Volume 189 — South Western Reporter

<p>Appeal from District Court, Potter County ; Hugh. L. Umphres, Judge.</p> <p>Action by June Smyth and others against the Atchison, Topeka & Santa,Fé Railway •Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Appeal and Error <§=1064(4) — Harmless Error — Instructions — Larceny — Definition.</p> <p>Error in omitting from definition of larceny the element that the property must have been taken from possession of the owner or a person holding it for him- is harmless, where the jury could not have found a taking without a taking from the owner’s possession.</p> <p>[Ed. Note, — For other cases, see Appeal and Error, Cent. Dig. § 4224; Dec. Dig. <§=1064(4); Trial, Cent Dig. § 525.]</p> <p>2. False Imprisonment <§=16(2) — Person Liable.</p> <p>Í” Where defendant merchant’s clerk pointed t plaintiff as the person who stole a locket trom the store to a policeman who directed the clerk to catch plaintiff, and plaintiff wás thereby caught and arrested without warrant, regardless of whether the arrest was lawful, the merchant was not liable ;^ihe arrest being the officer’s independent act. 1</p> <p>[Ed. Note. — For other cases, see False Imprisonment, Cent. "Dig. §§ 45-61; Dec. Dig. <§= 15(2).]</p>

<p>Appeal from. District Court, Burleson County; Ed. R. Sinks, Judge.</p> <p>Action by Charles A. Goodson against the Houston & Texas Central Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

W. Oxford, Judge. Suit by the State of Texas, for the use and benefit of the Lingleville Independent School District, against G. W. Clark. Judgment for plaintiff, and defendant appeals.

<p>Master and Servant <@=>302(6) — Tort oe Servant-Scope of Employment.</p> <p>Where a_ chauffeur disobeyed his master’s instructions in leaving circus show grounds, although the master had enjoined him not to leave the grounds while the master’s wife and children were attending tRe circus, , and . an accident occurred while the chauffeur was apparently returning' to the grounds, the chauffeur was not, at the time of the injury to plaintiff, acting within the scope of his employment, on the ground that when the accident occurred he was at least resuming the service of the master.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1220; Dec. Dig. <©=» 302(6).]</p>

<p>Appeal and Errob <®=»101(1) — Decisions Reviewable — Finality op Determination.</p> <p>A judgment for certain plaintiffs for specific amounts, declaring alleged liens void, and by agreement oi the parties appointing a receiver to take possession of defendant’s property, and keep it, subject to the order of the court, until sold under execution or by the receiver, was a final and appealable judgment determining all the rights of the parties; the payment of the proceeds into court and distribution of same in accordance with the judgment being a ministerial and not a judicial matter.</p> <p>[Ed. Nqte. — For other cases, see Appeal and Error, Cent. Dig. §§ 681-685; Dec. Dig. 101(1).]</p>

A. Childers, Judge. Action by Clint V. Turner against Ralph Hughes, W. D. Maples, and another. Judgment for plaintiff against all the defendants, and defendant Hughes appeals.

<p>1. Trespass to Try Title <©=>57 — Improvements — Statute—Equitable Principles.</p> <p>Although the right to recover for improvements in good faith is established by'Vernon’s Sayles’ Ann. Civ. St. 1914, art 7760, yet to avail himself of the right one must show himself ready and willing to do equity; the right being one founded in equity.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 88; Dec. Dig. <©=>57.]</p> <p>2. Trespass to Try Title <©=>4r--Effect op Vendor’s Lien — Limitation op Action on Notes.</p> <p>A purchaser in possession under' a land contract, on which he paid part cash and was to execute notes for the balance, which notes were never executed by him, could not, without tendering the balance, recover the land in trespass to try title, by pleading and proof that the notes would have been barred by. the four-year limitation if they had been executed; such action amounting to a repudiation of the contract under which he held.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 4; Dec. Dig. <©=>4.]</p> <p>3. Trespass to’ Try Title <©=>25 — Limitations.</p> <p>In trespass to try title, the pleading of stale demands is not available as a defense, where one equitable claim is asserted against another!</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 30, 31; Dec. Dig. <6= 26.] ¡ ■</p> <p>4. Trespass to Try Title <@=>47(1), 57 — Rem - . edy op Purchaser — Lien por. Purchase Money and Value op Improvements.</p> <p>A purchaser in possession of land under a land contract, on which he paid part cash and was to execute notes for the balance, which notes were never executed by him, who brought trespass to try title, alleging the notes, if executed, would- have 'been barfed by the four-year limitation, and not tendering the balance of the purchase price, thereby deprived himself of -the right to recover for the improvements, since such suit was an attempt to repudiate the contract under which he' went into possession; but •he was entitled to judgment vesting title in him upon payment of the balance of -the purchase money, with costs, by reason of his improvement of the land through' years of effort.</p> <p>• [Ed. Note. — For other cases, see .Trespass to Try Title, Gent. Dig. §§ 69, 88; Dec. Dig. <®=> 47(1), 67.] .</p> <p>On Motions for jEtehearing.</p> <p>6. Appeal and Error <©=>931(3) — Pbesump-TIONSr-FlNDINGS.</p> <p>Where no finding is made on a certain point, but’ the testimony thereto is uncontradicted, a finding in accordance -with the testimony will be imputed to the lower court.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. § 3764; Dec. Dig. <©=>931(3).]</p> <p>6.. Bills and Notes <©=>534 — Attorney’s Fees — Recovery in Collateral Suit.</p> <p>Where purchaser in possession sued for title to land, claiming the notes he would’-have executed therefor, if they had been presented, would have been barred, and defendant recovered, defendant'was not entitled to the stipulated attorney’s fees on the notes, since his recovery was not on the notes, but in equity .on his superior title to the land and after long delay in prosecuting his claim.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1946, 1947; Dec. Dig. <©» 534.]</p>

<p>Appeal from District Court, Tarrant County ; J. W. Swayne, Judge.</p> <p>Action by W. T. La Grone against the Chicago, Rock Island & Gulf Railway Company. From a judgment for defendant, plaintiff appeals.</p>

M. Terrell, Judge. Action by W. J. Mays against Mrs. V. F. Miller and others, in which W. E. Poulter intervened. From judgment for intervener and plaintiff, defendants appeal.

<p>1. Evidence &wkey;>155(l) — Admissibility—Materiality.</p> <p>The carrier, having introduced testimony that its train customarily stopped for several minutes at the stop at which plaintiff was injured, could not complain of admission of plaintiff’s rebuttal that it customarily stopped for so short a time as to require passengers to he on the platform ready to alight before actual stop.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 445, 446, 457, 458; Dec. Dig. &wkey; 155(1).]</p> <p>2. Appeal and Error <&wkey;1033(5) — Harmless Error.</p> <p>A carrier cannot complain of a charge favorable to it on the issue of the passenger’s negligence in alighting from a moving train.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4056; Dec. Dig. <®^> 1033(5).]</p> <p>3. Appeal and Error &wkey;>231(9) — Scope — Preservation op Exceptions.</p> <p>An objection that a charge was upon the weight of evidence was of no avail, where it was not pointed out in what respect it was on the weight of evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 6S8^692; Dec. Dig. &wkey;5 231(9); Pleading, .Cent. Dig. § 1439; Trial, Cent. Dig. §§ 194-210, 223-227, 689, 690, 694, 696.]</p> <p>4. Carriers <&wkey;347(ll) — Injuries to Passengers — Contributory Negligence —-Question por Jury.</p> <p>It cannot be said as a matter of law that it was negligence for the passenger to alight from a moving train, where his testimony was that he was caused to alight by its sudden and unanticipated jerk, while he was on the platform ready to alight at a stop customarily so short as to require passengers to be ready to alight before the stop was actually made.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1355, 1356, 1391-1393, 1402; Dec. Dig. &wkey;347(ll)J</p>

W. Nicholson, Judge. Suit by Dora Tabor, for herself and as next friend of Etta May and Myrtle Alice Tabor, infants, against W. M. Priddy, in which Charles Hill and M. H. Moore were, on defendant’s motion, impleayded. Decree for plaintiffs in part, with judgment over for Priddy against Hill and for Hill against Moore, and Moore and Hill appeal.

<p>Error from District Court, Potter County; Hugh B. Umphres, Judge.</p> <p>Action in the name of the First State Bank of Amarillo in liquidation, instigated by state officers, against E. O. Thompson and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Appeal and Eeeoe <&wkey;743(l) — Assignments op Eeeoe — Sufficiency—Rules op Court.</p> <p>Under rule 24 for Courts of Civil* Appeals (142 S. W. xii), requiring an assignment of error to specify the grounds of error relied on and set forth in a motion for new trial, rule 25 (142 S. W. xii), requiring an assignment of error to point out the part of the proceedings contained in the record in which the error is complained of so as to identify it, and to refer to the part of the motion for a. new trial in which the error was complained of, and rule 31 (142 S’. W. xiii), requiring that to each proposition there be subjoined a statement of such proceedings contained in the record as is necessary to support the proposition with a reference to the page of the record, an assignment of error in a charge, followed by a statement referring to the “fourth bill of exception, statement of facts, page 16,” was insufficient, and would not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2999; Dec. Dig. <&wkey;743(l).]</p> <p>On Motion for Rehearing.</p> <p>2. Appeal and Eeeoe <&wkey;759 — Assignments op Eeeoe — Suppiciency—Notice op Objection — Rule op Coubt — “Direct. ”</p> <p>No notice of the appellee’s objections to the sufficiency of the assignments of error as provided by rule 15a for Courts of Civil Appeals (142 S. W. xi), is required, where appellant fails to comply with ride 29 (142 S. W. xii) in preparing his brief, regardless of whether the court’s action is invoked by appellee in his brief, or whether the court of its own motion refuses to consider such assignments, and notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, as amended by Acts 33d Beg. c. 136, and Supreme Court rule 101 (159 S. W. xi), adopted in compliance therewith, providing that the appellant shall file assignments of error with the clerk before taking the transcript from the clerk’s office, and that where a motion for new trial is filed the assignments therein shall constitute the assignments of error, and that an assignment' shall be sufficient which directs the court’s attention to the error complained of, as the word “direct” means to cause to point or go straight to a thing.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dee. Dig. <&wkey;759.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Direct.]</p>

<p>Appeal from District Court, Tarrant County; J. W. Swayne, Judge.</p> <p>Suit by C. E. Gilmore against Paul Wa-ples and others for an injunction. From an order granting the writ, defendants appeal.</p>

<p>1. Railboads &wkey;>482(l) — Fires—Damage to Goods — Suw?iciency or Evidence.</p> <p>Evidence in an action for the loss of a seed-house, etc., by fire negligently communicated from boarding and lodging cars on defendant’s side track, held sufficient to sustain a verdict for the plaintiff.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1730; Dec. Dig. &wkey;482(l).]-</p> <p>2. Railroads <&wkey;480(2) — Fires—Negligence —Presumption.</p> <p>Where the foreman of a railroad was occupying a boarding car in which fire originated, the presumption was, in the absence of testimony tending to sustain a different conclusion, that it began through some act or failure to act on the part of the foreman, or other employés.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1710, 1733; Dec. Dig. &wkey;480(2).]</p> <p>3. Appeal and Error <&wkey;>1050(l) — Harmless Eeeoe — Evidence — Fibes — Actions pob Damages — Joinder oe Insurer.</p> <p>In an action against an underwriter’s receiver and a railroad for damages from fire negligently communicated from boarding cars on a side track, evidence that the property had been insured, and evidence as to property not insured, and which was destroyed, introduced while the insurer was a party, and which, after its dismissal, the railroad made no effort to have withdrawn, was not prejudicial to the railroad.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. <&wkey;1050(l).]</p> <p>4. Trial <&wkey;2 — Trying Cases Together.</p> <p>In such action, there was no error in hearing the two cases together.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 3-5; Dec. Dig. <&wkey;2.]</p> <p>5. Railroads <&wkey;457 — Fires—Negligence.</p> <p>Where fire started in boarding cars on a railroad siding which the employés were using in the promotion of the railroad’s business, it was gross negligence for the foreman representing the railroad to fail to make any effort to prevent its spread to plaintiff’s nearby seedhouse and gin-house, whether it was Sunday or not.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1661; Dec. Dig. &wkey;457.]</p> <p>6. Appeal and Error &wkey;>882(12) — Right to Allege Error — Invited Error.</p> <p>In an action for the destruction of property from fire communicated from boarding cars on defendant’s siding, where the court on defendant’s objection struck out a charge that the burden was on the plaintiff to establish the material issues submitted, any error in such action was invited error.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3602; Dec. Dig. <&wkey;>882(12).]</p> <p>7. Trial <&wkey;255(10) — Instructions — Re-Q17ES!F«</p> <p>In such action, the defendant, if it desired a charge on the burden of proof, should have requested it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 637; Dec. Dig. &wkey;255(10).]</p> <p>8. Trial <&wkey;194(15) — Instructions—Weight op Evidence.</p> <p>In an action for the destruction of property by fire communicated from boarding ears on defendant’s siding, defendant’s requested special charges, directly on the weight of the evidence, were properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 465; Dec. Dig. <&wkey;194(15).]</p> <p>9. Trial =&wkey;252(9) — Instructions—Immaterial Issues.</p> <p>In such action, special charges requested by defendant upon immaterial issues and upon matters not raised by the testimony were properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. &wkey;252(9).]</p> <p>10. Railroads &wkey;^457 — Fires—Duty to Prevent Spreading.</p> <p>Where a fire started in boarding cars on a railroad’s siding near plaintiff’s seedhouse, the duty to prevent its spread was on the railroad, and not upon the plaintiff.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1661; Dee. Dig. &wkey;>457.]</p> <p>11. Evidence <&wkey;472(4) — Opinion or Conclusion.</p> <p>In an action for the destruction of property by fire communicated from boarding cars on defendant’s siding, testimony of a witness as to whether everything was done to save the property was properly excluded, as invading the province of the jury.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2189; Dee. Dig. <@=»472(4).]</p> <p>12. Appeal and Error <&wkey;742(l) — Assignments op Error.</p> <p>An assignment of error which is not a proposition itself and is not followed by a proposition, and where the objection to the evidence is not shown by the brief, would not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742(l).]</p> <p>13. Appeal and Error <&wkey;727 — Assignments op Error — Abstract Error.</p> <p>In an action for the destruction of property from fire communicated from boarding cars on defendant’s siding, an assignment of error in the taking of the policy of insurance to the jury room, in the absence of any alleged injury therefrom, was a mere abstraction.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2998, 3010-3024; Dec. Dig. &wkey;727.]</p>

