Volume 198 — South Western Reporter

<p>Appeal from Lamar -County Court; Tom L. Beauchamp, Judge.</p> <p>O. L. Allen was convicted, and appeals.</p>

<p>Appeal from District Court, Grayson County; M. H. Garnett, Judge.</p> <p>James Jones was convicted of pursuing the business of selling intoxicating liquors, and he appeals.</p>

<p>Criminal Law <©=>1053 — Appeal — Exceptions.</p> <p>Where no exceptions were reserved to the charges or any other matter arising on the trial, a conviction must be affirmed; the evidence not being before the appellate court.</p>

<p>Appeal from District Court, Gonzales County ; M. Kennon, Judge.</p> <p>Dock Martin was convicted of manslaughter, and he appeals. Affirmed. On motion for rehearing.</p>

<p>Error from District Court,' Bexar County; W. E. Ezell, Judge.</p> <p>Suit by J. M. Nix against J. P. Withers and others. Judgment for plaintiff, and the Rock-hill Country Club Company brings error.</p>

■ Appeal from District Court, Brazos County; J. C. Scott, Judge. Suit by Smithie Loftin, for herself and minor children, against Jas. A. Baker, receiver of the Intel-national & Great Northern Railway Company. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from Knox County Court; W. M. Moore, Judge.</p> <p>Action by J. T. Dunivan against the West Texas Supply Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and Servant <®=>258(17) — Injuries to Servant — Petition — Master’s Knowledge,.</p> <p>In a servant’s action for injuries when a sledge hammer he was using flew off the handle, the petition, though not expressly charging that defendant employer knew of the condition of the hammer, or that it could have known thereof by the exercise of ordinary care, was not subject to general demurrer, where it charged that the hammers were made by the head smith, and that defendant employer had the handles placed in the hammers for plaintiff to use in striking for another.</p> <p>2. Master and Servant <§=»124(3) — Master’s Duty to Inspect Tools — Sledge Hammer —“Simple Tool.”</p> <p>A sledge hammer made by the employer’s head smith, its handle being placed for use of a servant who had never used a sledge before equipped with a defective handle, was not a simple tool which an employer need not inspect.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Simple Tool.]</p> <p>3. Appeal and Error! <@=o742(2) — Assignments op h&ROR — Urging Distinct Grounds — Effect.</p> <p>Where several distinct grounds are urged in an assignment of error, it cannot he treated as a proposition.</p> <p>4. Master and Servant <@=>286(4) — Injuries to Servant — Negligence of Employer in Furnishing Tool — Question for Jury.</p> <p>In a servant’s action for injuries when the sledge hammer he was using flew off the handle, issue whether the employer was negligent in furnishing plaintiff with the hammer held for the jury.</p> <p>5. Master and Servant <§=5279(5) — Injuries to Servant — Head Blacksmith as Personal Representative of Employer — Sufficiency of Evidence.</p> <p>Evidence held to support a finding that the head blacksmith was the personal representative of the employer, charged with the nondele-gable duty to see that the tools were in safe condition.</p> <p>6. Master and Servant <&wkey;190(9) — Duty to See Tools are Saee — Delegation by Employer.</p> <p>Tlie head blacksmith’s neglect to see that the sledge he was furnishing his helper was safe will be imputed to the employer; the head blacksmith being the latter’s personal representative, charged with the nondelegable duty ■to see that tools are safe.</p> <p>7. Appeal and Error &wkey;>1033(4, 8) — Error Favorable to Appellant^-Submission op Issue — Findings.</p> <p>Defendant cannot complain of error committed in submitting an issue, nor of the jury’s finding thereon favorable to plaintiff, where the issue was an infringement on plaintiff’s rights only.</p> <p>8. Appeal and Error <§=^231(9) — Reservation op Grounds op Review — Objections to Issue.</p> <p>Where the objections to an issue filed below were general, a specific objection, not included" therein, cannot be urged on appeal.'</p> <p>9. Appeal and Error <&wkey;213 — Reservation op Grounds op Review — Request por Issue Supplying Omission.</p> <p>Appellant cannot complain of an omission from an issue without having sought below to correct it by requesting the submission of a correct issue.</p> <p>10. Trial &wkey;>351(5) — Submission op Issues.</p> <p>In a servant’s action for injuries, where the</p> <p>court correctly submitted the issue whether plaintiff suffered any damages by reason of the sledge hammer coming off the handle, and instructed that no damages could be allowed for any prior injury or sickness, it properly refused to submit an issue inquiring whether the injuries suffered by plaintiff resulted from the hammer slipping off the handle, from prior disease, or from both.</p> <p>11. Trial <&wkey;351(5) — Submission of Issues.</p> <p>In a servant’s action for injuries, - defendant’s special issue asking the jury to find whether plaintiff was guilty of contributory negligence, accompanied by an incomplete instruction omitting the essential statement that the' facts stated, if found to exist, would show contributory negligence, was properly refused where the issue submitted by the court was in practically the same language.</p> <p>12. Damages <&wkey;134 (1) — Personal Injuries —Excessive Verdict.</p> <p>In an action for injuries to a helper in defendant’s blacksmith shop, when the sledge hammer he was using flew off the handle, causing him to wrench his back, in view of .plaintiff’s age and low earning capacity, verdict for $15,000 held excessive by $5,000.</p>

<p>Appeal from District Court, Duval County; V. W. Taylor, Judge.</p> <p>Action between Sixto Garcia and Ramon Uveda. Prom a judgment for the latter, the former appeals.</p>

<p>Appeal and Error <©=3745 — Assignment op Errors — Transcript. .</p> <p>Assignments of error not appearing in the transcript cannot be considered.</p>

H. Burney, Judge. Action by W. E. Mansfield! against John Mansfield and wife, in which Laura Mansfield was vouched as warrantor.of plaintiff’s title. From a judgment for plaintiff and for Laura Mansfield, defendants appeal.

<p>1. Limitation os’ Actions «§=^46(12) — Contracts — Assumption of Vendor’s Lien Note — “Contract in Writing.”</p> <p>Express assumption in a deed by the grantee of payment of a vendor’s lien note given by grantor to Ms vendor is a contract in writing, limitations against action on which by the holder of the note against such grantee begins to run from the date of such deed.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Written Contract.]</p> <p>On Motion for Rehearing.</p> <p>2. Parties ®=>94(2) — Misnomer — Plea in Abatement.</p> <p>A misnomer of defendant can be taken advantage of only by plea in abatement.</p> <p>3. Appeal and Error <®=o187(1) — Objection Below — Misnomer.</p> <p>Misnomer of defendant .cannot be urged for the first time on appeal.</p> <p>4. Judgment c®=>252(5) — Pleading to Sustain — Prayer.</p> <p>The facts pleaded, sustained by the evidence, warranting personal judgment against defendant, it may be had under a prayer not specifically asking therefor, but for such other and further relief as in law or in equity plaintiff may show itself entitled to.</p>

<p>CaRkiers <&wkey;280(12) — Carriage or Live Stock — Injuries in Transit.</p> <p>In an action for damage to a shipment of cattle from delay in transit, and from furnishing a car defectively bedded with cinders, which caused the cattle to have sore feet, the court properly refused to give defendant’s special charge that the jury should not consider the alleged shrinkage in weight of the cattle, because it was not shown that they sustained any damage by reason of shrinking in weight for which defendant was liable; there being evidence that the cattle were delayed at various points, and that they were loaded into a ear bedded. with cinders, which resulted in mailing their feet so sore that they could not stand to eat, resulting in shrinkage of weight.</p>

<p>Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.</p> <p>Action by Mrs. Sallie Alexander and others against Frank Whitley and others. From a judgment for plaintiffs, defendants appeal.</p>

W. McBride, Judge. Garnishment proceedings by the A. Walker Brokerage Company against the National Bank of Commerce of Amarillo, in which Shawnee National Bank intervened. From judgment for plaintiff, garnishee and inter-vener appeal.

<p>Appeal from District Court, Morris County ; J. A. Ward, Judge.</p> <p>J. S. Daniel was convicted of violating the local option law, and he appeals.</p>

<p>Criminal Law <§=>1090(1) — Appea]>-Bill oe Exceptions — Statement oe Facts — Necessity.</p> <p>Where the indictment is apparently regular, there is nothing to review in the absence of a statement of facts, or bills of exceptions.</p>

<p>Appeal from District Court, Ft. Bend County ; Samuel J. Styles, Judge.</p> <p>Marcus Fisher was convicted of murder, and he appeals. .</p>

