Volume 190 — South Western Reporter

<p>Appeal from District Court, Fannin County ; -Ben H. Denton, Judge.</p> <p>Frank M. Bullington was convicted of as-’ sault to murder, and be appeals.</p>

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Action by Mrs. Leila E. Borton against W. H. Borton. From a portion of the judgment favorable to the plaintiff, defendant appeals.</p>

<p>1. Tkial <®=328d—Instructions—Failure to Object.</p> <p>Mere failure to object to the general charge of the court does not estop a party from requesting instructions and excepting to, refusal of such requests, since under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, if there is no objection to the general charge, the objection only is waived and the charge is not approved.</p> <p>[Bd. Note.—For other cases, see Trial, Cent. Dig. §§ 683-685; Dec. Dig. 4&wkey;284.]</p> <p>2. Pleading &wkey;34(3) — General Exception —Effect—Presumptions.</p> <p>Every reasonable intendment will be indulged in favor of the allegations in the petition under a general exception.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. § 69; Dec. Dig. <&wkey;34(3)J</p> <p>3. Brokers <&wkey;82(l) — Actions — Pleading— Sufficiency.</p> <p>A petition in a broker’s action for commission, alleging that he was to make a sale for part cash, the balance due to suit the purchaser, and that the lot was sold .upon terms required by the seller to a purchaser willing and able to pay all cash, or to make terms to suit the seller, is not subject to a general exception.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. § 101; Dee. Dig. &wkey;>82(l).]</p> <p>4. Pleading <&wkey;228 — Misjoinder of Counts —Necessity of Objection.</p> <p>If a petition is defective in failing to plead several alternative allegations by separate counts, special exceptions should be made on that ground, which a general exception will not reach.</p> <p>[Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. &wkey;>228.]</p> <p>5. Pleading &wkey;>248(4) — Amendment —Sub- ■ stitution of New Cause.</p> <p>Where a broker’s petition for commissions alleged that the price at which he was to sell the land was $8,000, $2,500 to be paid in cash, a subsequent amendment, repeating the allegations of the petition, except that the amount of cash was not to be less than $2,500, did not allege a new cause of action.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 701-706, 708%; Dec. Dig. &wkey; 248(4).]</p> <p>6. Brokers <&wkey;57(l) — Commissions—Actions —Evidence.</p> <p>Where a broker was authorized to sell a lot at $8,000, $2,500 to be paid in cash and the balance in terms to suit the purchaser, and the purchaser to give vendor’s lien notes, and he sold the lot for $8,000, $4,500 in cash, the purchaser to assume certain vendor’s lien notes which in fact had no existence, he was not entitled to commission, not having made the sale upon the terms required.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72; Dec. Dig. &wkey;57(l).]</p>

<p>Appeal from Bexar County Court for Civil Cases; Ed H. Wicks, Special Judge.</p> <p>Action by the 41amo Printing Company against J. J. Luck and others. From a judgment for plaintiff, defendant J. J. Luck appeals.</p>

<p>1. Appeal and Errok &wkey;31005(3) — Conflict- ' ing Evidence.</p> <p>Where the trial court has sustained a verdict of the jury based on conflicting evidence, it will not be disturbed on appeal.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3949; Dec. Dig. &wkey;1005(3).]</p> <p>2. Waters and Water Courses <&wkey;171(l)— Flooding by Railroad Embankment — Liability — Proximate Cause.</p> <p>A railroad company is not liable for alleged damages to land from overflow even though caused by its negligent construction or maintenance of embankments and culverts, diverting the natural flow of surface or creek waters, if such overflow occurred when natural conditions would have caused the same damages, even if the embankments and culverts had not existed, for in such ease the construction and maintenance of its roadbed is not the proximate cause of the damage.</p> <p>[Ed. Note — For other cases, see Waters and Water Courses, Cent. Dig. §§ 216, 217, 221, 222; Dec. Dig. &wkey;171(l).]</p> <p>3. Trial <&wkey;214 — Request for Charges on Special Facts.'</p> <p>A defendant is entitled to have presented to the jury any specified group of facts developed at trial, which, if true, would in law establish a’ given defense, provided the evidence represented is not substantially covered by the main charge.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 480; Dee. Dig. &wkey;>214.]</p> <p>4. Negligence <&wkey;56(l) — Proximate Cause.</p> <p>A defendant is not liable for damages for his negligence, if such negligence was not the proximate cause of plaintiff’s injury.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 69; Dec. Dig. &wkey;56(l)J</p> <p>5. Negligence <&wkey;82 — Contributory Negligence.</p> <p>That plaintiff in a suit for damages is guilty of negligence will not preclude recovery if such negligence did not proximately contribute to his injuries, but they were caused solely by the negligence of defendant.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 112-114; Dec. Dig. &wkey;82.]</p> <p>6. Waters and Water Courses <&wkey;179(6)— Action Against Railroad for Flood Damages — Questions for Jury — Negligence.</p> <p>In action against railroad for damages to land from flood caused by negligent construction or maintenance of its embankment and culverts, the question whether the damages were caused by such embankment and culverts or would have occurred from natural conditions is for the jury.</p> <p>[Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 256, 258, 259, 264; Dec. Dig. &wkey;179(6).]</p>

