Volume 197 — South Western Reporter

<p>Appeal from District Court, Cooke County; C. E. Spencer, Judge.</p> <p>I. A. Huey was convicted, and appeals.</p>

Error from District Court, Harris County; Chas. E. Ashe, Judge. Error by J. B. Warren, from judgment rendered against him in favor of the Atlas Construction Company, on claimant’s bond filed by him in attachment suit by said company against S. Johnson.

<p>1. Carriers <@=>229(1) — Live Stock —Delay in Transportation — Damages.</p> <p>In an action for delay in transportation of hogs intended for exhibition purposes, damages for loss of chance of winning prize money are not too remote and speculative.</p> <p>2. Carriers <@=>228(3) — Delay in Transportation — Evidence—Damages.</p> <p>In an action for damages for delay in transportation of hogs intended for exhibition purposes, evidence tending to show probability of plaintiff having been successful competitor for prize money is admissible.</p> <p>3. Evidence <@==>471(2) — Opinion — Admissibility.</p> <p>Evidence that hogs delayed in transportation and intended for exhibition purposes would have taken first premium was properly excluded as stating a conclusion.</p> <p>4. Carriers <@=>229(3) — Delay in Transportation-Damages.</p> <p>In the absence of notice that hogs are intended for exhibition purposes, carrier is not responsible in damages for loss of prize money caused by delay in transportation.</p> <p>5. Carriers <@=229 (3) — Live Stock — Liability por Delay.</p> <p>General notice to the carrier that hogs are to be transported for exhibition purposes is sufficient to authorize recovery of damages for loss of prize money caused by delay in transportation.</p> <p>6. Carriers <@=>229(4) — Connecting Carrier —Bill op Lading.</p> <p>Under Rev. St. arts. 731, 732, providing for through transportation and that either connecting carrier shall be liable to the shipper for negligent loss or delay, notice to initial carrier that hogs shipped on through bill of lading are intended for exhibition purposes is notice to connecting carrier.</p> <p>7. Carriers <@=>229(4) — Transportation op Live Stock — Joint Contract.</p> <p>Under joint contract for shipment of hogs knowledge of one carrier that they are for exhibition purposes binds the other.</p> <p>8. Carriers <@=>229(4) — Transportation op Live Stock.</p> <p>Rev. St. arts. 731, 732, is inapplicable to a carrier transporting hogs under separate contract, and such carrier is not chargeable with knowledge of carrier from whom it received shipment that hogs are intended for exhibition purposes.</p> <p>9. Carriers <@=>229(2) — Transportation op Live Stock — Damages.</p> <p>That hogs were shipped for exhibition purposes, and not immediate sale, does not affect application of ordinary rules for assessing actual damages for negligence in the shipment.</p> <p>10. Carriers <@=>228(3) — Carriage op Live Stock — Damages.</p> <p>In action for damages for delay of shipment of hogs intended for exhibition purposes, allegations and proof of what hogs sold for several days after arrival at destination and after being on exhibition does not furnish proper facts for assessing actual damages.</p> <p>11. Carriers <@=>229(2) — Delay in Transportation — Excessive Damages.</p> <p>Where it was alleged that hogs delayed in transportation lost 25 pounds per head and their value depreciated 25 cents per hundredweight because thereof, a verdict for more than amount that total weight lost would be, figured at highest price per pound, is excessive.</p>

Smith, Special Judge. Suit by J. H. Snell and others against Mrs. Berta Magee, T. R. and J. W. Rhodes, and others. From a part of the decree entered, Mrs. Magee and children, and the Rhodes, appeal.

