Volume 194 — South Western Reporter

<p>1. Criminal Daw &wkey;>1131(4) — Jurisdiction on Appeal — Dismissal.</p> <p>Where proper steps have not been taken to confer appellate jurisdiction on the court of Criminal Appeals, such court cannot enter any order other than to dismiss the appeal.</p> <p>[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 3056, 3067-3071.]</p> <p>2. Bail <&wkey;64 — Appeal—Recognizance.</p> <p>An appeal bond not entered of record, but merely filed, will not answer the purposes of the recognizance required to perfect an appeal in a criminal case.</p> <p>[Ed. Note. — For other cases, see Bail, Cent. Dig. § 278.]</p> <p>On Motion for Rehearing.</p> <p>3. Bail <&wkey;72 — Appeai^-Recognizance.</p> <p>Under Acts 29th Leg. c. 115, providing that, where a recognizance entered into. below is defective, the court may permit it to be amended by filing a new obligation, an appellant who failed to enter into a recognizance during term time, but merely filed an appeal bond, could not be permitted to enter into and file a recognizance in the Court of Criminal Appeals.</p> <p>[Ed. Note. — For other cases, see Bail, Cent. Dig. § 288.]</p>

<p>1. Judgment <©b=91 — Consent Judgment — Intent oe Parties.</p> <p>Where a consent judgment provided that the trustee might sell the lands for the best price obtainable within his discretion, for part cash and the balance secured by vendor’s lien notes, the court cannot read into the judgment a provision for sale at the reasonable market value, since the judgment is in effect a contract between the parties which is not ambiguous, and the intent of the parties must therefore be gathered from its terms.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 150.]</p> <p>2. Judgment <§^>919 — Suits to Enforce — Evidence — Fraud.</p> <p>In a suit based on a consent judgment, appointing a trustee to sell lands, in which the judgment creditors alleged fraud by the trustee in making the sale, evidence as to value of the land sold was admissible on the issue of fraud.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1750.]</p> <p>On Motion for Behearing.</p> <p>3. Appeal and Error <®^>1010(2) — Beview— Findings by Trial Court.</p> <p>The trial judge is the exclusive judge of the facts, and his finding will not be reviewed, unless it becomes a matter of law, because the finding is without any competent testimony to sustain it, or so overwhelmingly against the preponderance of the testimony as to amount to a lack of testimony.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3982.]</p> <p>4. Judicial Sales <©=>15 — Evidence—Beport by Trustee.</p> <p>In a suit by a judgment debtor to compel the trustee, appointed by the judgment to sell certain lands to pay the judgment, to convey to the debtor the residue of the lands after the sale of a portion for a price sufficient to pay the judgment, the cash payment 'having been advanced to the purchaser by the judgment debtor, which sale the judgment creditors refused to approve, because the price was so exorbitant that there was not sufficient security for the deferred payments, evidence held to sustain the trial court’s finding that the trustee did not report to the creditors that he had in the exercise of his discretion approved the sale, so as to require the creditors to elect whether to ratify the sale and accept the cash payment and notes, or to take the land at the price stated, but that the trustee had merely reported that he had received an offer to purchasej and had asked the creditors for advice with reference thereto.</p> <p>[Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. § 31.]</p>

<p>Appeal from District Court, Harris Comity; Wm. Masterson, Judge.</p> <p>Action by tbe J. B. Fartbing Dumber Company against Emily B. Williams and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Henderson County; John S. Prince, Judge.</p> <p>Action by Mary A. Barker against John F. Ash. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Jefferson County Court, at Law; D. P. Wheat, Judge.</p> <p>Action by the Ames Portable Silo & Lumber Company against E. C. Worrall and another. From an order transferring the cause, plaintiff appeals.</p>

O. McKinsey, Judge. Suit for injunction by Nellie P. Akin and others against the First National Bank of Bridgeport and another. From a judgment dissolving a temporary injunction, the .plaintiffs appeal.

