or to pay 50 cents per acre in advance for one six months’ extension of the time for beginning operations, is not void as being unilateral.</p> <p>[Ed. Note. — Por other cases, see Mines and Minerals, Cent. Dig. §§ 168, 169; Dec. Dig. <&wkey;>58.]</p> <p>On Appellant’s Motion for Rehearing.</p> <p>5. Courts &wkey;s247(5)— Appellate Jurisdiction — Oertieication oe Questions.</p> <p>Where the judges of the Court of Civil Appeals all fully concur in the opinion and are satisfied that its conclusions are correct, the questions at issue will not be certified to the Supreme Court.</p> <p>[Ed. Note. — Por other cases, see Courts, Dec. Dig. &wkey;>247(5); Appeal and Error, Cent. Dig. § 1773.]</p>

<p>1. Trial &wkey;>143 — Question foe Juey— Conflicting Evidence.</p> <p>Where the evidence is conflicting, and reasonable minds might differ as to the inference therefrom, the issue is for the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. &wkey;143.]</p> <p>2. Trial <&wkey;141 — Question for Juey — Material Issues — Undisputed Evidence.</p> <p>Where a number of material issues are involved, some of which are sustained by the undisputed evidence and are within themselves sufficient upon which to predicate a judgment, the court may direct a verdict, notwithstanding the evidence -on the other issues is conflicting.</p> <p>[Ed. Note. — For other cases, .see Trial, Cent. Dig. § 336; Dec. Dig. <S&wkey;141.]</p> <p>3. Corporations <&wkey;423 — Fraud of Agent— Effect.</p> <p>A corporation is bound by and charged with the fraud of its agents.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1692-1695, 1903, 1906; Dec. Dig. <&wkey;>423.]</p> <p>4. Fraud <&wkey;9, 16 — Sale of Stock — Matters Constituting Fraud.</p> <p>Any false statement of fact that might materially affect the price of the stock of a corporation or the judgment of its purchaser is fraudulent, which statement may consist in suppression of what is true, as well as the assertion of what is false, and where any statement is made at all it must be a fair and full statement of all the material facts.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. §§ 8, 15; Dec. Dig. &wkey;>9, 18.]</p> <p>5. Corporations <&wkey;80(12) — Sale of Stock-Fraud — Rescission.</p> <p>Where the secretary and treasurer engaged in promoting a fire insurance company, to induce plaintiff to purchase stock therein, suppressed the fact that a certain per cent, of the money received from the sale of the stock was applied to the payment of secret commissions of officers and directors, and that a promoter and stockholder was short in his accounts and indebted to the corporation, and represented that it was a going concern and its stock was a fine investment, when in fact it was insolvent, there was such a fraud upon the purchaser as entitled him to a rescission of his contract to purchase stock.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 264; Dec. Dig. &wkey;j80(12).]</p> <p>6. Corporations <&wkey;316(l) — Contracts with Director — Validity.</p> <p>A director of a corporation cannot enter into any contract with it, or have any personal or pecuniary interest in a contract between it and a third person, and such contract is fraudulent and unenforceable.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1401, 1402, 1405, 1406, 1409; Dec. Dig. &wkey;316(l).]</p>

Masterson, Judge. Suit by the Houston Motor Car Company against Max Roberts, with answer and cross-bill by defendant. Judgment for plaintiff, less an allowance to defendant, and for foreclosure of a mortgage lien upon an automobile, and defendant appeals.

<p>1. Elections &wkey;>255 — Contests — Preservation of Ballots.</p> <p>Under Rev. St. 1911, art. 3027, as to preservation of ballots, and article 3028, as to tbeir destruction in the event of no contest within one year after the election, where a contest is brought, although no notice is served on the clerk to preserve ballots and the ballots are destroyed by a janitor, after bringing of the contest and more than a year after the election, they are not legally destroyed.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 231; Dec. Dig. &wkey;>255.]</p> <p>2. Elections <&wkey;255 — Contests — Preservation oe Ballots — -Necessity of Notice oe Contest.</p> <p>Under such statutes, the contestants may presume that the clerk will preserve the ballots and need not take stops for preservation of the ballots.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. § 231; Dec. Dig. &wkey;i255.]</p> <p>3. Evidence &wkey;>178(2) — Election Contests— Admissibility of Secondary Evidence.</p> <p>Where ballots arc illegally destroyed, the contestants may question illegal voters as to the way they voted, under the rule that if it is impossible to produce a written document its contents may be proved by parol testimony, and Rev. St. 1911, art. 3056,' providing that in election contests the rules governing trial of other civil cases shall apply.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 582, 588; Dec. Dig. &wkey;178(2).]</p> <p>4. Evidence <&wkey;178(2) — Best Evidence — Parol Testimony.</p> <p>That admission of parol evidence gives opportunity for perjury which might be avoided if the documents testified to were introduced affords no ground for departing from the rule that if the document is destroyed parol evidence is admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 582, 588; Dec. Dig. <3&wkey;178(2).j</p> <p>5. Elections &wkey;>294 — Contests — Conclusiveness of Returns.</p> <p>Where ballots are illegally destroyed the returns of the election officials tabulated and declared by the commissioners’ court do not become an official adjudication as to the true result of the election so as to render parol evidence inadmissible where a contest is based on alleged illegal votes, which, if excluded, would chang'e the result.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 288-296; Dec. Dig. &wkey;>294.]</p>

<p>Appeal and Error <&wkey; 765 — Time por Filing Appellant’s Brief — Statutory Requirements.</p> <p>Under Rev. St. 1911, art. 2115, requiring an appellant to file a copy of his brief in the district court not less than 5 days before the time of filing the transcript in the court of Civil Appeals, which shall be by the clerk deposited with the papers in the case and notice given by the clerk to the appellee who shall file his brief within 20 days, and rule 39 of the Court of Civil Appeals (142 S. W. xiii), providing that failure of an appellant to file briefs in the time and manner prescribed by the law and rules shall be ground for dismissing the appeal for want of prosecution, where appellant presented a folded paper, not indorsed, to the clerk of the county court for the file mark on January 27th, but took it away and did not return it to the clerk’s office until March 25th, notice being given appellee on March 26th, the case being set for hearing April 5th, there was not a sufficient compliance with the statute, and a motion to dismiss the appeal will be sustained.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3100; Dec. Dig. &wkey;765.]</p>

<p>Appeal from District Court, Williamson County; C. A. Wilcox, Judge.</p> <p>Suit by Judy Bailey and others against W. B. Bailey and wife. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Insurance i&wkey;40O — Like Policy — Incontestability — Fraud.</p> <p>Under Rev. ,St. 1911, art. 4741, requiring every policy to contain a clause providing that the policy shall be incontestable after 2 years from its date, except for nonpayment of premiums, a life policy, providing “this policy shall be incontestable after it has been in force one year, providing the premiums have been duly paid,” was not contestable 4 years after it was issued, on the ground that it was obtained by fraudulent representations of the insured as to his health and use of alcoholic drinks.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1086; Dec. Dig. &wkey;400.]</p> <p>2. Insurance <&wkey;655(2) — Life Insurance-Fraud as a Defense — Beneficiary Participating.</p> <p>Where it was not permissible, because of the incontestable clause in a policy of life insurance, to show that the insured committed fraud in obtaining the policy, it was not permissible to show that the beneficiary participated in such fraud.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1677, 1680, 1681, 1685; Dee. Dig. &wkey;055(2).]</p> <p>3. Insurance <&wkey;675 — Dife Insurance — Nonpayment of Loss — Penalty—Demand.</p> <p>In an action on a life policy, where demand for the payment of loss was not made 30 days before the filing of the original petition, but an amended petition, alleging such demand was filed more than 30 days after demand, plaintiff was entitled to recover the 12 per cent, statutory penalty and attorney’s fees.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1805, 1806; Dec. Dig. <&wkey;>675.]</p> <p>4. Courts <&wkey;92 — Opinions—Previous Decisions as Controlling — “Dicta.”</p> <p>Whatever part of the language of an opinion is not necessary to the decision of a case is “dicta.”</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 335; Dec. Dig. <&wkey;92.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Dictum.]</p>

<p>1. Chattel Mortgages <@=»170(1) — ‘“Conversion” — Liability.</p> <p>In view of Rev. St. 1911, art. 5660, providing that a chattel mortgagor shall not remove the property from the county or otherwise sell or dispose of it without the consent of the mortgagee, and that if he does, the mortgagee shall 'he entitled to possession and sale for the payment of his debt, any person is guilty of wrongful “conversion’' of property who aids the mortgagor in so disposing of the proceeds thereof as to defeat the mortgagee’s interest therein, and is not exempt from such liability because he is a factor or commission merchant (citing Words and Phrases, First and Second Series, Conversion).</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 305; Dee. Dig. &wkey;170(l).]</p> <p>2. Chattel Mortgages &wkey;3ll7, 235 — Conver-sión — Interest of Third Party.</p> <p>Where defendant gave a mortgage for the first three bales of cotton to be raised upon a farm "during a certain year to secure an indebtedness, and also gave a mortgage on the next three bales to be raised thereon during that year, and thereafter gave a mortgage on cotton to be raised on the farm in that year, and only three bales were raised that year and the first mortgagee's claim had been satisfied, neither the first nor second mortgagee had any interest in the two bales of cotton sold by the mortgagor to defendant, a factor and commission merchant, who remitted the proceeds to the mortgagor.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 202, 496-499, 507; Dec. Dig. &wkey;>117, 235.)</p> <p>3. Chattel Mortgages &wkey;>176(l), 177(1) — Conversion — Pleading and Issues.</p> <p>In such case, where the mortgagor and the commission merchant to whom the cotton had been shipped, defending as against a third mortgagee, were not claiming under such prior mortgages, they could not insist that the cotton was subject thereto.</p> <p>[Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 336, 338, 349-350, 477; Dee. Dig. &wkey;17C(l), 177(1).]</p>