<p>1. Indictment and Information ©=132(4)— Election Between Counts.</p> <p>The court correctly refused to require the state to elect between a count charging forcible rape, and a count charging rape upon a girl under 15 years of age; it not being necessary to require the state to elect where the indictment 'charges in various counts the same offense so as to meet any possible contingency that might arise under the facts.</p> <p>2. Criminal Law ©=1091(4) — Bills of Exceptions — Sufficiency.</p> <p>Bills of exception to evidence to present matters for review should show the answer to the questions and the connecting facts.</p> <p>3. Criminal Law ©=1091(8) — Bills of Exceptions — Sufficiency.</p> <p>A bill reciting that while the county attorney was making his closing argument he used the following language, “Martha Forney, defendant’s witness was within call of the courthouse, and defendant did not have her summoned or used as a witness in the other trial of this case,” to which argument defendant called the court’s attention, and requested it to give a special charge in writing to the effect that they could not consider for any purpose the argument, and urging as an objection that the argument called the attention of the jury to a previous trial, and that no testimony had been introduced showing said witness had not been summoned, etc., was deficient, as the grounds of objection are not statements of fact, but simply grounds of ■objection.</p> <p>4. Criminal, Law ©=720(1) — Argument of Counsel.</p> <p>As the county attorney brought out testimony on cross-examination of defendant’s witnesses that this was the first time they had testified in the case, the argument had a basis in the facts.</p> <p>On Motion for Rehearing.</p> <p>.5. Criminal Law ©=1091(3) — Bills of Exception — Sufficiency.</p> <p>A bill reciting that while defendant was being cross-examined the state was permitted to ask and prove by him who was keeping house for him, to. which defendant objected because j it sought to get before the jury that' defendant was living with a woman not his wife, was insufficient to show error; there being nothing to indicate what answer, if any, was given.</p> <p>6. Criminal Law ©=31142 — Appeal—Objections — Statement of Facts.</p> <p>The court on appeal cannot presume that objections in bills of exception are statements of fact.</p> <p>7. Criminal Law ©=31110(7) — Omission in Bills of Exception — Reference to Statement of Fact.</p> <p>The court on appeal cannot refer to statement of facts to supply omissions of fact in bills of exception.</p> <p>8. Criminal Law ©=>1091(4) — Bills of Exception — Sufficiency.</p> <p>A bill not stating the time elapsing between prosecutrix’ statement and the time when the rape was committed, but simply urging that it was not admissible as original testimony, not being a part of the res gestte, and not made in the presence of defendant, was insufficient, as it did not exclude the idea that the statement was sufficiently close to bring it within the res gestte rule.</p> <p>9. Criminal Law ©=1144(10) — Rulings of Trial Court — Presumption.</p> <p>It will be presumed on appeal that the rulings of the trial court are correct, where not shown in some way to be incorrect.</p> <p>10. Criminal Law ©=1091(5) — Bill of Exceptions — Sufficiency.</p> <p>A bill complaining of exclusion of question should have stated what was the expected answer.</p> <p>11. Criminal Law ©=1091(3) — Bill of Exceptions — Sufficiency.</p> <p>A bill reciting that the state asked a witness, “What did you do?” and that the court remarked if it was something about an examination, it would be admissible, is too indefinite; it not showing what the matter related to, or how the question came to be asked.</p>

<p>1. Criminal Law <©==>1166½ (8) — Review — Challen ge for Cause after Exhaustion of. Peremptory Challenges.</p> <p>If a cause for challenge is well taken, and defendant, having' exhausted his peremptory challenges, is forced to take the talesman as a juror, he is entitled to reversal; for peremptory challenges are given to be exercised by defendant independent of challenges for cause.</p> <p>2. Jury <®=j108 — Cause for Challenge — Statement o-f Juror — Punishment.</p> <p>Where a talesman, when tested as to his qualifications to sit as a juror in a prosecution for violating the local option law, stated positively that he would not under any circumstances accord accused the benefit of the suspended sentence law, the statement constituted a cause for challenge.</p> <p>3. Criminal Law ©=749 — Plea for Suspended Sentence — Determination by Jury.</p> <p>The law accords an accused the right to have a jury pass upon her plea ior suspended sentence when filed in proper time.</p>

P. Stinson, Judge. W. C. McGee was convicted for failing to have his cattle dipped as required for eradication of ticks, and he appeals.

<p>1. Trial €=>205-AtNSTRUCTioNS — Necessity— Burden of Proof.</p> <p>Trial court, in submission .of special issues, should give -proper charge on the burden of proof in connection therewith.</p> <p>2. Ajbpeal ’and Error €==>1067— Harmless Error — Errors not Affecting- Result.</p> <p>Refusal to give proper charge on burden of proof is harmless error, where it does not appear that result would probably have been different if charge had been given.</p> <p>3. Master and Servant <§=»73(3) — Compensation — Forfeiture.</p> <p>Preparing, before end of term for which servant wa§ employed, to engage in competitive business at expiration of term, and attempting to engage one.pf employer’s, clerks for his business when opened, are not Such unlawful acts as to forfeit his right to compensation for past services.</p> <p>4. Master and Servant €=>30(1) — Grounds for Discharge.</p> <p>That an employe intends, at. expiration of his term of employment, '.to engage in competing business is not ground of discharge.</p> <p>5. Master and Servant €=>41(1) — Actions for Compensation — Amount of Recovery.</p> <p>. ■ An employé, wrongfully discharged, may sue on contract.for services performed and recover proportional compensation.</p> <p>6. Master and Servant @=>75.— Compensation— Mutual Abandonment.</p> <p>If a contract of employment is mutually abandoned, the employé is entitled to recover proportional compensation for his services.</p> <p>7. Master and Servant @=>32 — Grounds rob Discharge.</p> <p>When an employer assigns grounds for discharge of employé, he cannot afterwards justify it on other grounds which were not at the time made the basis of termination of contract.</p> <p>8. Master and Servant <®=>73 (3) — Compensation— Damages for Misconduct.</p> <p>In a discharged employé’s action to recover compensation for past services, the employer may set off damages for actual misconduct by employé; though he did not base discharge on those grounds.</p>

<p>Appeal from Eastland County Court; Joe Burkett, Judge.</p> <p>Action by A. L. Thorp against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant 'appeals.</p>

<p>Appeal from District Court, Montgomery County; J. Llewellyn, Judge.</p> <p>Action by Mrs. Sophie Nichols and others against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Grimes County ; S. W. Dean, Judge.</p> <p>Suit by Mrs. R. E. Bryan against the Texas Employers’ Insurance Association. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Liberty County; J. Llewellyn, Judge.</p> <p>'Suit by E. W. Williams against John Bu-kowski. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Evidence <§=>409 — Release — Modification by Parol Evidence.</p> <p>A written contract of release of damages cannot be modified by parol testimony.</p> <p>2. Pelease '<§=>17(2) —Validity— Fraud — False Representations.</p> <p>In order to have a contract of release of damages canceled on the ground that employer induced such contract by fraudulently promising 1 plaintiff a certain position, it must be shown that, at the time the promise was made, the employer did not intend to give plaintiff the position.</p> <p>3..Release <§=>58(6) — False Representations — Sufficiency of Evidence —, Question for Jury.</p> <p>In an action to set aside a release of damages, evidence 7held insufficient to warrant submission to the jury of the question of a fraudulent promise to' give plaintiff employment, although sufficient for submission as to whether the promise was made.</p> <p>4. Trial <§=>139(1) — Questions for Jury — Sufficiency of Evidence.</p> <p>Where reasonable and ordinary minds may arrive at different conclusions to be reached on any issue of .fact, such issue should be submitted to the jury, but where ordinary minds could not differ, it should be taken from the jury.</p> <p>5. Evidence <§?=595 — Deliberations of Jury-Inferences.</p> <p>A jury is not authorized to render a verdict merely upon inferences drawn by it, but such inferences must have basis in the evidence in order to be warranted.</p> <p>6. Fraud <§=>50, 58(1) — Sufficiency of Evidence-Presumption.</p> <p>Fraud is never presumed, and, although wide latitude is allowed to prove it, yet it must be established by facts or circumstances sufficiently strong to warrant a finding that fraud existed, or inferences or presumptions based on such facts.</p>

<p>1. Physicians and Surgeons <S^>24(2) — Itemization ob Account — -Action by Physicians.</p> <p>The complaint in an action by physicians to recover for attendance, medicine, etc., furnished several persons, should itemize as to each person the amount charged for medicine, the amount charged for examination, that charged for the visit, the charge for the prescription, etc.; no further itemization of the account being necessary.</p> <p>2. Pleading ⅞=»228 — Action o-n Account-General Exception to Petition.</p> <p>Where the exception to plaintiffs’ petition embodying an account was general, some' of the items of the account being correctly pleaded, it was error to dismiss the entire account, and to refuse to hear testimony as to its justice.</p>

Porter, Judge. Suit by Mrs. Ethel McMahan and others against Píar^y McMahan and others for construction of the will of P. M. Greenwade, deceased. From the decree rendered, a motion for new trial having been overruled, the guardians ad litem of the infant defendants appeal.

D. Guinn, Judge. Suit by J. A. Dunnagan against the East Texas Colonization & Development Company, W. J. Patterson, and others. Judgment for defendants, and plaintiff brings error, and defendants move to dismiss the writ.