<p>1. Brokers <s=86(1) — Action for Commission —Evidence—Sufficiency.</p> <p>In an action by broker for commission, evidence held sufficient to support a court’s finding that plaintiff had performed his part of contract under which he was to receive $500 cash after closing trade without waiting until all deeds had been passed, and was entitled to agreed commission.</p> <p>[Ed. Note. — Eor other cases, see Brokers, Cent. Dig. §§ 117, 118.].</p> <p>2. Appeal and Error <@=>1010(1) — Findings Amply Supported by Evidence — Setting Aside.</p> <p>Bindings of trial court amply supported by evidence will not be disturbed on appeal.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3981, 4024.]</p> <p>3. Brokers <®=»86(1) — Action fob Commission — Evidence—Defense.</p> <p>In a broker’s action for commission on an exchange of land, evidence held insufficient to show that broker was to receive commission from both seller and purchaser barring recovery.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 117, 118.]</p>

F. Spencer, Judge. Suit by B. R. Harris against A. H. Allen and others in which defendant B. B. Griffin filed a cross-plea against defendants J. W. Allen and J. A. Rhoads, and defendant J. W. Allen prayed cross-claim against defendant J. A. Rhoads.

<p>1. Master and Servant @=>293(19) — Action eor Injury — Failure to Instruct on Material Issue.</p> <p>In a section hand’s action for injuries due to fall while hurriedly removing hand car from track to avoid approaching train, where a strongly controverted issue was distance of train when first discovered, refusal to instruct that, if it was found that train was 500 yards away when discovered, and that within said distance plaintiff had ample time to remove car, there can be no recovery for failure to give warning of approaching train, was reversible error.</p> <p>[Ed. Note. — Por other cases, see Master and Servant, Cent. Dig. §§ 1155, 1156.]</p> <p>2. Trial @=>229 — Instructions — Necessity.</p> <p>A paiffy to a suit has right to special instruction on any group of facts supported by pleadings and evidence, and which, if true, would be of controlling effect in his favor, although, a charge in general terms is given -which is to same effect.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 513.]</p> <p>3. Master and Servant <§=>293(19) — Injuries to Servant — Negligence — Instruction.</p> <p>In section hand’s action^for injuries due to fall in removing hand car from track to avoid approaching train, requested instruction that plaintiff could not recover if he and those with him had ample time in which to remove car was not bad for failure to add with “safety to plaintiff”; as jury could not reasonably interpret instruction otherwise.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1155, 1156.]</p> <p>4. Master and Servant <§=>293(19) — Action for Injuries — Negligence of Foreman — Submission of Issue.</p> <p>Where there was testimony that a rule of defendant required the foreman of section gang to give warning of approaching trains, and that the foreman had specifically told section men to keep eyes on him, and that he would give warning, court did not err in submitting issue of alleged negligence of'foreman in failing to give warning, however convincing other evidence controverting plaintiff’s right to recover upon that issue might be.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 1155, 1156.]</p> <p>5. Trial <§=>244(4) — Instructions—Splitting ub Issues.</p> <p>In section hand’s action for injuries, splitting up in instructions the single issue of train crew’s negligence in failing to give warning of approach of train was improper, tending to place undue emphasis upon such issue and divert attention from true issue.</p> <p>[Ed. Note. — For other eases, see Trial, Cent. Dig. § 579.]</p> <p>6. Master and Servant <§=>285(11) — Proximate Cause oe Injury — Erroneous Instructions.</p> <p>In section hand’s action for injuries, an instruction on alleged negligence of train crew in not giving warning of approach of train held . likely to lead jury to believe negligent failure of train crew to discover hand car was itself proximate cause of injury.</p> <p>[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 1035.]</p> <p>7. Trial <§=252(11) — Discovered Peril — Submission of Issue.</p> <p>JYhere in section hand’s action for injuries there is insufficient evidence to show actual knowledge by train crew of plaintiff’s peril, submission of issue of negligence of train crew after discovery of peril is unwarranted.</p> <p>[Ed. Note. — For other case, see Trial, Cent. Dig. § 603.]</p> <p>8. Master and Servant <§=>158 — Injuries to Servant — Connection Between Negligence and Injury.</p> <p>In section hand's action for injuries sustained from a fall in hurriedly attempting to remove a hand car to avoid an approaching train, to warrant recovery for negligence of foreman or train crew in not giving warning of approach of train, it must appear that fall was due immediately to haste to remove car, and that an injury of character alleged ought reasonably to have been foreseen as a result of alleged negligence.</p> <p>[Ed. Note. — For other eases, see Master and Servant, Cent. Dig. § 304.]</p>