<p>1. Action <&wkey;68 — -Dismissal and Nonsuit &wkey;>56 — PARTIES &wkey;>29 — Necessary Parties.</p> <p>All parties, plaintiffs and defendants, necessary to the final disposition of the main issue in a suit should be joined therein, and when it appears that such parties have been, omitted, it will require either a dismissal of the suit or a stay of proceedings until such parties can he brought in.</p> <p>[Ed. Note — For other eases, see Action, Cent. Dig. §§ 739-743; Dec. Dig. <&wkey;68; Dismissal and Nonsuit, Cent. Dig. §§ 95, 124-128; Dec. Dig. <&wkey;56; Parties, Cent. Dig. §§ 41, 47-49, 51; Dec. Dig. &wkey;29.]</p> <p>2. Injunction &wkey;>114(l) — Parties—Part Suing on Behalf of All.</p> <p>In a suit to enjoin the redistricting of a county brought by 48 out of 137 districts, being an action to prevent the destruction of the districts which instituted the suit, and incidentally to maintain the status quo of those which are not parties, the remaining districts were not necessary parties, whether they proposed to oppose or support the action.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §, 202; Dec. Dig. <&wkey;>114(l).]</p> <p>3. Quo Warranto <&wkey;5 — Schools and School Districts <&wkey;32 — Kedistricting— Restraining.</p> <p>A suit by school districts and taxpayers against the county school trustees to enjoin a redistricting of the county could be maintained as an ordinary suit between the parties, and need not be by a proceeding by quo warranto under the statute to review the acts of the county school trustees.</p> <p>[Ed. Note. — For other cases, see Quo Warran-to, Cent. Dig. § 6; Dec. Dig. &wkey;>5; Schools and School Districts, Cent. Dig. §§ 52-54; uec. Dig. <&wkey;32J</p> <p>4. Schools and School Districts <&wkey;32— Redistricting— Complaint — Sufficiency.</p> <p>In a suit to enjoin the redistricting of a county, a petition, alleging that a county containing 137 districts, each with a sufficient and accessible school, will be divided by defendants into 78 districts without notice to trustee of existing districts, causing children to walk from 2y2 to in many eases between 5 and 7 miles to school across impassable country, resulting in a practical denial of school privileges, and that such proposed acts are a gross abuse of authority and a fraud upon rights of plaintiffs, was sufficient basis upon which to grant the relief sought.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 52-54; Dec. Dig. &wkey;32.}</p> <p>6. Schools and School Districts <&wkey;39— Redistricting — Appeal to District Court.</p> <p>Acts 34th Leg. c. 36, section 4a giving the district court general supervisory control over the action of the county board of school trustees in creating, changing, and modifying school districts, is not controlled by section 10 of the act (Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 4509-4510), providing for appeals from the actions of the trustees, etc., to the state superintendent and thence to the state board of education, but appeals from the action of the school trustees may be made to the district court, since the appeal provided by section 10 has reference to purely administrative and ministerial acts.</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 68, 69; D.ee. Dig. <&wkey;39.]</p> <p>6. Schools and School Districts &wkey;32— Redistrictinq — Temporary Injunction.</p> <p>In a suit to enjoin the redistricting of a county by county school trustees, evidence held to sustain a judgment granting an injunction pendente lite. '</p> <p>[Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 52-54; Dec. Dig. <&wkey;>32.]</p> <p>7. Appeal and Error <&wkey;1010(l) — Review-Judgment.</p> <p>Where the evidence is sufficient to support a judgment of the trial court, the appellate court is without authority to disturb the judgment, as it would in like manner be without authority to disturb the verdict of a jury.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981; Dec. Dig. &wkey;> 1010(1).]</p> <p>8. Appeal and Error <&wkey;253 — Verification of Complaint — Sufficiency.</p> <p>The fact that petition for injunction was not properly verified as required by Yernon’s Sayles’ Ann. Civ. St. 1914, art. 4649, should be raised in the trial court by exception, and failure to except is waiver of the sufficiency of the affidavit.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1485, 1488, 1491-1493; Dec. Dig. <S=o253.]</p> <p>9. Injunction <&wkey;122 — Verification of Complaint — Statute.</p> <p>Under Yernon’s Sayles’ Ann. Civ. St. 1914, art. 4649, providing that an injunction shall not be granted unless the applicant shall verify his petition by affidavit in an action by school districts of a county to enjoin redistricting, it being necessary that verifications in injunction proceedings be definite and positive enough to support an indictment for perjury if untrue, the affidavit may be made by any one of the joint applicants cognizant of the facts.</p> <p>[Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. <&wkey;>122.]</p>

<p>GARNISHMENT <&wkey;56 — DEPOSITS IN BANK.</p> <p>Defendant, a mule buyer, having only a small balance in bank, arranged to buy mules for his principal, giving his own checks in payment. Such checks were to be taken up by his principal, and the latter drew a check in defendant’s favor sufficient to cover all checks drawn by him. Such check was deposited, but before all of the checks drawn by defendant had been paid his account was garnisheed, whereupon the bank demanded and received a note, signed by the buyer and his father, before honoring defendant’s checks. HelH, that the proceeds of the principal’s check deposited to the account of defendant were subject to garnishment; the bank not having paid defendants’ checks out of such proceeds, but out of proceeds of the loan made to him, and the transaction creating the relation of creditor and debtor between defendant and his principal.</p> <p>[Ed. Note.- — For other cases, see Garnishment, Cent. Dig. §§ 110, 111; Dee. Dig. &wkey;56.]</p>

C. Buford, Judge. Suit by the Ore City Company against J. O. Rogers, in which defendant pleaded in re-convention. From judgment for defendant, plaintiff appeals. The appellant, a town-site corporation, brought the suit to recover of appellee on his two notes executed in part payment of the purchase price of two lots in the town of Ore City, and to have decreed foreclosure of the vendor’s lien expressly retained on said lots.

<p>1. Appeal and Error &wkey;>722(l) — Assignments op Error — Motion por New Trial.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, and rule 24 for Courts of Civil Appeals [142 S. W. xii), the grounds set up in the motions for new trial constitute the assignments of error on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2990, 2994r-2996; Dee. Dig. &wkey;722(l).]</p> <p>2. Appeal and Error <&wkey;742(l) — Assignments oe Error— Sufficiency.</p> <p>An assignment of error not followed by propositions, as contemplated by rule 30 (142 S. W. xiii), need not be considered.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742(l).]</p> <p>3. Appeal and Error <S=;»741 — Review—Assignments of Error — Multifariousness.</p> <p>An assignment of error, complaining that the court erred in overruling appellant’s motion for new trial because the judgment was contrary to the law and against the evidence and the findings of the jury and on account of newly discovered evidence, is plainly multifarious and bad.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3037, 3038; Dec. Dig. <&wkey;> 741.]</p>

D. Guinn, Judge. Action by Mrs. Essie Martin against the Blount-Deeker Lumber Company. From a judgment for plaintiff, defendant appeals. This was a suit by appellee against appellant to recover, as damages suffered by her, the value of certain household goods destroyed by fire, as.the result, she claims, of negligence on the part of appellant in the operation ove? its line of railway of a locomotive engine without a proper spark ar-rester.

Error from District Court, Bowie County; H. F. O’Neal, Judge. Trespass to try title by B. F. Love and others against F. M. Wood and one Groves. Judgment for the plaintiffs against both defendants, and for the defendant Groves against the defendant Wood and defendant Wood brings error. This was a suit of trespass to try title, the land in question being about 400 acres of the David Jarrett survey in Bowie county.

<p>1. Tenancy in Common <&wkey;>15(7, 8) — Advebse Possession — Notice.</p> <p>The execution of a deed by a tenant in common conveying the entire tract of land and its registration by the grantee, who took open and adverse possession thereunder and paid the taxes, was notice to the other cotenant of the assertion of an adverse claim.</p> <p>[Ed. Note. — Eor other cases, see Tenancy in Common, Cent. Dig. § 49; Dec. Dig. &wkey;>15 (7, 8).]</p> <p>2. Limitation on Actions t&wkey;19(l) — Fokged Deed — Statute.</p> <p>The five-year statute of limitations, declaring that no one claiming under a forged deed shall be allowed its benefits, refers to the deeds relied on in support of the plea, and not to prior deeds in the chain of title, not necessary to support the plea.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 73, 80, 84, 85; Dec. Dig. &wkey;19(l).]</p>

F. O’Neal, Judge. Trespass to try title by Mrs. Irene Parsons and others against S. J. Morris. Judgment for the plaintiff for part, of the land in controversy and defendant appeals.