<p>1. Husband and Wife <©=>270 (8) — Conveyance — Evidence—Sufficiency.</p> <p>In trespass to try title by a wife and minor children of the marriage to recover land which had belonged to the community of the wife and her deceased husband and had been conveyed by the wife during the lifetime of the husband without his joinder, evidence held to warrant findings that at the time of the conveyance the husband had abandoned his wife, and that sale of the property was necessary for the support of the wife and minor children.</p> <p>2. Appeal and Erorr <§=>1010(1) — Review — Findings.</p> <p>Where a question of fact is submitted to the court without a jury, a finding by the court is as conclusive as a verdict by the jury, and, if supported by evidence, is conclusive on appeal.</p> <p>3. Evidence <§=>590 — Weight and Sufficiency — Inteeested Parties.</p> <p>The testimony of vitally interested parties may be disregarded in toto.</p> <p>4. Vendor and Purcjiaser <§=>175 — Payment —Finding.</p> <p>Where the vendor warranted title though the land was subject to taxes and the purchaser deducted the amount of such unpaid taxes from the amount due on purchase-money note, which sum was received and retained by the vendor without complaint, a finding that the purchaser had paid for the land is warranted.</p> <p>5. Husband and Wife <§=>270(7) — Pleading — Sufficiency.</p> <p>In trespass to try title to land conveyed by a married woman without the joinder of her husband, though it was part of the community estate, defendant, having pleaded not guilty specially, answered that the deed from the married woman to him was duly executed by her, though it was not affirmatively stated that it was necessary to sell the property. Held, that in the absence of exceptions that the answer stated only the pleader’s conclusions, evidence that the married woman had been abandoned by her husband and found it necessary to sell the land for the support of herself and minor children was admissible, despite the rule that a defendant who follows a formal plea of not guilty by a special allegation of his title will not be permitted to show any title other than that specially pleaded.</p> <p>6. Appeal and Error <§=>275 — Review—Presumptions.</p> <p>Exceptions not acted upon by the trial court will, on appeal, be presumed to have been waived, in the absence of any showing that the trial court’s action was invoked.</p> <p>7. Trespass to Try Title <§=>35(2) — Actions —Pleading.</p> <p>Defendant in trespass to try title, who follows a formal plea of not guilty by specially pleading his title, will not be permitted to show any title other than that specially pleaded.</p> <p>8. Husband and Wife <§=>270(8) —Equitable Estoppel — Evidence.</p> <p>In trespass to try title brought by a widow and minor children of the marriage to recover land which had constituted part of the community estate of the widow and her deceased husband and had been conveyed by her during her husband’s lifetime without his joinder, evidence that she stated to others than the grantee that she had been abandoned by her husband and was in needy circumstances is admissible on the issue of estoppel interposed against the widow’s claim to a portion of the land.</p> <p>9. Witnesses <§=>379(2) — Credibility — Impeachment.</p> <p>In such ease, where the widow denied that she was in needy circumstances at the time of her conveyance or that her husband had abandoned her, such evidence was admissible to impeach her credibility.</p> <p>10. Appeal and Error <§=>1052(2) — Review— Harmless Error.</p> <p>Where similar testimony was admitted without objection, admission of testimony, though erroneous, was harmless.</p> <p>11. Husband and Wife <§=>207(2) —Community Estate — Conveyance.</p> <p>Where a husband abandoned his wife and she and children of the marriage are in necessitous circumstances, she may, without the husband’s joinder or consent, convey community property passing good title.</p>

<p>1. Equity @^40SL-Appointment op Master —Conclusiveness op Findings.</p> <p>Where the court, acting upon its own initiative, appointed a master in chancery, the find-'■ngs of the master, specifically excepted to and presented to the court, which heard other testimony with reference to the matters in controversy, were not binding and final upon the court either at law or in equity.</p> <p>2. Equity <§^>395 — Master’s Duties.</p> <p>Whore the duties of the master in chancery are not fully set out or indicated by the court’s appointing order, such duties are to assist the court, but in no wise to supersede its action.</p>

Masterson, Judge. Suit by Mrs. Sarah P. Dunn, a feme sole, and Annie Lee Eicke, joined pro forma by her husband, J. O. Eicke against M. E. Foster. Judgment for plaintiffs, and defendant appeals.

Trespass to try title begun by James Stephens and Susan V. Stephens against H. C. House and others, and continued by the last-named plaintiff as surviving wife of James Stephens. Prom a judgment for plaintiff, defendants appeal.

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Suit by Josephine Rolater against Edward M. Rolater. From the decree, plaintiff appeals.</p>

<p>Appeal from Bexar County Court; J. H. Clark, Judge.</p> <p>Suit by W. M. Schroeder against James A. Baker, receiver of the International & Great Northern Railway Company. From a direct-led verdict for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Atascosa County; F. G. Chambliss, Judge.</p> <p>Action by J. H. Sutherland against H. T. Mumme. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Liberty County; J. Llewellyn, Judge.</p> <p>Action by C. Stephens against the Texas & New Orleans Kaiíroad Company. Judgment for'plaintiff, and defendant brings error.</p>

<p>1. Justices of the Peace <®^>91(1) — State- ment of Cause of Action.</p> <p>The statement of plaintiffs’ cause of action on the docket of the justice of the peace: “Suit upon damages for $150.00 of date - due - interest —-- per cent,” — was not as full and accurate a statement of plaintiffs’ cause of action as defendant was entitled to.</p> <p>2. Justices oar the Peace <⅜=>174(24) — Imper-itect Statement of Cause of Action — Remedy of Defendant.</p> <p>The county court correctly refused to sustain defendant’s motion to strike out the transcript from the justice court and dismiss the appeal; defendant’s remedy for the general and imperfect statement of plaintiffs’ cause of action being the presentation of a special demurrer thereto.</p> <p>3. Appeal and Error <S=1082(2) — Failure to Object Below — Waiver.</p> <p>Defendant, having failed to except to the statement in justice court of plaintiffs’ cause of action, either in that court or in county court on appeal, cannot ask the Court of Civil Appeals to reverse the county court’s judgment against him because of the imperfect statement.</p>

<p>1. Carriers <§=>377 — Carriage of Passengers — Ejection oe Person Riding on Pass —Condition.</p> <p>Where the pass on which plaintiff’s wife was admitted to defendant’s train provided that it was based upon no consideration, and that the person accepting it agreed that the companies issuing it should not be liable for any injury to the holder caused by the negligence, the provision, if valid, could not be invoked to relieve the road from payment of damages caused by its negligence in ejecting plaintiff’s wife at an improper place, the pass in fact not being good on the particular train boarded by plaintiff’s wife under direction from the gateman, since the railroad refused to recognize the pass as good, and so cannot invoke its provision to protect itself from the consequences of its negligence.</p> <p>2. Carriers <§=>307(2) — Carriage of Passengers — Invalid Stipulation — Exemption prom Liability.</p> <p>A stipulation in a railroad’s pass exempting the company from liability for injuries resulting from its negligence was contrary to public policy and so void.</p> <p>3. Constitutional Law <§=>315 — Due Process-Holding Stipulation op Railroad Pass to be Void.</p> <p>In suit against a railroad, the trial court’s holding that a stipulation in the road’s pass which exempted it from liability for injuries resulting from its negligence was void did not contravene the state Constitution, providing that no citizen shall be deprived of liberty, property, privileges, or immunities except by due process, or the federal Constitution, providing that no person shall be deprived of liberty or property without due process.</p>

<p>1. Damages <§=>89(2) — Exemplary Damages— Breach oe Contract — Sueeiciency oe Petition.</p> <p>Where no facts were alleged showing that the breach of contract was committed in a manner that amounted to a tort, the petition stated no cause of action for exemplary damages.</p> <p>2. Courts <§=>247(11) — County Court — Final Jurisdiction — Amount in Controversy.</p> <p>Where the justice court judgment was for less than $100, and plaintiff’s amended petition claiming a larger sum on appeal to county court was insufficient to state a cause of action, the jurisdiction of the county court is final; and an appeal to the Court of Civil Appeals will be dismissed.</p>

Appeal /from District Court, Hidalgo County; Y. W. Taylor, Judge. Suit between Chas. A. Brophy and others and John C. Kelly. Judgment for the latter, and the former appeal. Motion by John G: Kelly to affirm .on certificate.

<p>1. Appeal and Error @=>1062(1) — Haemless Error.</p> <p>In an action on a contract for the purchase price of certain interests wherein defendant alleged fraud, an issue as to what money was paid by defendant on the contract, which was answered, “Nothing,” although not within the issues, was harmless as to plaintiff, being favorable to him.</p> <p>2. CORPORATIONS @=>121(5) — Sale op Stock-Fraud op Seller — Reliance on Statements op Third Parties.</p> <p>Where defense was fraudulent representation, and the main issue of the case was whether defendant relied on the representations of plaintiff and whether such representations were untrue, evidence of representations of third parties was immaterial.</p> <p>3. Corporations @=>423 — Sale op Stock — Fraud — reliance on Representations.</p> <p>A nominal director of a corporation may rely on statements of the president, who was salesman and financial agent, as to solvency of the corporation, so as to set up fraud in an action for the purchase price of stock.</p>

<p>Appeal and Error ®=»501(4) — Record—Presentation op Exceptions.</p> <p>Prior to the amendment of the statute hy Acts 35th Beg. e. 177, the giving or refusal of special issues could not be reviewed where appellant did not embody his exceptions in a written bill of exceptions showing the essential facts and verified by the trial court.</p>

<p>Appeal from District Court, Reeves County; Chas. Gibbs, Judge.</p> <p>Oetabiano Flores was convicted of unlawfully selling intoxicating liquor in prohibition territory, and he appeals.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Suit by the Eruit Dispatch Company against the Independent Fruit Company and others. Prom a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, McBennan County; E. J. Clark, Judge.</p> <p>Suit by the National Biquor Company against the Archenhold Company and W. P. Beene. Prom the judgment rendered, Beene appeals.</p>

<p>Í. Appeal and Error <§=640 — Scope of Review — Record—Sufficiency.</p> <p>Where the transcript consisted solely of the order refusing the injunction, the appeal bond, and the clerk’s cost bill and certificate, the appeal would be dismissed, as the court could not determine whether the judge erred in refusing the injunction.</p> <p>2. Appeal and Error <§=3518(1) — Record — Pleadings.</p> <p>Papers purporting to have been filed with the clerk of the trial court, and to he the petition for an injunction and the answer thereto, though sent with the transcript, were not entitled to be filed in the Court of Civil Appeals, and could not be considered as part of the record under the specific provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2109 et seq., and court rules S5, 94, and 100 (142 S. W. xxiii, xxiv).</p>