<p>1. Venue <§cv>5(2) — Action to Enforce Lien —Statute.</p> <p>A suit upon notes given as part of the purchase money of land described and to foreclose a vendor’s lien given to secure the notes is a suit merely to fix a lien on the land, and not a suit not governed by Vernon’s Sayles’ Ann. Civ. ,St. 1914, art. 1830, providing that an inhabitant of the state .shall not be sued out of the county of his domicile, except, to wit: No. 14: “.Suits for the recovery of lands or dam-ag'es thereto, suits to remove incumbrances upon the title to land, suits to quiet the title to land, and suits to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”</p> <p>[Ed. Note. — For other cases, see Venue, Cent. Dig. § 6.]</p> <p>2. Venue <g=o26 — Statute — Construction —“Prescribe”—'“May”—“Must.”</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, provides no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases, to wit: No. 3: “Where the defend'ant, or all of several defendants, reside without the state, or where the residence of the defendants is unknown, in which case the suit may be brought in the county in which the plaintiff resides.” No. 5: “Whei;e a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile.” No. 12: “Where the suit is for the foreclosure of a mortgage or other lien, in which case suit may be brought in the county in which the property subject to such lien, or , a portion thereof, may be situated.” Paragraph 30: “Whenever, in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county in which jurisdiction may be so expressly given.” In a suit brought in county of plaintiff’s residence against a nonresident on purchase-money notes payable in another county and seeking_ to foreclose a vendor’s lien against a nonresident defendant, a defendant presented a plea of privilege to be sued in the county named in the notes. Held, that by use of the word “prescribed” paragraph 30 applies only to the mandatory exceptions, and exceptions 3, 5, and 12 being permissive by the use of the term “may” instead of “must,” plaintiff had the option under exception No. 3 to institute suit in the county of his own residence (citing Words and Phrases, Second Series, Prescribe).</p> <p>[Ed. Note. — For other cases, see Venue, Gent. Dig. §§ 39, 40.</p> <p>For other definitions, see Words and Phrases, First and Second Series, May; Must.]</p>