<p>Appeal from District Court, Wood County; R. M, Smith, Judge.</p> <p>iSuit by R. O. Britton against L. B. Hart and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Pleading <&wkey;8(20) — Conclusion — Character of Injuries.</p> <p>Allegations that by reason of his injury plaintiff’s entire physical, nervous, and mental being suffered a severe shock do not present the pleader’s general conclusion.</p> <p>2. Evidence &wkey;>359(4) — X-Ray Pictures — Admissibility-Preliminary Proof.</p> <p>Evidence in servant’s action for injuries held to warrant admission of book plates showing X-ray pictures of the normal human foot for comparison with plaintiff’s foot after the injuries.</p> <p>3. Evidence ¡@=3471(12) — Opinion—Injuries to Servant — Mental Suffering.</p> <p>In a servant’s action for injuries, plaintiff could testify that he got awfully blue at times because he could not do the work which he had formerly done.</p> <p>4. Damages <&wkey;53 — Injuries to Servant-Measure o.f Damages — Mental Distress.</p> <p>That the servant, after his injuries, showed a mental condition which he described as “the blues,” was an element of damages allowable.</p> <p>5. Damages &wkey;»53 — Measure of Damages— Mental Distress.</p> <p>Mental suffering, which an injured person experiences from brooding over and regarding his crippled condition, is not too remote, but is a proper subject for damages in servant’s action for injuries.</p> <p>6. Trial <&wkey;191(l) — Instruction—Assuming Facts in Issue.</p> <p>A requested instruction, assuming the facts in issue, is properly refused.</p> <p>7. Appeal and Error <&wkey;1062(2) — Harmless Error — Issues Submitted.</p> <p>Error, if any, in refusing to submit the issue of the servant’s assumption of risk, svas harmless, where, in view of the finding of the master’s negligence no other verdict than that arrived at could have been reached.</p> <p>8. Master and Servant <&wkey;206 — Injuries to Servant — “Ordinarily Incident.”</p> <p>. Dangers “ordinarily incident” to employment are those commonly and usually pertaining to and incident to it, which a reasonably prudent person might anticipate, and do not include danger by acts ojf negligence, unless habitual and known to the servant.</p> <p>LEd. Note. — For other definitions, see Avoids and Phrases, First and Second Series, Ordinarily.]</p> <p>9. Master and Servant &wkey;>297(2) — Injuries to Servant — Conflicting Findings — Epee ct.</p> <p>Where the jury found that the servant did not try to step on the stringer, lose his balance, and fall on the ground, their finding that such act was negligence, and the proximate cause of the injuries, though inconsistent, was unnecessary, and could be disregarded.</p> <p>10. Damages <&wkey;134(3) — Excessive Damages. A verdict of $10,000 to a servant 25 years</p> <p>of age, earning $S0 per month, who after his injury could earn no more than $9 per week, and bones of whose feet were smashed, was not excessive.</p>

<p>Appeal from pistrict Court, Matagorda County; Sami. J. Styles, Judge. v</p> <p>John Tiger was convicted of murder, and appeals.</p>