<p>Railroads <§=>446(7) — Rights of Way — • Fences — Switching Limits.</p> <p>The mere fact that the point where plaintiff’s horse was killed by defendant’s locomotive was within what was commonly called the-switching limits of the defendant-railroad company does not as a matter of law establish that the'place was not one which defendant should inclose with a fence, in order to avail itself of' protection against the killing of stock.</p>

<p>1. Appeal and Error <§=>230 — Presentation of Grounds of Review in Court Below— Instruction — Objections—Necessity.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, requiring objections to the charge to be made before it is read to the jury, and declaring that unless so made they shall be waived, objections to a peremptory charge are waived if not made before the charge is read, and in such case assignments of error complaining of the charge cannot be considered on appeal.</p> <p>2. Exceptions, Bill of <§=>43(1) — Time for Filins.</p> <p>A bill of exceptions, not filed until long after the time in which to file allowed by the court’s order expired, cannot be considered.</p> <p>3. Appeal and Error <§=>230 — Presentation of Grounds of Review in Court Below— Necessity — Fundamental Error.</p> <p>Where no objections to a peremptory charge were made until after it was read to the jury, all objections were waived, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, applying to peremptory charge as well as others, and the propriety of the charge cannot be reviewed on appeal on the theory that it amounted to fundamental error.</p>

L. Goodman, Judge. Suit by the Oriental Oil Company against the Houston & Texas Central Railroad Cdm-pany. Judgment for plaintiff, and defendant appeals. Having loaded it with oil at Sherman, ap-pellee had appellant haul a tank car over its line of railway to Calvert, where appellee unloaded the car by means of a pipe extending from the inside of the tank through the bottom thereof. The pipe was equipped with a tap at its lower end and with a valve at its upper end.

<p>Mobtgages <⅜^>469 — Rbcetveks—Petition.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2128, subd. 2, authorizing appointment of receiver in mortgage foreclosure proceedings, where property is in danger of being materially injured, etc., a petition alleging generally that defendant was insolvent, and would injure the property pending suit, is insufficient to authorize an ex parte appointment of a receiver.</p>

<p>1. Coubts &wkey;>122 — Jubisdiction—Petition.</p> <p>In the absence of any proof of fraud as to jurisdiction, the averments in the petition as to the amount involved will establish the jurisdiction of the court.</p> <p>2. Courts <®=»121(4) — Jurisdiction—Amount Involved.</p> <p>Though the amount of a note in suit was less than $200, yet, where plaintiff sought sequestration of a motorcar of the value of $350, and foreclosure of a chattel mortgage thereon, the county court had jurisdiction.</p> <p>3. Appeal and Ereob <&wkey;1010(l)—Review-Findings.</p> <p>A finding of fact in an action tried to the court is conclusive on appeal, when supported by evidence.</p> <p>4. Pleading- &wkey;>8(4) — Petition — Conclusions op Pleader.</p> <p>In a suit on a note and for the foreclosure of a chattel mortgage, an averment that the mortgaged chattel, a motorcar, was of the value of $350 is not a conclusion of the pleader.</p>

<p>Appeal from District Court, Jim Wells County; J. F. Mullally, Judge.</p> <p>Suit by the Alice State Bank & Trust Company against H. N. Stamper and others. From an interlocutory order in favor of plaintiff, defendants appeal.</p>

<p>1. Adverse Possession <&wkey;27 — Sufficiency of Evidence—Holding by Tenant.</p> <p>In trespass to try title, evidence held sufficient to support a finding that defendant had acquired title by adverse possession through a tenant.</p> <p>2. Adverse Possession <&wkey;29 — Holding by Renter—Notice of Claim.</p> <p>Where one rents land to another, such tenancy is sufficient notice of adverse possession although he never mentioned his claim to any one.</p> <p>3. Adverse Possession <&wkey;85(3)—Nature of-Possession—Evidence.</p> <p>Evidence held sufficient to support a finding that defendant took possession of land adversely for himself- and not as agent of another.</p>

<p>1. Waters and Water Courses &wkey;>156(2) — Easements — Use oe Water — Construction —“Allow.”</p> <p>Where the owner of land conveyed a portion thereof, by deed reciting, “I have further agreed to allow” the grantee, his heirs or assigns, “at all times, free access to and use of a running spring” on the portion retained, after which both parties used the water as their needs arose, the grantee acquired only an easement and not the exclusive right to the water, the word “allow” not meaning “grant.” .</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Allow.]</p> <p>2. Deeds <&wkey;101 — Construction—Evidence-Acts oe Parties.</p> <p>Interpretation of a clause in a deed given it by the parties is relevant to explain its meaning.</p>

<p>Error from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Action by Leona C. Hicks against the American National Insurance Company. Judgment for plaintiff, and the defendant brings error.</p>

<p>Principal and Surety &wkey;>73 — Breach—Liability — Attorney’s Fees.</p> <p>Plaintiff purchased land which was subject to vendor’s lien notes and the seller delivered to her an indemnity bond, cotoditioned that in event the vendor’s lien notes should not be paid on or before maturity, the surety would indemnify plaintiff against all loss which might be incurred by her. The seller failed to pay all of the notes at maturity, whereupon the defendant surety acquired the outstanding vendor’s lien note and delivered to plaintiff a release of the lien. Held that, notwithstanding the technical breach, plaintiff, having suffered no loss, could not, in an action on the bond, recover as loss attorney’s fees incurred in prosecuting suit on the bond.</p>

<p>Appeal from District Court, Bowie County; H. F. O’Neal, Judge.</p> <p>Partition suit by Mrs. Viola Fortner and others against J. S. Evans. Judgment for plaintiffs, and defendant appeals.</p> <p>Appellant and Mary A. Mitton, a widow, were married in 1878. In February, 1892, they purchased three unimproved building lots (50 by 140 feet each, and numbered 1, 2, and 3, respectively) in Texarkana, around which they at once constructed a fence. In the fall of that year (1892) appellant built a dwelling house on lot 3, having segregated it from lot 2 by a fence constructed on the line between them, and a few years later built a dwelling house on lot 2, part of which, by a fence constructed thereupon, he had segregated from the remainder thereof and from lot 1. The houses were built to rent, and Were never used or occupied by others than tenants. In the fall of 1900 or 1901 appellant constructed a dwelling house on lot 1, which, with a part of lot 2, had been segregated, as stated, from the remainder'of the land, and thereafterwards, until the death of Mrs. Evans in 1914, occupied and used this dwelling house, and lot 1 and the part of lot 2 inclosed with it as his home, and after the death of his wife continued to so occupy and use same. Appellee Mrs. Viola Fortner was the daughter of Mrs. Evans by her first husband and was her only heir. The suit was by Mrs. Fortner, joined by her husband, against appellant, to partition lot 3 and the part of lot 2 not inclosed, as stated, with lot 1. The defense interposed by appellant was that said lot 3 and said part of lot 2 were a part of his homestead, and therefore were not subject to partition during his lifetime, or so long as he elected to use or occupy same as a home. The court, before whom the trial was had without a jury, found facts as stated above, and further found:</p> <p>(1) That the property Mrs. Fortner sought to have partitioned belonged to the community estate between her mother (who died intestate) and appellant; (2) that at the time he improved the three lots as stated appellant dug a well on each of them, and afterwards continuously “rented out lots 2 and 3 to tenants whenever he could procure tenants therefor, and has never lived on or used either of lots 2 or 3 for homestead purposes, except the small portion of the north side of lot No. 2 inclosed with lot No. 1, but, on the other hand, it was his purpose to use lots 2 and 3 for the purposes of renting them out to tenants and thereby securing an income from which to partially make a living”; and (3) that all of lot No. 2 not inclosed with lot No. 1 and all of lot No. 3 were subject to partition.</p> <p>Tbe appeal is from á judgment directing a partition to be made as prayed for by Mrs. Fortner.</p>

C. Joiner, Judge. Petition by E. G. Cauble to restrain Elmer Hoskins and others from trespassing on his land. Prom an order granting an interlocutory injunction, defendants appeal.