<p>Appeal from Coleman Countyt Court; W. Marcus Weatherred, Judge.</p> <p>Action by the Frederick Disinfectant Company against Coleman County. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Homestead <&wkey;70, 150(1) — Establishment —Right of Stjeviving Wife.</p> <p>A husband and wife at the husband’s death owned, as community property, four tracts of land. At his death and for several years preceding they had resided upon the first tract of 100 acres, and had previously worked parts of the second tract of 59 acres, and had worked and rented the second and third tracts and had purchased the fourth tract to procure the firewood therefrom, the second and third tracts being about two miles from the first tract, and no two of them being contiguous. The widow and children continued to reside upon the first tract, and to work and rent the second and third tracts, and entered into a partition agreement whereby the widow was to receive the first and second tracts and the children the other two, and had executed a partition deed and entered into possession of their respective tracts and continued to rent parts of them, and the widow had claimed the two tracts as her homestead. Held, that all of the four tracts were sufficiently impressed with a homestead character to permit her to designate, in addition to the 100-acre tract on which she resided, an additional 100 acres out of any of the tracts, and the partition had the effect of such designation.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 100-103, 294-301; Dec. Dig. i&wkey;> 70, 150(1).]</p> <p>2. Homestead <&wkey;146 — Residence—Designation of Additional Tbact.</p> <p>In' such case, and even if the second tract was not part of the homestead at the husband’s death or at the partition, but the other three tracts were impressed with a homestead character, the widow had the right to retain her residence upon the first, or 100-acre tract, and to exchange her interest in the two tracts from which she was authorized to select the 100 acres necessary to make the balance of her homestead, for another tract equally susceptible of being used for homestead purposes, which exemption would attach to the tract so received by her in such exchange or partition and continue while she used it consistent with homestead purposes.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. § 257; Dec. Dig. <J&wkey;146.]</p>

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Suit by Adams & Washam against the Southern Traction Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Courts <&wkey;99(l) — Previous Decisions in Same Case as Law oe the Case.</p> <p>The decision of the Supreme Court on questions certified from the Court of Civil Appeals is the law of the case on its return.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 340; Dec. Dig. <&wkey;>99(l).]</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Action by R. B. Hudson against the International & Great Northern Railroad Company and another. Judgment for plaintiff, and defendants appeal.</p>

Appeal and Error from McLennan County Court; Geo. N. Denton, Judge. Action by G. Herndon, doing business under the name of the Herndon Produce Company, against the St. Louis Southwestern Railway Company and others. Judgment for plaintiff against all defendants, and for the St. Louis Southwestern Railway Company against the other defendants, and the St. Louis Southwestern Railway Company appeals, and the other defendants bring error. The proceedings were consolidated.

<p>Appeal from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Suit by the White Rock Gravel & Sand Company against the International & Great Northern Railway Company. Judgment for defendant on demurrer to the petition, and plaintiff appeals.</p>

<p>1. Insurance <&wkey;668(l) — Cancellation—Authority of Agent — Question for Jury.</p> <p>In an action on a fire policy, where defend-, ant claimed that the original policy had been canceled and a smaller policy substituted, held, on the evidence, that the authority of the insured’s attorney to accept a notice of cancellation and substitution, was for the jury.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1751, 1757; Dee. Dig. &wkey;668(l).]</p> <p>2. Insurance &wkey;>229(l) — Fire Insurance — Cancellation of Policy — Necessity of Notice to Mortgagee.</p> <p>Under a policy of fire insurance on a warehouse, making loss payable to a mortgagee as her interest might appear subject to the terms of the policy, and providing that it might be canceled by the insurer by giving five days’ notice of such cancellation, a cancellation by the insurer was not binding upon the mortgagee, to whom no notice of cancellation was given.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. § 501; Dec. Dig. &wkey;229(l).]</p>

W. Timmins, Judge. Suit by Tom Green County against the Midland Engineering & Construction Company and others. Defendant San Angelo National Bank disclaimed, and from the judgment rendered, defendants West Texas Lumber Company and Copeland & Co. appeal.

<p>Appeal from District Court, Burnet County; N. T. Stubbs, Judge.</p> <p>Suit by C. H. Alexander against John N. Simpson and others. From an order appointing a receiver on motion of plaintiff, defendants appeal.</p>

<p>Original application for mandamus by J. M. Dobie and others against J. C. Scott, District Judge.</p>

<p>Error from District Court, Bell County; John D. Robinson, Judge.</p> <p>Suit by H. 0. Denny & Co. against W. J. Lee. From a judgment for defendant, plaintiffs bring error.</p>

<p>Appeal from 'District Court, Milam County; J. C. Scott, Judge.</p> <p>On motions for rehearing by defendants and by plaintiffs.</p>

Suit by R. E. McKee and others against Seth B. Orndorff and others. From an interlocutory order granting a temporary injunction for plaintiffs, defendants appeal.

<p>Appeal from District Court, Potter County; Hugh B. Umpires, Judge.</p> <p>Action by A. J. Davis against Miner Crawford and the Amarillo Securities Investment Company. Judgment for plaintiff, and defendant Crawford appeals.</p>

<p>1. Bills and Notes <&wkey;518(l) — Action — Evidence — Sufficiency.</p> <p>In an action by the indorsee against the maker and indorser of a note showing on its face that as collateral security therefor the maker had delivered to the payee shares of capital stock of a trust company, evidence held to show that the note was given in payment for capital stock purchased of an agent of the trust company, though payable to an investment company which was promoting the sale of the trust company’s stock.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1816, 1817, 1819, 1820; Dec. Dig. <&^518(1).]'</p> <p>2. Banks and Banking <&wkey;314 — Investment Companies — Agency oe Agent — Effect.</p> <p>The agent of an investment company, which was itself an agent engaged in promoting the sale of the capital stock of a trust company, was the agent of the trust company as well as of the investment company.</p> <p>[Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 1218; Dec. Dig. <&wkey;> 314.]</p>

<p>1. Master and Servant <&wkey;286(3) — Injuries to Servant — Questions eor Jury.</p> <p>Evidence held to warrant submission to jury of question whether employer’s foreman ordered servant to work in furnace while it was hot, and dangerous owing to extreme heat.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1010; Dec. Dig. <&wkey;>286 (3).]</p> <p>2. Master and Servant <@^286(3, 24) — Injuries to Servant — Questions for Jury.</p> <p>It is for the jury whether a furnace was in safe condition in which to work, plaintiff having been injured while working therein, and also whether it was the foreman’s duty to inspect the furnace and determine whether it was safe.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1010, 1029; Dec. Dig. &wkey;2S6(3,24).]</p> <p>3. Master and Servant &wkey;>235(4) — Injuries to Servant — Safe Place to Work.</p> <p>The servant has a right to presume that a furnace in which he was put to work is a reasonably safe place to work.</p> <p>[Ed. Note. — For other cases, see Master' and Servant, Cent. Dig. § 713; Dec. Dig. &wkey;>235(4).]</p> <p>4. Master and Servant &wkey;j265(5) — Res Iesa Loquitur — Safe Place to Work.</p> <p>While the mere fact of injury at work is not of itself proof of negligence, yet, where the particular thing causing the injury has been shown to be under the management of the defendant, or its servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. §§ 898, 955; Dec. Dig. <&wkey;> 265(5).]</p> <p>5. Master and Sekvant <&wkey;285(5) — Injuries to Servant — Questions for Jury.</p> <p>Evidence held to warrant submission to jury of question whether impaired condition of .servant’s health resulted from extreme heat of furnace in which he worked.</p> <p>[E'd. Note. — For other cases, see Master and Servant, Cent. Dig. § 1016; Dee. Dig. &wkey;»285</p> <p>6. Master and Servant <&wkey;-276(3) — Injuries to Servant — Burden of Proof.</p> <p>The rule does not require an injured servant to prove with reasonable certainty that his condition resulted from the heat of a furnace in which he alleged he worked with resultant injury.</p> <p>[Ed. Note. — For other pases,, see Master and Servant, Cent. Dig. §§ 95Í, 959; Dee. Dig. 270(3).]</p> <p>7. Master and Servant <&wkey;289(15) — Injuries to Servant — Questions for .Tury.</p> <p>Evidence held to warrant submission to jury of question of servant’s contributory negligence in working in heated furnace.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § HOG; Doc. Dig. <S&wkey;289 (15).]</p> <p>8. Negligence <@^97 — Injuries to Servant —Comparative Negligence.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246k, as to comparative negligence and its effect on the servant’s recovery, a servant may recover for injuries, though he is himself negligent.</p> <p>[Ed Note. — For other cases, see Negligence, Cent. Dig. §§ 93, 162; Dec. Dig. <&wkey;>97.]</p> <p>9. Master and Servant <&wkey;264(4) — Injuries to Servant — Variance.</p> <p>If servant alleges injuries due to defective furnace, in that it was extremely hot, and contained fumes and gases, proof of heat, or of fumes, or of gases, is sufficient, and the verdict for the servant need not be set aside for failure to prove all.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 865; Dec. Dig. <&wkey;>264 (4).]</p> <p>10. Master and Servant <&wkey;278(3) — Injuries to Servant — Evidence.</p> <p>Evidence held not to warrant saying that verdict finding that a furnace in which a servant worked was dangerous was without proof.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 958; Dec. Dig. &wkey;?278 (3).]</p> <p>11. Damages <&wkey;185(l) — Injuries to Servant — Evidence—Weight.</p> <p>That a servant who claimed injuries went back to work the next day would merely be an evidentiary fact going to extent of injuries.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 503, 504, 508; Dec. Dig. <&wkey; 185(1).]</p> <p>12. Damages @=^185(1) — Injuries to Servant-Evidence.</p> <p>Evidence held not to warrant saying that verdict as to extent of servant’s injuries was unsupported by proof.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 503, 504, 508; Dec. Dig. &wkey;s 185(1).]</p> <p>13. Damages &wkey;>132(l) — Injuries to Servant-Excessive Damages-</p> <p>Verdict of $8,000 to servant, who had been a strong man in good health, earning $4.25 per day, at 52 years of age, who by his injuries lost his health, suffered pain after 15 months, and ' became incapable of earning money, was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 372; Dec. Dig. <&wkey;132(l).]</p>