<p>1. Railroads <&wkey;226 — Station Accommodations—Statutes—Construction.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6592, as to station accommodations, requires that reasonably clean and sanitary comfort stations for men and women be maintained only where the railroad maintains a building commonly known as a depot.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 740; Dee. Dig. <&wkey;226.]</p> <p>2. Railroads &wkey;>226 — Station Accommodations—' ‘Depot.”</p> <p>Neither a store building of an individual authorized to sell tickets and handle freight, wherein seats are installed for waiting passengers, nor a box car on trucks from which tickets are sold, and in which passengers wait and freight is stored, is a depot, so as to require installation of comfort stations in accordance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6592.</p> <p>[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 740; Dec. Dig. <&wkey;>226.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Depot.]</p> <p>Buck, J., dissenting.</p>

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Louie Lieberman was convicted of unlawfully selling intoxicating liquors, and appeals.</p>

<p>Appeal from Tarrant County Court; Jesse M. Brown, Judge.</p> <p>Harry Suggs was convicted, and appeals.</p>

<p>Error from Dallas County Court; T. A. Work, Judge.</p> <p>Action by A. C. Gillespie against A. C. Adkins and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from Lee County Court; John H. Tate, Judge.</p> <p>Action by Swernemann & Schkade and others against the Robert McLane Company and the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiffs against the named defendant, it appeals.</p>

<p>1. Railkoads <&wkey;312(3), 313 — Crossing Accident-Failure to Give Signal.</p> <p>Where a person was thrown from a wagon because, when he approached a crossing, a train standing nearby was started and moved partly over the crossing without giving the statutory signal or ringing the bell, the railroad company was liable; the failure to give the signal under the circumstances being negligence per se.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 990, 1002; Dec. Dig. &wkey;312(3),</p> <p>2. Railroads <&wkey;313 — Signals—Substituted Warning.</p> <p>When some other character of warning is relied upon by a railroad as a substitute for the statutory signals, it must appear that the injured party had actual notice of the substituted warning.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1002; Dec. Dig. <§==5313.]</p> <p>3. Railroads <&wkey;350(29) — Crossing Accident — Contributory Negligence — Question eob Jury.</p> <p>Where one crossing a set of tracks was suddenly told by a brakeman that a train on another track was to be moved, and was injured by being thrown from his wagon when he attempted to get out of the way, the question of his contributory negligence was for the jury, although if he had remained in the situation he was when warned he would not have been injured, since a person who is injured while acting upon the reasonable appearance of danger and in an effort to extricate himself is protected by the same rules which apply when the danger is real.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1188; Dec. Dig. <&wkey;350(29).]</p> <p>4.Trial <&wkey;242 — Coneusing Instructions.</p> <p>In action for injuries from crossing accident, an instruction that if the jury believed from the evidence that plaintiff was injured as alleged by him in petition and “that the same was the proximate result of the negligence of defendant * * * as alleged * * * in his petition, in either of the manners set out in paragraph 2, 3, 4, or 5,” without contributory negligence by plaintiff, then to find for plaintiff, etc., was erroneous as confusing, and apt to mislead, since the language used virtually told the jury that if the facts stated in any one of the paragraphs were found by them to be true, this was sufficient proof of negligence by defendant, although the acts and omissions mentioned in detail in paragraphs 4 and 5 were not charged therein to be negligent.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 569-576; Dec. Dig. &wkey;242.]</p> <p>5. Negligence <&wkey;141(8) — Contributory Negligence — Instruction.</p> <p>In action for negligent injuries, an instruction that if the jury believed that plaintiff’s injury was the proximate result of his own negligence and not due to the negligence of the defendant to find for defendant, was error as requiring the jury, in order to find for defendant, to find not oniy plaintiff’s contributory negligence, but also absence of any negligence of defendant.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 391; Dec. Dig. <&wkey;>141(8).]</p> <p>6. Trial <&wkey;256(l) — Instructions.</p> <p>A party desiring a more explicit or comprehensive presentation of an issue by the court should request it by appropriate instructions.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628, 633; Dec. Dig. &wkey;256(l).]</p>

L. Hawkins, Judge. Action by J. W. Park against J. L. Wisen-hunt and others. Judgment for plaintiff. Motions1 of the named defendant and another for new trial overruled, and they appeal.

C. Buford, Judge. Action by H. H. Hanson against the Texas & Pacific Railway Company. From' a judgment for plaintiff, defendant appeals.; Appellee was a passenger on one of appellant’s trains from Longview to Dallas. Appellant’s station (referred to in the testimony as the “City Depot”) in Dallas, where appellee intended to leave the train, is 4,300 feet beyond the Union Station.

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Action by the State of Texas, on the relation of W. B. Walton, Tax Collector of Cameron County, against Daniel Yturria and others, to recover an inheritance tax. From a judgment that plaintiff take nothing by his suit, he appeals.</p>

M. Smith, Judge. Suit for injunction by J. M. Farmer against W. E. Witcher and others. From an order of the district judge refusing in vacation a temporary injunction, plaintiff appeals.

Prince, Judge. Action by J. W. Gáriington against W. T. Cotten and J. H. Harrison and another. Judgment for. plaintiff against all defendants, and for defendant W. T. Cotten on his counterclaim against plaintiff, and J. W. Gar-lington appeals from so much of the judgment as is adverse to him. In 1906 appellant sold and conveyed a tract of land in Henderson county to J. H‘.

L. Agnew, Special Judge. Suit by A. Crittenden against the Wells Fargo & Company Express. Judgment in county court, affirming judgment in justice’s court for plaintiff, and defendant appeals.

E. Bozeman, Judge. Action by A. J. Falkner and others against the Garden Valley Mercantile Company and others. From judgment for plaintiffs, the named defendant and others appeal.

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Suit by Will N. Harrison and others against the Eastern Texas Traction Company and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Harris County; Chas. E. Ashe, Judge.</p> <p>Action by Frank Wentzell and another against Ella W. Chester and.another. The 'named defendant died pending the suit, and the case proceeded against the other defendant, W. W. Chester. From judgment for surviving defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by W. W. Walton against the Corsi-cana Transit Company, the Corsicana Gas & Electric Company, and the Southern Traction Company. Judgment for plaintiff, and defendants appeal.</p> <p>This is an action by the appellee for damages for the alleged wrongful death of his child two years old. The street car struck and killed the child at the street crossing of Third avenue in the city of Corsicana on January 31, 1913. The petition alleged that the Corsicana Transit Company owned the line of street railway and the street car, that the Corsicana Transit 'Company was a corporation legally organized under the laws of Texas' and engaged in business in Corsicana in Navarro county, Tex., with its principal offices therein, and that the street car was being operated at the time of the accident by a motorman of the transit company. The petition further averred that the negligence was that of the Corsicana Transit Company, and also of the motorman in operating the car. But the petition has the further paragraph:</p> <p>“10. Plaintiff further alleges that he is unable to tell exactly who owns the Corsicana Transit Company and the car in question, and who is the real employer of said motorman, but he is informed and believes, and therefore alleges, that all of said defendants are owned, dominated, and controlled by the same person or persons, and that they operate as a copartnership, and that while nominally they are being operated in the guise of corporate entities, yet they are but the subsidiaries of each other, and the Corsicana Transit Company is the agent of the other defendants herein, and is owned by them as their instrument in transacting their business, and that they are jointly liable for the acts complained of and damages sued for herein.”</p> <p>The petition then prays for judgment against the defendants jointly and severally for the damages sued for.</p> <p>The Corsicana Gas & Electric Company pleaded in defense that -it did not own nor operate the street railway or the car, and was not liable for the injury. The Corsicana Transit Company appeared by answer and presented legal exception to the petition, a denial of any negligence, and a plea of contributory negligence on the part of the plaintiff. The answer was signed by attorneys and was sworn to by J. W. Carpenter as agent of the Corsicana Transit Company. There was a verdict in favor of appellee against both companies.</p> <p>The evidence shows that the Corsicana Transit Company, a corporation, is engaged in the business of operating a street car system in Corsicana; and the Corsicana Gas & Electric Company, a corporation, is engaged in the business of manufacturing and supplying the public in Corsicana with electric lights and power. At the time of the injury complained of, and before that time, the stockholders and the directors of the Corsicana Transit Company and of the Corsicana Gas & Electric Company were the same persons, and J. W. Carpenter was president and manager of each company. Each of these corporations held separate stockholders’ and directors’ meetings and was managed by its1 own statements annually to the city, state, and federal governments. The Corsicana Transit Company exclusively owned the street railway and the cars, and never ceased operating the street railway; and the motorman in charge óf the car was an employé of the Corsicana Transit Company. The Corsicana Gas & Electric Company furnished the Corsicana Transit Company the electric power with which to operate the street railway, and was paid for such power at the rate of 3% cents per kilowatt. The Corsicana Transit Company was organized in the summer of 1903, and at that time its stockholders and directors were different persons from the stockholders and directors of the Corsicana Gas & Electric Company; and at the time of its organization the transit company arranged or agreed, for economy and convenience, with the gas and electric company to pay the gas and electric company, in addition to the amount paid for electric power, the sum of $100 per month for ground rent for the car barn and for clerical work in the superintendency of the company’s affairs. This agreement continued until the Southern Traction Company took over the street railway .property on February 1,1913. The Corsicana Gas & Electric Company did not receive any profit or benefit besides the specified sum of $100 and the amount paid for electric current. The evidence respecting the dealings of the two companies with each other and how the business was conducted may be shown substantially, it is concluded, by quoting from the testimony of the witness Carpenter as follows:</p> <p>“I was president and manager of the Corsi-cana Transit Company; and I also held the same positions with the Corsicana Gas & Electric. Company. I .held both positions in each of the corporations at the same time. The Cor-sicana Gas & Electric Company furnished power to the Corsicana Transit Company, with which to run its cars, and the Corsicana Transit Company paid the Gas & Electric Company for that power. The Corsicana Transit Company employed me to operate and manage the Cor-sicana Transit Company, and the Corsicana Gas & Electric Company, employed me to operate and manage its business. I was manager of the Corsicana Transit Company on the day of the accident, and was managing it on that day. As manager and president of the Corsicana Transit Company it was my business to look after its business in every way; hire employés ; attend to its business in every respect. As manager and president of the Corsicana Gas & Electric Company, it was my duty to attend to the operation of its business in every' respect. The two businesses, that is, the Corsicana Gas & Electric Company and the Corsicana Transit Company, were separate and distinct, and it just happened that I was president and manager-of both concerns. When I employed employés for the Corsicana Transit Company, I was acting for the Corsicana Transit Company; and when I employed employés for the Corsicana Gas & Electric Company, I was acting for that concern. The fares on the street cars are placed in boxes on the ears, and those fares are collected daily, and when the money is collected off the cars it is taken to the office and placed in the safe. That money is placed to the credit of the Corsicana Transit Company. We make an entry in our books of the amount of money collected from the cars. The Corsicana Transit Company did not have books in which to keep a record of its business; that credit I just mentioned was made on the books of the Corsicana Gas & Electric Company. We show the collections from the cars of the Corsicana Transit Company in the books of the Corsicana Gas & Electric Company, but the money so collected is placed to the credit of the Corsicana Transit Company. In answer to your question as to why it was that we used the books of the Corsicana Gas & Electric Company, in which to enter the receipts of the Corsicana Transit Company, I will say that we did that simply because it was less trouble to transact the business that way than it was to have two distinct sets of books. We would collect the money from the cars of the Transit Company once a day, and on the books of the Gas & Electric Company we would make a notation as to how much was collected and credit it to the Corsicana Transit Company. We had one book that belonged to the Corsicana Transit Company, which was separate and distinct from the books of the Corsicana Gas & Electric Company, that was what was called the cash fare book. I sometimes used the employés of the Corsicana Gas & Electric Company to do work for the Transit Company, but when I did that the Transit Company would pay them for such work; the Transit Company would pay the Gas & Electric Company for that work. The Gas & Electric Company, in doing that work, or furnishing power, would be paid for that by the Transit Company, just like it was a third party. Some of the employés of the Transit Company were separate in their work from the ém-ployés of the Corsicana Gas & Electric Company. There was ño employé who was the em-ployé of both the Corsicana Gas & Electric Company and the Corsicana Transit Company at the same time.”</p> <p>The evidence warrants the findings of fact that the motorman in charge of the car was guilty of negligence in operating the street car as alleged, proximately causing the death of the child, and the evidence warrants the amount of the verdict. The Corsicana Transit Company was the owner of and was operating the street car and .railway, and the motorman cansing the death was'its employé. The Corsicana Gas & Electric Company was not the owner or hirer of, nor was it operating, the railway or car in copartnership or jointly with the Transit Company. The Cor-sicana Gas & Electric Company was by contract paid a fixed sum for ground rent for car barn and for superintendency of the financial and corporate affairs of the transit company, and received no profit nor pay besides said fixed sum as compensation and the pay for electric current.</p>

<p>Appeal from Hamilton County Court; J. L; Lewis, Judge.</p> <p>Suit by tbe Roberts-Brown Lumber Company against W. R. Vickery. From a judgment for plaintiff for $318.13, plaintiff appeals.</p>

<p>Appeal from District Court, Upshur County; R. M. Smith, Judge.</p> <p>Action by Walter Connally & Co. against the Continental State Bank of Big Sandy and another. From an adverse judgment, plaintiff appeals.</p>

<p>Appeal from Williamson County Court; Richard Critz, Judge.</p> <p>Suit by the Tropical Oil Company against the Hoeh Hardware Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Homestead &wkey;>96 — Liability fob Debt— • Pubchase-Money Lien.</p> <p>If vendees conveyed land to satisfy purchase-money debt, leaving a deficit, and a parcel was reconveyed to them under agreement that the lien reserved was for the original purchase price, the amount thereof would attach, though the parcel was occupied as a homestead.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 147-153; Dec. Dig. &wkey;96.]</p> <p>2. Homestead <&wkey;115(2) — Pubchase-Money Lien.</p> <p>But if such transaction was simulated to avoid the constitutional prohibition against mortgaging the homestead, no hen would attach.</p> <p>[Ed. Note. — For other cases, see Homestead, Cent. Dig. §§ 186-190; Dec. Dig. <&wkey;>115(2).J</p> <p>3. Appeal and Eeboe <&wkey;1010(l) — Review-Findings of Fact.</p> <p>The court on appeal cannot disturb a fact finding if sufficiently supported by the evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. <&wkey;> 1010(1).]</p>

Error from District Court, McLennan County; Tom L. McCullough, Judge. Action by Levy & Rosen against the iEtna Insurance Company, in which the Waco Company intervened. Judgment for intervener and defendant brings error.