<p>1. Injunction &wkey;>169— Temporary Injunction — Motion to Dissolve — Verification.</p> <p>Under Rev. St. 1911, art. 4668, providing that the defendant to an injunction proceeding may answer as in other civil actions, but that no injunction shall be dissolved before final hearing, because of a denial of the allegations of the petition, unless the answer denying the same is verified by oath or affirmation, the facts alleged in an unverified motion to dissolve a temporary injunction could not be considered in determining whether the injunction should be dissolved.</p> <p>2. Injunction <&wkey;163(l) — Temporary Injunction — Grounds for Dissolution.</p> <p>The judge had a right to dissolve a temporary injunction, if plaintiff’s petition, standing alone, did not entitle it to such injunction.</p> <p>3. Waters and Water Courses <&wkey;203(15)— Meter Rents — Recovery of Payments — Voluntary Payments.</p> <p>Where payments for the rent of water meters were made voluntarily with full knowledge of the fácts, the money could not be recovered, whether or not the contract between the water company and the city authorized it to charge rent for meters.</p> <p>4. Injunction <&wkey;14iL-TEMP0RABY Injunction — Sufficiency of Petition.</p> <p>A petition by a water company alleged that a great number of suits had been filed in justice court against it for the recovery of meter rent; that in one of such suits the justice rendered judgment against it for $12; that the plaintiff in such suit made application to have a meter installed and promised and agreed to pay rent; that in all of the other suits and. cases where claims were asserted in which suit had not been filed the facts were the same; that in each case the customer voluntarily applied for a meter, and made a written application, agreeing to pay rent, or where they did not sign applications with an agreement to pay rent, they moved into premises where meters had been installed under an application and contract, knowing that such was the case, and that meter rent was being charged and would be charged, and, with full knowledge of the facts, had the water turned on and paid the meter rent without objection or protest; and that the amount of the claims sued on was such, in most instances, that the justice court had final jurisdiction, and in a few exceptional cases such that an appeal could not be taken from the county court, field, that the petition stated a cause of action, entitling the company to a temporary injunction, restraining the further prosecution of suits already filed, and the filing of any further suits.</p>

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>Injunction by Frank Craddock, Jr., against the City of San Antonio. From interlocutory judgment denying the writ, petitioner appeals.</p>

<p>Appeal from District Oo-urt, Williamson County; C. A. Wilcox, Judge. •</p> <p>Suit by Ida Hall and others against Brack Hall. Judgment for plaintiffs, and defendant appeals.</p>

. Error from District Court, Smith County; R. M. Smith, Judge. Suit by L. R. Prince against W. B. Colvin and others. From a judgment for plaintiff against only a part of the defendants, lie brings error. W. E. Oolvin executed to S. B. Ray and J. P. Seale a series of three notes in part payment of 60.8 acres of land, the vendor’s lien being retained in the conveyance to secure the payment of the notes.

<p>Error from District Court, Crosby Comity; W. R. Spencer, Judge.</p> <p>Action by H. D. Matheson against the C-B Live Stock Company and others. Judgment for defendants, and plaintiff brings, error.</p>

<p>Appeal from District Court, Bee County; F. G. Chambliss, Judge.</p> <p>Suit by E. P. Cayo and others against O. E. Williamson, Mayor, and others. From judgment for plaintiffs, defendants appeal.</p>

<p>1. Landlord and Tenant <⅜=>331(2) — Breach oe Lease Contract — Evidence—Measure.</p> <p>Where defendant counterclaimed for plaintiff’s breach of contract to demise to him agricultural land, and. it did not appear when the crop should be divided, the value of the crop in the field which it was claimed would have been raised does not establish defendant’s measure of damages, for he might have been required to gather the crop before division should be made, in which case necessary expenses for labor in addition to that of himself and his family should be deducted in computing his profits.</p> <p>2. Landlord and Tenant <§=»331(2) — Breach oe Contract to Lease — Evidence — Measure.</p> <p>Where a landowner breached his contract to demise certain agricultural land, thus depriving his tenant of employment, the amount earned by the tenant in. other employments, or the amount he could have earned by leasing other equally available land, should be deducted from his recovery.</p> <p>3. Landlord and Tenant ⅞=>331(6)' — Lease Contract — Actions for Breach — Evidence.</p> <p>Where defendant counterclaimed for plaintiff’s breach of contract to lease to him agricultural land, evidence as to controversies between plaintiff and other tenants concerning the leasing of his land is inadmissible.</p> <p>4. Trial ®=>25(9) — Argument — Right to Open and Close.</p> <p>Where defendant who counterclaimed did not admit all of the items of plaintiff’s claim, there was no such admission as required by rule 31 (142 S. W. xx) for the district and county courts so as to entitle defendant to open and close the argument; this being true though but one affirmative fact important to plaintiff’s recovery was denied.</p>

E. Ezell, Judge. Action by Prieda Furtner against S. E. Dowdy and others. Prom a judgment for plaintiff, the defendant named and his wife appeal.

<p>1. Brokers <@=>88(1) — Sale on Land — Annulment on Contract — Evidence.</p> <p>In an action for commission for furnishing a buyer for land, evidence held not to warrant a directed verdict for plaintiff, although the contract was admitted but was claimed to have been annulled.</p> <p>2. Appeal and Error <@=>1064(1) — Instructions — Harmless Error.</p> <p>In an action for commission for procuring a buyer of land, the burden is on the plaintiff to show that a sale was made while the agency contract existed, even though defendant admitted the contract and negotiation with the buyer while it was in force, but claimed it had been annulled before the sale; so that instruction that plaintiff must prove that contract had not been annulled was harmless error.</p>

<p>1. Wills <®=»62 — Joint Wills as Contracts.</p> <p>A husband and wife executed a joint will devising their community land to the children and grandchildren, and providing that on the death of either the survivor should have the exclusive use and control of all property and the use and revenues thereof, with the option, however, of surrendering the property to the executor, who was thereupon directed to proceed with its disposition and distribution. After the husband’s death, the wife probated the will, accepted the revenue and use of the entire estate, and executed a codicil, expressly ratifying the joint will. Held, that the will evidenced an agreement by the survivor to take a life estate in all of the property, and for a valuable consideration, vesting the fee in the devisees.</p> <p>2. Wills i@=>1S8 — Revocation oe Joint Wills — Power to Revoke.</p> <p>At least after the execution of the codicil, the widow could not abrogate the provisions of the joint will, and she owned only a life estate, and the children and grandchildren owned the fee.</p> <p>3.Dike Estates <3=^24 — Mortgages by Dike Tenant — Liability oe Remainderman.</p> <p>As the widow owned only a life estate, and as the will gave her no power to sell or mortgage the remainder,, a mortgage executed by her to secure a note made by her and one of the sons covered only the life estate, and where such son paid the note after the widow’s death, the other devisees took their devises free from the lien, and were under no legal liability of contribution.</p>

D. Harvey, Judge. Proceedings under the Workmen’s Compensation Act by Nettie Owens and minor children to obtain compensation for the death of Will, L. Owens, husband and father, opposed 'by the Randolph Paint Company, the employer, and the Southwestern Surety Insurance Company. Compensation was awarded in the sum of $2,957.88, and the Insurance Company appeals.

<p>1. Removal of Causes <®=»86(1) — Right of Removal. -</p> <p>The state courts are not bound to surrender jurisdiction of a cause on petition for removal, unless the petition shows on its face the right of petitioner to the transfer.</p> <p>2. Removal of Causes <®=»77 — Right of Removal.</p> <p>The receiver of .a railroad company, on being sued, filed an answer praying that Wells Fargo & Co. Express be made a party. Service of citation was had on the agent of Wells Fargo <& Co., and it .appeared for the sole purpose of presenting a petition for removal of the cause to the federal court, which petition alleged that the name “Wells Fargo & Co. Express” was a misnomer. The court denied the petition for removal and sustained the plea in abatement of Wells Fargo & Co. on the theory that it had never been made a party. Thereafter, only a few days prior to the trial, the receiver filed a petition praying that Wells Fargo & Co. be made a party. Held that, as the right of removal depends on the case disclosed by the pleadings when the petition therefor is filed, and not on the allegations of a petition thereafter filed, or on subsequent proceedings, the trial court had jurisdiction to deny the petition for removal by the Wells Fargo & Co.; it not having been made a defendant when the petition was filed.</p> <p>3. Removal of Causes <@=»77 — Petition — Gkanting.</p> <p>When the answer of' the defendant seeking to implead another does not set up a cause of action against a third person against whom plaintiff has no cause of action and who was not an original party, removal of the cause to the federal court on petition of such third party may be denied.</p> <p>4. Indemnity <§=>13(1) — Carriage of Passengers — Actions.</p> <p>Where a. passenger, who had purchased a ticket and was waiting for defendant’s train to arrive at the station so that he could board the same, was fatally injured by a truck of an express company, which, having been left too near the tracks, was struck by the approaching train, defendant, the receiver of the railroad company, though held liable for the passenger’s death, has no right of action over against the express company whose agent left the truck too close to the tracks; the express company being under no duty to the passenger to keep the station platform safe.</p> <p>5. Parties <®=>51(4) — Joinder of Defendants —Denial of Petition.</p> <p>In an action against the receiver of a railroad company for the death of a passenger injured by an express company’s truck, which, being left close to the tracks, was struck by an approaching train, the receiver, having no right of action against the express company, cannot implead it as a defendant.</p> <p>6. Parties <S=551(2) — Joinder of Defendants —Denial of Petition.</p> <p>Where the party sought to be impleaded by defendant was in no sense a necessary party, the denial of defendant’s petition to implead such party, filed shortly before trial and more than a year after the filing of plaintiff’s petition, was not an abuse of the trial court’s discretion in such matter.</p> <p>7. Trial <®=o63(2) — Order of Proof — Discretion of Court.</p> <p>In an action for the death of a passenger injured when a truck standing on the station platform was struck by an incoming train, it was not an abuse of the court’s discretion to permit one who had been fireman on the train to testify, after defendant had offered its evidence, that he heard a noise and looked down and saw the truck shoot out as though it had been struck by the train.</p> <p>8. Trial <®=>260(1) — Instructions—Refusal.</p> <p>Refusal of requests covered by the charge given is not error.</p> <p>9. Receivers <®=>187 — Actions—Execution.</p> <p>In an action against the receiver of a railroad company, the direction of the issuance of execution for the collection of a judgment in favor of plaintiffs was error; plaintiffs being entitled to present their claim evidenced by the judgment to the court in which the receivership proceeding is pending.</p>

Action by the Southern Gas & Gasoline Eh-gine Company against Adams & Peteirs, wherein defendants filed a counterclaim. Judgment for defendants, and plaintiff appeals.