<p>Appeal from Jefferson County Court; D. P. Wheat, Judge.</p> <p>Action by C. L. Freeman against the Port Arthur Rice & Irrigation Company, garnishee. From a judgment for the garnishee, plaintiff appeals.</p>

<p>1. Insurance <&wkey;S25(l) — Mutual Benefit Insurance — Reinstatemen'N-Question for Jury.</p> <p>Evidence held to warrant submission to jury of issue whether member of fraternal benefit association signed regular form for reinstatement and delivered it to the local lodge so as to make binding his reinstatement and render the association liable upon his death. ■</p> <p>[Ed. Note. — Por other cases, see Insurance,. Cent. Dig. § 2009; Dec. Dig. &wkey;825(l).]</p> <p>2. Insurance <@=5759 — Mutual Benefit Insurance-Right of Members.</p> <p>The right of reinstatement after expulsion is just as much a right, in a contractual sense, as the right to pay dues to the officers of a local lodge, with the expectation of a remittance to a grand lodge to keep alive existing privileges, and an expelled member, who abides with the Jaw of the order and signs a proper application for’readmission, is entitled to reinstatement.</p> <p>[Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1920, 1921; Dec. Dig. &wkey;759.]</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Suit by the Kingman Texas Implement Company against Santos Reyes and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Limitation or Actions <&wkey;127(4) — Commencement or Action — Amendment—Contract Action.</p> <p>Where a petition alleged that defendant railway agreed to install a crossing on plaintiff’s farm three miles east of M. on B. creek, containing- 171 acres out of school section 2, an amended petition, correctly changing the latter part of the description to 160 acres out of</p> <p>1. R. R. Co. Survey No. 1, continues the original cause of action so far' as the statute of limitations is concerned.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 544; Dec. Dig. &wkey;>127(4); Pleading, Cent. Dig. § 688.]</p> <p>On Motion for Rehearing.</p> <p>2. Railroads <&wkey;17 — Right or Wat — Authority of Agent.</p> <p>An open crossing over a railroad right of way is so intimately connected therewith that an agent, to obtain the same, should be presumed to have authority to agree to leave such open crossing as a part of the consideration for such right of way.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 36-38; Dec. Dig. &wkey;>17.]</p>

<p>Appeal from Lampasas County Court; J. Tom Higgins, Judge.</p>

<p>1. Public Hands <§=>173(17) — School Lands —'“Right to Pubchase” — “Suit by Claimant of Right to Pubchase.”</p> <p>A title interposed to divest from an adversary is not a claim, or right to purchase free public school land, nor a suit by one claiming the right to purchase land, within Rev. St. 1911, art. 5458, requiring such claimants to sue within one year of the award and article 5459, making failure to sue within such time conclusive that all requirements of the law as to such sales have been complied with.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. &wkey;173(17).</p> <p>For other definitions, see Words and Phrases, Second Series, Right to Purchase.]</p> <p>2. Public Lands <&wkey;173(17) — School Lands — Sale — Rights of Puechasebs — Assignees.</p> <p>In view of Acts 29th Leg. c. 47, § 10, providing that purchasers of school lands may also sell their lands or a part thereof in quantities of 40 acres or multiples thereof, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5435a, as to sales of such lands, article 5435b, providing that when the judgment of any court is filed wherein the title to any such land is decreed out of the owner, such judgment shall be duly certified, article 5435d, providing that no account shall be opened and np patent issued except in such quantities as are now provided by law m excess of personal transfer, and Rev. St. 1911, art. 5436, permitting purchasers to sell their land in quantities of 40 acres or multiples thereof, the ten-year statute of limitation is not applicable in favor of an adverse occupant of school land, and cannot be invoked against a purchaser from the state before patent, where the amount of land is not a multiple of 40 acres and the adverse claimant claims under transfer by a judgment against the purchaser.</p> <p>[Ed. Note. — For other cases, see Public Lands, Dec. Dig. <§=>173(17).]</p>

F. Perriette, Judge. Action by S. B. Hayter against the Nacog-doches Compress Company. From a judgment of the county court affirming judgment of the justice court for plaintiff, defendant appeals.

<p>1.Alteration of Instruments <&wkey;6 — Note— Material Alteration — Stipulation.</p> <p>Where a note stipulated that the drawers, indorsers, sureties, etc., waived presentment for payment, protest, and notice of protest, notice of nonpayment, and agreed that the time of payment might be extended without notice to them, or without their consent, and without affecting their liability, and the bank which held the note, innocently and pursuant to an agreement with a signatory thereto, canceled the due date and inserted a later date, the alteration destroyed the note as an obligation, despite the stipulation, which meant that those secondarily liable waived the matters mentioned, and that, if the note was extended as to the principal, the liability of the secondary parties would not be affected.</p> <p>[Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. §§ 30-33; Dec. Dig. <S&wkey;6.]</p> <p>2. Alteration of Instruments <&wkey;23 — Note —Recovery on Original Consideration.</p> <p>While a material, though innocent, alterasion of a note, destroys it as_an obligation, and as a premise for recovery, under appropriate conditions recovery may be had on the original consideration.</p> <p>[Ed. Note. — For other cases, see Alteration of Instruments, Cent. Dig. «§ 192-207; Dec. Dig. <®=^23.]</p> <p>3. Bills and Notes <&wkey;540 — Action—Pleading — Judgment on Renewed Note.</p> <p>In a bank’s action on a note, where the original petition, after setting out in usual form the execution and delivery of the note, and after alleging delivery of collateral as security, averred that to secure a note for another amount, which was renewed by the execution of the note in suit, a defendant made to a trustee his deed of trust to secure the payment of the other note, the lien existing for its amount and interest being incorporated in the -note in suit, the matter describing the other note was incorporated in the petition merely as matter of description and inducement, and the trial court properly refused to render judgment on the other note.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1918-1934; Dec. Dig. i&wkey;> 540.]</p> <p>4. Bills and Notes &wkey;>540 — Action—Pleading — Judgment on Renewed Notes.</p> <p>In a bank’s action on a note, where the first paragraph of the supplemental petition simply reiterated that two original notes were merged into that in suit, declaring that all the notes contained a stipulation as to an agreement for an extension of time, the second paragraph averred that the bank was the owner and holder of all the notes, and had acquired them for valuable consideration, etc., there being no liability on the note in suit, the court properly refused to render judgment on the original notes; the supplemental petition evidencing no intention of recovery or desire for judgment on them.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1918-1934; Dec. Dig. t&wkey;> 540.]</p> <p>5. Bills and Notes <&wkey;540 — Action—Pleading — Declaration for Judgment.</p> <p>In a bank’s suit on a note given to renew two others, where plaintiff averred in the second paragraph of its supplemental petition that it was the owner and holder of all the notes, without any notice of an agreement between defendants, the defense having been pleaded, by a defendant, of an agreement with his codefendant, there was no declaration of liability upon the original notes for judgment.</p> <p>- [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1918-1934; Dec. Dig. &wkey;> 540.]</p>

<p>1. Damages <&wkey;20S(4) — Action fob Injury— Issues — Loss of Earnings.</p> <p>In a servant’s action for personal injury, where there was evidence that he was earning $14 per week when injured, and that for some time thereafter he was unable to perform any work, there was no error in submitting an issue as to the reasonable value of the time lost on account of his injury.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 533, 534; Dec. Dig. &wkey;208(4).]</p> <p>2. Trial <&wkey;351(5) — Special Issues — Mattes Covebed by General Charge.</p> <p>In a servant’s action for injury, there was no error in refusing to submit defendant’s special issue as to whether the risk of slipping in oil or grease on the engine room floor was a risk ordinarily incident to plaintiff’s employment as a stationary engine fireman, where the issue was sufficiently submitted by the special issue of the general charge as to whether the risk of plaintiff’s foot slipping at the time and place of the injury was a risk assumed by him.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 834; Dec. Dig. &wkey;>351(5).]</p> <p>3. Trial <&wkey;232(2) — Special Instruction— General Verdict.</p> <p>In a servant’s action for injury, submitted on special issues, a special charge calling for a general verdict was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 524; Dec. Dig. <&wkey;232(2).]</p> <p>4. Master and Servant <&wkey;278(3) — Action for Injury — Sufficiency of Evidence — Negligence.</p> <p>In a suit for damages for personal injury to a stationary engine fireman who slipped in a puddle of oil and fell against the driving rod of an engine, evidence held to sustain a finding that defendant was negligent in allowing the puddle to be and remain upon the floor.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 958; Dec. Dig. <&wkey;> 278(3).]</p> <p>5. Master and Servant <&wkey;278(8) — Sufficiency of Evidence — Safe Place to Work — Lights.</p> <p>In such action preponderance of evidence held not against the finding that the building near the engine was not properly and sufficiently lighted.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 958; Dec. Dig. <&wkey;> 278(8).] ■</p> <p>6. Appeal and Error <&wkey;1003 — Review-Preponderance of Evidence.</p> <p>A mere preponderance of evidence against a finding will not, under the rules, authorize a reversal; but, where the statement of facts shows that the preponderance and weight of the evidence are such as to indicate that the jury have not been governed thereby in arriving at a verdict, appellate courts have the authority to reverse for new trial.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. <S&wkey; 1003.]</p>