A. Ward, Judge. Suit by Mrs. Mary J. Harris against James R. Adams and another, to recover the balance due on a promissory note and foreclose a vendor’s lien. Judgment for the plaintiff for a part only of the amount due on the note and denying foreclosure of the vendor’s lien, and both parties named appeal.

<p>1. Boundaries <&wkey;37(3) — Location — Side Line — Sufficiency of Evidence.</p> <p>In an action to recover a strip of unlocated and unappropriated public lands lying between the west boundary of a survey and the east boundary of another survey where the m’aps or plats had made the west boundary of the first survey the east boundary of the second, evidence held to sustain a verdict for defendant.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 186-191; Dec. Dig. &wkey;37(3).] .</p> <p>2. Boundaries <&wkey;37(3) — Survey—Resurvey.</p> <p>An original survey agreeing with maps in use for many years should not be held erroneous because not agreeing with resurveys made long aft-erwards and based upon the assumption that information furnished by living persons as to locality of the lines and corners was' absolutely correct, nor, where they are based upon an indefinite and uncertain starting point.</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 186-191; Dec. Dig. &wkey;37(3).]</p> <p>3. Boundaries <&wkey;3(6) — Calls — Surveyed Lines.</p> <p>The real object in applying the various calls is to find the footsteps of the surveyor, and, when found and identified, all classes of calls must yield to them,</p> <p>[Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 2A-29; Dec. Dig. <&wkey;>3(6).]'</p> <p>4. Boundaries <&wkey;ll, 37(3) — Adjoining Surveys — Unappropriated Strip.</p> <p>Adjoining surveys made by the same survey- or within a few days of each other, mapped with a common division line and calling for each other, will appropriate the- land the one to the other, and very clear evidence must be adduced to justify the conclusion of the existence of any vacancy between such surveys as actually made.</p> <p>[Ed. Note. — For other cases, see Boundaries. Cent. Dig. §§ 92-94, 1S6-191: Dec. Dig. <&wkey;> 11, 37(3).]</p> <p>5. Adverse Possession &wkey;>110(4) — Pleading —Evidence.</p> <p>In an action to recover land alleged to lie between two surveys gwned by defendant, with a cross-bill by defendant to recover such strip,, and a plea of title by limitation to the land sued for to protect his chain of title against any defects so that plaintiff might not show an outstanding title in some one else, evidence as to the long possession and use of the land sued for by defendant was admissible.</p> <p>[Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 644, 645; Dec. Dig. (&wkey;> 110(4).]</p>

<p>1. Municipal Cobpobations <S=865(2)— Debts — Pbovision bob Payment — Constitution — “Debt.”</p> <p>Where a city, to seeure lands for a reservoir, contracted to pay the owner a fixed price per acre, and, if another owner secured a fixed price or more in condemnation proceedings, to pay an additional price per acre, but it failed to do so, and the landowner sued, if his petition presented only an action on the contract to recover the excess price, the sum sued for was a “debt,” within the meaning of Const, art. 11, §§ 5, 7, providing that no debt shall ever be created by any city unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest and create a sinking fund.</p> <p>[Ed. Note. — For other cases, .see Municipal Corporations, Cent. Dig. § 1837; Dec. Dig. <§=>865(2).</p> <p>For other definitions, see Words and Phrases, First and Second Series, Debt.]</p> <p>2. Pleading <@=>212 — Demurrer—Waiver.</p> <p>In a landowner’s suit against a city to recover the price of land sold the city for reservoir purposes and to foreclose an implied lien, where the petition did not affirmatively show that no provision had been made by the city, to provide for plaintiff’s debt, when it was created, as required by Const, art. 11, §§ 5, 7, and the city’s general demurrer was not called to the attention of, or acted upon by, the court below, the demurrer will be held to have been waived.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 521-524; Dee. Dig. <@=>212.]</p> <p>3. Pleading <@=>433(2) — Construction apteb Verdict and Judgment.</p> <p>After verdict and judgment for plaintiff, defendant having waived its demurrer to plaintiff's petition, the petition should receive the most liberal construction, and should be held sufficient if its terms are broad enough to support recovery on any theory of facts.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1454, 1455; Dec. Dig. <@=>433(2).]</p> <p>4. Estoppel <@=>62(6) — 'Vendor’s Dien — En-porcement Against City.</p> <p>Where a city, to acquire lands for a reservoir, purchased certain lands from plaintiff, but failed to pay part of the purchase money as agreed, the city could not keep and use the land for its own benefit and profit, and yet repudiate its obligation on the ground that its promise to pay was illegal, because, in creating the debt, it did not provide for its payment as required by Const, art. 11. §§ 5, 7.</p> <p>[Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 153; Dec. Dig. @=>62(6); Municipal Corporations, Cent. Dig. §§ 682, 917.]</p> <p>5. Conteacts <@=>138(3) — Illegality — Re- '■ COVERY OP PSOPEETY.</p> <p>Where property, real or personal, has been acquired by means of a contract forbidden by constitutional or legislative enactment, or otherwise unauthorized, the vendor, while he will be denied an enforcement of the illegal contract, may recover the specific property, in all cases where it can be clearly identified, by a return of all, if anything, that he may have received by virtue of the contract of sale.</p> <p>[E'd. Note. — For other cases, see Contracts, Century Dig. §§ 688, 689; Decennial Dig. <§=> 138(3).]</p> <p>6. Vendoe and Pubchasee <@=>280(1) — ENFORCEMENT OP DlEN — PLEADING — PSAYEE pob Relief.</p> <p>In a landowner’s suit against a city to recover the unpaid portion of the price of land sold it for reservoir purposes and to foreclose an implied lien, where plaintiff’s petition, in addition to the prayer for specific relief, prayed “for all other and further relief, both legal and equitable, to which he may be entitled, both general and special,” the prayer was broad enough to cover any relief, both legal or equitable, to which the plaintiff was entitled under the facts alleged and proven.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 784, 785, 789; Dec. Dig. <&=280(1).]</p> <p>7. Vendoe and Pubchasee <@=>254(1) — Implied Lien.</p> <p>In the absence of distinct waiver, equity raises a lien by implication in favor of a vendor to secure unpaid purchase money.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 634, 641, 648, 649, 651; Dec. Dig. <@=254(1).]</p> <p>8. Municipal Coepoeations <@=1038 — FORCED Sale op Peopeety — Constitution.</p> <p>Where a city purchased land for a reservoir, failed to pay part of the price, foreclosure of a vendor’s lien on part not used was not in conflict with Const, art. 11, § 9, providing that all property owned by a city for public purposes shall be exempt from forced sale, since, as between the city and the vendor, the beneficial title in equity, never passed, and the legal title, if any, acquired by the city, was held in trust for the benefit of the vendor.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2211; Dec. Dig. <@=> 1038.]</p> <p>9. Vendor and Purchaser <@=98 — Rescission — Tendee Back op Consideration— Partial Rescission.</p> <p>Ordinarily a vendor of land cannot rescind the contract in whole or in part without tendering back all paid him by the buyer, and ordinarily a partial rescission and recovery of part of the land cannot be had.</p> <p>[Ed. Note. — For other -cases, see Vendor and Purchaser, Cent. Dig. §§ 163-165; Dec. Dig. <@=>98.]</p> <p>10. Vendor and Pubchasee <@=>285(3) — Partial Rescission — Vendee’s Right to Complain.</p> <p>Where a city purchased land for a reservoir, but failed to pay part of the price and to use part of the land, so that the lands subject to the seller’s lien were not in the city’s actual use and could be detached from the lands in actual use without material injury to the uses originally designed, the city could not complain of judgment foreclosing the seller’s implied lien on such part.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 803; Dec. Dig. <@=> 285(3).]</p> <p>11. Eminent Domain <@=>75 — Condemnation op Land pob Reseevoie — Payment.</p> <p>Private lands cannot be taken from the owner by a city for public use as a reservoir by an exercise of the right of eminent domain without paying therefor at the time of taking.</p> <p>[Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 19S, 199; Dec. Dig. <@=>75.]</p> <p>12. Vendoe and Pubchasee <@=>280(1), 285 (2) — Foreclosure op Lien — Description op Land.</p> <p>In suit by the vendor of lands to a city, which failed to use part of them for a reservoir and to pay part of the price, to foreclose his implied lien on the lands not used, the description of the lands, in the petition and judgment foreclosing lien, as all “above high-water mark,” was sufficient, the surveys being named and the approximate number of acres in each given; the term being well understood and easily ascertainable.</p> <p>[Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 784, 785, 789, 800-802; Dec. Dig. <@=>280(1). 285(2).]</p> <p>Appeal from District Court, Tarrant County; R. B. Young, Judge.</p> <p>Suit by George T. Reynolds against the City of Ft. Worth. From a judgment for plaintiff, defendant appeals. Judgment affirmed, with modification.</p>