<p>1. Carriers <&wkey;218(l) — Interstate Shipments — Time eor Bringing Action — 'Validity.</p> <p>Under the Interstate Commerce Act (Act Cong. Feb. 4, 18S7, e. 104, 24 Stat. 379), a provision of a contract for the shipment of live stock that no action against the carrier on any claim shall be maintained unless commenced within six months after the cause of action accrued is valid.</p> <p>2. Evidence <&wkey;69 — Presumption—Lawful Conduct of Business.</p> <p>An interstate carrier having a right to provide by contract that any action for any loss, etc., shall be commenced within six months after the cause of action accrued, and being required by the Interstate Commerce Act to treat all shippers equally, it will be presumed, without evidence to the contrary, that the carrier was conducting its business lawfully, and that such a contract was lawful.</p> <p>3. Evidence <&wkey;G5 — Presumption—Knowledge of Law.</p> <p>Without evidence to the contrary, it will be presumed that both the carrier and the shipper know the law as to the validity of a contract, stipulating that any action for loss, etc., shall be brought within six months after the cause of action accrued.</p> <p>4. Carriers <&wkey;46 — Contracts for Interstate Shipment — Construction.</p> <p>Contracts for interstate shipment are governed by the acts of Congress, the agreement of parties, and the common-law principles accepted and enforced in federal courts.</p> <p>5. Carriers <&wkey;35 — Interstate Shipment of Live Stock — Limitation of Time for Bringing Action — Validity.</p> <p>A provision in a contract for an interstate shipment of live stock that, in consideration of the lower rate allowed to the shipper on a valuation of property, instead of the rate at the carrier’s risk, as provided by the tariff rates, no action against the carrier for any loss, etc., should be maintained unless commenced within six months after the cause of action accrued, and that if any action was commenced after that time the expiration of such time should be conclusive evidence against the validity of the claim, could not be waived by the carrier, as to enforce it against one shipper and waive it as to another would permit discrimination between parties, and allow, by indirection, what the carrier could not do directly.</p> <p>On Motion for Behearing.</p> <p>6. Carriers <&wkey;35 — Interstate Carriage of Live Stock — Limitation as to Tíme fori Bringing Action — Schedule Piled with Interstate Commerce Commission.</p> <p>Under Interstate Commerce Act, § 6 (Comp. St. 1916, § 8569), requiring a carrier to file with the Interstate Commerce Commission schedules of all rates, stating all privileges granted and any rule which may affect any rate and section 20, as amended by the Carmack Amendment (Act Cong. June 29, 1908, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. 1916, §§ 8604a, 8604aa]) requiring carriers receiving freight to issue a bill of lading, and that no contract, etc., shall exempt carriers from liability under the act, a stipulation in a contract, for the interstate shipment of live stock that, in consideration of a lower rate upon a declared valuation, no action for loss, etc., should be maintained unless brought within six months after the cause of action accrued was not invalid because not filed as a part of the schedules filed with the Interstate Commerce Commission, where the carrier had filed the rate upon declared valuations as to contracts executed on blanks furnished by it and the rules affecting the rate, as such condition was not a service rendered to the shipper in transportation, but an obligation to be performed by the shipper in consideration of the lower rate.</p>

<p>Ceiminax, Law <&wkey;1114(3) — Appeal—Record —Absence op Evidence and Bill op Exceptions.</p> <p>The motion for a new trial having raised the questions of insufficiency of the evidence and refusal of requested instructions, there is. nothing to review, where the evidence is not in the record, and no bill of exceptions was reserved.</p>

<p>Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.</p> <p>John Wallace was convicted of forgery, and he appeals.</p>

<p>Cbiminal Law &wkey;>1148 — Appeal and Error —Bail.</p> <p>A trial court’s denial of bail in a murder case is accorded great deference on appeal.</p>

■ Appeal from District Court, Wharton County; Samuel J. Styles, Judge. Action by the First National Bank of El Campo against S. P. Smiley and wife, wherein D.- N. Mouser was garnished. Judgment against the garnishee and he appeals.

<p>Appeal from Armstrong County Court; H. L. Mobely, Judge.</p> <p>Conversion by Ira J. Holloman against F. N. Bishop and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from De Witt County Court; R. J. Waldeck, Judge.</p> <p>Suit by the Laas-Jersig Company against the San Antonio- & Aransas Pass Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Armstrong County; Hugh L. Umplires, Judge.</p> <p>Action by T. S-. Magee against T. ¡S, Cavins. Ffom a judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and Error <&wkey;1041(l) — Erroneous Finding — Harmless Error.</p> <p>Even if the court erred in finding that the amended pleading set up a new cause of action, it was immaterial, in view of the holding hereinafter that defendant was not a party to the suit at the time citation was issued.</p> <p>2. Judgment <&wkey;>944 — Foreign Judgment-Validity — Evidence.</p> <p>In a suit on a foreign judgment, held, under the evidence, that the trial court was justified in finding that defendant was not a party to the suit at the time judgment was entered against him, and that the judgment was a nullity for want of jurisdiction.</p>

A. Wilcox, Judge. Suit for partition by Fred Turner, next friend of Johnnie and Aileen Hardin, against John Wanslee and another. From a judgment for Wanslee, plaintiffs appeal.