<p>1. Evidence &wkey;271(9), 314(1) — Heaesat — Self-Serving Declarations.</p> <p>In an action against a realty broker by the owner of land to recover the difference between the price actually paid and the price at which he accounted to the owner, though it was a controverted question whether the broker sold as the owner’s agent, or whether he verbally contracted with the owner to'purchase the land at the lower price, and thereafter sold it himself to the buyer for the higher price, and it was also a controverted question whether the broker agreed with the owner to deposit with a bank the sum of $1,000 as earnest money, and whether or not he made such deposit, the court properly excluded testimony that, when he made such deposit, the broker stated that he had that day bought the property from the owner at the lower price, and was depositing the $1,000 as earnest money pursuant to verbal agreement; the evidence being hearsay and the statements self-serving.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1078, 1168; Dec. Dig. <&wkey;>271(9), 314(1).]</p> <p>2. Evidence <&wkey;121(6) — Statements of Party — Res Gestas.</p> <p>The statements made by the broker, when depositing his $1,000 check in bank, and on the same day, that he had that day verbally bought the land from the owner over the telephone, and was depositing the money as earnest, were not so connected in point of time or otherwise.with the transaction between broker and owner as to render them admissible as res gestae.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 316, 1117, 1119; Dec. Dig. <&wkey;> 121(6).]</p> <p>3. Evidence &wkey;271(9), 314(1) — Hearsay — Self-Serving Declarations.</p> <p>A conversation between the broker and an attorney, shortly after the telephone conversation, in which the broker told the attorney that he had made such a telephone contract with the owner, and its terms, was inadmissible as hearsay and self-serving.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1078, 1168; Dec. Dig. <&wkey;>271(9), 314(1).]</p> <p>4. Appeal and Error &wkey;>10U(l) — Review— Findings — Conflicting Evidence.</p> <p>Appellate courts do not undertake to determine what constitutes a mere preponderance of testimony, and do not set aside findings of trial courts on conflicting evidence, unless they are so contrary to the overwhelming weight of the testimony as to indicate some improper motive or influence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. &wkey;3 1011(1).]</p> <p>5. Bkokers <&wkey;36 — Ratification of Agent’s Fraud.</p> <p>Though the owner, without notice of the broker’s fraud, accepted from him money for an excess in acreage, transferred notes executed by the broker as part of the consideration for the land, and executed a new deed, he did not thereby ratify the broker’s acts.</p> <p>[Ed. Note. — For other casos, see Brokers, Cent. Dig. §§ 29, 30; Dec. Dig. <&wkey;>36.]</p> <p>0. Estoppel <&wkey;92(3) — Estoppel in Pais.</p> <p>Nor did such facts constitute an estoppel of the owner to sue the broker.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 262; Dec. Dig. &wkey;92(3).]</p> <p>7. Appeal and Error t&wkey;1151(2) — Disposition — Correction of Judgment.</p> <p>The facts in respect to the amounts received by the broker and his commission being undisputed, error committed in rendering judgment for an excessive amount will be corrected by the Court of Civil Appeals without remanding for new trial.’</p> <p>TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4498 — 4500, 4503 — 4505; Dec. Dig. &wkey;1151(2).]</p>

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

Error from District Court, Coryell County; J. H. Arnold, Judge. Suit by E. J. Morgan against Robert A. Johnson and others. There was a judgment for plaintiff, and the named defendant brings error.

G. Krueger, Judge. Action by C. T. Goodman against the Gulf, Colorado & Santa Fé Railway Company. From a judgment of the county court, on appeal from justice’s court, for plaintiff, defendant appeals.

<p>1. Trial &wkey;>194(19) — Injuries to Servant-Instructions — Invading Province oe Jury.</p> <p>Instruction that, there being no evidence of negligence on the master’s part causing the servant’s injury, the evidence showing that the danger of injury was as obvious to the servant as to his foreman, and the servant having assumed the risk of injury, verdict should be returned for the master, is properly refused as being on the weight of evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 466; Dec. Dig. <&wkey;> 194(19).]</p> <p>2. Trial <&wkey;252(ll) — Injuries to Servant-Instructions — Invading Province oe Jury.</p> <p>Such instruction held properly refused as unsupported by the evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. &wkey;252(ll).]</p> <p>3. Master and Servant <&wkey;276(2), 286(40)— Injuries to Servant — Care oe Foreman— Instruction.</p> <p>Evidence held insufficient to warrant submission of issue whether foreman was negligent in failing to warn servant of the danger which caused his injuries, or to sustain finding that the injury was the proximate result of such alleged negligence.</p> <p>[E'd. Note. — For other cases, see Master and Servant, Cent. Dig. .§§ 951, 959, 1044; Dec. Dig. &wkey;276(2), 286(40).]</p> <p>On Motion for Rehearing.</p> <p>4. Trial i&wkey;420 — Motion eor Verdict — Preservation oe Waiver.</p> <p>Where the master asked peremptory instruction, which was refused, and then requested submission of issue of his negligence by a qualified motion reciting the refusal of the peremptory instruction, he was not precluded from asserting on appeal that there was no evidence raising the issue of his negligence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 983; Dec. Dig. &wkey;s420.]</p>

L. Huffman, Judge. Action by Mary Hawkins against the American National Insurance Company. From a judgment for plaintiff, defendant appeals. The action is by appellee, the beneficiary, upon a policy of life insurance issued and delivered by appellant on the life of her son Johnnie Hawkins.

<p>1. Estoppel &wkey;»119 — Peremptory Charge— Questiokt por Jury.</p> <p>When an estoppel or waiver is pleaded and supported by evidence, it is a valid objection to peremptory charge for the other party, and such issue should always be submitted to the jury.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 309; Dec. Dig. <&wkey;>119.]</p> <p>2. Appeal and Error <&wkey;1062(5) — Harmless Error — Submission op Issue — Immateriality.</p> <p>Where the seller of embalming fluid warranted it to be good for the purpose intended and the buyer pleaded breach of such warranty, it was immaterial what the value of the fluid was at the point of shipment, and any alleged error in submitting the issue of such value is harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4218; Dec. Dig. <&wkey;> 1062(5).]</p> <p>3. Trial <&wkey;350(2) — Submission op Issues — Evidentiary Facts.</p> <p>In submitting cases upon special issues, the court should submit the ultimate issue, and not issues evidentiary thereto.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828, 832; Dec. Dig. &wkey;350(2).]</p> <p>4. Sales <&wkey;447 — Breach op Warranty — Submission op Issues — Evidentiary Facts.</p> <p>In action by seller of embalming fluid for purchase price, defended on the ground of breach of warranty, refusal to submit issue as to manner of use of fluid was not error, the manner of use being only evidentiary on the issue of breach of the warranty.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1318; Dee. Dig. &wkey;447J</p> <p>5. Sales <&wkey;447 — Breach op Warranty — Submission op Issues — Evidentiary Facts.</p> <p>Refusal of special issue whether such fluid would produce satisfactory results on the bodies of dead mulattos was not error, where the fluid was sold for general Use.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1318; Dec. Dig. &wkey;447J</p> <p>6. Appeal and Error <&wkey;1062(5) — Harmless Error — Submission op Issues.</p> <p>Although admission of testimony of witness that embalming fluid had no market value was erroneous, the error was harmless, where the issue was on breach of warranty and not market value.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4218; Dec. Dig. &wkey;> 1062(5).]</p> <p>7. Sales <&wkey;448 — Breach op Warranty-Rights op Parties.</p> <p>Under contract for sale of embalming fluid by which the seller furnished an embalming table free of charge and the court declared rescission for breach'of warranty of fluid, judgment for seller for value of the table was erroneous, where purchaser offered return of the table.</p> <p>[Ed. Note. — For other cases, see Sales, Cent. Dig. § 1319; Dec. Dig. &wkey;448J</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by William Uehlinger and Annie Ueh-lihger against Charles Land and another, wherein Anna Uehlinger, under the name of Annie Uehlinger Johnson, filed an amended petition. Prom a judgment for plaintiff Anna Uehlinger Johnson, defendant Band appeals.</p>

<p>1. Evidence <&wkey;253(l) — Conspiracy—Wrongful Attachment.</p> <p>In a suit for an automobile wrongfully attached and sold by defendant as the property of another, if the evidence had shown prima facie a conspiracy between plaintiff and such other that plaintiff might hold the property, such other’s acts or statements would be admissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 994, 995, 1002; Dec. Dig. &wkey; 253(1).]</p> <p>2. Evidence <&wkey;317(5) — Admissibility — Hearsay.</p> <p>In such suit, where the controversy was whether the automobile belonged to plaintiff or to the one in whose possession it was attached, in the absence of conspiracy, her statement to a witness, not in the presence of the plaintiff and prior to any controversy over the title, that the automobile belonged to her and not to the plaintiff, was hearsay and inadmissible.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 1178; Dec. Dig. &wkey;317(5).]</p> <p>3. Evidence &wkey;>106(l) — Chabacteb—Wrongful Attachment — Action fob Conversion.</p> <p>It was not error to exclude testimony that plaintiff had been arrested in bed with the woman in whose possession the automobile had been seized, and fined for vagrancy, and that he was with her when she purchased the automobile.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 177-182, 185; Dec. Dig. <&wkey;> 106(1).]</p> <p>4. Appeal and Ebeob i&wkey;926(7) — Peesumption — Competency op Testimony as to Value.</p> <p>Where the bill of exceptions did not show what examination, or that no examination was made to test the qualifications of a witness as to the value of an automobile, the presumption was that the court satisfied itself by proper inquiry as to the competency of such testimony, and the mere statement that the witness had not qualified was not enough to rebut the presumption.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3745, 3746; Dec. Dig. <&wkey; 926(7).]</p> <p>5. Attachment i&wkey;374 — Weongful Attachment — Action foe Convebsion — Evidence.</p> <p>In a suit for an automobile wrongfully attached and sold as the property of another, testimony as to its value where no witness attempted to describe its condition, or what effect a six months’ use would have had upon its value, did not constitute such proof of its reasonable value as would afford a basis for judgment.</p> <p>[Ed. Note. — Por other eases, see Attachment, Cent. Dig. ■ §§ 1363-1372, 1392; Dec. Dig. &wkey; 374.]</p> <p>6. Damages <&wkey;62(l) — Loss of Pbofits — Re-coveey.</p> <p>Plaintiff, if making no effort to replevy the automobile or to secure another in its place with which to continue his business, could not recover loss of profits.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 119; Dec. Dig. &wkey;j62(l).]</p> <p>7. Attachment <&wkey;374 —Weongful Attachment — Action foe Convebsion — Rental Value — Evidence.</p> <p>Where plaintiff testified that he was operating the automobile for hire at an average net earning of about $10 per day, but could not state what the expense was or whether he would have ■operated it during the time it was wrongfully detained, there was no evidence on which to base a finding of $2 per day rental value.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1363-1372, 1392; Dec. Dig. &wkey; 374.]</p> <p>8. Attachment &wkey;>375(3) — Weongful Attachment-Action foe Convebsion — Meas-ube of Damages.</p> <p>Ordinarily, the measure of damages for wrongful attachment is the value of the goods attached, with interest from the date of seizure.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1379; Dec. Dig. &wkey;375(3).]</p> <p>9. Attachment <s&wkey;368 — Weongful Attachment — Remedies.</p> <p>One claiming title and possession of property attached and sold as the property of another may elect to sue to recover the property itself.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. §§ 1344, 1345; Dec. Dig. &wkey;368.]</p> <p>10. Attachment &wkey;»37o(3) — Weongful Attachment^-Measube of Damages.</p> <p>In a suit for an automobile wrongfully attached and sold as the property of another, or in the alternative for its rental value, the plaintiff was entitled to the property, together with the reasonable value of its use during its detention to be estimated on the basis of its rental value.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1379; Dec. Dig. &wkey;375(3).]</p> <p>11. Attachment <&wkey;37&wkey;WEONGFUL Attachment — Action foe Convebsion — Measuee of Damages.</p> <p>In such suit seeking, in the alternative, to recover its value and rental value, where there was no evidence to show its rental value or any basis for the- allowance of lost profits as special damages, the plaintiff should have judgment for the automobile and, as damages for its detention, interest upon its value, or for its rental value or loss of profits in its rent service as the pleading and proof might require, and in the alternative for its value with such damages.</p> <p>[Ed. Note. — For other cases, see Attachment, Cent. Dig. § 1363; Dec. Dig. &wkey;374.]</p>

P. Dohoney, Judge. Trespass to try title by Eulala Sanford and husband against R. W. Poster, A. P. Hamer, and another. This was a suit of trespass to try title and for damages, brought by Eulala Sanford, joined pro forma by her husband, against R. W. Poster, P. M. Nidever, and A. P. Hamer. The land sued for consisted of five adjoining tracts, together containing 173.85 acres, in Delta county. Mark Poster was the source of the title asserted by the parties respectively.