<p>'.<■ Error from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Suit by H. S. Pearson against the Prudential Life Insurance Company of Texas. Decree for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Montgomery County; L. B. Hightower, Judge.</p> <p>Suit by C. L. Detro against the Gulf, Colorado & Santa F‘é Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by Allen Paul against J. J. Sweeney and others. From a judgment of dismissal, plaintiff appeals.</p>

<p>1. Master and Servant &wkey;>180(l) — Federal Employers’ Liability Act — Fellow Servant.</p> <p>Under federal Employers’ Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), the rule of fellow servant does not preclude recovery.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 359, 368; Dec. Dig. <&wkey; 180(1).]</p> <p>2. Master and Servant <&wkey;265(2) — Federal Employers’ Liability Act — Negligence— Proof.</p> <p>Under the federal Employers’ Liability Act, negligence on the part of the carrier, its officers or agents, must be shown by the injured employs.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 878, 895, 896; Dec. Dig. &wkey;265(2).]</p> <p>3. Master and Servant <&wkey;124(3) — Injury to Servant — Duty oe Inspecting Tools.</p> <p>A simple tool, like a hammer or nails, does not impose upon the master the duty of inspection.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 235; Dec. Dig. <§= 124(3).]</p> <p>4. Master and Servant &wkey;>101, 102(8) — Injuries to Servant — Duty to Furnish Saits Tools.</p> <p>It is the rule in Texas,’ and also in the Supreme Court of the United States, that a master must use ordinary care to furnish his servant safe tools and instrumentalities with which to do his-work.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 139; Dec. Dig. <&wkey;101, 102(8).]</p> <p>5. Master and Servant <&wkey;286(4) — Injuries to Servant — Negligence — Question oe Fact.</p> <p>In an action under the federal Employers’ Liability Act by a railroad’s employé for personal injuries, the question whether there was negligence on the part of the road, its officers or agents, in furnishing the hammer and nails which plaintiff’s fellow servant was using, and which caused his injury, was of fact, to be determined from the facts found by the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1011; Dec. Dig. <&wkey;> 286(4).]</p> <p>6. Master and Servant &wkey;>204(l) — Federal Employers’ Liability Act — Assumption oe Risk.</p> <p>Under the federal Employers’ Liability Act, § 4 (U. S. Comp. St. 1913, § 8660), in an action against a railroad by its employé for injuries received in interstate commerce, the doctrine of assumed risk applies, and has the same effect as at common law; i. e., the employé does not assume the negligence of the master unless he knew of it, or must necessarily have known of it.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 544; Dec. Dig. <&wkey;>204(l).]</p> <p>7. Master and Servant <®=o288(4) — Injuries to Servant — Assumption oe Risk.</p> <p>A locomotive fireman, engaged, under the direction of a foreman, in the temporary work of blocking the wheels of an automobile being put into a box car for shipment, did not, as a matter of law, assume the risk and danger incident to the employment from a sliver of steel splitting off from a nail which his fellow servant was hammering and entering his eye, since, before an employé will be held to have assumed the risk arising out of the negligent conduct of his fellow servant, it must be shown that such conduct was known to the employé, or so customary that he should be charged therewith, and that he appreciated, or was bound to appreciate, the danger.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. §§ 1072, 1078; Dec. Dig. &wkey;2S8(4).]</p> <p>8. Trial &wkey;>260(l) — Instruction — Repetition.</p> <p>The refusal of a requested charge, where the charge of the court substantially covered the issue sought to be presented, was not erroneous.</p> <p>[E'd. Note. — For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. &wkey;260(l).]</p> <p>9. Compromise and Settlement <&wkey;20(l) — Execution.</p> <p>Where an injured railroad employé signed an agreement releasing the company from all liabilities in consideration of $1 and its engaging to employ him for one day, and the company’s agreement to furnish one day’s work rested at the cmployé’s option, he, by doing the work furnished him, accepted the proposition and rendered the contract of release executed.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. §§ 83-87; Dec. Dig. <&wkey;20(l).]</p> <p>10. Release <&wkey;20 — Federal Employers’ Liability Act — Release oe Liability.</p> <p>Federal Employers’ Liability Act, § 5 (U. S. Comp. St. 1913, § 8661), rendering any contract void the purpose or intent of which is to exempt the carrier from liability created by the act, has no application to the case of a release of liability, given a railroad by its injured employé after the accident in consideration of being furnished further employment for one day.</p> <p>. [Ed. Note. — For other cases, see Release, Cent. Dig. §§ 34-36; Dec. Dig. <&wkey;20.]</p> <p>11. Release <&wkey;13 (5) — Mistake or Fraud — Eeeect.</p> <p>Where a railroad’s injured employé signed a contract, releasing the road from liability in consideration of its furnishing him one day’s employment, such employé not being induced thereto by mistake or fraud, he was bound by such release.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 26; Dec. Dig. &wkey;13(5).]</p> <p>On Motion for Rehearing.</p> <p>12. Contracts <&wkey;88 — Consideration — Presumption.</p> <p>By direct provision of Rev. St. art. 7093, a written contract imports consideration in the same manner and as fully as sealed instruments.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 403-405, 407; Dec. Dig. <®=>8S.]</p> <p>13. Contracts &wkey;>88 — Written Contract — Consideration — Presumption.</p> <p>Where a written contract does not show upon its face a want of consideration, it is admissible in evidence without proof aliunde of a consideration.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 403-405, 407; Dec. Dig. &wkey;88.]</p> <p>14. Release &wkey;>55 — Want oe Consideration —Burden oe Prooe.</p> <p>In an action for personal injuries against a railroad by its employé, the burden was on plaintiff, who asserted that his written release of liability, in consideration of further employment, was without consideration, to prove the fact.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig4§§ 94-100; Dec. Dig. <&wkey;55.]</p> <p>15. Release &wkey;58(2) — Lack of Consideration — Question foe Jury.</p> <p>In an action for injuries by a railroad’s em-ployé, whether plaintiff’s written release of liability, executed in consideration of further employment, was without consideration was a jury question on the facts proven, and not for the trial court or Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 110; Dec. Dig. &wkey;>58(2).]</p> <p>16. Release &wkey;>13(l) — Want of Consideration-Failure of Party.</p> <p>An injured railroad employé, who gave the road a release of liability in consideration “of an order on the treasurer of said company for the sum of one dollar,” and failed to present such order for payment, could not attack the release for lack of consideration, since a party cannot base an action for breach of contract on his own fault or neglect.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 21, 22, 27; Dec. Dig. &wkey;13(l).]</p> <p>17. Release <&wkey;58(2) — Injuries to Servant-Question for Jury.</p> <p>In an action for injuries by a railroad’s employé, whether plaintiff worked at least one day after he signed a release of all liabilities, in consideration of the road’s promise to employ him further for that period, held, for the jury under the evidence.</p> <p>[E'd. Note. — For other cases, see Release, Cent. Dig. § 110; Dec. Dig. <@=358(2).]</p> <p>18. Release &wkey;>13(6) — Execution.</p> <p>Where an injured employé executed a release of all liabilities to the railroad company in consideration of its promise to employ him further for one day and an order on the treasurer of the company for $1, the release was executed, though such employé did not work for the day or receive his dollar, since by executing the release he did what he was obligated to do, leaving only an outstanding liability on the side of the company.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 29; Dee. Dig. <5&wkey;13(6).]</p>

<p>Error from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by Joe B. Wills Company against the Grand Prairie Gravel Company and others. Judgment for plaintiff, and defendants bring error.</p>

D. Harvey, Judge. Injunction by Charles P. Jones against the City of Houston and others. From an interlocutory order denying temporary injunction, the complainant appeals.

<p>Appeal from District Court, Potter County ; Hugh D. Umphres, Judge.</p> <p>Suit by R. L. MeMeans against the Pecos & Northern Texas Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Deaf Smith County; D. B. Hill, Judge.</p> <p>Action by Winfred Vardeman against the First State Bank & Trust Company of Hereford. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Bills and Notes <@=>370 — Holder in Due Course.</p> <p>Where P. told C., who desired a loan, that he would negotiate his note, which was done, to a third party, who gave P. her, check, payable to C.’s order, receiving C.’s note, the check being' later cashed with .C.’s name indorsed on it, but. not by him or by his direction,' P. having failed to turn the check over, P. was C.’s agent for the negotiation of the note, and the purchaser was an innocent purchaser for value before maturity, title passing to her free from any defenses by reason of P.’s failure to deliver to O. the money for which the note was negotiated.</p> <p>[Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. § 963; Dee. Dig. @=3370.]</p> <p>2. Bills and Notes @=3493(3) — Lack oe Consideration — Burden oe Proof.</p> <p>In suit on a note by one who held possession, his ownership not being questioned, the burden was on defendant maker to prove that the holder did not pay a valuable consideration for it, if he sought to defeat such holder’s right to recover on the theory that the latter was not a purchaser for value.</p> <p>[Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1652-1654,1656-1660,1662; Dec. Dig. @=3493(3).]</p> <p>3. Bills and Notes @=3520 — Eraud in Inception — Proof.</p> <p>In an action on a note, where it was shown that the instrument was executed and delivered in good faith to a broker for negotiation, being negotiated and sold for face value and the purchase money paid by the purchaser, the only fraud proved being that of the broker in failing to pay the purchase money over to the maker, fraud in the inception of the note was not proved.</p> <p>[Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832, 1836, 1837; Dec. Dig. @=3520.]</p>

<p>Appeal from District Court, Swisher County; R. C. Joiner, Judge.</p> <p>Action by Ada Smith and E. D. Smith against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Motion for rehearing.</p>

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Action by Elizabeth Swank against the Galveston Electric Company. Judgment for plaintiff, and defendant appeals.</p>

Walter Coche, Special Judge. Trespass to try title by the Central Texas Improvement Company and W. B. Carring-ton against R. B. Carpenter and others, in which S. L. Hume filed a plea of intervention, setting up the ordinary allegations in trespass to try title. Dismissed as to plaintiffs Central Texas Improvement Company and W. B. Carrington, and judgment for defendants, and the intervener Hume appeals.