<p>Appeal from Hale County Court; Charles Clements, Judge.</p> <p>Suit by Jim Phillips against the Panhandle & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Brown County; John W. Goodwin, Judge.</p> <p>Action by F. H. Stockstill against the Pennsylvania Fire Insurance Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Railroads <©=^138 — “Connection.”</p> <p>A contract for a connection between railroads means a physical joining of the rails so as to permit trains to pass from one set of rails to the other.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Connection.]</p> <p>2. Logs and Logging <©=>3(9) — Contracts— Construction — Contingencies.</p> <p>Under contract for the sale of timber by which vendor agreed to use his best efforts to obtain a railroad right of way to permit removal of the timber and to obtain a connection with another railway, there was no absolute liability of either party until the connection was secured and accepted.</p> <p>3. Logs and Logging <©=>3(9) — Contracts— Construction — Contingencies.</p> <p>The mere fact that the vendor’s agent could have secured the right of way, and did not at the vendor’s suggestion, did not change the liability of the parties.</p> <p>4. Eminent Domain @=5ll — Who May Exercise.</p> <p>An individual cannot exercise the right of eminent domain in view of Const, art. 1, § 17, and Rev. St. 1911, arts. 6504-6530, and article 6481 delegating such right to railroad corporations.</p> <p>5. Railroads <®=1 — Right to Own and Operate — Eoreign Corporations.</p> <p>A foreign corporation, having made a contract to buy lumber and operate a railroad to remove the lumber and having a permit only to engage in the lumber and logging business, had no power to operate the railroad in view of Vernon’s Say les’ Ann. Civ. St. 1914, art. 6406, providing that no corporation except one chartered under the laws of Texas shall be permitted to operate, or maintain any railway, so that its contract was for an illegal purpose and unenforceable.</p> <p>6. Railroads <§=j2 — “Railway.”</p> <p>A railroad laid down for the purpose of removing logs sold by the vendor to be owned by the individual vendor and operated by a foreign corporation without authorization was a railway within the meaning of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6406, prohibiting any but a Texas corporation to operate such a road.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Railway.]</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Suit by J. M. Radford against the Neal Commission Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Scurry County Court; C. R. Buchanan, Judge.</p> <p>Action by N. W. West and another against J. J. Billingsley. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Frauds, Statute oe &wkey;>14& — Promise to Answer eor Debt oe Another.</p> <p>A petition alleging that plaintiff loaned to a son the moneys represented by the notes sued on, upon a verbal promise of the father that he would secure its payment, that the notes were signed by the son only, and were extended from time to time, that thereafter just prior to the maturity of the note sued on the father declined to fix his personal signature to the notes as surety, delivered to plaintiff certificate of stock, and authorized it to be attached to the note as security, and that, relying upon such pledge of stock, plaintiff granted other extensions of time for payment, did not show that a cause of action was based upon oral promise within the statute of frauds; there being no verbal promise to pay the debt of another.</p> <p>2. Pledges &wkey;>9 — Consideration.</p> <p>An extension of time for the payment of the debt was sufficient consideration for the depositing of shares of stock by the father to secure notes of his son.</p> <p>3. Principal and Surety &wkey;>104(l) — Release oe Surety — Extension oe Time.</p> <p>If the relation of principal and surety existed, an extension of time without the consent of the surety would release him.</p> <p>4. Pledges t&wkey;25 — Renewal oe Notes — Liability oe Pledgor.</p> <p>Where the father refused to sign as surety, and simply deposited or pledged shares of stock to secure the payment of his son’s notes, the stock remained as security for the debt precisely as though there had been no renewal.</p> <p>5. Pledges t&wkey;57 — Eneobcement—Liability oe Pledgor.</p> <p>Where the father pledged shares of stock to secure payment of his son’s notes, the trial court properly foreclosed the pledge without personal judgment against the father.</p>