<p>1. PRINCIPAL -AND AGENT <&wkey;156 — AGENCY— . Fraud op Agent.</p> <p>H., on whom F. rebed to secure tbe signing of a contract by the other parties, was F.’s agent, as regards false representations on wbicb II. secui’ed tbe signing.</p> <p>[Ed. Note. — -For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. <i&wkey;156.]</p> <p>2. Contracts <&wkey;94(5) — Fraud—Inquiry.</p> <p>One induced by fraudulent representations to enter into a contract is not barred from relief therefrom because, bad be made further inquiry, be would have known tbe truth.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 424, 425, 1164; Dec. Dig. <§=» 94(5).j</p> <p>3. Appeal and Error <&wkey;934(2) — Presumption — Finding off Fact.</p> <p>In support of tbe judgment, agency of one who, by letter admitted in evidence, approved a change in contract will be presumed to have been found by tbe court, tbe evidence supporting such a finding, and submission to tbe jury of the issue having neither been made nor requested.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777; Dec. Dig. <®^934(2).]</p> <p>4. Trial <&wkey; 191(1) — Instructions—Assumption off Facts.</p> <p>A requested instruction, assuming a fact as to wbicb tbe evidence raised an issue, is properly denied.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420, 421, 435; Dec. Dig. &wkey;191(l)J</p>

<p>Chattel Mortgages <&wkey;126 — Assumption oe Mortgage.</p> <p>Where, after a father had .abandoned his farm and such corn as he had planted was killed by a frost, his son thereafter rented the land and planted it, he did not take over or create, as a lien on his own crop, a chattel mortgage on his father’s crop by agreeing with the mortgagee that if the mortgagee would let him have horses mortgaged by his father with which to make a crop he would take over the horses, and make a crop and then pay his father’s notes, secured by the chattel mortgage on his father’s crop, such agreement creating at most a personal liability.</p> <p>(Ed. Note. — For other eases, see Chattel Mortgages, Cent. Dig. §§ 213-215; Dec. Dig. <&wkey;> 326.]</p>

<p>1. Bankruptcy <&wkey;426(l) — Discharge op Debt — False Representations.</p> <p>Where the maker of a note procured the holder to make a loan to him through false pretenses and false representations that an insurance policy was his policy and fully worth $500, the maker’s discharge in bankruptcy did not discharge him from the debt.</p> <p>[Ed. Note. — For other cases, see Bankruptcy, Cent. Dig. §§ 787, 792; Dec. Dig. &wkey;426(l).]</p> <p>2. Bills and Notes <&wkey;505 — Discharge in Bankruptcy — Fraud — Evidence — Admissibility.</p> <p>In suit on a note representing a loan which the maker procured by false representations that he owned an insurance policy worth $500, evidence of an officer of the insurance company, tending to show that the maker, joined by his wife, had borrowed $230, the full loan value of the policy, from the insurance company, while he had represented that he had borrowed only $100, or $150, on the policy, and had offered it for security, was admissible to show fraud on the maker’s part, and to contradict his statements made to the lender.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1717, 1718; Dec. Dig. <&wkey;> 505.]</p> <p>3. Appeal and Error &wkey;>1050(l) — Harmless Error — Cross-Examination.</p> <p>Defendant cannot complain of his testimony on cross-examination, drawn from him over his protest, where he had sworn to practically the same facts in his testimony on direct examination.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. <&wkey;1050(l).]</p> <p>4. Appeal and Error &wkey;>1071(l) — Statement oe Facts — Setting Forth Deductions.</p> <p>Where there are sufficient facts in the statement of facts to sustain the judgment, it is immaterial that the court also set forth conclusions, deductions, and inferences instead of facts.</p> <p>[E'd. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4234; Dec. Dig. &wkey;1071(l).]</p> <p>5. Liens <&wkey;18 — Foreclosure—Denial.</p> <p>In suit on a note, where plaintiff asked foreclosure of lien on defendant’s insurance policy, but it was alleged and proved that defendant had no beneficial interest in the policy, the court properly refused to foreclose the lien.</p> <p>[Ed. Note. — For other cases, see Liens, Cent. Dig. § 30; Dee. Dig. <&wkey;>18.]</p>

<p>Appeal from District Court, Anderson County; John S. Prince, Judge.</p> <p>Action by George A. Wright and another against Mrs. Mattie Rouser, E. H. Hogue, and others. Prom the judgment, the first-named defendant appeals.</p>

<p>Appeal from District Court, Tom Green County; J. W, Timmins, Judge'.</p> <p>Suit by H. A. Wooton and another against W. C. Jones. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from District Court, Robertson County; J. C. Scott, Judge.</p>

<p>1. Infants <&wkey;57(l) — Contract of Infant-Ratification.</p> <p>A contract made by a minor, except for necessaries, is not binding upon him, unless made so by such conduct as will create an estoppel, or by a ratification after the disability of minority has ceased to exist, such contracts not being absolutely void, as they may be ratified after majority.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 136-143, 145-148, 151; Dec. Dig. <&wkey;57(l).] ,,</p> <p>2. Infants <@=>57(2) — Failure to Disaffirm Contract — Presumption of Ratification.</p> <p>Where a minor contracted to buy a lot and pay in installments, but title remained in the seller, and it was not made to appear that the minor’s failure to repudiate the contract sooner than 8 months after he reached majority resulted in any injury to the seller, the minor’s failure to disaffirm sooner created no presumption of ratification. ,</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 144; Dec. Dig. &wkey;57(2).]</p> <p>3. Infants <&wkey;57(l) — Ratification of CoNtract — Express Promise.</p> <p>If a minor, after reaching majority, with full knowledge of the fact that his previously made contract is not binding on him, declares to the other party that he adopts it or intends to abide by it, such conduct is a ratification without a specific promise to perform.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 136-143, 145-148, 151; Dec. Dig. &wkey; 57(1).]</p> <p>4. Infants &wkey;>57(l) — Contracts of Minors— “Ratification.”</p> <p>As applied to the contracts of minors, “ratification” means that the late minor, knowing his contract is not binding on account of his minority when he made it, determines in his own mind to waive that defect and adopt the contract, and signifies his intention by such spoken or written words, or other conduct, as will render it manifest.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 136-143, 145-148, 151; Dec. Dig. &wkey;</p> <p>For other definitions, see Words and Phrases, First and Second Series, Ratification.]</p> <p>5. Infants <&wkey;57(l) — Ratification of Contract — Proof.</p> <p>Unless a minor’s words or acts after reaching majority make it dearly and distinctly appear that he intends to ratify his previously made contract, they are not sufficient proof of ratification.</p> <p>[Ed. Note. — For other teases, see Infants, Cent. Dig. §§ 136-143, 145-148, 151; Dee. Dig. &wkey;57(l).]</p> <p>6. Words and Phrases — “Ratification.”</p> <p>To constitute a “ratification” or confirmation of something previously done, it must appear that the party charged with having ratified or confirmed the transaction, at the time he committed the acts tending to show such confirmation, knew that the former transaction was not binding upon him.</p> <p>7. Infants <&wkey;98 — Ratification of Contract-Knowledge of Voidable Character-Proof.</p> <p>The fact that a minor, who is claimed to have ratified his previously made contract after attaining majority, had knowledge that it was not binding upon him, may be shown by circumstantial evidence.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 293; Dec. Dig. &wkey;98.]</p> <p>8. Infants <&wkey;57(2) — Ratification of Contract — Knowledge of Voidable Character — Lapse of Time.</p> <p>The mere fact that 4 months elapsed between the time a minor attained his majority and when he wrote a letter claimed to constitute a ratification of his previously made contract did not justify a finding that he knew that the contract was not binding on him when he wrote the letter.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. § 144; Dec. Dig. &wkey;57(2)J</p> <p>9. Infants <&wkey;57(l) — Contract to But Land —Ratification.</p> <p>Where an infant, who contracted to buy a lot and to pay in installments, 2% months after he reached majority wrote to the seller, stating that it appeared from the contract of purchase that he had agreed to pay taxes after a certain date, and requested die seller to notify him promptly as to the amount due on the property for die year, and to advise him whether he should remit the money to pay such taxes to the tax collector or to the seller, such letter was not a ratification of his contract to buy.</p> <p>[Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 136-143, 145-148, 151; Dec. Dig. &wkey; 57(1).]</p>

<p>Appeal from District Court, Bexar County; W, S. Anderson, Judge.</p> <p>Suit by Edward Roos against tbe Summit Place Company, H. L. Kokernot and others, and R. E. Weber, receiver of the Continental Trust Company, for. dissolution .of the Summit Place Company, alleged to be insolvent, for the appointment of a receiver, and for an injunction to restrain its sale of lots. Receiver appointed, and temporary writ of injunction issued, and H. L. Kokernot and others appeal.</p>

<p>Appeal from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Action by A. L. Anderson against P. H. Farmer and others. From a judgment for defendants, plaintiff appeals.</p>

-V. Swift, Judge. • 4-Ction by Irene Browning and another against the Grand Lodge, United Brothers .of Friendship of Texas, and another. From a judgment for the plaintiffs against the named defendant, and against the defendant C. F. Carr on his cross-action, the defendant C. F. Carr appeals.

<p>1. Principa!, and Agent <&wkey;124(3) — Liabilities to Third Persons — Action—Direction of Verdict.</p> <p>In an action by a subscriber for stock of an insurance company to recover the amount paid for the stock with interest, pursuant to a contract alleged by the plaintiff to have been made by the stockbroker who sold the stock, where there was no proof of -the broker’s authority to make a contract for the return of the price, except the introduction in evidence of the answer, alleging that the agent was not the agent of defendant authorized to make such an agreement, and that the agent sold the stock in question to plaintiff, and plaintiff signed the written agreement of purchase, and this contract was submitted to defendant and accepted by it, and filed by it, a verdict was properly directed for defendant.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Gent. Dig. § 724; Dec. Dig. <&wkey;>124(3).]</p> <p>2. Principal and Agent <&wkey;119(l), 148(1)— Liabilities to Third Persons — Authority of Agent — Burden oe Prooe. ,</p> <p>A party, dealing with an agent, is bound at his peril to ascertain, not only the fact of the agency, but the extent of the agent’s powers, and in case either is controverted, the burden is upon him to establish it.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Gent. Dig. §§ 391, 393, 398, 399, 401, 534, 552; Dec. Dig. &wkey;119(l), 148(1).]</p> <p>3. Principal and Agent <&wkey;101(l) — Liability of Third Persons — Authority of Agent — Apparent Authority.</p> <p>In the absence of facts or circumstances known to a party dealing with an agent on which he relied and- which tended to show that the agent was clothed with the apparent authority to make the contract in question, the doctrine of apparent authority to make the contract does not apply.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 255, 330, 346; Dec. Dig. <&wkey;101(l).]</p>

<p>Appeal from Harris County Court, at Law; C. C. Wren, Judge.</p> <p>Action by Taylor Bros. Jewelry Company against the Equitable Loan Society and W. W. McDonald. The suit was dismissed as to McDonald, and from judgment for plaintiff the remaining defendant appeals.</p>

<p>1. Railroabs <&wkey;350(13) — Action foe Collision — Contributobt Negligence — Taking Case from Jury.</p> <p>In an action against railroad for damages to an automobile from a collision, the evidence to have authorized the court to take the plaintiff’s contributory negligence from the jury must have been such that there was no room for ordinary minds to differ as to the conclusion to be drawn from it.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1166; Dec. Dig. &wkey;350(13).]</p> <p>2. Appeal anb Error <&wkey;1001(l) — Question of Fact — Verbict.</p> <p>A finding of the jury upon testimony that warranted it is conclusive upon the Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3933; Dec. Dig. &wkey; 1001(1).]</p> <p>3. Raileoabs <&wkey;350(33) — Damage from Collision — Question for Jury — Discovereb Peril.</p> <p>In an action against a railroad to recover damages to an automobile from a collision with defendant’s locomotive, held, on the evidence, that the trial court did not err in submitting the issue of plaintiff’s discovered peril to the jury.</p> <p>[Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1191; Dec. Dig. <&wkey;350(33).]</p> <p>! 4. Trial &wkey;>256(l) — Instructions—Request.</p> <p>Where the charge was correct as far as it went, the defendant, if desiring a fuller charge upon the question presented, should have requested such instruction by a special charge, and, where it did not do so, its assignments of error thereon could not be sustained.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 628, 633; Dec. Dig. &wkey;256(l).]</p>

Coffee, Special Judge. Suit by G. B. McKay and others against Alice McKay to cancel two deeds of conveyance. From a judgment canceling one of the deeds, defendant appeals.

<p>Appeal from District Court, Liberty County; J. Llewellyn, Judge.</p> <p>Action by George P. Zeiss against the First State Bank and another. On plaintiff’s death the action was revived by his administrator, A. W. Umland. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Master and Servant &wkey;>279(5) — Injuries to Servant — Negligence oe Master — Evidence — Sufficiency.</p> <p>Evidence held sufficient to sustain finding of negligence on the part of the foreman employed by the master in manufacture of fireworks in furnishing a mixture whose qualities were unknown, in directing the injured servant to strike the powder a hard blow and in allowing unnecessary quantities', of explosives to collect in the room.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 978; Dec. Dig. <&wkey;279(5).]</p> <p>2. Master and Servant <&wkey;>107(7) — Injuries to Servant — Negligence of Master.</p> <p>There is no negligence in the mere fact that the master employed explosives in the manufacture of fireworks, but he is not thereby discharged. from using reasonable care, which demands increased watchfulness and greater caution in proportion to the dangerous nature of the instrumentality employed.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent.. Dig. § 202; Dec. Dig. &wkey;> 107(7).]</p> <p>3. Master and Servant <&wkey;278(3) — Injuries to Servan^Negligence of Master.</p> <p>Facts tending to show negligence on the part of the master in creating conditions alleged to have caused the injuries are not negatived by the fact that an explosion of fireworks in .process of manufacture was unusual or extraordinary.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 958; Dec. Dig. &wkey;> 278(3).]</p> <p>4. Trial &wkey;>133(6) — Argument of Counsel-Cure of Error.</p> <p>Error, if any, in permitting counsel to argue, in a servant’s action for injuries by explosion of fireworks, in process of manufacture, that in another place there had been such an explosion and the master had been held liable in damages therefor, is cured by a specific instruction to the jury to disregard it.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. &wkey;>133(6).]</p>