<p>Appeal from District Court, Tarrant County; R. B. Young, Judge.</p> <p>Suit by H. F. Loesch against the Supreme Tribe of Ben Hur. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Shackelford County; Thomas L. Blanton, Judge.</p> <p>Action by C. B. Snyder against the Producers Oil Company and others. From judgment for plaintiff, the named defendant appeals.</p>

<p>Appeal from Denton County Court; Fred M. Bottorff, Judge.</p> <p>Action by J. H. Riley against O. E. Cobb. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Insurance &wkey;>645(3) — Estoppejn-Plead-ing.</p> <p>In an action on a fire insurance policy, plaintiff cannot rely on the estoppel of defendant to deny the agency of the one who took plaintiff’s application and premium, unless the estoppel is specially pleaded.</p> <p>[Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1554, 1634-1641; Dec. Dig. <&wkey; 645(3).]</p> <p>2. Insurance <&wkey;130(2) — Contract—Approval of Application.</p> <p>Where an application for fire insurance provided that no liability should attach until the application was actually approved by the home office, there can be no recovery where the jury found that the application had not been approved, since until the approval there was no contract, but only a proposal for a contract.</p> <p>[Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 196, 197; Dec. Dig. &wkey;130(2).]</p>

F.- O’Neal, Special Judge. Action by S. A. Petty against J. M. Wilkins, in which defendant brought cross-action. From judgment for defendant, plaintiff appeals.

Blanton, Judge. Suit by Mrs. Lizzie Kinnebrew and another against the City National Bank of East-land to enjoin the sale of property under a levy of execution. From a judgment granting perpetual injunction, defendant appeals.

<p>1. Pleading ©=>214(1) — Demurrer — Admission.</p> <p>Allegations of the petition must be taken as true as against general demurrer.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 525, 529; Dec. Dig. ©=214(1).]</p> <p>2. Elections ©=>271 — Contest—Grounds.</p> <p>Property owners of a common school district could have successfully' contested the election determining whether a special tax should he levied and collected upon property in the district by proving that two qualified voters cast their votes against the tax, but the votes were wrongfully and illegally thrown out and not counted by the judges, and that a qualified voter was denied tie privilege of casting his ballot, though he offered to make the statutory oath as to his legal qualifications; the result of the election having been in favor of levying the tax by a vote of 24 to 22.</p> <p>[Ed. Note. — For other cases, see Ejections, Cent. Dig. § 248; Dec. Dig. <©=>271.]</p> <p>3. Elections <©=>269 — Statutory Remedy eob Irregularities — Exclusive Character.</p> <p>The remedy given by the statutes of the state relative to election contests for irregularities in elections, such as the illegal throwing out of votes or denying to qualified voters the right to vote, is exclusive of all others, so that the validity of an election as to whether a special school tax should be levied and collected upon property in a common school district could not be attacked by suit to enjoin its levy and collection.</p> <p>[Ed. Note. — For other eases, see Elections, Cent. Dig. §§ 245, 246; Dec. Dig. ©=>269.]</p>