<p>1. Constitutional Law <&wkey;>186 — Retroactive Laws.</p> <p>The Legislature has no authority to enact retroactive laws which affect citizen’s rights of any character.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 526-529.]</p> <p>2. Constitutional Law <&wkey;>107 — Limitations — Retroactive Laws.</p> <p>In enacting statutes of limitation the Legislature cannot destroy a right which one person is entitled to enforce against another which exists in consequence of given facts, or the right which one person has to resist enforcement of a claim urged by another in consequence of given facts.-</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 246-251.]</p> <p>3. Constitutional Law <&wkey;26 — Grant or Limitation of Power — State Constitution.</p> <p>The authority to legislate on any ' subject not expressly or by necessary implication denied by Constitution is lodged with the Legislature.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 30.]</p> <p>4. Constitutional Law &wkey;H06 — Power to Change Remedies for Existing Rights.</p> <p>The Legislature may, because that authority is not denied it, change, modify, abolish, and establish new remedies for existing rights because the citizen has no vested right in the procedure by which his rights may be enforced,, except that his remedy may not be altogether taljen away or unreasonably incumbered so as to render it useless or impracticable, or to give an action where none existed.</p> <p>[Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. §§ 186, 212, 238-245, 252-257, 259.]</p> <p>5. Limitation op Actions <&wkey;6(5) — Retroactive Operation — Vendor’s Lien.</p> <p>Where statutes of limitation (Rev. St. 1911, arts. 5694 and 5695) as amended July 12, 1913 (Acts 33d Leg. c. 123 [Vcmon’s Sayles’ Ann. Civ. St. 1914, arts. 5693-5695]), and November 19, 1913 (Acts 33d Leg. [1st Called Sess.] c. 27 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5695]), relating to vendor’s liens, in connection with article 5688, relating to written contracts, at no time left defendant-completely without remedy, but permitted him to either foreclose his vendor’s lien or recover land by virtue of superior title retained in deed, plaintiffs, who were grantees of defendant’s purchaser, never acquired a vested right by which because of a given state of facts, they could have resisted enforcement of defendant’s rights, and in action to cancel lien a judgment sustaining the lien was proper.</p> <p>[Ed. Note. — Eor other cases, see Limitation of Actions, Cent. Dig. § 20.]</p> <p>6. Constitutional Law <&wkey;107 — Retroactive Operation — “Vested Right.”</p> <p>A right cannot be considered as vested in relation to retroactive operation of statute of limitations unless it is something more than a mere expectation as may be based on an anticipated continuance of the present general laws; it must have beoeme a title legal or equitable to the present or future enjoyment of exemption of a demand made by another.</p> <p>[Ed. Note. — For other cases, see Constitutional Law, Cent.-Dig. §§ 246-251.</p> <p>For other definitions, see Words and Phrases, First and Second Series, Vested Right.]</p> <p>7. Limitation oe Actions «&wkey;165 — Rights Under — When Acquired.</p> <p>There can be no right gained in the running of statute of limitations until the prescribed period is complete.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 649.]</p> <p>S. Limitation oe Actions <&wkey;6(ll) — Computation oe Period — Change oe Law.</p> <p>The rule that, when a new period of limitation is substituted, the time which elapsed under the repealed law will be counted against the demand in the ratio it bears to the whole period, and the time under the new law will be computed on the basis of the ratio that the unexpired term under the old law bears to the whole time, does not apply where the statutes prescribe precise rules leaving nothing open for construction.</p> <p>[Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 31.]</p> <p>9. Statutes &wkey;>176 — Construction — Judicial Authority oe Court.</p> <p>Where a law is constitutional, the courts cannot change the plain and unambiguous meaning of the language by writing therein a rule at variance with the law itself.</p> <p>[Ed. Note. — For other eases, see Statutes, Cent. Dig. § 255.]</p>

Error from District Court, Ellis County; F. L. Hawkins, Judge. Action by Charles Sauer against the Palmer Press Brick Works. Judgment for defendant and plaintiff brings error. The action is by tbe plaintiff in error against the defendant in error for damages for personal injuries.

<p>Appeal from District Court, Bexar Coun ty; S. G. Tayloe, Jitdge.</p> <p>Action by Julius Sievert against the San Antonio Brewing Association. Judgment for plaintiff, and defendant appeals.</p>

Llewellyn, Ju'dge. Suit by H. T. Rogers against J. E. White and others, in which plaintiff impleaded A. P. Hutton. From a judgment that plaintiff recover nothing against defendants, but recover from Hutton, Rogers and Hutton both appeal.

<p>1. Subrogation <@=>23(1) — Advances — Liability on Contractor’s Bond.</p> <p>A bank lending money to a street improvement contractor could not claim by subrogation the rights of materialmen against the contractor’s surety solely because the money loaned was used to pay such claims.</p> <p>[Ed. Note. — For’ other cases, see Subrogation, Cent. Dig. § 60.]</p> <p>2. Municipal Corporations <@=>347(2) — Street Improvements — Contractor’s Bond —Persons Secured.</p> <p>Under a street improvement contractor’s bond which provided that any laborer, material-man, etc., or any other person having any claim against the contractor growing out of the prosecution of the work, or any person injured or whose property was injured by the faulty construction of the work, or any person having a claim of any character whatsoever “by reason thereof,” should have thé right to sue thereon, a bank lending money to the contractor had no claim against the surety, though the contractor represented that the money would be used for labor and material, without, however, obligating itself to so use it, as it was neither a ma-terialman nor a party whose claim grew out of the prosecution of the work, while the words “by reason thereof,” as used in referring to the third class of claimants, referred to claims resulting from the faulty construction of the work or from its prosecution.</p> <p>[Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 877.]</p> <p>3. Municipal Corporations <@=>375 — Street Improvements — Actions—Judgment.</p> <p>In an action to which a city, a street improvement contractor, and its surety were parties, a judgment allowing the city to retain money due the contractor for five years'as a maintenance fund in lieu of a maintenance bond, which was not in such form as to permit any unused portion of the-fund to be recovered by the party entitled thereto at the end of the five-year period, should be modified so as to protect that right.</p>