<p>1. Commerce &wkey;>8 — Interstate Shipments— Statutes Governing.</p> <p>Where cattle are injured due to negligence of the carrier in an interstate shipment, the rights of the parties are fixed by federal statute and decisions, and state statutes as to validity of carriage contracts have no application.</p> <p>[Ed. Note. — For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. &wkey;>8.]</p> <p>2. Carriers <&wkey;230(5) — Interstate Shipments — Statutes Governing.</p> <p>Where the shipper had a contract for transportation of cattle at a reduced rate, which required notice and action within 40 days of discovery of damage, and declared the rights of the parties, it was not a question for the jury whether the contract entered into was reasonable.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 962; Dec. Dig. <@=>230(5).]</p> <p>3. Carriers <@=>230(6) — Interstate Shipments — Notice op Loss — Question poe Juey.</p> <p>Where the shipper could, immediately on arrival of the cattle, have determined the extent of their injuries due to the carrier’s negligence in an interstate shipment, but failed to give notice,- there was no question for the jury whether a contract, requiring notice and suit within 40 days of delivery, was valid.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 962; Dee. Dig. <@=>230(5).]</p> <p>4. Carriers <@=>228(2) — Conteacts—Consid-eration.</p> <p>There is no merit in the contention that the consideration for special conditions of shipping contract was invalid on the ground that the lesser rates therein provided for were contrary to the schedules approved by the • Interstate Commerce Commission, in the absence of evidence that the rate provided for was not one of two rates approved by the Commission.</p> <p>[Ed. Note. — For other cases; see Carriers, Cent. Dig. § 959; Dee. Dig. <@=>228(2).]</p> <p>5. Carriers <@=>204^-Interstate Shipments —Statutes—Construction.</p> <p>Where a carriage contract was executed prior to Act Cong. March 4, 1915, c. 176, 38 Stat. 1196, amending Hepburn Act June 29, 1906, c. 3591, 34 Stat.. 584, providing that no notice of claim or filing thereof shall be required as a condition precedent to recovery for damages to interstate shipments, but suit was brought after such enactment, it did not apply; there being nothing to indicate that it was intended to have any retroactive effect.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. § 927; Dec. Dig. <@=>204.]</p>

<p>Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.</p> <p>Action by J. F. Hall against the Pecos & Northern Texas Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Corporations <@=>109 — Lost Certificate— Action to Establish Ownership — Question for Jury.</p> <p>In a suit against a corporation and the purchaser of its assets and stock to establish plaintiffs’ ownership of a certificate in the corporation and for a new certificate in lieu of an alleged lost trustee’s certificate for a share, and a right to share ratably with the other certificate holders in the accumulations of property and distribution on shares, evidence held to make plaintiffs’ ownership of the certificate a question for the jury, and to support a verdict for the defendants.</p> <p>[Ed. Note.- — For other cases, see Corporations, Cent. Dig. § 462; Dec. Dig. <@==>109.]</p> <p>2. Limitation of Actions <@=>103(3) — Lost Certificate — Action to Establish — Limitations.</p> <p>Where plaintiffs’ predecessor in 1881 petitioned a corporation for recognition as to the owner of a certificate and for the issuance of a renewal certificate showing such ownership, and such petition was refused by the company, plaintiffs’ suit, subsequent to 1909, to compel recognition of their ownership of the same certificate, was barred by the four-year limitations prescribed by Rev. St. 1911, art. 5690.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 508; Dec. Dig. <@=> 103(3).J</p> <p>3. Corporations <@=>109 — Lost Certificate —Suit to Establish Ownership — Identity of Certificate — Evidence.</p> <p>In a suit against a corporation and the individual claiming to have purchased all its assets and stock to establish plaintiffs’ ownership of a certain numbered certificate, and for a new certificate in lieu of an alleged lost trustee’s certificate, and for a share in accumulations and distributions, evidence held to show that a petition signed by plaintiffs’ predecessors to have a certificate issued to them placed on the company's books, in their name in lieu of the lost certificate, related to the same certificate.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 462; Dec. Dig. <@=>109.]</p> <p>4. Corporations <@=>109 — Lost Certificate —Petition to Establish Ownership — Resolution.</p> <p>In such suit, evidence held to show that a resolution on the minutes of the company denying the petition was a response to the petition.</p> <p>[Ed. Note. — For other eases, see Corporations, Cent. Dig. § 462; Dec. Dig. <@=>109.]</p> <p>5. Corporations <@=109 — Lost Certificate —Petition to Establish Ownership — Knowledge -of Resolution — Evidence.</p> <p>Evidence held to show that the parties to such petition by plaintiffs’ predecessor, or their attorney, had knowledge or notice of the resolution denying the petition at or about the date of its adoption.</p> <p>[Ed. Note. — For other cases, see Corporations, Cent. Dig. § 462; Dee. Dig. <@=>109.]</p>

Error from District Court, Orange County; A. E. Davis, Judge. Consolidated suits by Guy M. Bryan, Jr., and the Guaranty State Bank of Houston, Tex., against D. C. Bland and others. To review a judgment against plaintiff bank and for a defendant, and for plaintiff Bryan against three defendants, the bank brings error.

<p>Appeal from District Court, Angelina County; L. D. Guinn, Judge.</p> <p>Action by Price Kimmey against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. LANDLORD AND TENANT <®=>19 — RENT—RECOVERY Against Third Person.-</p> <p>AVhere plaintiff, the lessee of land adjoining defendant’s, was about to rent his land for a certain sum, but, after talking to defendant, the prospective tenant declined to rent, and plaintiff afterwards leased to another for the same term at the same rental, plaintiff was not entitled to recover of defendant for depriving him of the rental.</p> <p>[Ed. Note.- — For other cases, see Landlord and Tenant, Dec. Dig. <S=x>19.]</p> <p>2. Landlord and Tenant <®=p19 — Rent oe Pasture — Recovery Against Third Person.</p> <p>Where plaintiff, lessee of a farm adjoining defendant’s, their pasture land being in one inclosure, contracted to lease to a third party a number of acres for pasturage, and, when the third party had turned cattle into the common inelosure, defendant stated that there were too many, considering the amount of plaintiff’s land, and proposed to see his lawyer, so that the third party decided that if he could not put in a certain number of cattle without controversy with defendant he did not care for the lease, and plaintiff agreed to cancel the lease contract, plaintiff had no cause of action against defendant.</p> <p>[Ed. Note. — For other cases, see Landlord and Tenant, Dec. Dig. <§=>19.]</p> <p>3. Money Received Right oe Recovery — Peivity.</p> <p>Plaintiff, as lessee of a farm, and defendant, the owner of an adjoining farm, had their pasturage in one inclosure. A third person, who had rented pasturage from plaintiff, took out his cattle at defendant’s instance and offered to pay plaintiff for the time the cattle were in the pasture, which offer plaintiff refused to accept, whereupon the renter went to defendant and paid him an amount for pasturage which he believed he owed to some one, though defendant made no claim thereto. Held, that defendant was not liable to plaintiff for the amount received, since it was not paid for plaintiff and there was no privity between plaintiff and defendant.</p> <p>[Ed. Note. — For other cases, see Money Received, Cent. Dig. §§ 14-20; Dec. Dig. <§=>5.]</p>

<p>Error from Hemphill County Court; J. L. Jennings, Judge.</p> <p>Action by the Johnson-McQuiddy Cattle Company against C. H. Shaller. ' There was a judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.</p> <p>Suit for injunction by the First National Bank, Bay City, Tex., against Joseph C. Schaefer and others. From an order granting an injunction, defendants appeal.</p>

<p>1. Conteacts <&wkey;>247 — Modification—Sufficiency 0^ Evidence.</p> <p>In an action for the contract price for digging a well, evidence held, to show that the contract as modified by parol required plaintiff to procure water of a quality equal to that from another well in the same town.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1139, 1787; Dec. Dig. &wkey;247.]</p> <p>2. Conteacts <&wkey;322(3) — Actions—Sufficiency oe Evidence.</p> <p>In an action for the contract price for digging a well, evidence held to show that the water from the well dug by plaintiff was not equal in quality to that of another well, as required by the contract.</p> <p>[Ed. Note. — For other eases, see Contracts, Cent. Dig. § 1534; Dec. Dig. &wkey;322(3).]</p> <p>3. Conteacts &wkey;>304(l) — Peefoehance — Acceptance.</p> <p>Where the well dug by plaintiff under contract with defendant failed to produce the quality of water called for by the contract, plaintiff is not entitled to recover the contract price therefor, unless the well was accepted by defendant as being in full compliance with the contract.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1457; Dee. Dig. <&wkey;304(l).]</p> <p>4. Conteacts <&wkey;304(2) — Peefoehance — Acceptance.</p> <p>A direction by defendant to plaintiff to remove his well-digging apparatus to another locality, on being informed that the well in question was producing the quantity of water required by the contract, is insufficient to show an acceptance of the well as full compliance with the contract as to the quality of water, where plaintiff could not have produced better water by continuing his well-digging operations further.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1458-1464; Dec. Dig. &wkey;304(2)J</p>

<p>Bills and Notes t&wkey;518(l) — -Consideration —Evidence—Sufficiency.</p> <p>In an action on a note against the administrator of the maker, where the defense was that the note was given as consideration for a fraudulent sale of plaintiff’s stock of goods, and that it was not the intention of the parties that title to the goods should pass or that the note should be paid, evidence held to support a verdict for defendant.</p> <p>[Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1816, 1817, 1819, 1820; Dec. Dig. 4=3518(1).]</p>

E. Davis, Judge. Action by B. Z. Powell, as temporary administrator of the estate of J. W. Erwin, deceased, against George W. Stephenson, in which B. Z. Powell, individually, and others later filed interventions as creditors of the estate, and upon Ms appointment' as permanent administrator, W. C. Erwin having declined to prosecute the suit, the case proceeded to trial with the interveners prosecuting the suit for the benefit of the estate and for themselves.

Bxoeter, Judge. Suit by G.'W. Sutherland against the International & Great Northern Railway Company and another.’ From a judgment for plaintiff against the named defendant, it appeals.

<p>1. Master and Servant <@==>258(18) — Injuries to Servant — Pleading.</p> <p>In a servant’s action against a railroad for personal injuries, a statement in plaintiff’s petition that he was acting under the orders of defendant’s car inspector in going between cars to make repairs, was not a charge of liability because of the fact that defendant’s car inspector ordered plaintiff to go between the ears.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 833; Dec. Dig. <@=> 258(18).]</p> <p>2. Master and Servant <@=270(15) — Injuries to Servant — Evidence—Admissibility.</p> <p>In a servant’s action against a railroad for personal injuries received while between two cars repairing a handhold, evidence that it was customary for defendant’s car inspector to exercise control over repairers, and that he ordered plaintiff to go between the cars at the time of his injuries, was a part of the res gestee and admissible, as an explanation, of how plaintiff came to be in the place of danger.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig. § 926; Dec. Dig. <&wkey;> 270(16).]</p> <p>3. Master and Servant <&wkey;270(16) — Injuries to Servano>-Proox.</p> <p>In a servant’s action against a railroad for personal injuries received while between two ears engaged in repair work, where the pleadings raised the issue whether a written rule of the company requiring a flag to be stationed as a warning to switching crews, etc., had been abandoned, or abrogated by nonobservance, evidence that a custom prevailed in the yards of defendant of doing light repair work without placing flags for the protection of those doing the work was admissible.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 925; Dec. Dig. i&wkey;> 270(16).]</p> <p>4. Master and Servant <&wkey;>274(9) — Injuries to Servani^Contributory Negligence-Evidence — Admissibility.</p> <p>In a servant’s action against a railroad for personal injuries received while between two ears engaged in repair work, a written rule of the company requiring a flag to be stationed in such cases was shown, evidence that a custom prevailed in defendant’s yards of doing light repair work without placing flags for protection of those doing the work was admissible on the question of contributory negligence, since the mere fact alone that injuries were inflicted while an employe was acting in disobedience of known rules would not relieve the master of liability.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 949; Dec. Dig. <&wkey;> 274(9).]</p> <p>5. Damages <&wkey;159(3) — Pleading and Proof — Personal Injury.</p> <p>Under an allegation in the petition that plaintiff’s hand was rendered useless, evidence by plaintiff that his earning capacity had been diminished and so materially impaired that he could not engage either in the work of car repairer or in any other manual labor, was admissible.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 440-443; Dec. Dig. <&wkey;159(3).]</p> <p>6. Witnesses <&wkey;154^-Co'NVERSATiONS with Person Since Deceased — Corporations.</p> <p>The statutory rule touching testimony of conversations with persons since deceased does not apply whore the person deceased was the superintendent of a corporation.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 661; Dec. Dig. &wkey;>154.]</p> <p>7. Witnesses &wkey;M54^-OoNVERSATioNS with Person Since Deceased — Corporations.</p> <p>In a servant’s action against a railroad for injuries, received while making repairs between two cars, plaintiff’s testimony that he had applied to defendant’s superintendent for work, and that the superintendent crushed a letter given him by plaintiff and threw it down, asking him what further action he was going to take, not being an attempt to bind defendant because of its contents, but simply to show that plaintiff made an effort to take up his work and was refused, was admissible, although the superintendent was dead at the time of the trial.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 661; Dec. Dig. <®=?154.]</p> <p>8. Damages &wkey;>132(8) — Personal Injuries— Excessive Damages.</p> <p>Where plaintiff was 46 years old at the time of the injury and earning about $100 per month at his trade, was uneducated, and two of his fingers and the palm of his hand were permanently injured, stiffened, etc., a verdict for $2,610 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 379; Dec. Dig. <&wkey;>132(8).]</p>

<p>Appeal from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Suit by J. H. Slaton and another against the 'Citizens’ National Bank of Plainview and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Hidalgo County Court; W. H. Gossage, Judge.</p> <p>Suit by the San Juan State Bank against the First National Bank of Pharr. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Erbob <&wkey;722(l) — Assignments OP ERROR.</p> <p>Assignments of error cannot be considered where there is no compliance with Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136, providing that assignments in motions for new trial shall constitute the assignments on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994-2996; Dec. Dig. &wkey;722(l)J</p> <p>2. Appeal and Error <&wkey;719(4) — Assignments op Error — Fundamental Error.</p> <p>Error in litigating an issue involving an element of recovery not pleaded is fundamental, and may be reviewed, though not assigned.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2973, 3490; Dec. Dig. <&wkey; 719(4).]</p> <p>3. Judgment <&wkey;18(2) — Pleadings to Sustain.</p> <p>The petition of a lessee, seeking to recover a sum of money which he claimed was due him as the proceeds of his one-half share of wheat raised on the demised premises, alleged that approximately 4,400 bushels were raised which was sold for $3,900, and that there was due him the sum of $500. The lessor counterclaimed, and on cross-examination the lessee testified that he received only $800 cash for the wheat. He was shown a check drawn by lessor payable to his order, which had been paid, and he testified that such check represented the proceeds of his one-half share of wheat in an elevator, but did not involve the matter in controversy. There was a judgment for the lessee. Held that, though the evidence showed that the crop sold for more than was alleged in the petition, the judgment was not objectionable on the ground that recovery was based on an element of recovery not pleaded, for the lessor, having introduced the check in support of his defense and counterclaim, cannot complain that the iessee explained that it related to another transaction.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 36; Dec. Dig. &wkey;>18(2).]</p>

L. Goodman, Judge. Suit by Z. P. Phillips against Jeff Pair-cloth and another. Prom an order sustaining a joint plea in abatement as to defendant A. L. Bates, but overruling it as to named defendant, named defendant appeals.