<p>Appeal from County Court, Travis County; D. J. Pickle, Judge.</p> <p>Joe Oyervides was convicted of aggravated assault, and he appeals.</p>

Briggs, Judge. Suit by J. A. Robertson against the Carter-Mullaly Transfer Company, H. E. Hildebrand, and John M. Roberts. Judgment for plaintiff, and the defendants, except the last mentioned, appeal.

<p>1. Evidence <§==>126(2) — “Res Gestas” — What Constitutes.</p> <p>When a person is rendered unconscious by an injury, and as soon as consciousness is restored makes a statement as to how the injury occurred, such statement possesses as much spontaneity, and is regarded a much a part of the transaction which resulted in the injury, as if it had been made at the time or immediately thereafter, and for that reason such statements are admitted in evidence as part of the res gestae.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Res Gestae.]</p> <p>2. Evidence <§=>128½ [New, vol. 17 Key-No. Series] — Res Gestíb — 'What Constitutes-Discretion Olf Coubt.</p> <p>Admission of statements of plaintiff shortly after regaining consciousness, after his injury, is largely within the discretion of the trial judge.</p> <p>3. Cabbiees <§=>364^-Injuries to Trespass-ebs — Leaving Moving Trains — Liability.</p> <p>If, when a train reached a junction point at which plaintiff was required to change, it stopped a time reasonably sufficient for passengers to leave the train, and instead of leaving plaintiff remained on the train until it began to move, conceding him to have been a trespasser, the railroad was liable if plaintiff was required by its employés to get off while the train was moving 15 miles an hour.</p> <p>4. Cabbiees <@=>381(4) — Injuries to Passen-gebs — Liability.</p> <p>Evidence held to support verdict for a passenger for personal injuries under allegations that defendant’s employés threw him from the train while in motion.</p> <p>5. Caebiebs <§=>381(4) — Injueies to Passengers — Liability — Contributory Negligence.</p> <p>Evidence held to show that a passenger suing for injuries when thrown from a train, was not guilty of contributory negligence.</p>

<p>1.Landlord and Tenant <®=»321 — Validity on Agreements — Amount of Rent.</p> <p>Acts 34th Leg. c. 38, declaring null and void any contract for the leasing or renting of land for agricultural purposes where the land is cultivated by the tenant, who furnishes everything except the land, and where a higher or greater rental than one-third of the value of the grain or one-fourth of the value of the cotton raised on the land is stipulated for, did not apply to a lease of irrigated land, under which the landlord agreed to keep the irrigation engine and machinery in repair, where it appeared that this agreement was not trivial, but required the outlay of considerable expense in labor and material, and gave rise to a claim for damages for an alleged breach of the obligation to keep the machinery in repair.</p> <p>2. Pleading <®=>403(3) — Cure by Subsequent Pleading.</p> <p>In an action by the landlord for rent and advances, and to foreclose his lien on the crop, the failure of the petition to allege the agreement to keep the irrigation engine and machinery in repair, and thereby show that the statute was inapplicable, was cured by defendant’s allegation of such agreement, there being no inconsistency between such allegation of the answer and the allegations of the petition.</p> <p>3. Appeal and Error <®=»1073(7) — Harmless Error — Amount op Recovery.</p> <p>In an action for rent, under a lease stipulating for the payment of $20 an acre, where plaintiff sought to recover only one-fourth of the value of the crop, which was less than the stipulated rental, defendant was not prejudiced by fixing the recovery at one-fourth of the value of the crop when shipped, it appearing that part of the cotton had not been ginned when the first shipment was made, and defendant suggesting no other time as being more proper at which to fix the value.</p>

<p>1.Carriers <s=^247(2) — Right to Go on Station Premises — Negligence—Injuries.</p> <p>One intending in good faith to become a passenger, upon a train has a right to go to the station within a reasonable time before the train is expected to depart, and during such time has the right to do whatever may be necessary or proper to facilitate the loading of his baggage on the train, and while he is at the station and so engaged the railroad or its receiver owes a duty to him to exercise ordinary care for his safety, failure in which constitutes actionable negligence, unless the right to recover is defeated by contributory negligence.</p> <p>2. Carriers @=»320(2) — Injuries on Station Premises — Reasonableness of Time oe Going to Take Train — Question for Jury.</p> <p>In an action for injuries on railroad station premises to which plaintiff had gone with his family at about 11 o’clock at night, at least six hours before departure of the train he intended to take, question ■ of the reasonableness of the time in which plaintiff went to the station held for the jury.</p> <p>3. Trial <§=j203(3) — Instructions—Refusal of Request Submitting Converse of Plaintiff’s Propositions.</p> <p>In such action, the court erred in refusing to give one of defendant’s requested instructions, submitting the converse of the propositions submitted in a special charge given at plaintiff’s request, that if plaintiff went to the station a reasonable time before train’s departure, the railroad was under duty to exercise reasonable care to have its premises safe; the theory of the case presented by the refused instructions not being embraced in the court’s charge, or in any requested instruction that was given.</p> <p>4. Appeal and Error ®=>216(1) — Reservation of Grounds of Review — Request for Instruction.</p> <p>Where defendant requested no charge advising the jury as to the measure of damages, and his objection to the omission was not made until after the case was tried and verdict returned, he is not entitled to have the case reversed on appeal for the omission to charge.</p> <p>5. Appeal and Error <⅜^215(1) — Failure to Object to Instruction — Waiver.</p> <p>An objection to an instruction not urged at the time of trial was waived, and constitutes no ground for reversal.</p>

<p>Appeal from District Court, Travis Conn-' ty; Chas. A. Wilcox, Judge.</p> <p>On rehearing.</p>

<p>1. Appeal and Error <$=>742(5) — Briefing . Assignments—General Assignments Not Followed by Propositions or Statement.</p> <p>Assignments of error in effect charging that the trial court committed reversible error by instructing the jury to return a verdict for defendant are 'not properly briefed, when not followed either by propositions or statement showing why it is contended that error was committed in directing a verdict for the defendant; the assignments themselves being too general to constitute propositions.</p> <p>2. Appeal and Error <$=>700(2)—Reference to Statements of Facts in Brief—Duty of Court to Read Statement.</p> <p>Where there are references in plaintiff’s brief reading, “S. of F. p. -,” it is not the duty of the appellate court to read the entire 22 typewritten pages of the statement of facts to verify the statements in the brief that certain facts were proved; such statements being followed by the references.</p> <p>3. Appeal and Error <$=>766—Briefs—Com-pliance with Rules—Effect.</p> <p>The rules prescribed by the Supreme Court on the subject of briefing cases, especially rules 29, 30, and 31 (142 S. W. xii, xiii), were adopted to relieve appellate courts from the necessity of examining the entire record, and failure to comply with them constitutes an abandonment of the assignment, resulting in affirmance, unless fundamental error is discovered.</p> <p>4. Death <$=>76—Death by Wrongful Act-Liability — Causation by Defendant’s Negligence or Wrong.</p> <p>A railroad, sued for a wrongful death, was not liable on proof establishing an unexplained injury resulting in the death, but not showing that the injury was caused by any negligent or wrongful act of the road.</p>

<p>Appeal from San Saha County Court; J, T. Hartley, Judge.</p> <p>Action by G. A. Arhelger against Joab Brown. Judgment 'for plaintiff, and defendant appeals.</p>

C. Joiner, Judge. Suit by J. B. Swepston and another against C. R. McAfee and others.- Decree for plaintiffs, and the named defendant appeals.

<p>1. Appeal and Error <®=>722(1) — Assignments of Error — Review. ■</p> <p>A motion for new trial in a'case tried before the court is not necessary, but where a motion is made the assignments in the motion constitute the assignments of error on appeal under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612), and where the assignments of error are not copies of the assignments on motion for new trial, they cannot be reviewed.</p> <p>2. Appeal and Error <⅜^>719(1) — Matters Reviewable — Defective Assignments of Error — “Fundamental Errors.”</p> <p>In the absence of proper assignments, all errors not apparent on the face of the record, other than “fundamental errors” are waived, and errors are not fundamental if it would be necessary to examine the entire statement of facts to decide on their merits.</p> <p>[Ed. Note. — For other definitions, _ see Words and Phrases, First and Second Series, Fundamental Error.]</p>

<p>Appeal from Motley County Court; A. B_ Crane, Judge.</p> <p>Action by C. W. Warren against the Quan-ah, Acme ' & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Motley County Court; A. B. Crane, Judge.</p> <p>Action by C. W. Warren against the Quanali, Acme & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Collin County; O. T. Freeman, Judge.</p> <p>Dave Bradshaw was convicted of incest, and he appeals.</p>

<p>Appeal from District Court, Bee County; P. G. Chambliss, Judge.</p> <p>Marcelino Galaviz was convicted of rape, and appeals. Reversed and remanded. On motion for rehearing.</p>

<p>Appeal from Jasper County Court; O. C. Brown, Judge.</p> <p>Richard Isler was convicted, and appeals.</p>

<p>Ceiminal Law <⅜=>1090(1) — Aupeau—REconn —Stjiticiency.</p> <p>Where record on appeal from conviction of murder contains no statement of facts or bill of exceptions, and nothing in the motion for new trial can be reviewed in the absence of the facts, the conviction will be affirmed.</p>