<p>Taxation <&wkey;549(4) — Preparation oe Delinquency Record — Fee—“Record or Supplement.”</p> <p>Under Acts 34th Leg. e. 147, § 2, providing that in certain cases the tax collector shall prepare a supplement to the delinquency tax record of the county, which shall be prepared in duplicate to he filed, etc., and section 3, providing that the tax collector shall be entitled, for making up the delinquent record or supplement thereto where necessary, to five cents for every line of yearly delinquencies recorded or supplemented, although the tax collector prepared delinquent tax record in duplicate, he was not entitled to five cents per line for both, but only for one; the term “the record or supplement” being an indivisible entity, having its existence in each of the two copies prepared.</p>

<p>1. Criminal Law <§=>1090(7) — Review—Reserving Bui, of Exceptions — Continuance.</p> <p>The objection that the court erred in overruling defendant’s application for continuance cannot be reviewed when there was no bill of exceptions reserved and the application is not found in the record.</p> <p>2. Burglary <S=>41(1) — Sufficiency of EviDENCE.</p> <p>Evidence held sufficient to justify conviction of burglary.</p>

Error from District Court, Gillespie County; N. T. Stubbs, Judge. Partition suit by A. E. Russell against Albert Koennecke. A general demurrer was sustained to plaintiff’s petition, and he brings error.

<p>1. Fraudulent Conveyances @=271(3) — Debts Subsequently Contracted — Presumption.</p> <p>No legal presumption of fraud arises from the mere fact that debts were contracted subsequent to a husband’s execution of a conveyance of his property to his wife.</p> <p>2. Fraudulent Conveyances @=>295(1) — Evidence — Sufficiency.</p> <p>Evidence held sufficient to support a finding of fraud in the husband’s conveyance of the homestead to his wife.</p> <p>3. Fraudulent Conveyances @=>295(2) — Evidence of Fraud — Sufficiency.</p> <p>Fraud in a conveyance may be proved by circumstances as well as by positive evidence.</p> <p>4. Fraudulent Conveyances @=>69(2) — Validity — Subsequent Creditors.</p> <p>A deed executed with fraudulent intent by the husband to his wife is void as to subsequent creditors.</p> <p>5. Fraudulent Conveyances @=210 — Right</p> <p>of Subsequent. Creditors — Recording Conveyance — Effect. ></p> <p>Where the husband in making a conveyance of land to his wife intended to defraud his creditors, and immediately had the deed recorded in the county where the land lay at the county seat, at a considerable distance from the places of business of his creditors with which communication was difficult, the record of the instrument did not, under .Rev. St. 1911, arts. 6828, 6842, as to the effect of recording conveyances, constitute such constructive notice to subsequent creditors as that they could not attack the deed.</p> <p>6. Fraudulent Conveyances @=162(1) — Right to Attack — Grantee’s Intent.</p> <p>The intent of the grantee is immaterial in a voluntary conveyance fraudulent as to the grantor’s creditors.</p> <p>7. Fraudulent Conveyances @=242(1) — Right to Attack — Defense—Conveyance to Wife.</p> <p>Where the husband conveyed property tO‘ his wife in fraud of creditors, the deed reciting that the consideration on her part was payment of a certain sum monthly and provision' of a place for the husband to live, the wife could not prevent an attack upon the deed as fraudulent on the ground that she was an innocent purchaser where she did not perform her part of the agreement, and therefore was not a purchaser for value.</p> <p>8. Fraudulent Conveyances @=301(4) — Right to Attack — Evidence — Wife’s Knowledge and Intent.</p> <p>Evidence held to show either that the wife participated in the fraud or had constructive notice thereof, so that she could not as an innocent purchaser enjoin an action of the husband’s creditors to set aside the conveyance of land to her as fraudulent.</p> <p>9. Appeal and Error @=213 — Preservation, of Grounds of Review — Submission of Special Issues.</p> <p>In the absence of request to submit special issues, it will be presumed that such issues were resolved against the party so as to support the judgment in view of the specific provisions of Rev. St. 1911, art. 1985.</p> <p>10. Injunction @=200 — Determination Against Plaintiff — Assessment of Penalty.</p> <p>The wife’s action to enjoin a sale of property which had been conveyed to her by the husband in fraud of creditors, in the absence of showing that it was brought for delay, did not merit, on determination against her, the assessment of the penalty of 10 per cent.</p>