<p>1. Abatement and Eevival &wkey;s54^-AcTiONS eoe Personal Injuries — Injuries Eesult-ing in Death.</p> <p>Though under the common law, actions for personal injuries abated on the death of the injured person, yet by specific provision of Eev. St. 1911, art. 5686, the action of an injured person whose injuries do not result in death survives for the benefit of his heirs or legal representatives.</p> <p>[Ed. Note. — For other cases, see Abatement and Eevival, Cent. Dig. §§ 255-258, 261-270; Dec.' Dig. &wkey;>54.]</p> <p>2. Abatement and Eevival <&wkey;75(l) — Cause of Death — Actions on Injuries — Questions for Jury.</p> <p>In an action by a pedestrian who died before trial, for injuries when struck by railway cars, evidence held to raise a jury question whether his injuries resulted in death or whether his death was from other causes, so as to permit revival under Eev. St. 1911, art. 5686, providing for revival of actions in the personal repres’en-tatives of persons whose deaths do not result from injuries received.</p> <p>[Ed. Note. — For other cases, see Abatement and'Eevival, Cent. Dig. §§ 441, 445-465, 467-473; Dee. Dig. &wkey;75(l).J</p> <p>3. Appeal and Error <&wkey;1048(2) — Prejudicial Error — Opinion Evidence.</p> <p>It was prejudicial to permit plaintiff’s brother, who was not a physician, to testify that after the accident plaintiff recovered and was in perfect health, such testimony being competent only from an expert witness.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4140; Dec. Dig. &wkey;>1048(2).]</p> <p>4. Abatement and Eevival <&wkey;75(l) — Injuries Eesulting in Death — Question for Jury.</p> <p>On death of plaintiff suing for personal injuries, and petition of his parents to continue the action, it was defendant’s right to have the jury instructed that, on the issue whether death resulted from the injuries, proximate cause, is not necessarily that nearest in time to the result, and that although deceased after partial recovery fell and further injured himself, if the efficient cause of his death was the injury by the cars, there could be no recovery.</p> <p>[Ed. Note. — For other cases, see Abatement and Eevival, Cent. Dig. §§ 441, 445-465, 467-473; Dee. Dig. <&wkey;75(l).]</p> <p>5. Eailroads &wkey;>350(7) — Crossing Accidents —Question for Jury.</p> <p>Evidence held to present a jury question whether one injured by railway cars received due warning of their approach,</p> <p>[Ed. Note. — For other cases, see Eailroads, Cent. Dig. § 1161; Dec. Dig. &wkey;350(7).]</p> <p>6. Eailroads &wkey;^350(13) — Injuries to Person — Contributory Negligence — Question for Jury.</p> <p>Evidence held to present a question for the jury whether a pedestrian injured by railway cars was negligent.</p> <p>[Ed. Note. — For other cases, see Eailroads, Cent. Dig. § 1166; Dec. Dig. &wkey;350(13)J</p> <p>7. Negligence <&wkey;141(3) — Contributory Negligence — Instructions.</p> <p>Defendant has the right, on request, to have an affirmative presentation of facts well pleaded, and relied on by him in support of plea of contributory negligence, if the evidence fairly supports an inference of negligence.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 384; Dec. Dig. <&wkey;>141(3).]</p> <p>8. Trial <&wkey;191(8) — Instructions—Assumption as to Facts.</p> <p>In' a pedestrian’s action for injuries when struck by railway cars, instruction," assuming that as a matter of law, if he attempted to cross the tracks without looking or listening and after warning, he was negligent, was' properly refused, when he testified that he did look.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 430; Dec. Dig. <&wkey;>191(8).]</p> <p>9. Eailroads <@^351(9) — Crossing Accidents — Instructions.</p> <p>In a pedestrian’s action for injuries when struck by railway cars, a charge that if the railway had no watchman on the cars and gave no signal by bell or whistle it was liable, even though it had exercised ordinary care in other respects, and even though the plaintiff adequately warned of the.danger in crossing the track, was erroneous.</p> <p>[Ed. Note. — For other cases, see Eailroads, Cent. Dig. § 1201% ; Dec. Dig. &wkey;351(9).] •</p> <p>10. Witnesses <@^394^-Impeachment — Corroboration — Evidence—Admissibility.</p> <p>Where on the third trial of a case one party impeached the witness by showing that on a former trial he had testified to facts in conflict with his testimony on the third trial, it was error to permit, in corroboration, a showing that on another former trial he testified as he did on the third trial.</p> <p>[Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1258, 1259; Dee. Dig'. <@^394.J</p>

<p>1. Master and Servant <&wkey;302(2) — Injuries to Third Persons — Liability oe Master.</p> <p>The owner of an automobile who was not present at the infliction of the injury cannot be held liable except it be shown that the person in charge was not only the agent of the owner, but was at the time engaged in the business of his master.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dec. Dig. &wkey;302(2).]</p> <p>2. Master and Servant <&wkey;302(2) — Injuries to Third Persons — Authority oe Servant.</p> <p>While authority to use an automobile in exceptional ways might be implied by circumstances which would warrant the inference that the employer knew of such uses, the commitment of a car to the custody and control of an employé for the special purpose of delivering merchandise would not alone authorize the conclusion that the employé was at liberty to use the car for other purposes. ',</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1218, 1219; Dee. Dig. &wkey;302(2)J</p> <p>3. Master and Servant <@=3332(4) — Injuries to Third Persons — Triai>-Instructions.</p> <p>In an action for injuries caused by an automobile driven by defendant’s servant, where it appeared that the automobile was in the general control of the servant for commercial use during the daytime, and that the accident happened at night, while the servant, after his employment had finished, was taking persons having no control over him to a fire, the court properly refused a requested instruction that, if the machine was defective and dangerous to use upon the road at night, and that the defects and danger were within the knowledge, actual or constructive, of the defendant, and the driver was one of its employés, defendant would be liable for the consequences, even though the driver was not using the car in the business of his master or with his knowledge.</p> <p>[.Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1277; Dec. Dig. <&wkey; 332(4).]</p> <p>4. Trial <&wkey;252(8) — Instructions—Evidence to Support.</p> <p>In an action for injuries caused by defendant’s automobile driven by its employé, where there was no evidence of incompetency or recklessness of the driver or knowledge on the part of the defendant of such incompetency, an instruction that, if defendant owned the automobile and the driver had been employed regularly and was incompetent or reckless, and the incompetency or recklessness was known to defendant, and the driver was thereafter given control of the car, the retention of the driver under such circumstances constituted negligence, was properly refused.</p> <p>[Ed. Note. — For other cases, see Trial, Gent. Dig. § 603; Dec. Dig. &wkey;252(8).]</p> <p>5. Evidence &wkey;>106(5) — Intoxication — Admissibility.</p> <p>In an action for damages caused by defendant’s automobile, driven by its servant, where there was no evidence tending tq show that the servant was habitually intoxicated or defendant ever knew or heard of his being in an intoxicated condition, testimony that the driver on one occasion had appeared intoxicated when he came to -deliver merchandise to the witness was incompetent.</p> <p>[Ed. Note. — For other cases, see Evidence, Gent. Dig. § 187; Dec. Dig. 106(5).]</p> <p>6. Master and Servant <&wkey;330(3) — Injuries to Third Person — Evidence—Sufficiency.</p> <p>In an action for damages caused by defendant’s automobile while driven by its servant, evidence that the servant was acting outside the scope of his employment held sufficient to justify a verdict for defendant.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Gent. Dig. § 1272; Dec, Dig. &wkey;> 330(3).]</p> <p>7. Master and Servant &wkey;>330(l) — Injuries to Third Person — Evidence—Burden of Proof.</p> <p>In an action for damages caused by an automobile driven by defendant’s servant, although proof that an automobile is being driven by a servant will support a finding of fact that he was employed in the business of his master, in the absence of countervailing proof, the burden of proof as a matter of law remains upon the plaintiff to establish the material allegations upon which recovery must rest, since while the weight of the evidence may, from time to time, shift, the burden of proof as to the essential elements of the plaintiff’s cause of action does not.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1270; Dec. Dig. <&wkey;> 330(1).]</p>