<p>1. Homicide <⅜=300(3) — Self-Defense — Appearance of Danger — Viewpoint — Instructions. „ . .</p> <p>„ . . Instructions on self-defense held to sufficiently present the idea that appearances of danger were to be considered from defendant’s standpoint.</p> <p>2. Criminal Law <$=>730(12) — Argument of Prosecuting Attorney — Reference to Character.</p> <p>Any error from prosecuting attorney, by inference, referring to defendant, in argument, as a bad man, when he had not placed his character or reputation in issue — defendant’s attorney in argument speaking of deceased as a bad man, and that defendant should be congratulated on ridding society of such a member, and prosecuting attorney replying, “You have been told deceased was a bad man, and defendant should be congratulated for having killed him, when you bring in your verdict, I want to be able to congratulate you, ⅜ *. * and by this means we will get rid of two” — was unimportant, the court having reprimanded and instructed that it be not considered, and there being evidence that defendant did not act in self-defense, but was the aggressor.</p>

<p>Appeal from District Court, Eratli County; W. J. Oxford, Judge.</p> <p>Suit by Cage & Crow against W. O. Gil-breath and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Appeal and Eeeoe <§=>409 — Citation in Eeeoe — Defects—Quashing.</p> <p>Under Rev. St. 1911, art. 2091, providing that the citation in error shall he made returnable within 10 days, if defendant in error resides in the county, or 20 days, if he resides out of the county, the error of the clerk, in making the citation returnable in 30 days, does not require the quashing of the citation.</p> <p>2. Appeal and Eeeoe <§=>429 — Citation in Ebeor — Defects—W aivee.</p> <p>Defendant in error waived any right to abate the citation in error because of a mistake in designating the return day by moving to strike out the statement of facts and dismiss the proceeding in error.</p> <p>3. Appeal and Eeeoe <§=>14(1) — Successive Proceedings.</p> <p>A proceeding in error will not be dismissed because it is prosecuted after the dismissal of an appeal from the same judgment, where the judgment was not affirmed on the appeal.</p> <p>4. Appeal and Eeeoe <§=>655(3) — Recoed — Authentication.</p> <p>A statement of facts, though not bearing the file mark of the clerk of the lower court, will not be stricken out, where a certificate of the clerk is attached, certifying that it is an exact copy and a duplicate original of the statement of facts filed in his office.</p> <p>5. Appeal and Eeeoe <§=>564(2) — Statement of Eacts — Time foe Filing.</p> <p>A statement of facts filed within 12 months is in time, where the case is brought to the appellate court for review by writ of error.</p> <p>On the Merits.</p> <p>6. Specific Pebfoemance <§=>31 — Contbacts Enfo'KCEable — Incomplete Contbacts.</p> <p>To be specifically enforced, a contract must show a concluded agreement, and if it is reasonably doubtful whether what passed was only treaty, however it may approach the confines of an agreement, it will not be specifically enforced.</p> <p>7. Vendos and Purchaser <§=>28 — Contbacts —Offee and Acceptance.</p> <p>In reply to a letter from plaintiff, defendant stated that he would make plaintiff a proposal respecting a sale of land, defendant to assume an amount due the state, pay $1,000 in cash, and give his notes for $4,000, $1,000 to be payable annually, with interest at 6 per centum, and that he would go into further agreement with plaintiff, if this interested him. Plaintiff replied that he would buy the land at defendant’s offer, and would pay $1,000 cash when deed and abstract were satisfactory, and give notes payable annually, and that, if defendant eared for any information in regard to his .ability to pay, he might write a certain person. Defendant replied that plaintiff apparently expected a good abstract and deed, and to give his notes, and that he could not do this. In answer, plaintiff wrote that he did not ask defendant to take his personal notes, that it was customary to furnish an abstract of title, that practically all school land was transferred with vendor’s lien notes against the land, but that, if defendant was afraid of notes against the land, he might give a bond for deed. Beld, that defendant’s offer was not intended to conclude an agreement, and could not be converted into a contract by acceptance, but was merely a proposal to enter into further negotiations, and the subsequent correspondence showed that the parties never reached a c.ommon understanding respecting the time of payment of the amount to be paid in cash, or the manner in which the deferred payments should be secured.</p> <p>8. Contbacts <§=>1 — Requisites — Teems of Ageeement.</p> <p>An agreement, to constitute a complete contract, must comprise all the terms which the parties intended to introduce into the agreement.</p> <p>9. Contbacts <§=>24 — Acceptance of Offer— Vaeiance feom Offee.</p> <p>An acceptance varying from the offer is in effect a rejection and a counter proposal, and the offer thereupon lapses as in case of express rejection.</p> <p>10. Customs and Usages <§=>10 — Opeeation and Effect.</p> <p>A custom to give an abstract of title to land upon a sale does not amount to a custom that the deed and abstract must be satisfactory to the proposed purchaser.</p> <p>11. Customs and Usages <§=>14 — Exclusion by Expeess Conteact.</p> <p>Where, in correspondence respecting a sale of land, the purchaser expressly stipulated that a deed and abstract must be to his satisfaction, the matter would have been controlled by the contract, if made, and not by a custom to give abstracts of titlev</p>

<p>1. Witnesses <§=5243 — Examination—Dead - ing Questions — Discretion.</p> <p>It cannot be said that it is an abuse of discretion to permit a leading question to an ignorant witness, testifying through an interpreter; she having previously, without objection, stated the facts summarized in the leading question.</p> <p>2. Jury <§=3ll0(l) — Disqualification of Juror-Waiver of Right to Object.</p> <p>Disqualification of a juror discovered after-commencement of trial but before its close is waived by not being complained of till after verdict.</p> <p>3. Municipal Corporations <§=»705(11) —. Collision of Auto with Wagon — Proximate Cause of Injury.</p> <p>Collision of auto with rear of standing wagon, driving the wagon forward; is proximate cause of injury to occupant, pitched forward and out on forward motion of wagon being stopped by contact with hojjpe.</p> <p>4. Damages <§=>163(1) — Personal Injury — Burden of Proof.</p> <p>Plaintiff in action for personal injury has the burden of establishing, by a fair preponderance of evidence, its nature, extent and probable permanency.</p>

T. Hartley, Judge. Action by J. D. Johnson against R. E. Berry. There was judgment for plaintiff, who caused writ of garnishment to be issued against tbe First State Bank of Ricbland Springs, A. H. Wise and others intervening. From a judgment for plaintiff for the amount of his debt, directing that tbe balance of the money remaining in the bank after paying the debt should be placed to the credit of defendant, and that the interveners take nothing, they appeal.

<p>Original mandamus proceeding by the First State Bank & Trust Company of Abilene, Tex., against B. M. Overshiner, judge of the county court of Taylor county, Tex., and others.</p>

<p>1. Appeal and Error @=>882(8) — Evidence Secured by Appeal — Reveesible Error.</p> <p>An assignment relating to evidence drawn out by appellant, and not of such a nature as to probably result in injury to him, presents no ground for reversal on his appeal.</p> <p>2. Carriers @=>321(12) — Interurban Lines— Collision — Instructions.</p> <p>In an action for injury sustained by plaintiff’s wife, a passenger in a collision between two interurban ears on defendant’s road, an instruction that the jury must believe that a reasonably prudent person would have anticipated the injury to the wife as alleged was properly refused; the correct rule being that the wrongdoer is liable, if he could have foreseen that any personal injury might result, although he could not have foreseen the particular injury complained of.</p> <p>3. Appeal and Error @=>742(5) — Assignments op Error — Questions Not Germane.</p> <p>Under an assignment complaining of court’s charge as to measure of damages, propositions as to negligence were not germane.</p> <p>4. Trial @=>255(11) — Submission op Issues— Waiver.</p> <p>Conceding that defendant was entitled to have the question of negligence submitted, he waived such right when he did not request the court to give an instruction upon that subject and except to the action of the court in refusing to do so.</p> <p>5. Trial @=3280 — Submission op Issues — Affirmative Error.</p> <p>If defendant had the right to have the jury pass on the question of its alleged negligence, the failure to submit that question constituted no ground of .objection to a special issue as to damages.</p> <p>6. Appeal and Error @=>882(9) — Harmless Error — Cross-Examination — Irrelevant Matters.</p> <p>In suit by plaintiff for injuries to his wife, defendant, who introduced testimony showing that the wife’s eyesight was defective, cannot complain that cross-examination of witness up-, on the subject was permitted.</p> <p>7. Damages @=3132(1) — Excessive Damages— Setting Aside.</p> <p>The undisputed evidence showing that severe injuries were sustained by a passenger in the collision, a verdict for $5,000 for such injuries is not so large as to warrant the appellate court in setting it aside or require a remittitur.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>. Suit for divorce by Mrs. L. J. Daugherty against S. H. Daugherty. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Oabeiees <S=»380(4) — Passengebs — Petition.</p> <p>A petition that plaintiff passenger was in fear of defendant carrier’s conductor and was forced and compelled by said conductor to leave a moving train, etc., held not to present the conductor’s action in inspiring fear in plaintiff as a separate and independent ground of negligence.</p> <p>2. Appeal and Eebob‘§=>1082(2) — Habmless Eeeoe — Submitting Issues.</p> <p>Any error in submitting question whether defendant carrier was negligent in failing to stop its train for appellant passenger to alight is harmless, where the jury answered the question affirmatively.</p> <p>3. Appeal and Ekkob <§=>10G8(5) — Harmless Error — Instructions.</p> <p>Any error in failing to instruct that defendant carrier should stop its trains a reasonable time for appellant passenger to alight is harmless, where the jury found defendant negligent in not stopping.</p>

<p>Appeal from District Court, Falls County; Richard I. Munroe, Judge.</p> <p>Action by the First National Bank of Marlin against Maggie L. Johnson and others. From an adverse judgment, defendants appeal;</p>