<p>Courts <S=»121(2) — Jurisdiction — Amount Involved.</p> <p>Action in the county court will be dismissed for want of jurisdiction; the petition, though to recover $500, on its face disclosing that no more than $70 can be recovered.</p>

<p>1. Libel and Slander <&wkey;15 — Libel Pee Se —Publication.</p> <p>An article entitled “Misstatement® or (?),” and charging untruthfulness, is libelous per se.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Libel.]</p> <p>2. Libel and Slander <&wkey;33 — Evidence-Special Damages.</p> <p>Under Rev. St. 1911, art. 5596, defining libel as a defamation expressed in printing or writing tending to injure the reputation of one who is alive, and thereby expose him to public hatred or to impeach his honesty, etc., and thereby expose such person to hatred, ridicule, or financial injury, an article being libelous per se, in that it charged plaintiff with untruthfulness, it was unnecessary for plaintiff to offer evidence of special damages to authorize recovery.</p> <p>3. Libel and Slander <&wkey;16 — Charging Natural Defect — Exposure to Ridicule.</p> <p>Accusing one of having “brainstorms,” even if not libelous per se, is a charge of a natural defect, and exposes the one accused to ridicule.</p> <p>4. Libel and Slander <&wkey;>119 — Mental Suf-ferin g — Statute .</p> <p>Damages for mental anguish caused by publication of matter actionable under Rev. St. 1911, art. 5595, defining libel is recoverable regardless of whether there was any other injury or damage.</p>

<p>1. Judgment &wkey;>768(2) — Abstract — Sufficiency.</p> <p>Where the abstracts of judgment of a justice court recited the amounts of the judgments incorrectly, no lien was created by filing and registry thereof, under Rev. St. art. 5612, providing that an abstract of judgment shall show the amount for which it, was rendered.</p> <p>2. Judgment &wkey;>768(2) — Amount—Interest— Attorney’s Fee — “Costs.”</p> <p>Accrued interest and attorney’s fees awarded plaintiff are part of the principal sum for which the judgment is rendered, and not a part of the costs.</p>

D. Blanton, Judge. Action by Otho S. Houston against A. B. Johnson and others. Erom part of the judgment, plaintiff appeals. There is no statement of facts in this record, and the appeal is presented upon findings of fact and conclusions of law filed by the trial court.

<p>1. Appeal and Error &wkey;1039(4) — Harmless Error — Petition Seeking Double Recovery.</p> <p>If a petition against the receiver of a railroad for damages to cattle from negligent handling and failure to transport expeditiously had sought double recovery, the error was harmless to defendant, where the measure of damages presented to the jury absolutely precluded such recovery.</p> <p>2. Trial <&wkey;349(l) — ■ Special Issues —Purpose.</p> <p>The presentation of special issues to a juiy is permitted in order to simplify matters and have the issues clearly found, that the law may be applied to them, not to find a multitude of facts neither establishing nor destroying an issue.</p> <p>3. Carriers <§s=o228(3) — Carriage oe Live Stock —Delay in Transportation — Evidence.</p> <p>In an action against a receiver of a railroad for damages to cattle from negligent handling and failure to transport expeditiously, proof of delay in transportation, causing the cattle to reach destination on a declining market, was properly admitted; the testimony being pertinent to the issues involved.</p> <p>4. Appeal and Error <&wkey;1052(5) — Harmless Error — Evidence.</p> <p>Testimony objected to on the ground that it tended to support a double recovery was harmless to defendant, where the cause was submitted on the proper measure of damages, to which the jury responded in a verdict clearly indicating that a double recovery was not obtained.</p>