<p>1. Fbauds, Statute of &wkey;>129(7) — Oral Contract — Improvements.</p> <p>Improvements, consisting of piping a house for gas, the value not shown, and the purchasing of wall paper amounting to $2.10, not paid at the time of trial, were so insignificant as not to take the conveyance as to which an oral contract was sought to be enforced, out of the statute of frauds (Vernon’s Sayles’ Ann. Civ. St: 1914, art. 3965, subd. 4); the property being worth $700, with a rental value of $10 per month.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 322; Dec. Dig. &wkey;>129(7).]</p> <p>2. Frauds, Statute op <&wkey;129(9) — Oral Con- . tract — Improvements.</p> <p>Where, to enforce oral contract to convey, reliance is had upon the claimant’s possession and improvement of the premises, the value of the improvements must be shown to be such proportion of the value of the property and made in such reliance upon the contract as to give the claimant equitable rights.</p> <p>[Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. § 322; Dec. Dig. &wkey;>129(9).]</p> <p>On Motion for Rehearing.</p> <p>3. Trespass to Try Title <&wkey;41(l) — Action —Evidence.</p> <p>In suit for trespass to try title, the defense being equitable rights under an oral contract to convey, evidence held to show that plaintiff’s grantor, an aged man, promised when title was taken in his own name to convey the property to defendants in consideration of support until his death, which was given him.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 62; Dec. Dig. i&wkey;> 41(1).]</p> <p>4. Trespass to Try Title <&wkey;35(l) — Defenses.</p> <p>In trespass to try title, defendants are entitled to give in evidence any lawful defense to the action, except the defense of limitation, without any special pleading as a predicate therefor.</p> <p>[E'd. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 50, 52; Dec. Dig. <&wkey;> 35(1).]</p> <p>5. Trusts &wkey;>17, 18(5) — Oral Agreement to Convey.</p> <p>Where legal title is taken in the name of the purchaser with the understanding that in fact the equitable title shall vest in persons promising to support the purchaser until his death, such parol agreement, when executed, constitutes a valid enforceable trust, authorizing a decree of the purchaser’s interest to such persons as against a purchaser of the legal title with notice, notwithstanding statute of frauds (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3965, subd. 4).</p> <p>[Ed. Note. — For other cases, see Trusts, Cent. Dig. § 20; Dee. Dig. &wkey;17, 18(5).]</p>

<p>Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.</p> <p>Suit by Frank Whitley against A. W. Gal-lahar. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Judgment <&wkey;256(l) — Verdict—On Trial —Suppoet by Evidence.</p> <p>Judgment must follow the verdict, and an assignment questioning the authority of the court to enter a judgment contrary to the verdict simply because the verdict is unsupported by the evidence cannot be sustained.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 446, 454; Dee. Dig. &wkey;256(l).]</p> <p>2. New Trial <&wkey;10 — Preclusion from Moving for on Ground of Insufficiency of Evidence — Motion for Judgment Contrary to Verdict.</p> <p>After judgment is rendered in accordance with the verdict, the losing party is not precluded from moving for new trial on the ground of the insufficiency of the evidence to support the verdict because previous to the rendition of the verdict he made an unsuccessful attempt to have a judgment rendered contrary to it.</p> <p>[Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 13, v115, 131; Dee. Dig. &wkey;10.]</p> <p>3. Trial <&wkey;274 — Objection to Charges — Submission to Opposing Counsel — Statute.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, providing for the submission to opposing counsel as well as the court of requested instructions, does not require the submission to opposing counsel of objections made to the charges given.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 687; Dee. Dig. <&wkey;274.]</p> <p>4. Appeal and Error &wkey;>544(l) — Reservation of Grounds of Review — Exception to Charge.</p> <p>It is not necessary to take a bill of exception to a charge given by the court as a prerequisite to the right to complain of such instruction on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Erroi-, Cent. Dig. § 2412; Dec. Dig. <&wkey;>544(l).J</p> <p>5. Appeal and Error <&wkey;927(6) — Presumptions Favoring Court Below — Submission of Motion for Peremptory Charge to Opposing Counsel — Statute.</p> <p>Without a showing to the contrary, it must be presumed that the trial judge would not have passed upon a motion for a peremptory instruction without requiring its submission to opposing counsel in compliance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3748; Dec. Dig. <§=927(6).]</p> <p>6. Release <&wkey;57(2) — Incapacity and Fraud —Sufficiency of Evidence.</p> <p>In a railroad employé’s 'action for injuries, evidence held insufficient to support the jury’s findings that he was mentally incompetent to make a valid contract of settlement, and that he was induced to make it by misrepresentations by the claim agent of the railway and by undue influence exercised upon him.</p> <p>[Ed. Note! — For other cases,, see Release, Cent. Dig. § 108; Dec. Dig. <§=57(2).]</p> <p>7. Release <&wkey;17(2) — Validity—Disparaging Remarks as to Injured Person’s Attorney.</p> <p>Misrepresentations by a railroad’s claim agent to its injured employé concerning the services to be rendered by some of his attorneys did not of themselves constitute a sufficient basis for rescission of the contract of settlement, where the testimony introduced in support of rescission on. the ground of the employé’s incompetency and the claim agent’s fraud was insufficient.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 32; Dec: Dig. &wkey;>17(2).]</p> <p>8. Release <&wkey;17(2), 19 — Validity — Fraud or Undue Influence.</p> <p>Arguments made to its injured employe by a railroad’s claim agent, to induce him to settle, relative to the delays and uncertainties of bringing action, were not, under the circumstances, the employé having fully understood conditions, fraudulent, and did not amount to undue influence.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. §§ 32, 33; Dec. Dig. &wkey;17(2), 19.]</p> <p>9. Release <@=318.— Validity — Financial Distress.</p> <p>The distressed financial circumstances of a railroad’s employé when he settled his claim did not, standing alone, furnish sufficient basis for rescission of the settlement.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 33; Dec. Dig. <§=1S.]</p> <p>10. Release <§=12(3) — Inadequacy of Consideration.</p> <p>Where a railway; company was liable for injuries sustained by its employé for $8,000 reasonable damages, but the issue of liability was doubtful and by settlement the delay and annoyance of litigation was avoided, while in his spit after settlement the employé was awarded only $1,850 in addition to the $3,750 he had received in the settlement, there was no such gross inadequacy of price paid for the settlement as of itself to constitute a badge of fraud practiced upon the employé.</p> <p>[Ed. Note. — For other cases, see Release, Cent. Dig. § 20; Dec. Dig. &wkey;12(3).]</p> <p>11. Master and Servant &wkey;>276(9) — Injury to Servant — Negligence—Sufficiency of Evidence.</p> <p>In a railroad employé’s action for injuries, evidence held sufficient to support the jury’s findings that another employé of the road was guilty of negligence which was the proximate cause of the-injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 951, 959, 976; Dec. Dig. &wkey;276(9).]</p> <p>12. Negligence <&wkey;121(5) — Proximate Cause —Burden of Proof.</p> <p>When one seeks to recover damages of another caused by his negligence, it is incumbent on him to establish by competent proof not only the negligence alleged, but also that it caused the injury.</p> <p>[Ed. Note. — For other cases, see Negligence, Cent. Dig. § 228; Dec. Dig. &wkey;>121(5).]</p> <p>13. Master and Servant <&wkey;287(5) — Injuries to Servant — Question for Jury.</p> <p>In a railroad servant’s action for injuries, the decision of the issues of fact whether another railroad employé pulled the stake that released the timbers that fell, and whether the timbers fell in fact as a result of the act, held for the jury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1061; Dec. Dig. <§= 287(5).]</p> <p>14. Trial <&wkey;105(l) — Reception of Evidence —Failure to Object — Incompetent Testimony.</p> <p>A verdict cannot be sustained by incompetent testimony, even though admitted without objection.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 260, 261, 266; Dec. Dig. &wkey;105(l).]</p> <p>15. Evidence <&wkey;75 — Failure to Produce-Presumption.</p> <p>The failure to produce evidence peculiarly within the knowledge of a party will raise a presumption against him, and every reasonable intendment will be in favor of his opponent upon that issue.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 95; Dee. Dig. <&wkey;>75.]</p> <p>On Motion for Rehearing.</p> <p>16. Appeal and Error <&wkey;1173(l) — Reversal in Favor of- One Party — Effect.</p> <p>Where the recovery awarded attorneys suing a railroad and its injured employé was conditioned upon the liability of the road for the damages in excess of the amount already paid the employé in settlement, a reversal in favor of the road operated as a reversal of the entire judgment.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4562-4567, 4569, 4656; Dec. Dig. &wkey;>1173(l).]</p> <p>17. Appeal and Error &wkey;s 1173(1) — Determination — Reversal in Part — Codefend-ants.</p> <p>A railroad’s injured employé assigned to his attorneys three-tenths of his cause of action, stipulating that in case compromise was made before suit the attorneys should receive 15 per cent, of the amount agreed on. The employé compromised his claim before suit and the attorneys sued the railroad and their assignor. The latter cross-complained, alleging invalidity of the settlement. There was judgment canceling the settlement, for damages on the cross-complaint and for plaintiffs for three-tenths of the award. Held that, on the reversal of the judgment against the railway company, the court should merely modify the judgment for plaintiffs, as against their assignor, by allowing them 15 per cent, of the sum received by him.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4567, 4569, 4656; Dec. Dig. <&wkey;1173(l).]</p>