<p>Master and Servant <&wkey;351 — Injuries to Servant — Employers’ Liability Act — Right op Action.</p> <p>Under Employers’ Liability Act (Acts 33d Leg. c. 179 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246i]) § 3, providing that “the employees of a subscriber shall have no right of action against their employer for damages for personal injuries, * * * but shall look solely for compensation to the Texas Employees’ Insurance Association,” where plaintiff entered defendant’s employ with notice that defendant had a policy with the Texas. Employees’ Insurance Association, and under a written agreement waiving his right to maintain suit against defendants for personal injuries, and agreeing to look to the association, he had no right of action against defendant for personal injuries while in its employ.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Dec. Dig. &wkey;>351.]</p>

<p>Appeal from District Court, San Saba County; N. T. Stubbs, Judge.</p> <p>Election contest by L. W. Barker and others against A. B. Wilson. From an order of a judge, contestants appeal.</p>

E. Davis, Judge. Action by the Houston Oil Company of Texas against tbe Boynton Lumber Company and others. From a judgment for plaintiff, defendants appeal. The following is a copy of the “Priest Map” referred to in the dissenting opinion: low and the Boynton Lumber Company et al., appellants', were defendants, and the cause was tried before the court without a jury.

<p>1. Wills <&wkey;206 — Actions to Determine Validity-Findings as to Revocation.</p> <p>Where the jury has found that a will proposed has been revoked, until that finding was set aside, it was not the duty of the court to admit the will to probate, however well its execution is established.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 513, 514; Dec. Dig. &wkey;206.]</p> <p>2. Wills <&wkey;360 — Actions to Establish Validity — Review—Exceptions.</p> <p>Under Rev. St. 1911, art. 2061, as amended by Acts 33d Leg. a 59, providing that the ruling of the court on instructions shall be regarded as approved unless excepted to as provided, etc., where in a will case proponents took no exception to a charge that in effect told the jury that the execution of a revoking holographic will could be proved by less than two witnesses, they are estopped from making the contention on appeal that the execution of the subsequent holographic will containing a revoking clause miist be proved by two witnesses and established as a valid will under the statute.</p> <p>[Ed. Note. — For other cases, see Wills, Cent. Dig. § 825; Dec. Dig. <&wkey;360.]</p>

<p>Error from Aransas County Court; Roy Jackson, Judge.</p> <p>Suit by Cleo Lodge, No. 222, Colored Knights of Pythias, against Grand Lodge Colored Knights of Pythias of Texas. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Dallam County Court; T. S. Mills, Judge.</p> <p>Action by R. L. Allen against the Ft. Worth & Denver City Railway Company and others. Judgment for plaintiff against the Ft. Worth & Denver City Railway Company, and it appeals.</p>

<p>Error from District Court, McLennan County; Tom L. McCullough, Judge.</p> <p>Action by Crate Dalton against the Mechanics’ & Traders’ Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Carriers <&wkey;92 — Interstate Shipments . —Delivery on Order — Liability op Carrier.</p> <p>Where the contract of shipment provided for delivery on the shipper’s order and instructed the terminal carrier to notify the consignee of arrival of the oats, and the shipper deposited the bill of lading with draft attached, indorsed in blank, in the bank, which placed the amount of the draft to the credit of his checking account, but the terminal carrier in another state had no knowledge of such transaction, and the consignee refused the oats and protested the draft, and the shipper then repurchased the draft and bill of lading, and instructed the terminal carrier to deliver the oats to a broker, and it so delivered them, but more than 48 hours after arrival, and after such delivery the broker secured judgment by default against the shipper for $50 less than the value of the oats, the difference being adjusted by stipulation, the shipper could not, as a matter of law, recover from the initial carrier the value of the oats.</p> <p>[Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 343, 364-366; Dee. Dig. &wkey;92.]</p> <p>2. Carriers <&wkey; 178 — Interstate Shipments —Liability of Carrier.</p> <p>In such action, the terminal carrier was liable only as a warehouseman, and not under Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 804r-S12; Dec. Dig. <&wkey;178.]</p> <p>3. Carriers &wkey;>92 — Interstate Shipments— Statutes Governing.</p> <p>In an action for value of goods taken on execution against the shipper in favor of his consignee, the liability of the initial carrier is to be tested by that of the terminal carrier.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 343, 364 — 366; Dec. Dig. <@=>92.]</p>

<p>1. Mechanics’ Liens <&wkey;315 — Contractor’s Bond — Materialman as Beneficiary — Failure to Give Notice.</p> <p>Where the bond of a contractor for a church building provided that the bond was for the use and benefit of all persons who became entitled to liens under the contract and might be sued upon by them as if executed to them, and was-conditioned that the contractor pay all indebtedness, etc., and complete the contract free of mechanics’ liens, a materialman who did not give notice to the church in the time and manner specified by statute was entitled to sue the sureties on the bond for the payment of his debt.</p> <p>[Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. § 658; Dec. Dig. &wkey;>315; Contracts, Cent. Dig. §§ 793, 794.]</p> <p>2. Appeal and Error &wkey;^154(4) — Right to Appeal — Contractor’s Bond — Sureties.</p> <p>In an action by a materialman against the contractor and sureties on his bond, which was for the benefit of all persons who became entitled to liens, where the contractor admitted liability, and exceptions of sureties to complaint were sustained, plaintiff’s election to take judgment against the contractor was not voluntary so as to prevent him from seeking relief by appeal from the error committed in sustaining the exceptions.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 966-968; Dec. Dig. <&wkey;> 154(4).]</p> <p>3. Appeal and Error &wkey;>1173(3) — Reversal-Effect — Party Not Party to Appeal.</p> <p>Under the statute providing that there shall be but one final judgment in a case, although there may be several defendants, and no final judgment can be rendered against one until rendered as to all, however independent of each other their respective defenses may be, in an action against a contractor sureties on his contractor’s bond, a judgment against the contractor on his admission of liability and sustaining exceptions of sureties to the complaint was a final one disposing of the case as to all parties, so that on an appeal from the court’s action in sustaining the exceptions, to which the contractor was not a party, a reversal for error will operate as a reversal as to all parties including the contractor.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4570; Dec. Dig. <S^1173(3).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Final Judgment.].</p>

<p>1.Injunction <&wkey;145 — Affidavit to Petition.</p> <p>The affidavit verifying petition, without which Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4649, provides injunction shall not be granted, must be that the facts stated in the petition are ti-ue, and must be direct and positive and not from hearsay; so that one that affiant has read the petition, and that the statements of facts there are true to the best of his knowledge and belief, is insufficient.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 318, 321; Dec. Dig. &wkey;145.]</p> <p>2. Appeal and Error <&wkey;854(2) — Affirmance — Reasons of Trial Court.</p> <p>Judgment denying injunction, though placed on other grounds, may be affirmed because of insufficiency to authorize injunction of the affidavit to the petition, questioned hy special demurrer.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3408-3410; Dee. Dig. <&wkey;> 854(2).]</p> <p>3. Municipal Corporations ■&wkey;>898 — “Warrants” or “Bonds.”</p> <p>A city intending to issue warrants as evidence of indebtedness created by contracts for improvements, and having taken the steps necessary therefor, instruments issued pursuant thereto, regardless of their form and the fact that they contain elements of a bond, are warrants, and not bonds, which it cannot issue unless authorized by a majority of the taxpaying voters.</p> <p>[Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. § 1883; Dec. Dig. &wkey;> 898.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Bond; Warrant.]</p> <p>4. Municipal Corporations &wkey;>1000(6) — Taxpayer’s Action — Correction of Record of City Council.</p> <p>All parties interested being before the court in a taxpayer’s action to enjoin collection of a tax to retire city warrants, on the ground that the levy did not have the consent, required by Rev. St. art. 931, of two-thirds of the aldermen elected, the record of the city council, pleaded by plaintiff, showing that only three of the five aldermen voted for the levy being directly attacked by allegation that it was a clerical mistake, and that in fact four of the aldermen voted therefor, may be required to be corrected, as prayed, on evidence showing such fact.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Dec. Dig. &wkey;>1000(6).]</p> <p>5. Municipal Corporations <&wkey;142 — Disqualification — Holding Two Offices — “Office of Emolument.”</p> <p>No salary for alderman being provided by the statute under which a city was incorporated or by ordinance, he, though holding another salaried office, is not, within Const, art. 16, § 40, prohibiting any person from holding at the same time more than one civil office of emolument.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent.Dig. § 314; Dec.Dig. <&wkey;142.]</p> <p>6. Municipal Corporations &wkey;> 147 — Aldermen— Collateral Attack on Qualification.</p> <p>The issue of disqualification under Const, art. 16, § 40, of an alderman because of election to and acceptance of another office of emolument, not being directly raised by the pleadings in a suit to enjoin collection of a tax, and he having been at least a de facto alderman, acting under color of office, his vote for the levy cannot be disregarded.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 324, 325] Dec. Dig. &wkey;147.]</p> <p>7. Municipal Corporations <&wkey;340 — Warrants — Diversion from Purpose.</p> <p>There was no diversion from their purpose of warrants of a city issued for improvement and extension of its waterworks, then consisting of a well; the object of the contract being to connect the system, to such well, and the specifications of the contract being carried out, with the single exception that after the contract was made and the work was commenced it was found the well was too small, and the city from other funds dug a larger one, a few feet away, and the system was attached to it.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 869; Dec. Dig. <&wkey;> 840.]</p> <p>8. Municipal Corporations &wkey;>354 — Contract — Abrogation by Subsequent Contract.</p> <p>Contracts for municipal improvements were not abrogated by a subsequent agreement of the city to deliver in advance the warrants for the work on the execution of an indemnity bond.</p> <p>[Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 886, 887 ; Dec. Dig. @=»354.]</p> <p>9. Municipal Corporations &wkey;»354 — Contracts — Abrogation by Subsequent Contract.</p> <p>Contracts for municipal improvements cannot be abrogated by a subsequent contract, if it be illegal and void because authorized by no ordinance or resolution of the city council.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 886, 887; Dec. Dig. <S==354.]</p>