<p>Error from Nolan County Court; Jno. H. Cochran, Jr., Judge.</p> <p>Action by the Neal Commission Company against Boy D. Golston. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Sales <&wkey;354(l) — Actions — Pleading — Stweicienoy.</p> <p>In an action on a note, an answer alleging that the payee represented to defendant that it would ship five pianos, worth $350 each, as an advertising proposition, for the price of $350, and that a friend of defendant’s had accepted the proposition, when in truth and in fact the pianos were worth only $125 each, and no sale had been made to the person named, is sufficient to permit the showing of fraud in procuring the note as well as proof of failure of consideration, and is therefore sufficient.</p> <p>2. Bills and Notes <&wkey;452(l) — Defenses— Fraud.</p> <p>That the maker of a note did not read it when he signed it would not preclude him from showing fraud and failure of consideration as between the original parties.</p> <p>3. Appeal and Error &wkey;?499(4) — Scope of Review — Preservation oe Exceptions.</p> <p>In the absence of record showing objections to the charge given or requests for other charges, assignments of error to peremptory instruction will not be considered.</p> <p>Harper, C. J., dissenting in part.</p>

<p>1. Sales <@^354(7) — Action fob Price — Answer.</p> <p>Answer, in action for price of lighting fixtures, held to sufficiently show wherein those furnished failed to comply with contract, and their smaller market value.</p> <p>2. Sales <@>=358(1) — Action fob Price — Condition of Articles — Evidence.</p> <p>Evidence, in action for price of articles, of their condition at time of trial, as not complying with contract, is admissible, in connection with evidence that they were in same condition as when received.</p> <p>3. Appeal and Error <@=>1040(14) — Harmless Error — Ruling on Pleadings.</p> <p>Overruling exception of argumentativeness and immateriality to part of answer in an action for price, that defendant was always ready to pay what it actually owed, and paid nothing because plaintiff insisted on payment of more, was not prejudicial, and so, under Court of Civil Appeals rule 62a (149 S. W. x), to be disregarded.</p> <p>4. Trial (@=^252(13) — Instructions—Assumption of Pacts.</p> <p>A requested instruction assuming authority of an architect, contrary to what the evidence shows without practical contradiction, is properly refused.</p> <p>5. Principal and Agent <@=>101(4) — Architects.</p> <p>An architect as such has no authority to purchase materials or furnishing on behalf of the owner of a building.</p> <p>6. Appeal and Error <©=>302(4) — Review— Point Not Raised Below.</p> <p>It cannot be urged on appeal that agency should have been taken as true, because alleged in the petition and not denied in the answer, plaintiff’s requested instruction for a verdict being placed on the ground that the evidence showed the agency, and its motion for new trial giving no reason why refusal of the instruction was error, except that the evidence compelled the giving of it.</p> <p>7. Sales <©=>358(1) — Action for Price — Evidence.</p> <p>The defense to action for price of lighting fixtures being that prisms thereon did not comply with contract, opinion of plaintiff’s witness that they were artistically and practically equipped with prisms is immaterial.</p> <p>8. Appeal and Error <@=>1056(2) — Harmless Error — Ruling on Evidence.</p> <p>There being no real contention, in action for price of lighting fixtures, that after they were installed prisms thereon were changed, exclusion of plaintiff’s testimony that it would be possible for them to be so misplaced or changed was harmless.</p>

Suit by the Max Hahn Packing Company against the Texas & Pacific Railway Company. On prayer of defendant, the Pt. Worth Stock Yards Company, Pt. Worth Belt Railway Company, and the Missouri, Kansas & Texas Railway Company were made parties defendant. Judgment against the original defendant alone, and it appeals.

<p>Appeal from District Court, Collin County; C. T. Freeman, Judge. Maude Banks was convicted of crime, and she appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge. John Goss was convicted of burglary, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge. Challie Jones was convicted of theft, and appeals.</p>

<p>Appeal from District Court, Bee County; F. G. Chambliss, Judge. Francisco Guterrez was convicted of rape, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge. E. T. Rose-mond was convicted of burglary, and he appeals.</p>