McLennan County; J. Walter Cocke, Special Judge. Trespass to try title by the Central Texas Improvement Company and W. B. Car-rington against Marvin Moore and others, in which S. L. Hume filed a plea of intervention in trespass to try title against defendants. Plaintiffs at their own instance dismissed from the case without prejudice,' judgment for defendants, and intervener appeals.

Walter Cocke, Special Judge. Trespass to try title by the Central Texas Improvement Company and W. B. Carrington against W. R. Denton and A. R. Roberts, with cross-action by defendant Roberts against his codefendant, and intervention by S. L. Hume, setting up the ordinary allegations in trespass to try title. Cause, dismissed as to plaintiff, judgment for defendants, and the intervener appeals.

Walter Cocke, Special Judge. Trespass to try title by the Central Texas Improvement Company and W. B. Carrington against R. T. Flewellen, in which S. L. Hume intervened, pleading in the ordinary form of trespass to try title. Plaintiffs dismissed on their own motion without prejudice, and judgment for defendant, and intervener appeals.

<p>1. Carriers <&wkey;218(5) — Live Stock — Action eok Injury — Limitation—Failure to head Contract.</p> <p>A shipper of 'live stock, who had made a shipment over the defendant’s line about once a week for a number of years, and who knew that the carrier was relying- upon the terms of a written contract which ho would be required to sign, and who had never shipped without signing such contract, though he had never read the contract as he might have done, his failure to read it and learn of a 6 months’ limitation of action for damages to stock, was such negligence that he could not be heard to dispute the contents of the contract.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696; Dec. Dig. &wkey;218(5).]</p> <p>2. Carriers <&wkey;218(5) — Live Stock — Action-Limitation — Validity.</p> <p>Where a shipper is furnished cars for a shipment of live stock, without requiring him to sign any written contract, and a contract is presented to him for signature after the stock is in the car and about to start, and where he or the person signing it does not know its contents, and has no time to read it, and signs to secure passes to attend the stock, such contract would not be a contract of the shipper, and the limitation restricting liability of the initial carrier to damages on its own line is not binding.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696; Dec. Dig. &wkey;218(5).]</p> <p>3. Carriers <&wkey;218(l) — Live Stock — Action for Injury — Limitation.</p> <p>A contract for the shipment of live stock containing a provision that a suit for damages thereto should be instituted within 6 months after the damage, and that a failure to do so would be conclusive evidence against the validity of any claim, was valid as to an interstate shipment under the law existing at the time of the shipment in February, 1913.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 933-935, 939; Dec. Dig. &wkey;218(l).]</p> <p>On Motion for Rehearing.</p> <p>4. Carriers <&wkey;228(5) — Live Stock — Delay-Action for Damages — Evidence — Contract.</p> <p>In an action against carriers for damages to a shipment of live stock by reason of the delay in transportation as the result of which the stock did not get time to rest and fill, which it otherwise would have had, evidence held, to show merely the shipper’s request for cars as required by Interstate Commerce Act (Act Cong. Feb. 4, 18S7, c. 104, 24 Stat. 379) § 1, as amended by Act Cong. June 29, 1906, c. 3591, § 1, 34 Stat. 584 (U. S. Comp. St. 1913, J 8563, subd. 2), and a promise by the agent to get them if he could and not to show the elements of a contract.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. § 960; Dec. Dig. &wkey;>228(5).]</p> <p>5. Carriers <&wkey;218(l) — Interstate Commerce —Furnishing Cars.</p> <p>Where cars were furnished on request for an interstate shipment of live stock, as required by the Interstate Commerce Act, the conditions in the contract as to the carriers’ liability are controlling.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674r-696, 933-935, 939; Dec. Dig. &wkey;218(l).]</p>

<p>1. Fraud <&wkey;>37 — Actions—Venue—Exception.</p> <p>Within exception 7, “Cases of Fraud,” to Vernon’s Sayles’ Ann. Civ. St. 1914, art. Í830, providing that no one shall be sued out of the county in which he has his domicile, defendant insurance company was not chargeable with any fraud of T., its agent only for soliciting insurance, in making his individual contract with plaintiff to procure a loan for him, though defendant’s president knew, when plaintiff’s application for insurance was made and premium thereon paid, that plaintiff’s reason for obtaining the insurance was to enable him to secure a loan which T. was negotiating for him with other parties; such knowledge not making defendant liable for any fraudulent act or statement of T. in the matter of securing the loan, of which it had no knowledge and which it did not ratify.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. | 33; Dee. Dig. &wkey;37.]</p> <p>2. Fraud <&wkey;37 — Actions—Venue—Exception — Telephone Conversation .</p> <p>Defendant was not chargeable with fraud committed in B. county, within exception 7, to the provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, that no one shall be sued out of the county of his domicile, by reason of any promise of defendant’s president, talking over a phone from E. county to plaintiff in H. county, that defendant would do what T. had in B. county promised defendant would do.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 33; Dec. Dig. <&wkey;37.)</p> <p>3. Corporations <&wkey;503(2) — Venue—Cause oi? Action Arising prom Insurance Contract.</p> <p>Any cause of action growing out of a contract of insurance, plaintiff’s application for which was signed in B. county and sent to defendant in E. county, where it accepted it, did not arise in B. county, within exception 24, to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, placing venue in the county, of defendant’s domicile, that action against a private corporation may be brought in the county in which the cause of action or any part thereof arose; the application not constituting a contract till accepted, and the contract therefore being made in E. county.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 1936; Dec. Dig. &wkey;503(2).]</p> <p>4. Corporations &wkey;>503(2) — Venue—Cause op Action — Verbal Promise op Insurance Agent.</p> <p>Plaintiff’s application for insurance in defendant corporatiop, providing that it and the policy issued thereon shall constitute the entire contract, and that defendant shall not be bound by any statement unless incorporated in the application, no verbal agreement of the. soliciting agent with plaintiff as to return of the premium under certain conditions, is enforceable against defendant, so as to be basis for the twenty-fourth exception to Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, as to venue, that action against a private corporation may be brought in the county where the cause of action or any part of it arose.</p> <p>[Ed. Nole.- — For other cases, see Corporations, Cent. Dig. § 1936; Dec. Dig. <S&wkey;503(2).]</p>

Error from District Court, Moore County; D. B.. Hill, Judge. Trespass to try title by Solomon E. Hively and wife against C. F. Rudolph. Judgment for plaintiffs, and defendant brings error.

<p>1. Sequestration <&wkey;>15 — Judgment in Alternative — 'Waiver.</p> <p>Where an automobile held under a claimant’s bond given in sequestration proceedings was sold pending suit, and the execution issued on the judgment was returned nulla bona, the fact that plaintiff therein took judgment in the alternative for the value of the property and sought to collect the sane did not operate as a waiver of claim to the property taken under the bond, which had passed into the hands of a third' person by purchase, and the sale under such conditions does not pass title to such purchaser.</p> <p>[Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 25-32; Dec. Dig. <&wkey;>15.]</p> <p>2. Sequestration &wkey;>15 — Sale oe Property —Damages—Permitting Improvements.</p> <p>In a suit to recover title and possession of an automobile purchased by defendant from one holding it under a claimant’s bond, where it appeared that plaintiff saw the repairs which were made by defendant at a heavy expense and in good faith, believing the machine to belong to him, and the plaintiff knew defendant was laboring under such belief and allowed him to complete the repairs before asserting- his claim, a judgment for plaintiff for the automobile will be charged with the value of such beneficial repairs.</p> <p>[Ed. Note. — Eor other cases, see Sequestration, Cent. Dig. §§ 25-32; Dec. Dig. &wkey;15.]</p>

<p>Appeal from District Court, Potter County; Hugh L.vUmphres, Judge.</p> <p>Suit by W. G. Street and. another against the J. I. Case Threshing Machine Company. Prom a judgment for defendant, plaintiffs appeal.</p>