<p>1. Garnishment @=>17o — Judgment Against Defendant.</p> <p>There can be no valid judgment against the garnishee until there is one against the original defendant.</p> <p>[Ed. Note. — Por other cases, see Garnishment, Cent. Dig. §§ 315-322; Dec. Dig. @==>175.]</p> <p>2. GARNISHMENT @=>124^QuESTIONING ORIGINAL Judgment — Power of Garnishee.</p> <p>If the court rendering judgment against the original defendant had jurisdiction of his person and of the subject-matter of the suit, the garnishee cannot be hoard to question the conclusiveness of the judgment between plaintiff and defendant, and the mere fact that the original judgment must be obtained before judgment can be rendered against the garnishee does not give him the right to assail it for mere irregularities not rendering it void.</p> <p>[Ed. Note. — Por other cases, see Garnishment, Cent. Dig. § 249; Dec. Dig. @=>124.]</p> <p>3. Judgment @=>297, 311 — Correction of Recitals.</p> <p>If the first entry of judgment was a mistake, and was not the judgment of the court, it was its right and duty to correct the entry on the minutes to speak the truth; and if there were recitals of facts as to date of service which were made by mistake, the mistake could be corrected.</p> <p>lEd. Note. — Por other cases, see Judgment, Cent. Dig. §§ 581, 584-586, 604, 605; Dee. Dig. @=>297, 311.]</p> <p>4. Judgment @=>299(1) — Correction After Term.</p> <p>By virtue of the continuing power of a court over its records, it may correct them and cause an entry of judgment to speak the truth at a time subsequent to the term at which it was rendered.</p> <p>LEd. Note. — Por other cases, see Judgment, Cent. Dig. §§ 583, 585, 586; Dec. Dig. @=> 299(1): Appeal and Error, Cent. Dig. §§ 2201, 467-L-4676.]</p> <p>5. Garnishment @=>235(1) — Protection of Garnishee by Amended Judgment.</p> <p>A judgment of a court of competent jurisdiction, amended after term to correct a mistake in entering it upon the minutes, showing on its face to be valid, and importing verity, being in full force and unappealed from, protected a garnishee under it.</p> <p>[Ed. Note. — Por other cases, see Garnishment, Cent. Dig. §§ 423-425; Dec. Dig. @=>235(1).]</p> <p>6. Judgment @=>518 — “Collateral Attack" by Garnishee.</p> <p>An attack by a garnishee on the original judgment against defendant, amended after term to correct a mistake in its entry, is a “collateral attack.”</p> <p>[Ed. Note. — Por other cases, see Judgment, Cent. Dig. §§ 901, 902; Dec. Dig. @=>518.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Collateral Attack.]</p> <p>7. Garnishment @=>103 — Evidence—Original Judgment Against Defendant.</p> <p>The original judgment against a defendant was admissible as evidence in garnishment proceedings against his debtor.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 284, 301; Dec. Dig. @=>163.]</p> <p>8. Judgment @=>521 — Collateral Attack by Garnishee — Validity of Amended Original Judgment.</p> <p>In the absence of affirmative showing on the face of the proceedings that there was no notice to defendant of motion to amend an original judgment to correct a mistake in its entry, in a garnishee’s collateral attack on such judgment the court is not authorized to hold it void.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 964; Dec. Dig. @=>521.]</p> <p>9. Garnishment @=>81(1) — Jurisdiction — Resident Debtor — “Garnishment of a Debt.”</p> <p>The “garnishment of a debt” due a nonresident by a resident debtor is recognized by the statutes and decisions as being a suit in rem against the attached debt, the effect of which is to subject it to payment of the amount due plaintiff, though the general rule is 'that the situs of the debt and obligation is at the domicile of the creditor, and the right to subject the obligation of a nonresident does not infringe upon the sovereignty of the state of the nonresident creditor’s domicile.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 146; Dee. Dig. @=>81(1).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Garnishment.]</p> <p>10. Judges @=>56 — Disqualification of Judge — Effect on Original Judgment.</p> <p>The fact that the judge in garnishment proceedings is related to the garnishee, or is in some other way connected with, or interested in, the subject-matter of the proceedings, docs not render void the judgment in the original suit against the original defendant.</p> <p>[Ed. Note. — For other cases, see Judges, Cent. Dig. §§ 235-245; Dec. Dig. @=>56.]</p> <p>11. Evidence @=>244(10) — Admissions — By Agent of Corporation.</p> <p>In garnishment proceedings to reach the effects of the judgment debtor which he sold to the garnishee in violation of the Bulk Sales Law (Acts 31st Leg. c. 27), on showing that the general manager of the garnishee corporation bought the goods for his company, what he said in relation thereto while the negotiations were in progress was admissible as part of the transaction.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 926, 927; Dec. Dig. @=>244(10).]</p> <p>12. Evidence <^=244(7) — Admissions — Personal Acts of Agent.</p> <p>If the general manager was acting for himself and not for the company in buying the stock of goods in violation of the Bulk Sales Law, the company was not bound by his declarations.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 923; Dec. Dig. @=>244(7).]</p> <p>13. Evidence @=>484, 489 — Opinions—Competency of Witness — Value of Goods.</p> <p>In garnishment proceedings to subject a stock of goods alleged to have been sold by the judgment debtor to the garnishee in violation of the Bulk .Sales Law, the testimony of witnesses, who testified to experience in handling and estimating goods of the class arid character in question, as to the amount of goods left after an auction sale, and as to the value of the goods, which the garnishee was charged to have mingled with its own and sold, was admissible, there being no invoice by which the goods could be valued, objection going more to the weight than the admissibility .of tho testimony.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent.Dig. §§ 2267, 2274; Doc. Dig. @=>484, 489.]</p> <p>14. GARNISHMENT <3=163 — EVIDENCE—LACK of Notice of Same in Btjlk.</p> <p>In garnishment proceedings on account of goods alleged to have been sold by the judgment debtor to the garnishee in violation of the Bulk Sales Law, the attorney for the plaintiff, resident elsewhere than in the city of residence of his clients, was properly allowed to testify that they received no notice from the garnishee or the debtor with reference to the sale, as provided by the statute.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. §§ 284, 301; Dec. Dig. <8=163.]</p> <p>15. Appeal and Error <8=1050(1) — Harmless Error — Evidence.</p> <p>The admission of such testimony of plaintiffs’ attorney was harmless.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1060, 1069, 4153, 4157; Dec. Dig. 8=1050(1).]</p> <p>16. Appeal and Error <8=273(2) — Pleading <8=87 — Objection to Form — Review.</p> <p>In garnishment proceedings, where the supplement, so called, and the other portion of the traverse, were attached together and made part of each other by allegation, in the absence of special exception as to the order of the pleading or that they were attached to each other, the entire answer should be looked to by the trial court and Court of Civil Appeals.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 1764; Dec. Dig. <8=273(2); Pleading, Cent. Dig. § 180; Dec. Dig. <8=87.]</p> <p>17. Fraudulent Conveyances <8=47 — Sales in Bulk — Liability of Transferee.</p> <p>If the transferor of a stock of goods had creditors, the purported sale was void as to them if the Bulk Sales Law was not complied with, and if the transferee sold, disposed of the goods, or converted them by mingling them with its own, it became indebted to the trust for the creditors for their value.</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 34; Dec. Dig. <8= 47.]'</p> <p>18. Garnishment <8=164 — Disposition of Goods by Garnishee — Sufficiency of Evidence.</p> <p>In garnishment proceedings on account of goods alleged to have been sold to the garnishee by the judgment debtor in violation of the Bulk Sales Law, where the goods were in the garnishee’s establishment in July, 1913, when it marked the price so as to sell them, declaring they were going to give the people the full benefit of the bargain, and the garnishee, by its answer, swore that it had no effects of the debtor on December 7, 1914, when the writ was served, the trial court was warranted in inferring that the garnishee had disposed of the goods, especially in the absence of any evidence to the contrary.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 302; Dec. Dig. <8=164.]</p> <p>19. Fraudulent Conveyances <8=276 — Sales in Bulk — Burden of Proof — Notice to Creditors — Statute—“Unless.”</p> <p>Under the Bulk Sales Law, providing that any sale of any portion of a stock of merchandise shall be void as against creditors of the seller “unless” the purchaser shall make full inquiry as to the names and places of residence of the seller’s creditors, and shall in good faith notify the creditors, in garnishment proceedings on account of a stock of goods alleged to have been sold by the judgment debtor to the garnishee in violation of the Bulk Sales Law, where plaintiff showed a bulk sale, or a sale not in the regular course of business, and that it was a creditor of the seller, and that there were other creditors, the burden to show that the sale was within the- exception of the statute shifted to the garnishee, since the primary meaning of “unless” is unloosened from, having the force of “except,” and those claiming to be excluded under it must show they are within the exception (citing Words and Phrases, Unless).</p> <p>[Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 808; Dec. Dig. <3= 276.]</p> <p>On Motion for Beh earing.</p> <p>20. Judgment <8=497(3) — Attack — Lack of Service.</p> <p>A party affected by a judgment obtained in a suit by publication has the right to show by the record either in a direct or collateral proceeding that there was no service, or such facts as show the court did not have jurisdiction, or would render the judgment void.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 938; Dec. Dig. <8=497(3).]</p> <p>21. Judgment <8=497(1) — Collateral Pro- ' ceeding — Showing of Jurisdiction.</p> <p>In a proceeding collateral to a judgment, such as a garnishment proceeding, if the judgment on its face shows jurisdiction, the party claiming under it is not required to go further.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 937; Dec. Dig. <8=497(1).]</p> <p>22. Judgment <8=521 — Attack — Lack of Service — Burden of Proof.</p> <p>The burden to show there was no service is on the party assailing a judgment for lack of such service as is required by law.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 964; Dec.. Dig. 8=521.]</p> <p>23. Garnishment 8=162 — Amendment of Original Judgment — Notice of Motion-Burden of Proof.</p> <p>In garnishment proceedings' on an amended or corrected judgment which did not recite notice to the judgment debtor of the motion to amend, the burden was on the garnishee to show that there was no notice, which was not satisfied by showing that the clerk issued none, since notice could have been given in other ways, or been waived.</p> <p>[Ed. Note. — For other cases, sec Garnishment, Cent. Dig. § 300; Dec. Dig. 8=162.]</p> <p>24. Garnishment <8=162 — Amendment of Original Judgment — Notice of Motion-Presumption.</p> <p>In garnishment proceedings under an amended original judgment, the presumption, in the absence of contrary evidence, is that notice of the motion to amend was waived, or given in some way.</p> <p>[Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 300; Dec. Dig. 8=162.]</p> <p>25. Appeal and Error 8=934(1) — Presumption — Amendment of Original Judgment —Notice.</p> <p>In garnishment proceedings under an amended original judgment, the court should presume on appeal that if notice of the amendment was not waived by the judgment debtor, the garnishee would have proven the fact either by the record or aliunde evidence.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3777, 3780, 3781; Dee. Dig. 8=934(1).]</p>

<p>Appeal from McLennan County Court; Geo. N. Denton, Judge.</p> <p>Action by Mary L. Hollingsworth against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hamilton County; J. H. Arnold, Judge.</p> <p>Action by the Gullett Gin Company against Crews & Williams. From judgment for plaintiff, defendant appeals.</p>

<p>Carriers c&wkey;228(3) — Injury to Cattle — Evidence.</p> <p>In action against railroad for injuring cattle shipped, to be placed on1 pasture in ranches near the point of destination, it was permissible for a witness to testify as to their market value in that section of the country, where he also testified that their market value would be the same all over that section, which included the point of destination.</p> <p>[Ed. Note. — For other cases, see Carriers, Cent. Dig. § 960; Dec. Dig. <&wkey;>228(3).J</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by K. H. MeCaskill against John F. Montgomery. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Ellis County; F. L. Hawkins, Judge.</p> <p>Action by J. L. Gammon against E. P. Anderson. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Action by Elsie Phillips Sheppard and another against the Southwestern Telegraph & Telephone Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Emotions <@=>227(1) — Conduct — Irregularities.</p> <p>As Const, art. 6, § 2, providing that persons of foreign birth having the qualifications provided for natives who have declared their intention to become citizens of the United States, shall be deemed qualified electors, designated a special class, if a proclamation by election officers that no man not born in the United States, unless he had his final naturalization papers, would be permitted to vote in an election to determine whether the sale of intoxicating liquors would be prohibited in a county, was made known and a sufficient number of this class was prevented from voting to overcome the majority in favor of prohibition and change the result, whether they presented themselves at the polls or not, the election was void.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 197, 198; Dec. Dig. <@=>227(1).]</p> <p>2. Elections <@=>285(3) — Contests—Petition —Sufficiency.</p> <p>Although when an election is attacked on the ground of the exclusion of individual voters, the name of each individual must be alleged, in an action to contest an election an allegation in the petition that an announcement was made before the election that a certain class of voters would be excluded from voting; that a number of votes sufficiently large to have changed the result of such election were prevented by such announcement from attending the polls — was sufficient to form a basis of proof of such facts without naming the voters of the class.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 269, 274; Dec. Dig. <@=>285(3).]</p> <p>3. Elections <@=>285(3) — Contest—Petition-Sufficiency.</p> <p>In an action to contest an election, a petition, alleging that in several precincts, the officers of the election proclaimed publicly that no man not born in the United States would be allowed to vote unlegs he had his final naturalization papers, and that the announcement was made in three precincts named, and was circulated throughout the precincts, was sufficiently definite in naming the precincts in which the class of voters was excluded and the officers who announced that the class would be excluded.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 269, 274; Dee. Dig. <@=>285(3).]</p> <p>4. Elections <©=>73 — Qualification of Voters — Poll Tax Receipt — Statute—“Affidavit” Oath.</p> <p>Under Rev. St. 1911, art. 2952, providing that if a citizen, after receiving his poll tax receipt or certificate of exemption, removes to another county or another precinct in the same county, he may vote at an election in the precinct of his new residence by presenting his poll tax receipt, or certificate of exemption, or his written affidavit of its loss, to the precinct judges, and by making oath that he is the person described, etc., an “affidavit” being an “oath” reduced to writing, and the oath only being for purposes of identification, the requirement of an affidavit is mandatory, but only with regard to a voter who has lost his receipt or certificate, while that in regard to an oath is only directory, so that votes of electors who had' paid their poll taxes and removed to another'precinct, but made neither affidavit nor oath, were not illegal where their receipts or certificates were not lost, and the oath was not required by the election officers.</p> <p>[E'd. Note. — For other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. <@=>73.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Affidavit.]</p> <p>5. Intoxicating Liquors <@=>35 — Elections— Count of Votes — Statute—Construction— “Majority Vote.”</p> <p>Under Const, art. 16, § 20, providing that the Legislature shall enact a law whereby the qualified voters of any county, etc., by a “majority vote,” etc., may determine whether the sale of intoxicating liquors shall be prohibited, and Rev. St. 1911, art. 5723, providing that if a majority voting shall vote against prohibition, the court shall make an order declaring the result, etc., article 3062, declaring that illegal votes shall be cast out and .article 5720, requiring that officers holding a local option election conform to general laws, the result of an election on the question of prohibition is determined by a majority of qualified voters voting, and no inquiry as to the whole number of persons entitled to vote is necessary.</p> <p>[Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 42; Dec. Dig. <@=>35.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Majority Vote.]</p> <p>6. Elections <@=>72 — Qualifications of Voters — ‘ ‘Residence.”</p> <p>That a man’s wife and children resided on their homestead fixed his residence there, although he may have taken but one meal a day and spent the rest of his time on another farm.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 67, 68, 70; Dec. Dig. <@=>72.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Residence.]</p> <p>7. Elections <@=>225 — Ballots.</p> <p>A voter should not be allowed to repeat his vote because he violated the law in casting the first one.</p> <p>[Ed. Note. — For other cases, see .Elections, Cent. Dig. § 195; Dec. Dig. <@=>225.]</p> <p>8. Domicile <@=>8 — Evidence—Presumptions.</p> <p>The presumption that every man has a fixed domicile applies as well to a single as to a married man.</p> <p>[Ed. Note. — For other cases, see Domicile, Cent. Dig. §§ 36, 37; Dec. Dig. <@=>8.J</p> <p>9. Elections <@=>73 — Qualifications of Voters.</p> <p>As residence is largely a matter of intention, made to appear by all the facts and circumstances of the case, and absence from place of residence will not alone destroy a residence once fixed, that a voter had been abroad and out of the state a great deal, nothing being shown with regard to his intention, will not destroy his right to vote.</p> <p>[Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 69, 70; Dec. Dig. <©=>73.]</p>