<p>1. Electricity <§=>19(8) — Jury Question — Negligence.</p> <p>' Where plaintiff’s husband was electrocuted by a broken electric transmission line, a witness’ testimony held to make defendant’s negligence in not having automatic circuit breakers attached to the line a jury question.</p> <p>[Ed. Note. — Eor other cases, see Electricity, Cent. Dig. § 11.]</p> <p>2. Electricity <®=19(13) — Requested Instructions — Negligence.</p> <p>Where the general charge authorized a recovery if defendant was negligent in constructing, operating, or maintaining its electric plant, it was error to refuse instructions eliminating grounds of negligence alleged but not supported by 'evidence.</p> <p>[Ed. Sfote. — For other cases, see Electricity, Cent. Dig. § 11.]</p> <p>3. Electricity <§=>19(13) — Instructions— Negligence.</p> <p>Where plaintiff’s husband was electrocuted by broken transmission line, a requested instruction to. find for defendant if the condition was caused by an owl flying against the wires, it was properly refused where there was evidence that even in such a case a circuit breaker would have prevented the injury.</p> <p>[Ed. Note. — Eor other cases, see Electricity, Cent. Dig. § 11.]</p> <p>4. Trial <§=>191(7) — Instructions — Assukp-tton op Facts — Contributory Negligence.</p> <p>Instructions should not assume that certain facts constitute contributory negligence, hut leave such issue to the jury.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 430.]</p> <p>5. Trial <§=>252(8) — Instructions — Negligence — Issues.</p> <p>In an action to recover for death by electrocution, instructions submitting all issues of negligence raised by the pleading's are erroneous, where all but one were unsupported by evidence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. § 603.]</p> <p>6. Trial <§=>193(3) — Instructions — Negligence.</p> <p>In an action to recover for death by electrocution, an instruction that defendant’s failure to turn off the current under certain circumstances constituted negligence is erroneous, since the trial court should not instruct whether certain facts constitute negligence.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig'. § 438.]</p> <p>7. Trial <§=>253(9) — Instructions—Contributory Negligence — Ignoring Evidenoe.</p> <p>In action to recover for death by electrocution, an instruction that defendant had the burden of proving deceased’s contributory negligence is erroneous where plaintiff’s testimony tended to establish such defense, since the jury might be led to believe they should consider only defendant’s testimony upon that issue.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. § 620.]</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Action by R. D. Bland against the Auto Sales Company and others. From judgment for plaintiff!, defendants appeal.</p>

<p>Appeal and Error <§==>1026 — Reversal — Harmless Error.</p> <p>The Court of Appeals will not reverse for error not reasonably calculated to cause, or which did not probably cause, the rendition of an improper judgment.</p> <p>[Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4029, 4030.]</p>

<p>1. Street Railroads @=90(1) — Injuries on Track — Negligence—Notice.</p> <p>Where the street where defendant street railroad’s car struck plaintiff’s buggy was so narrow that plaintiff’s buggy and a wagon ahead of him were in very close proximity to the tracks and one could not pass the other without going on the tracks, the situation was such as to put the motorman on notice that a dangerous collision might occur.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190, 191, 193.]</p> <p>2. Street Railroads @=390(1) — Injuries on Tracks — Negligence — Anticipation oe Particular Result.</p> <p>To charge a street railroad with liability for injuries to plaintiff when its car struck his buggy, it was not necessary that the motorman should have been able to anticipate the particular result that followed when he drove the car in such a situation that he was charged with notice that a dangerous collision might occur.</p> <p>[Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 190, 191, 193.]</p> <p>3. Damages @=132(2) • — Personal Injuries— Excessive Verdict.</p> <p>Where plaintiff sustained painful injuries to •his shoulder, which might be permanent, verdict for $1,046 was not excessive.</p> <p>[Ed. Note. — For other cases, see Damages, Cent. Dig. § 373.]</p> <p>4. Trial @=315 — Quotient Verdict.</p> <p>In a personal injury case, where the jury agreed that each should state in writing the amount of damages he thought plaintiff was entitled to recover, and that the sum of the amounts should be divided by 12, which was done, but the jurors thereafter further discussed the result, and finally agreed upon such amount as the verdict, the verdict was proper.</p> <p>[Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740-742.]</p>