<p>1. Appeal and Ebrob <@=>544(2) — Absence of Statement of Facts.</p> <p>In the absence of a statement of facts, the Court of Civil Appeals cannot review the alleged error committed by the court in overruling the plaintiff’s motion for a peremptory instruction based on the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2424, 2428, 2478; Dec. Dig. <@=>544(2).]</p> <p>2. Fbaud <@=>34 — Misrepresentation — Pleading.</p> <p>The buyer of a gasoline engine, who, when sued on a note for a portion of the price, filed a cross-bill charging that by the fraudulent misrepresentations of plaintiff he was induced to part with a sum of money, for which he received nothing of value, seeking to recover it, no rescission or cancellation of the contract of sale being prayed for, could recover on his cross-bill, though it alleged that after he received the engine and discovered its defects he retained it, as his suit was to recover for fraud and not for a rescission.</p> <p>[Ed. Note. — For other cases, see Fraud, Cent. Dig. § 29; Dec. Dig. <@=>34.]</p> <p>3. Sales <@=>130(2) — Remedies of Buyer — Rescission.</p> <p>Where the buyer of a gasoline engine, sued on a note given for part of the price, filed a cross-bill seeking rescission and cancellation of the contract of sale, alleging that after he received the engine and discovered its defects he retained it, but not stating that he ever used it at all or that he never tendered' it back to plaintiff and demanded rescission, the admissions in the cross-bill were insufficient to defeat rescission.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 323; Dec. Dig. <@=>130(2).]</p> <p>4. Judgment <@=>251(1) — Conformity to Pleading.</p> <p>In suit on a note given for part of the price of an engine, where defendant, alleging fraud, pleaded total failure of consideration for the note, alleging the engine was worthless, he could nevertheless recover $750, the difference between the $1,000 paid-by him in cash and the $250 which the jury found the engine was worth, since a partial failure of consideration may be shown under plea of total failure on the theory that the greater includes the less.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. <@=>251(1).]</p> <p>5. Appeal and Erbob <@=>544(2) — Review — Refusal of Ci-iaeges.</p> <p>Where there is no statement of facts, the Court of Civil Appeals cannot say that the trial court erred in refusing to give special charges, requested by plaintiff, the propriety of which depended on the state of the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2424, 2428, 2478; Dec. Dig. <@=>544(2).]</p> <p>6. Teial <@=>136(1) — Submission of Issues.</p> <p>The trial court is never justified in submitting any issue to the jury unless it is raised by both the pleadings and proof.</p> <p>[Ed. Note. — For other eases, see Trial, Dec. Dig. <@=>136(1).] '</p> <p>7. Appeal and Ebbob <@=>928(3) — Absence of Statement of Facts — Submission of Issue.</p> <p>In the absence of a statement of facts, the Court of Civil Appeals must assume that the evidence raised the issues submitted to the jury by the trial court, and that no other issues, even if raised by the pleadings, were sustained by the proof.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3751; Dec. Dig. <@=928(3).]</p>

<p>1. Pleading <$=>247 — Amendment — Subsequent Accruing Installments.</p> <p>The lessor, not having elected to cancel lease, as permitted thereby for nonpayment of rent, but to continue it in full force, may, in an action for installment of rents, payable monthly, recover installments accruing thereafter and before the trial, making claim therefor by amendment.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 684, 685; Dec. Dig. <$=5247.]</p> <p>2. Frauds, Statute of <g=>129(3) — Oral Contract — Part Performance.</p> <p>Moving out by the lessee cannot be considered part performance of an oral contract to rescind the lease, being subsequent to insistence of the lessor that the lease be complied with.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 289-291; Dec. Dig. <$=> 129(3).]</p> <p>3. Frauds, Statute of <$=>140 — Parol Evidence-Rescission of Written Contract.</p> <p>A lease being, as required by the statute of fraud, in writing, rescission thereof cannot be proved by parol.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 156, 342; Dec. Dig. <§=> 140.]</p> <p>4. Frauds, Statute of <$=>140 — Parol Evidence-Estoppel.</p> <p>The lessor is not estopped to object to evidence of oral rescission of lease in writing, as required by the statute of fraud, because of the lessee moving out, this being after the lessor insisted on performance of the lease.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 156, 342; Dec. Dig. <®=> .140.]</p>

W.' Dean, Judge. Suit by J. M. and V. P. Hawks against W. A. Berry and another, doing business under the firm name of Berry & Barrett, and J. T. Longbotham, sheriff of Madison county. From a judgment for defendants, plaintiffs appeal.

<p>1. Pleading <§=534(3) — General Demurrer.</p> <p>On general demurrer, every reasonable in-tendment arising from a pleading will be indulged in favor of its sufficiency.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 69; Dec. Dig. <¿=>34(3).]</p> <p>2. Telegraphs and Telephones <@=66(1) — « Persons Benefited by Sick Message — Interest — Presumptions.</p> <p>The addressee of a telegram is presumed to be the person for whose benefit the message is sent: and, where it relates to a sick person, the addressee is presumed to have a serious interest in the condition of such person.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 61; Dec. Dig. <§= 66(1).]</p> <p>3. Telegraphs and Telephones <@=37(9)— Delivery of Message — Delay—Notice of Relationship. 1</p> <p>A telegraph company was charged with notice of the relationship existing between the addressee and the parties named in a telegram, reading “Send Oscar at once to wait on his father. Lida sick.”</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 29, 32; Dec. Dig. <§=37 (9).]</p> <p>4. Telegraphs and Telephones <§=37(9)— Delivery' of Message — Delay—Notice of Contents.</p> <p>Such telegram was sufficient to put the telegraph company on notice that the father of the addressee and Oscar, brothers,_ was sick, or in such condition as to need waiting upon.</p> <p>[Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 29, 32; Dec. Dig. <§=37(9).]</p> <p>5. Telegraphs and Telephones <@=>60 — Delay in Delivery — Right of Addressee.</p> <p>Where a telegraph company negligently delayed delivery of a message, asking the addressee to send his brother to wait on their father, who was sick, and needed attention, the company was liable to the addressee, he having a cause of action, not only because he himself was deprived of opportunity to go to his father, but also because he was deprived of opportunity to send his brother.</p> <p>[Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. §§ 49, 50; Dec. Dig. <&wkey;>60.]</p>

Masterson, Judge. Suit by Paul Litzmann against the Brooks-Gordon Construction Company, a partnership composed of Charles W. Brooks and Phil M. Gordon, George H. Hermann, and the City of Houston, wherein, upon Hermann’s death, T. J. Ewing, Jr., and others, his executors, were made parties defendant, they bringing a cross-action against the Construction Company, and the members of the firm, and against R. E. Brooks and Mrs. Estelle B. Sharp, as sureties upon the Company’s…

G. Street, Judge. Action by Ullmann, Stern & Krause, Incorporated, against Lizzie G. Taylor, executrix of M. D. Taylor, deceased, and others. Judgment against the defendant Mrs. L. G. Taylor, executrix, and she appeals.

<p>Appeal from Washington County Court; W. R. Ewing, Judge.</p> <p>Action by the Michelin Tire Company against El L. Hearn. Judgment for the defendant, and plaintiff appeals.</p>

<p>Courts &wkey;>97(l) — Stare Decisis.</p> <p>The decision of the United States Supreme Court in another case of the same controlling facts will be followed.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 329; Dec. Dig. &wkey;97(l).]</p>

<p>1. Appeal and Error <&wkey;843(l) — Review-Matters for Determination.</p> <p>An appellate court will not decide questions unnecessary to the affirmance, reversal, or rendition of the judgment attacked on appeal.</p> <p>[Ed. Note. — Eor other eases, see Appeal and Error, Cent. Dig. §§ 3331-3335, 3337-3341; I)ec. Dig. &wkey;3843(l).]</p> <p>2. Municipal Corporations <&wkey;184(l) — Ordinances — Charters—Police.</p> <p>Where the charter of a city authorized the commissioners of police and fire departments to appoint all members of the two departments, an ordinance authorizing the mayor to appoint special police who should hold office during his term unless otherwise determined by him is invalid as being in violation of the powers of the commissioners of police and fire departments.</p> <p>[Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 488-490; Dec. Dig. &wkey;184(l).]</p> <p>3.Municipal Corporations <&wkey;184(l) — Police — “Special Policemen.”</p> <p>Though the charter of a city authorized the mayor to appoint special policemen, an ordinance authorizing the mayor to appoint special policemen to hold office during his term unless otherwise determined by him and to be under his absolute control is invalid, the term “special policeman” not embracing such an armed guard, but being intended to designate one who is not a member of a permanent and organized police force, but merely engages to do temporary police duty in a particular place on a special occasion (citing Words and Phrases, Special Policeman).</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 488-490; Dec. Dig. &wkey;184(l).]</p>

<p>1. Appeal and Ekkor <S=>1171(2) — Review— Teivial Amounts.</p> <p>An error of 30 cents in a judgment is too trivial an amount to warrant the appellate court in considering it.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4547, 4548; Dec. Dig. <§=» 1171(2).]</p> <p>2. Costs <@=231r — On Appeal — Modification op Judgment.</p> <p>Where through errors in computation a judgment for plaintiff was too large, and all of the excess except 30 cents was cured by remittitur, costs of an appeal by defendant will be taxed against Mm, though the appellate court reduced the judgment.</p> <p>[Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 892-899; Dec. Dig. @=234.]</p>

<p>Appeal from Wharton County Court; W. G. Davis, Judge.</p> <p>Action by Samuel Vandegrift against George A. Boerger. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal and Error <@=o274(1) — Exceptions, Bill oe <@=>20 — Statement op Facts.</p> <p>A statement of fact approved by the trial court, of presentation of objections and of exceptions, relative to requested instructions, all before submission of the general charge, is sufficient to constitute proper exceptions, as well as a bill of exceptions.</p> <p>[Eel. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1631, 1633, 1634, 1641; Dec. Dig. <@=274(1); Exceptions, Bill of, Cent Dig. §§ 21-28; Dec. Dig. <@=¿>20.]</p>