M. Overshiner, Judge. Suit by E. E. Clack against J. H. Beall and others. From a judgment of the county court for plaintiff on appeal from the justice court, defendants Beall, Smith, and Spencer bring error.

<p>1. TeesRass to Try Title <&wkey;6(l) — 1Title of Plaintiff.</p> <p>Plaintiff, in trespass to try title, to be entitled to judgment, must show in himself title superior to that under which defendant claims.</p> <p>[E'd. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-7, 9, 15, 16; Dec. Dig. <&wkey;6(l).]</p> <p>2. Trespass to Try Title <&wkey;38(3) — Presumption from Possession.</p> <p>Where defendant in trespass to try title is in possession, there is a presumption of title in him, authorizing recovery against persons failing to make affirmative showing of title.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. &wkey;s38(3).]</p> <p>3. Trespass to Try Title &wkey;>38(l) — Forfeiture of Public Lands — Burden of Proof —Statute.</p> <p>In trespass to try title by plaintiff claiming that the land was forfeited and awarded to him by the general land office, plaintiff must show, not only that an award was made, but that the requirements of Vernon’s Say les’ Ann. Civ. St. 1914, art. 5423, as to forfeiture, had been substantially complied with by the general land office prior to the award.</p> <p>[Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 53; Dec. Dig. <&wkey;>38(l).]</p> <p>4. Public Lands <&wkey;172(8) — Forfeiture — Statute.</p> <p>By Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5423, prescribing the requirements of a forfeiture of public lands by the general land office, unless entry of forfeiture is made, both on the application of the grantee and in the account kept with the purchaser, no legal forfeiture results.</p> <p>[Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 541; Dec. Dig. &wkey;172(8).]</p> <p>5. Evidence <&wkey;471(26) — Opinion or Conclusion-Certificate of Forfeiture.</p> <p>In trespass to try title by plaintiff claiming under a forfeiture and award of lands to him by the general land office, the certificate of the acting commissioner of the office, stating that the records showed that the lands “were forfeited,” was inadmissible, as not tending to establish the fact that the necessary entries had been made in the commissioner’s office, but rather the conclusion or opinion of the maker.</p> <p>[Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2171; Dec. Dig. &wkey;471(26); Witnesses, Cent. Dig. § 834.]</p> <p>6. Appeal and Error &wkey;>854(2) — Review — Reasons Assigned by Trial Court.</p> <p>Where the cause was tried by a jury, and the judgment is sustained by the pleadings and proof, it should be affirmed by the appellate court, though the trial court gave erroneous reasons therefor.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3408-3410; Dec. Dig. &wkey;S54(2).]</p> <p>7. Trial <&wkey;105(2) — Objections to Evidence —Failure—Probative Force of Hearsay.</p> <p>In trespass to try title by 'party to whom general land office awarded forfeited lands, where no objection was urged, on the ground that it was hearsay, to defendant’s testimony that, while he had personally never tendered any money to the land office, he knew that his lawyer had tendered it by what the latter told him, the court properly considered such testimony as tending to show application by defendant to have his rights in the forfeited land reinstated, and a tender of the interest due, since hearsay admitted without objection, is not without probative force.</p> <p>[Ed. Note. — For other cases, see Trial,. Cent. Dig. § 262; Dec. Dig. @=ol05(2).]</p>