<p>Appeal from District Court, I-Iuut County; Wm. Pierson, Judge.</p> <p>Action by Claud McMillan against the St. Paul Eire & Marine Insurance Company. Prom judgment for plaintiff, defendant appeals.</p> <p>In his petition appellee, who was the plaintiff below, alleged that he was the owner of a dwelling house and its contents, consisting of furniture, etc., situated on his farm about three miles from Greenville; that on November 30, 1912, “he made application to” appellant “through its agent, J. M. Massay, at Greenville, for insurance on his property against loss by fire, as follows :■ On the said residence, $750; on the contents thereof, $500; and on a certain barn and contents situated on said premises, the sum of $1,250 for a period of 3 years” ; that the application was forwarded by Massay to Cravens & Cage, appellant’s general agents at Houston, who instructed Massay to notify appellee that appellant would not insure the barn and its contents, but would insure the dwelling house and its contents “for a period of 12 months at a certain rate of premium,” if appellee desired such insurance; that “thereupon and thereafter” he told Massay that he desired the insurance, and that Massay on behalf of appellant, and having authority to act for it, agreed to insure the property and did insure it against loss by fire; that thereafterwards the dwelling house and its contents “were totally destroyed by fire within the terms of said contract of insurance.” And he then further alleged as follows:</p> <p>“That, by reason of the premises, the defendant became obligated and bound to pay this plaintiff his aforesaid loss to the extent of $1,-250. Plaintiff says that by reason of the premises a valid contract of insurance was entered into between plaintiff and defendant by reason of plaintiff’s assent to the counter proposition of the said Cravens & Cage; that if in fact a policy was not written, then it was the duty of the said Massay or the said Cravens & Cage to have written said policy, and their failure to do so was because of their own neglect and no fault of this plaintiff, and in equity they should be and are held to owe this plaintiff the same liability as if said policy had been written, or that if they did not write said policy, then plaintiff has been damaged by their negligence in not so doing to the amount of the loss sustained by him because of such negligence which is the said sum of $1,250.”</p> <p>The answer of appellant consisted of a general and special exceptions to the petition and a denial of the allegations therein.</p> <p>On special issues submitted to them the jury found: (1) That Massay had “authority to bind” appellant with reference to insuring the property; (2) that Massay at appellee’s request agreed “to issue or cause to be issued a policy of fire insurance” on the dwelling house and its contents “with the defendant company”; (3) that appellant during the negotiations between appellee and Massay held the latter out “as having authority from ⅞ to make contracts of insurance for .it or in its name” ; (4) that Massay informed appellee at the time the latter signed the application for the insurance that he (Massay) “had no authority to issue a policy of insurance on plaintiff’s property, but that such policy could be issued only at the Houston office of the company”; (5) that Massay had authority from appellant “to bind it to issue a policy of fire insurance without payment of premium in advance, and that Massay agreed “to issue or cause to be issued a policy without the prepayment of the premium; (6) that the reasonable cash value of the dwelling house was $750, and that of the household goods destroyed $400; (7) -that a few days before the fire occurred appellee told Mas-say “in substance to insure his house and contents in accordance with the proposition in Cravens & Cage’s letter to Massay” ; that “Massay agreed thereto”; and that “there was sufficient time, by the exercise of reasonable and proper diligence, for Massay to have notified Cravens & Cage of such acceptance, or instructions by plaintiff, and for them to have issued the policy and sent it to Greenville before the fire occurred.”</p> <p>On the findings made by the jury the court rendered judgment in favor of appellee against appellant for $1,150, and interest thereon from the date the fire occurred.</p>

<p>Appeal from District Court, Harrison County ; H. T. Lyttleton, Judge.</p> <p>Action by Mrs. C. M. Riden and others against Marshall & East Texas Railway Company. Judgment for plaintiff, and defendant appeals.</p>