<p>Appeal from Anderson County Court; E. V. Swift, Judge.</p> <p>Action by W. A. Ives against Jas. A. Baker and another, receivers. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Continuance, <@=>26(3) — Right to —Absent Witnesses.</p> <p>A continuance on account of the absence of a witness will be denied when no process bad been issued for the witness, no effort was made to secure bis testimonyj and defendant who was applying for the continuance • declined an offer of the privilege of using the testimony of the witness taken on a former trial.</p> <p>[Ed. Note. — For other cases, see Continuance, Cent. Dig. § 74; Dec. Dig. <@=>26(3).]</p> <p>2. Trial <@=^260(1) — Insteuctions—Refusal.</p> <p>The refusal of a requested special charge is proper where all portions of the charge which were correct were covered by the genex-al charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 651; 'Dec. Dig. <@=>260(1).]</p> <p>3. Master and Servant ¡@=3235(8) — Injuries to Servant — Duty oe Inspection.</p> <p>A railroad fireman, injured by the giving way of an apron connecting the tender and the engine, was under no duty of inspection, though he had been told to fix the apron.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 714; Dec. Dig. <@=> 235(8).]</p> <p>4. Trial <@=>129 — Argument oe Counsel — Argument in Response to Other Argument.</p> <p>In an action for injuries received by a railroad fireman when an apron connecting the tender and engine gave way, defendant’s counsel expressed regret that the apron was not in court so that an ocular demonstration could be made of its tilting characteristics, whereupon plaintiff’s counsel stated that if defendant had really desired the jury to see the apron it would have been brought in as it was on former trial, and that the fact that it was not brought in justified an inference it would tip if stepped on as it did before. Held that, as such argument was provoked by argument of defendant’s counsel, and it did not appear that it affected the jury, it is no ground for objection, though based on facts not in evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 310; Dec. Dig. <@=>129.]</p> <p>5. Trial <@=>129 — Argument of Counsel — Argument to Meet Other Improper Argument.</p> <p>Argument outside of the record, made to meet argument by defendant’s counsel outside of the record, cannot be complained of by defendant on appeal.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 310; Dec. Dig. <§=>129.]</p> <p>6. Appeal and Error <@=>1005(1) — Review— ' Misconduct of Jury.</p> <p>A determination by the trial court that the verdict was not agreed upon because of suggestion that plaintiff’s counsel would share in the recovery based on conflicting evidence, cannot be reviewed on appeal, for the finding of the trial court in the matter is final, unless a clear .abuse of discretion appears.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948; Dec. Dig. <@=>1005(1).]</p> <p>7. Damages <s=>132(1) — Personal Injuries— Measure.</p> <p>An award of $15,000 damages in favor of a railroad fireman who was so seriously and permanently injured that he would never again be able to perform physical labor is not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 372; Dec. Dig. <@=>132(1).]</p>

<p>1. Release @=>17(2) — Eeeect — Injuries to Sebv ant — Avoidance.</p> <p>Where the injured servant, on being told by-physicians in the master’s employ that his broken bones had set, and that his limb would be as good in a couple of months as ever, signed a release on payment of a certain sum, and the injury was in fact unhealed, and probably would never heal, he could avoid the release and sue for his injuries; the physicians’ statement being a positive one as of an existing fact and not a mere opinion.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. @=>17(2).]</p> <p>2. Release @=>17(2) — Injuries to Servant— Eeeect — Avoid anoe .</p> <p>The rule that a false representation by the employer’s surgeon as to physical condition of the servant will not justify avoidance of a release where the surgeon has no connection with the settlement, and the claim agent was ignorant of the representation, has no application if the claim agent procured the representation.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec. Dig. @=>17(2).]</p> <p>3. Release @=>58(6) — Avoidance—Question eor Jury.</p> <p>Where the pleadings raised the issue of validity of a release for injuries given by the employ® on representations of the employer’s surgeon that he would soon be as well as ever, such issue was for the jury.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 114; Dec. Dig. @=>58(6).]</p>

<p>1. Boundaries <§=>3(6) —Determination—• Surveys.</p> <p>In determining the boundaries of conflicting surveys, the footsteps of the surveyor are the determining factor, and where they are found and identified as called for in the field notes, they must control.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig./ §§ 24-29; Dec. Dig. <§=>3(6).]</p> <p>2. Boundaries <§=3(6) — Description—Conflicting Elements.</p> <p>Where the line traced by a surveyor can be fixed by reference to meander calls of a river •which has since changed its course, the contention that the call of a subsequent survey must be determined by the present course of the river, cannot be sustained.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 24-29; Dec. Dig. <§=>3(6).]</p> <p>3. Boundaries <§=>10 — Description—Inaccuracy in Survey.</p> <p>That the meander calls of a survey do not balance, in that they do not close by a distance of 114 varas is not important in determining the sufficiency of the survey to fix the location of a boundary.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 90, 91; Dec. Dig. <§=>10.]</p> <p>4. Boundaries <§=>11 — Description—Reference to Former Survey.</p> <p>Where the field notes of a survey do not give the meanders of a river on the east line, hut the west line of an older survey on the east side of the river give such meanders, the meanders given in the older survey control the later survey.</p> <p>[Ed. Note. — For other eases, see Boundaries, Cent. Dig. §§ 92-94; Dec. Dig. <§=>!!.]</p> <p>5.Boundaries <§=>37(3) — Evidence—Sufficiency.</p> <p>. -mviuence lieia to show that none of the original witness or bearing trees called for in field notes of a survey can be located on the ground.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 186-191; Dec. Dig. <§==>37(3).}</p> <p>6. Boundaries <§=>37(3)< — Evidence—Sufficiency.</p> <p>Evidence held to show that the lines of a survey were never run on the ground by the surveyor.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 186-191; Dec. Dig. <§=»37(3).]</p> <p>7.Boundaries <§=>35(2) — Evidence—Admissibility — General Reputation.</p> <p>Testimony that witness knew a corner of a survey, that he had never heard it mentioned but once, that people did not talk land matters then as the land was not worth anything, and which does not indicate when the reputation was with reference to the time of placing the existing lines on the ground, is inadmissible.</p> <p>[Ed. Note. — For other eases, see Boundaries, Cent. Dig. §§ 154, 155; Dec. Dig. <§=>35(2).J</p> <p>8. Boundaries <@=>35(2) — Evidence—Admissibility — General Reputation.</p> <p>Evidence of common reputation of the location of a boundary must be general, concurrent, and certain as to the subject-matter, and must be reputation, and not individual assertion.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 154, 155; Dec. Dig. <§=>35(2).J.</p> <p>9. Boundaries <§=>36(5) — Evidence—Admissibility — General Reputation.</p> <p>To establish general reputation as to the location of lines and corners of a survey, surveys made 20 and 42 years later, which called for bearing trees not mentioned in the field notes of the original survey, are inadmissible.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 171-176; Dec. Dig. <§=>36(5).]</p> <p>10. Boundaries <§=>36(5) — Evidence—Admissibility.</p> <p>In an action involving the boundaries of a survey, junior surveys were admissible to show their general location on the ground.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 171-176; Dec. Dig. <§=>36(5).]</p> <p>11. Trial <§=234(1) — Instructions—Limiting Purpose of Evidence.</p> <p>Where junior surveys were admissible to show their general location on the ground, but not to establish by reputation the location of lines and the corners of a senior survey, instructions that the junior surveys were to be-considered by the jury for all purposes except they should not consider the bald declaration as to the location of the line, wére sufficient to limit the legitimate purpose of the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 534, 566; Dee. Dig. <§=>234(1).]</p> <p>12. Boundaries <§=10 — Description—Reference to Former Survey.</p> <p>Field notes of the survey on the west side of the river describing a survey as being in front of a league previously surveyed on the east side of the river mean that the lines of'the older survey if extended across the river would trace the upper and lower lines of the new survey.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§-90, 91; Dee. Dig. <§=>10.]</p> <p>On Rehearing.</p> <p>13. Appeal and Error <§=>176 — Presenting Question in Trial Court — Issues and Proofs.</p> <p>Where it was agreed in the trial court that the plaintiffs were the owners of a junior survey and that the defendants were the owners of senior surveys and that plaintiffs were entitled to recover to the extent that the surveys were not in conflict the defendants cannot assert on appeal that the junior survey was absolutely void for the reason that the deputy county surveyor who located them was acting for himself.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 1066; Dec. Dig. <&wkey;>176.]</p>

. Appeal from Bexar County Court for Civil Cases. John H. Clark, Judge. Action by Louis D. Bristow against E. J. J. Lans, administrator of the estate of C. B. Anderson, deceased. From a judgment for plaintiff, defendant appeals.

<p>Appeal and Error cg=>407(l) — Perfecting Writ of Error — Citation—Statutes.</p> <p>Under Rev. St. art. 2099, providing that the jurisdiction of ithe appellate court attaches upon the filing of the petition and bond for writ of error, and article 2095, providing for service on the attorney of record, the service of citation on a writ of error upon the attorney of parties not found in the county was sufficient, and, in the absence of any statutory provision for service, and where the defendant dies after the petition and bond are filed and before service, and there is no necessity for administration, alias citation served on the guardian of his infant heirs in another county is sufficient.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2120, 2128, 2129, 2131, 2132; Dec. Dig. &wkey;407(l).]</p>

E. Ashe, Judge. Suit by W. D. Bradshaw and others against J. B. Marmion, as Mayor of the City of Houston .Heights, and others. Prom an order dissolving the temporary injunction theretofore issued, the plaintiffs appeal.

<p>Appeal from Leon County Court; C. D. Craig, Judge.</p> <p>Action by H. M. Black against J. B. Hol-loman for accounting. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.</p> <p>Andrew Davis was convicted of burglary, and appeals.</p>

<p>Criminal Law <@=1090(16) — Appeal—Record —Sufficiency.</p> <p>Questions presented in motion for new trial held not reviewable, in the absence of a statement of facts or bill of exceptions.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2822, 2948, 3204; Dec. Dig. <@=>1090(16).]</p>

<p>Criminal Law <@=>1090(1) — Appeal and Error-Absence op Statement op Evidence and Bill op Exceptions.</p> <p>Where no statement of the evidence heard on trial accompanies the record on appeal from a conviction and it contains no bill of exceptions, the judgment must be affirmed.</p> <p>[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2794; Dec. Dig. <§=>1090(1).]</p>

' Appeal from District Court, Childress County; J. A. Nabers, Judge. Action by G. W. Hulsey and others against J. H. Doolen and others. Judgment against part of the defendants, with decree of foreclosure of a lien on land against Rennell and the Childress Loan & Investment Company, and they, with others, appeal. On motion to dismiss appeal.