<p>Appeal from Hill County Court; J. D. Stephenson, Judge.</p> <p>Action by falter Collins against W. R. Lang. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Pleading &wkey;248(2) — Amendment — New Cause, of Action.</p> <p>Where any evidence introduced under appellant’s third amendment to its petition could have been offered under its first or second amendment, the same defenses urged against each, the same measure of damages recovered, and a recovery had upon either would have barred, a recovery upon the others, no new cause of action is pleaded by the third amendment.</p> <p>TEd. Note—Eor other cases, see Pleading, Cent. Dig. § 687; Dec. Dig. &wkey;24S(2)J</p> <p>2. Limitation of Actions <&wkey;127(13) — Amended Pleading — New Cause of Action.</p> <p>Where appellant’s original petition to recover damages for appellee’s refusal to furnish him with another stallion of equal value m place of one purchased which proved unsatisfactory was filed within four years after the breach of contract, appellant’s amended petition, filed more than four years later, alleging the same facts and in addition that appellees were bound to furnish another stallion l1of the same kind and breed, and of equal value,” which was omitted in the contract by mutual mistake, dub not set up a new cause of action, but merely set out the entire contract and implied the facts pertaining thereto, and was not barred by the statute of limitations.</p> <p>[Ed. Note.—Eor other cases, see Limitation of Actions, Cent. Dig. § 545; Dec. Dig. <&wkey;> 127(13); Pleading, Cent. Dig. § 688.]</p>

<p>Appeal from District Court, Reeves County; S. J. Isaacks, Judge.</p> <p>Suit by J. C. Short against Otto Hoefs and others. From the judgment, the defendants appeal.</p>

<p>1. Peincipal and Agent <&wkey;155(l) — Liability of Agent.</p> <p>Where the manager of a fruit company undertook to handle and sell a farmer’s tomatoes solely for the interest and benefit of the farmer, the legal relation between the manager and the farmer was that of principal and agent, and the manager individually, and not the fruit company, was liable to the farmer for prices realized from tihe sale of the tomatoes.</p> <p>[Ed. Note. — Eor other cases, see Principal and Agent, Cent. Dig. §§ 574, 578; Dec. Dig. &wkey;155(l).]</p> <p>2. PRINCIPAL AND AGENT &wkey;>103(l) — LIABILITY of Agent — Contract.</p> <p>Where the manager of a fruit company purchased a farmer’s tomatoes for the fruit company, and agreed to pay a fixed price, the farmer could recover of the fruit company such price, unless the manager was not acting within his powers as agent.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 278, 281, 358, 367; Dec. Dig. &wkey;103(l).]</p> <p>8. Principal and Agent <&wkey;24 — Action on Agent’s Contract Taking Case from Jury.</p> <p>In an action against a claimed principal on a contract made by its agent, the court may take the case from the jury only if there is not sufficient evidence tending to prove agency.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 722, 723; Dec. Dig. &wkey;>24.]</p> <p>4. Principal and Agent <&wkey;124(3) — Authority of Agent — Purchase—Question for Jury.</p> <p>In a farmer’s action against a fruit company to recover an agreed price for tomatoes, which plaintiff claimed the fruit company had bought through its manager, whether the manager, as agent, was acting within the scope of his authority, so as to bind his principal by a purchase of plaintiff’s tomatoes, held for the jury.</p> <p>[Ed. Note. — For other eases, see Principal and Agent, Cent. Dig. § 724; Dec. Dig. <&wkey;124(3).]</p> <p>5. Principal and Agent &wkey;>123(7) — Dealing with Agent — Failure to Make Inquiry-Effect.</p> <p>In an action by a farmer against a fruit company for the price of tomatoes, which plaintiff claimed defendant had purchased through its manager, the circumstance that plaintiff, in dealing with the manager, made no inquiry, and did not ask if he was acting for the fruit company, could not be regarded as conclusively showing a want of any contract to sell to me fruit company.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 426; Dec. Dig. <S&wkey;123(7).]</p> <p>6. Principal and Agent <&wkey; 124(3) — Dealing with Agent — Prudence — Question fob Jury.</p> <p>In a farmer’s action against a fruit company for the price of tomatoes claimed to have been purchased through its manager, whether plaintiff failed to use reasonable prudence in dealing with the manager, as agent of the fruit company, held for the jury under the evidence.</p> <p>[Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 724; Dec. Dig. <&wkey;124(3).]</p>

<p>Appeal from Comanche County Court; J. H. McMillan, Judge.</p> <p>Suit by Miller & White against the St. Louis Southwestern Railway Company of Texas and another. From a judgment for plaintiff, both defendants appeal.</p>

<p>Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.</p> <p>Suit by Margaret C. Moseley and others against J. H. Bradford and others. From an order dissolving a temporary injunction, the plaintiffs appeal.</p>

<p>1. Appeal and Error' &wkey;>933(l) — Scope — Presumptions.</p> <p>Where at a regular term of court the case was called for trial, and one defendant was absent, and his plea of privilege to be sued in the county of his residence was overruled and judgment rendered, but on the following day motion for new trial was filed on the ground that counsel believed the case would be called on the day following that on which it.was called, with sufficient grounds for such belief, and on appeal neither the transcript nor the statement of facts disclosed the action of the court, but the record disclosed subsequent proceedings, including a final judgment, the court will assume that the motion was sustained.</p> <p>[Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3772; Dec. Dig. <&wkey;>933(l).]</p> <p>2. Pleading &wkey;>116 — Action in County oe Dependant’s Residence — Plea op Privilege — Waives.</p> <p>In such case the defendant who entered the plea of privilege did not waive it by his absence.</p> <p>[Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 231-233; Dec. Dig. <@^110.]</p> <p>3. Pleading &wkey;>110 — Action in County op Dependant’s Residence — Plea op Privilege — Waiver.</p> <p>In such case, though the defendant filed his motion for new trial on the order overruling plea of privilege without reserving his right to insist thereon if the motion were granted, he did not waive such plea, since in a motion for new trial the applicant need not assert that all pleas to the merits are subject to the action of the court upon his privilege plea..</p> <p>[Ed. Note. — Eor other cases, ese Pleading, Cent. Dig. §§ 231-233; Dec. Dig. &wkey;110.]</p> <p>4. Pleading &wkey;>116 — Action in County op Defendant’s Residence — Plea op Privilege-Waiver.</p> <p>In such case, where frequent continuances were granted over the defendant’s objection, the continuances being granted without prejudice to his plea save that of privilege, he did not waive the plea of privilege.</p> <p>[Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 231-233; Dec. Dig. &wkey;110.]</p>

<p>Appeal from McCulloch County Court; G. A. Walters, Special Judge.</p> <p>Suit by O. D. Mann & Sons and others against Scott & Co. Prom a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from Limestone County Court; G. W. Fryer, Judge.</p> <p>Action by the First State Bank of Teague against R. P. Hare and others. From a judgment for plaintiff against named defendant, but for the other defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Dallam County ; D. B. Hill, Judge.</p> <p>Aetion by A. M. James and another against the Kansas City, Mexico & Orient Railway Company of Texas and another. From' a judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Franklin County; J. A. Ward, Judge.</p> <p>Foreclosure suit by G. P. Hill against Ada Brown and others. Judgment for complainant, and the defendant named appeals.</p>