<p>1. Constitutional Law <@=>129 — Obligation oe Conteacts — Acceptance—Evidence.</p> <p>In an action to recover stock subscriptions, evidence held to support a finding that a special act, approved May 23,1871 (Sp. Laws 12th Leg. c. 264), providing for the incorporation of a banking association, was not accepted prior to April 18, 1876, and hence did not become a contract prior to the constitutional provision prohibiting the formation of such corporations, which became effective on that date.</p> <p>[Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. §§ 296, 301, 362-413; Dee. Dig. <@=>129.]</p> <p>2. Constitutional Law <@=>129 — Obligation op Conteacts — Unaccepted Special Act— Repeal.</p> <p>AVhere a special act approved May 23, 1871 (Sp. Acts 12th Leg. c. 264), providing for the incorporation of a banking association, was not accepted, it did not become a contract, and vested no rights, and was repealed by Constitution of April 18, 1876, art. 16, § 16, prohibiting the creation of banking corporations.</p> <p>[Ed. Note. — Por other cases, see Constitutional Law, Cent. Dig. §§ 296, 301, 362^-413; Dec. Dig. <@=>129.]</p> <p>3. Banks and Banking <@=>39 — Corporations <@=>34(6) — Peohibited Corporation— COLLATEEAL ÁTTACK.</p> <p>Where a special act approved May 23,1871, for the incorporation of a banking corporation was repealed and withdrawn by Constitution of 1876, art. 16, § 16, the organization of a pretended banking corporation under this special act, in violation of the clear prohibition of the Constitution, was absolutely void ab initio, did not constitute a de facto corporation, all contracts for subscription are void and contrary to public policy, the notes given for stock are void, either in law or equity, and the subscribers are not estopped to deny its existence as a corporation, although they are liable to depositors and creditors for amounts actually received by the pretended corporation.</p> <p>[Ed. Note. — Por other cases, see Banks and Banking, Cent. Dig. §§ 44-48; Dee. Dig. <@=> 89; Corporations, Cent. Dig. §§ 92, 96; Dec. Dig. <@=>34(6).]</p> <p>4. Coepoeations <@=>34(3) — Right oe Subscribers to Deny Existence — Statute.</p> <p>Rev. St. 1911, art. 1138, providing that no person who assumes an obligation to an ostensible corporation as such shall resist the enforcement of such obligation on the ground that there was in fact no such corporation until that fact shall have been adjudged in a direct proceeding had for the purpose, does not apply to pretended corporations expressly forbidden by law, but only refers to ostensible de facto or de jure corporations.</p> <p>[Ed. Note. — Por other cases, see Corporations, Cent. Dig. §§ 84, 86, 90, 91, 96; Dec. Dig. <@=? 34(3).]</p>

<p>1. Counties <§=>222 — Officers — Action for Compensation — Statute.</p> <p>Under Rev. St. 1911, art. 1366, providing that a county shall not be sued unless the claim upon which suit is founded shall have first been presented to the county commissioners’ court and such court has neglected or refused to audit the same, or any part, a petition, stating that plaintiff had presented to the commissioners’ court a claim in writing for a sum stated, being the amount of balance due him for amounts received and disbursed during said years, as alleged, for an allowance by the court of said amounts, with the request that the court pay plaintiff said sum so due, which statement followed the itemized claim in the petition, although the claim presented to the commissioners was larger than the amount due shown by the sum of items stated, sufficiently shows that the identical claim sued for was presented to the commissioners’ court for allowance, on general demurrer to the petition.</p> <p>[Ed. Note. — For other cases,, see Counties, Gent. Dig. §§ 355-359; Dec. Dig. <§=>222.]</p> <p>2. Counties <§=>222 — Actions—Petition—Ad Damnum Clause.</p> <p>As the ad damniim clause of a petition is merely an effort to state the entire amount plaintiff contends is due on his claim, or will be due when suit is tried, such clauses are disregarded in determining the amount in controversy, when other portions of the petition show no such damages could have been sustained, and should not be held -to show a suit upon a .different claim than the one presented in the petition.</p> <p>[Ed. Note. — For other cases, see Counties, Cent. Dig. §§-355-359; Dec. Dig. <§=>222.]</p>

<p>Appeal from Milam County Court; John Watson, Judge.</p> <p>Suit by the Adam Sebaaf Company against L. H. Posey. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Oourt, Fayette County; Frank S. Roberts, Judge.</p> <p>Suit by Mrs. Isolda Zapp against Y. F. Mossop. To review a judgment for plaintiff, defendant brings error.</p>

<p>1. New Trial @=>152 — Amendment or Motion — Effect.</p> <p>The filing of an amended motion for new trial has the effect of eliminating the original motion, and no part of the original motion not contained in the amended motion can be considered.</p> <p>[Ed. Note. — For other eases, see New Trial, Cent. Dig. § 282; Dec. Dig. @=5152.]</p> <p>2. Appeal and Error @=>994(2) — Review-Questions of Fact — Conflicting Evidence.</p> <p>It is no objection to answers of the jury based on conflicting evidence that the jury apparently gave more credit to witnesses of ap-pellee than to those of appellant, as they have a right to do so.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3902, 3903; Dec. Dig. @=>994(2).]</p> <p>3. Interest @=518(1) — Accounts—Allowing Interest.</p> <p>In action between two parties, each claiming a balance due from the other, where appellant is found to owe appellee a substantial sum, appellant cannot object to failure of trial court to allow interest on his account against appellee, where appellee has not been allowed interest on his account against appellant.</p> <p>[Ed. Note. — For other cases, see Interest, Cent. Dig. § 32; Dec. Dig. @=>18(1).]</p>

<p>Error from District Court, Anderson County; John S. Prince, Judge.</p> <p>Suit by the First State Bank of Oakwood against Joe L. Hill and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal, from Leon. County Court; C. D. Craig, Judge.</p> <p>Suit by N. E. Thorne against B. D. Dash-iell. Judgment on peremptory instruction for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Reeves County ; W. A. Hudson, Judge.</p> <p>Action by the Pecos Valley State Bank against H. V. Carr. Judgment on perémp-tory instruction for plaintiff, and defendant appeals.</p>

Action by the Hackney Manufacturing Company against A. T. Celum and others, wherein Celum reconvened. Judgment for defendants, and for Celum on his reconvention, and plaintiff appeals.

<p>Error from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by Eugenia Dodson against the Illinois Bankers’ Life Association. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Suit for writ of mandamus and for writ of injunction by John R. Spann against the City of Dallas and H. J. Emmins. From a judgment denying the writs, plaintiff appeals.</p>

Masterson, Judge. Trespass to try title by C. S. L. Seureau against S. D. Frazer and others. Judgment for the defendants on directed verdict, and plaintiff appeals.

<p>Appeal from District Court, Grimes County; S. W. Dean, Judge.</p> <p>Action by Will Fabian again the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Attorney and Client <&wkey;149 — Contract for Employment.</p> <p>An attorney’s agreement with the owner of a ranch in Mexico to sue to recover cattle, or the value thereof, whieh the agreement recited had been converted by a Mexican general, the agreement assigning to the attorney a “one-fourth interest in what may be recovered by suit or compromise,” the rancher not to be responsible for the attorney’s services if the latter should not succeed in recovering anything of value, did not entitle the attorney to compensation, when he failed to recover anything, nor was he entitled to one-fourth interest in the cattle on the ranch not converted, on the theory that since he had been induced to start suit and change his position by the representation that all the cattle on the ranch had been converted, the rancher was estopped to deny such representation, since the attorney knew at the time of the agreement that his client had fled from Mexico, and did not personally know that the cattle had been converted.</p> <p>[Ed. Note. — For other cases, see Attorney and Client, Cent. Dig. §§ 351-357; Dec. Dig. &wkey;> 149.]</p>

<p>Appeal from Williamson County Court; Richard Critz, Judge.</p> <p>Suit by F. C. Flockinger and others against T. W. Marse & Company. From a judgment for plaintiffs, defendants appeal.</p>

F. Whitehurst, Judge. Garnishment proceedings by the Advance Thresher Company against the Farmers’ Elevator Company, wherein the garnishee prayed that pthers be made parties, and all claimants be required to liquidate their claims. From judgment that plaintiff recover of the garnishee the full amount of its liability, and that two of the parties impleaded take nothing as against the garnishee or plaintiff. W. T. Waggoner and Ben Kruse, the impleaded parties, appeal.

R. Price, Judge. Suit by Francisca R. Ochoa and husband against Peyton J. Edwards, Sheriff of El Paso County, and T. M. Bower and T. N. Bower, composing the firm of T. M. Bower & Co. From a judgment for defendants plaintiffs appeal.

A. Wilcox, Judge. Suit by T. W. Marse & Co. against J. T. White, the City National Bank, and others. From a judgment for plaintiffs in part, but decreeing defendant Bank a prior lien, plaintiffs appeal.

<p>1. Guaranty <&wkey;S6(l) — Liability:—Alteration.</p> <p>The liability of a guarantor cannot be extended by implication, or otherwise, beyond the actual terms of his contract, even though a proposed alteration would be for his benefit, and a case must be brought strictly within the terms of the guaranty, reasonably interpreted, to make the guarantor liable.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. §§ 38, 40; Dec. Dig. &wkey;36(l).]</p> <p>2. Guaranty <&=»30(5) — Construction — Alteration.</p> <p>Under a guaranty of credit for “E. E. Peoples Company, Memphis, Texas and Clovis, N. M.,” unconditionally guaranteeing whatever amount “said party” should owe, the guarantor was not liable after such party gave up business at those places and engaged in business elsewhere in Texas, as the contract could not be construed as securing the plaintiff wherever the company should transfer its business, as the term, “said party,” did not refer to Peoples personally, though he was individually doing business under the company name, and as the words “Memphis, Texas and Clovis, N. M.,” were not descriptio personse.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 41; Dee. Dig. <&wkey;36(5).]</p> <p>3. Guaranty <&wkey;2¡7 — Construction—Intention.</p> <p>The intention of the parties will be sought from the instrument, but to that end the circumstances at the time of its execution will be considered.</p> <p>[Ed. Note. — For other cases, see Guaranty, Cent. Dig. § 28; Dec. Dig. <&wkey;>27.]</p> <p>4. Payment &wkey;>46(2) — Running Account — Application.</p> <p>Where there is a running open account between parties and no application is made by either, the law will apply the payment according to priority of time, which rule applies where one item is better secured than the other.</p> <p>[Ed. Note. — For other cases, see Payment, Cent. Dig. § .126; Dec. Dig. <&wkey;46(2)J</p>

F. Whitehurst, Judge. Suit by D. L. and Fannie J. Klepper, making Charles P. Rowland defendant by motion to vacate and set aside a judgment in a suit to recover state and county taxes and to foreclose a lien on the land and to decree the land to plaintiffs, in which defendant in-terpleaded B. F. Brandenburg, and prayed that for any judgment suffered he have a judgment over against him. Judgment for plaintiffs, and defendant Rowland appeals.

<p>Error from District Court, McLennan ' County; E. J. Clark, Judge.</p> <p>Action by Levy. & Rosen against the Providence Washington Insurance Company. Judgment for plaintiff, and defendant brings error.</p> <p>This is a companion case to ./Etna Insurance Co. v. Waco Company, 189 S. W. 315, recently decided by this court, and reference is here made to our findings of fact in that case for our findings of fact in this case, the only difference being that in the former case the policy had been assigned by Levy & Rosen, the defendants in error herein, to. the intervener, the Waco Company.</p>

<p>Appeal from Travis County Court; Wm. Von Rosenberg, Jr., Judge.</p> <p>Action by Mary Luck against the United Brotherhood of Carpenters and Joiners of America. Judgment for the plaintiff, and defendant appeals.</p>

<p>1. Homestead <&wkey; 140 — Husband and Wife— Community Property — Effect.</p> <p>A husband’s abandonment of his wife without cause or excuse, continuing until her death, forfeits all rights of homestead in the land which the wife owned at her death; and this is true notwithstanding' it is community property, and the abandonment does not operate to sever marital relations.</p> <p>[Ed. Note.- — For other cases, see Homestead, Cent. Dig. §§ 259, 260; Dec. Dig. &wkey;140J</p> <p>2. Husband and Wife @=>273(4) — Community. Property — Right of Surviving Husband — Debt—Lien.</p> <p>Where a.husband abandoned his wife without cause, which abandonment continued until her death, and the wife, after the abandonment and with her own means acquired a house and lot which was the only property owned by either of them, and died intestate, and there was no administration or necessity therefor, the amount which defendants, the wife’s sister and her husband, were allowed for nursing and caring for the wife in her last illness was a community debt, so that the trial court properly decreed that the husband should recover the title and possession of the property charged with the community debt, with an order for its sale unless he voluntarily paid the amount of the lien within 60 days after the judgment.</p> <p>. [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1012; Dec. Dig. &wkey;> 273(4).] ,</p> <p>3. Trespass to Try Title <&wkey;>53 — Recovery— Rent — Sufficiency of Evidence.</p> <p>In trespass to try title, held, on the evidence, that the trial court did not err in not awarding the plaintiff a judgment for the amount of rent claimed by him..</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title,. Cent. Dig. §§ 85, 86; Dec. Dig. &wkey;> 53.]</p>

Robinson, Judge. Suit by W. B. Abney against P. Z. Davis, Ingham S. Roberts and others. From a judgment for plaintiff against Roberts and the others, except Davis, they appeal.

<p>1. Bills and Notes @=>375 — Issue oe Stock for Note — Constitution — Holder for Value.</p> <p>Under Const, art. 12, § 6, providing that no corporation shall issue stock or bonds except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebtedness shall be void, a note given in payment for increased stock was void even in the hands of an innocent purchaser for value before maturity and without notice.</p> <p>[Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. @=> 375.]</p> <p>2. Bills and Notes @=>537(1) — Directed Verdict-Conflicting Evidence.</p> <p>In an action on a note, where the evidence was conflicting on the issue of whether the note was given for stock in a corporation, it was error to peremptorily instruct a verdict for plaintiff.</p> <p>[Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 1862, 1871-1875, 1891-1,893; Dec. Dig. @=>537(1).]</p>

Suit by Bettie Bartlett and another against Juliette A. Jones, individually and as independent executrix of the estate of Charlie Jones, deceased. Decree for complainants, and defendant appeals.

<p>Appeal from Grayson County Court; Dayton B. Steed, Judge. C. S. Moots was convicted, and appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge. Charlie Burage was convicted of aggravated assault, and appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge. Hugh Jones was convicted, and appeals.</p>

<p>Appeal from District Court, El Paso County; Dan M. Jackson, Judge. Baltazar Chavez was convicted of robbery, and he appeals.</p>

<p>Appeal from District Court, Bexar County; Edward Dwyer, Judge. Action by C. W. Wilson against T. J. Freeman, receiver. From an adverse judgment, defendant appealed.</p>

<p>Appeal from District Court, Hamilton County; J. H. Arnold, Judge. Suit by T. H. Moss against the Rumley Products Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Ellis County; .F. L. Hawkins, Judge. G. W. White was convicted of pursuing the occupation of selling intoxicating liquor in prohibition territory, and he appeals.</p>

<p>Appeal from District Court, San Saba County; N. T. Stubbs, Judge. Paul Wyckoff was convicted of manslaughter, and appeals.</p>