<p>Appeal from Harris County Court; Clark C. Wren, Judge.</p> <p>Suit by tbe Schmidt & Madigan Grocery Company against David Attaway. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Burleson County ; Ed. R. Sinks, Judge.</p> <p>Action by Jesse Garrett against J. F. Macik and others. Judgment for plaintiff, and defendant Mikeska appeals.</p>

<p>Appeal from Deaf Smith. County Court, Jas. A. Hughes, Judge.</p> <p>Action By E. H. Norton and others against the Panhandle & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Harris County ; Wm. Masterson, Judge.</p> <p>Action by Ingham S. Roberts against T. J. Atwood and wife. From a judgment, both parties appeal.</p>

<p>1. Execution &wkey;>172(6)—Temforary Injunction—Affidavits—Positive ness;</p> <p>Upon petition for temporary injunction restraining the sale under execution of lands, affidavits annexed to the petition, stating that the land was exchanged by petitioner for his homestead, were sufficient to authorize the injunction, although one of them stated such facts not positively but as true to the best of affiant’s knowledge and belief.</p> <p>[Ed. Note.—For other cases, see Execution, Cent. Dig. §§ 536, 587; Dec. Dig. &wkey;172(6).]</p> <p>2. Injunction <&wkey;122—1Temporary Injunction—Affidavits—Positiveness.</p> <p>The verification of a petition for a writ of injunction should state positively that the grounds alleged therein are true.</p> <p>[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. <&wkey;>122.]</p> <p>3. Homestead <s&wkey;209—Proceeds of Homestead—Land Exchanged — Levy Within Six Months.</p> <p>Where levy of execution upon land exchanged for homestead of the judgment debtor is made within six months after the exchange, sale thereunder will be restrained by injunction, although the six months has expired; the levy made within such time being wholly ineffectual.</p> <p>[Ed. Note.—For other cases, see Homestead, Cent. Dig. §§ 389, 390; Dec. Dig. &wkey;209.]</p>

<p>Appeal from Freestone County Court; G. W. Fryer, Judge.</p> <p>Action by W. J. Keeling against T. B. Poindexter and others. From judgment for defendants, plaintiff appeals.</p>

<p>1. Brokers <@=360 — Realty Broker — Right to Commission — ‘ ‘Deal.”</p> <p>Where a contract for the exchange of lands provided that the exchange be completed by execution and delivery of warranty deeds on or before noon, January 1, 1916, and that when the deal was closed the first party would owe the agent $250 commission, and no deeds were ever executed or delivered, the agent could not claim his commission, unless his principals had by their own wrong prevented' consummation of the contract; a “deal” being an arrangement to attain a desired result by a combination of interested parties.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 91; Dec. Dig. <§=>60.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Deal.]</p> <p>2. Time <@=39(10) — Computation.</p> <p>Where a contract for the exchange of lands bound each party to deliver an abstract to the other within 10 days from December 18th, the 10 days did not expire as a matter of law until December 29th.</p> <p>[Ed. Note. — For other cases, see Time, Cent. Dig. §§ 30, 31; Dec. Dig. <@=39(10).]</p> <p>3. Vendor and Purchaser <@=378 — Time as Essence of Contract.</p> <p>Generally, time is not of the essence of a contract for the sale of realty.</p> <p>[E'd. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 121-125; Dec. Dig. <@=378.]</p> <p>.4. Sales <@=354 — Time as Essence oe Contract.</p> <p>Time is usually of the essence of a contract for the sale of goods and other personalty, because its price is generally fluctuating, and the property itself subject to deterioration.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 152; Dec. Dig. <@=354.]</p> <p>5.Exchange of Property <@=>4 — Time as Essence of Contract.</p> <p>Where parties contracted to exchange realty for other realty and a stock of merchandise, the contract limiting, by specific provisions, the time in which abstracts were to be furnished, declaring that the exchange should be completed before noon on a fixed date, time was of the essence of the contract.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 4; Dec. Dig. <@=>4.]</p> <p>6. Exchange of Property <@=36 — Waiver of Default.</p> <p>Where a party, who had contracted to exchange realty, believing the time had expired in which the other party could require him to accept an abstract under the contract, nevertheless accepted it, submitting it to his attorney for examination, he waived the time limit for furnishing the abstract.</p> <p>[Ed. Note. — For other eases, see Exchange of Property, Cent. Dig. § 11; Dee. Dig. <@=36.]</p> <p>7. Exchange of Property <@=36 — Waiver of Stipulation.</p> <p>The act of a party, who had contracted to exchange realty, in accepting an abstract of title believing that the time had expired in which the other party could require him to accept, though a waiver of the time limit for furnishing the abstract, was not a waiver of the requirement that the abstract should show clear and merchantable title.</p> <p>[E'd. Note. — For other cases, see Exchange of Property, Cent. Dig. § 11; Dec. Dig. <@=>6.]</p> <p>8. Vendor and Purchaser <@=>140 — Showing of Clear and Merchantable Title.</p> <p>An abstract of title showing that the land has been conveyed to a husband and wife, and that subsequently the former, when a widower, conveyed, does not show clear and merchantable title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. <@=3140. ]</p> <p>9. Vendor and Purchaser <@=>140 — Clear and Merchantable Title.</p> <p>An abstract of title not brought down to date does not show a clear and merchantable title.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 262-264; Dec. Dig. <@=> 140.]</p> <p>10. Exchange of Property <@=36 — Absolute Refusal to Perform — Effect.</p> <p>Where a contract for the exchange of realty provided that it should be completed by the delivery of warranty deeds on or before noon, January 1, 1916, and a party’s attorney declared the title insufficient December 30th, such party immediately refusing to continue the negotiations or close the deal, the other party was relieved of any further effort to perform.</p> <p>[Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. § 11; Dec. Dig. <@=>6.]</p> <p>11. Brokers <@=363(2) — Realty Broker — Right to Commission.</p> <p>An agent, who negotiated a contract for the exchange of realty providing that his commission should be payable when the deal was closed, the contract providing for its consummation by exchange'of warranty deeds January 1, 1916, and who could show that the party whom he procured was ready, willing, and able to close the deal at any time before the date fixed, or could show that but for the action of his principal in refusing to consummate the deal the other party could and would have complied with the contract before such time, could recover his commission.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 79, 81, 94-96; Dec. Dig. <@=363(2).]</p>

<p>Appeal from District Court, Dallas County;' E. B. Muse, Judge. i</p> <p>Action by the Burton Lumber Corporation against Mrs. Susie Hughes and others. Prom judgment for plaintiff, defendants appeal.</p>

<p>1. Justices op the Peace <&wkey;90 — Pleading— INFORMALITY.</p> <p>In justice court cases, great informality of pleading is permissible.</p> <p>[Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 306; Dec. Dig. &wkey;?90.]</p> <p>2. Bills and Notes <&wkey;475 — Pleading—Non Est Factum.</p> <p>In suit on a note, a plea of non est factum is inapplicable where defendants admit signing the instrument, and there is no evidence of any alteration after execution.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1514-1518, 1556; Dec. Dig. <®tm475.]</p> <p>3. Bills ahd Notes <&wkey;489(3) — Issues and Pitoox — Parol Evidence.</p> <p>In suit on a note, where, in addition to defendants’ plea of non est factum, the answer stated facts sufficient to show that defendants had been overreached and defrauded into signing the note, for a larger sum than agreed, and that for all above the sum of $125, and interest, the note was wanting in consideration, parol evidence in support of such allegations was admissible.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1590-1595; Dec. Dig. <&wkey;> 489(3).]</p> <p>4. Witnesses <&wkey;414(l) — Corroboration — Passbook.</p> <p>In suit on a note for $150, defendants’ claim that one of them had borrowed only $125 from plaintiff bank, the passbook given by the bank to defendant borrower when the loan was made showing a deposit of that date of $125, and subsequent withdrawals aggregating a like amount, was admissible in corroboration of defendants’’ testimony.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1287; Dec. Dig. &wkey;414(l).]</p> <p>5. Bills and Notes <&wkey;520 — Fraud—Sufficiency of Evidence.</p> <p>In a bank’s suit on a note for $150, wherein defendants claimed that they had been overreached and defrauded, when one of them borrowed $125, into signing the note for an excessive amount, evidence held sufficient to support judgment for defendants.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832, 1836, 1837; Dec. Dig. &wkey;>520.]</p>

<p>Error from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by T. J. Nicholson and wife against the Northern Texas Traction Company. Judgment for plaintiffs, and defendant brings error.</p>

Masterson, Judge. Action by H. A. Paine against the St. Louis, Brownsville & Mexico Bailway Company and Frank Andrews, receiver, and others. Judgment for plaintiff against the St. Louis, Brownsville & Mexico Bailway Company, and the receiver and the .railroad appeal.

<p>Appeal from District Court, El Paso County; Dan M. Jackson, Judge. Habeas corpus by W. B. Sands. Prom judgment refusing bail, he appeals.</p>

<p>Appeal from District Court, Wichita County; W. N. Bonner, Judge. W. B. Butler was convicted of violating the local option law, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Will Rainey was convicted of burglary, and appeals.</p>

<p>Appeal from District Court, Atascosa County; F. G. Chambliss, Judge. Camilo Rosales was convicted of murder, and he appeals.</p>