<p>Appeal from Lubbock County Court; J. H. Moore, Judge.</p> <p>Suit by L. B. Wright against M. M. Graves Company. Plea of privilege was sustained, and the cause ordered removed to another county, and plaintiff appeals.</p>

<p>Appeal from Tarrant County Court; Charles T. Prewitt, Judge.</p> <p>Action by C. A. O’Keefe against T. O. Meacham and another. From a judgment for plaintiff, the defendant named appeals.</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Suit by J. E. McKenzie against W. M. Coleman, who interpleaded R. P. Hale. From a judgment for plaintiff, defendant Hale appeals.</p>

<p>Appeal from District Court, Tarrant County; R. E. L. ■ Roy, Judge.</p> <p>Quo warranto by the State of Texas, on relation of R. F. Peden, against I. T. Valentine. Judgment for respondent, and the relator appeals.</p>

<p>1. Judgment <§=415 — Equitable Relief — Receiver of Estate of Insane Person.</p> <p>That orders of the court appointing receiver of the estate of a person of unsound mind were not entered of record upon the minutes of the court, as required by Rev. St. 1911, art. 4088, is sufficient to void a judgment taken by the receiver as such in ease of direct attack upon the judgment.</p> <p>2. Judgment <§=525 — Construction — Recitals — Suit by Receiver of Estate — Prosecution as Next Friend. '</p> <p>Where the purported receiver of the estate of an insane person sued as such, and, realizing that he had no authority as receiver to enter into a particular agreed judgment, sought to make the same effective by reciting that he recovered both as receiver and next friend, but under his allegations he did not in fact prosecute the suit as next friend, the recital in the judgment was not a recognition of him in such capacity.</p> <p>3. Judgment <§=442 — Setting Aside — Fraud and Collusion — Insane Person.</p> <p>Where plaintiff was insane when judgment denying cancellation was entered in suit by the receiver of her estate to cancel her deed, so that any proceedings had were without her knowledge or consent, while no orders were entered of record authorizing her purported receiver to prosecute the suit in her name for her benefit or otherwise, and he did not appear before the court in any pleading as next friend, and she had title to the land involved, and was deprived of it, while insane, through the fraud and collusion of her purported receiver and her grantees, she was entitled to have the judgment set aside by a court of equity.</p> <p>4. Insane Persons <§=G7 — Avoidance of Conveyance — Tender Back of Consideration.</p> <p>Where plaintiff, an insane person, deeded away her land, receiving no money, while none of the purchase-money notes were delivered to her, a defendant by fraud obtaining possession of the instruments, plaintiff was not called upon to make any tender back to defendants in her suit to cancel her deed.</p> <p>5. Cancellation of Instruments <§=35(1)— Parties — Transferee of Purciiase-Money Note.</p> <p>The transferee of a purchase-money note given for land is not a necessary party to the vendor’s suit to cancel her conveyance on the ground of fraud, etc., if he has a valid subsisting lien to secure payment of his note, and desires to foreclose it, judgment in the vendor’s-suit for cancellation cannot affect his rights; his lien following the title.</p> <p>6. Judgment <§=4G0(4) — Pleading — Sufficiency of Allegations.</p> <p>In suit by a formerly insane person to set aside judgment in her receiver’s suit denying cancellation of her deed, to cancel the deed, to remove cloud on title, etc., plaintiff’s allegations of fraud chargeable to a defendant held sufficient to form the basis of a judgment in.her favor for the relief prayed for, the return of her land, and reasonable rents.</p>

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>.Suit by Eliza McKenzie against J. B. Winters and others. From a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Suit' by Eliza McKenzie against J. L. Sutton and another. From judgment of dismissal, plaintiff appeals.</p>

L. Blanton, Judge. 'Suit by the Burton Lingo Company and others against the First Baptist Church and others. From the judgment for plaintiffs against some defendants, plaintiffs appeal.

<p>Appeal from District Court, Erath County; W. J. Oxford, Judge.</p> <p>Action by L. H. Perry against Sidney Smith and others. From the judgment rendered, Pferry appeals.</p>

<p>1. Eminent Domain ⅞^>202(1) — Admissibility of Evidence — Intended Use of Property.</p> <p>_ In a suit to condemn a strip 18 feet wide adjoining the right of way of a railroad already in operation, from a tract of 36 acres, evidence that the owners intended later to use such tract as a homestead was inadmissible, it being rented at the time of the suit.</p> <p>2. Eminent Domain @=o202(l) — Admissibility of Evidence — Intended Use of Prop-ekty.</p> <p>Evidence that such tract was formerly the homestead of the owners’ father, and that the owners were born and raised there, was inadmissible, as it could serve no purpose except to appeal to the sympathy of the jury.</p> <p>3. Eminent Domain @=262(5) — Appeal — Harmless Error.</p> <p>The admission of evidence that the tract was formerly the family homestead, that the owners were born and raised there, and that they intended later to use it as a homestead was prejudicial, where the damages awarded for the land not taken were apparently excessive.</p> <p>4. Evidence @=>543½ — Opinion Evidence— Qualifications of Experts.</p> <p>In a suit to condemn a strip constituting part of a larger tract, a farmer living a mile and a half from the property, who did not pretend to be a real estate expert, and had not bought or sold land in that neighborhood except on one occasion about six years before when he bought land and sold it again, was not qualified to testify as to the damage to the land not taken from the taking of such strip.</p> <p>5. Evidence @=543½ — Opinion Evidence-Qualifications of Experts.</p> <p>In such suit the proprietor of a beer joint and amusement park, who was not a real estate expert, but who testified that he bought the land used as a park between four and five years ago, that he knew the value of lands in the neighborhood and knew of sales that had been, made, and had always lived in the neighborhood and heard sales discussed and prices offered, was not qualified to testify as to the damage to the land not taken.</p> <p>6. Eminent Domain @=>150 — Compensation-Excessive Damages.</p> <p>In a suit to condemn a strip of land 17 or 18 feet wide and about 1,000 feet long adjoining the right of 'way of a railroad in operation and constituting part of a tract of 36 acres, an award of $900 as damages to the balance of the . tract, in addition to an award for the land taken of which no complaint was made, was excessive so as to indicate passion or prejudice.</p>

<p>1. Evidence ®=>460(12) — Identity of Property — Parol Testimony — Adding Property.</p> <p>Parol testimony is admissible to identify property in a chattel mortgage, but not to add property which clearly appeared from the face of the instrument not to have been covered thereby.</p> <p>2. Pleading <®=>15 — Issues—Allegations of Other Defendants.</p> <p>In an action by a mortgagee against a mortgagor and a subsequent mortgagee, the subsequent mortgagee, not pleading fraud in execution of plaintiff’s mortgage, cannot profit by such an allegation by the mortgagor.</p> <p>3. Evidence 3=441(5) — Parol Agreements —Varying Terms of Mortgage.</p> <p>A parol agreement that a chattel mortgage should be subordinate to another .to be later executed cannot be given effect, either by the mortgagor or the subsequent mortgagee, in contravention of a stipulation in the earlier mortgage that the property should be free from all other mortgages and incumbrances.</p> <p>4. Trial <&=ol05 — Reception op Evidence-Written Instruments — 'Varying by Parol.</p> <p>The rule that the terms of a written instrument cannot be varied by parol is a substantive law, and not merely a rule of evidence, and the legal effect cannot be avoided even though proof of parol agreements be admitted without objection.</p> <p>5. Evidence <g=»448 — Written Instruments —Parol Evidence — Privies.</p> <p>The rule that a legally binding written unambiguous instrument cannot be varied, added to, or contradicted by proof of prior or contemporaneous agreements, not only applies to the parties, but to their privies.</p>

<p>1. Judges <®=j15(1) — Special Judge — Ground for Selection — “Unwilling to Hold Court.”</p> <p>Where the regular judge, because of his interest in one of the parties, declined to try the case, but remained at his office and attended to other matters pending, he was not “unwilling to hold court,” within Rev. St. 1911, art. 1678, authorizing practicing lawyers to elect a special judge when the regular judge is absent, unable or unwilling to hold court, and the election of a 'special judge in such case was void.</p> <p>2. Judges <®=>15(1) — Special Judge — Ground for Selection.</p> <p>Rev. St. 1911, art. 1678, authorizing election of special judge in certain cases, should be strictly construed to preserve the right of litigants to a trial before the regular judge.</p> <p>3. Judges <©=^59 — Mandamus ⅞=31 — Refusal to Try Case.</p> <p>The mere fact that the regular judge for a personal reason does not desire to try a particular case gives.him no right to decline to do so; and, if he does decline, he may be compelled by mandamus to try the case.</p> <p>4. Judgment @=39 — Special Judge — Unauthorized Appointment — Validity of Judgment.</p> <p>A judgment rendered by a special judge elected without due warrant as provided by Rev. St. 1911, art. 1678, is a nullity.</p> <p>5. Appeal and Error @=3719(3) — Assignment of Error — Fundamental Error.</p> <p>Error in electing a special judge in the absence of the conditions for such election provided by Rev. St. 1911, art. 1678, is fundamental, and error need not be assigned.</p> <p>6. Appeal and Error @=3544(1) — Record — Bill of Exceptions — Fundamental Error. •</p> <p>No bill of exceptions is necessary to preserve the question of the illegality of the election of a special judge to try certain cases.</p>

<p>Appeal from District Court, Erath County; J. B. Keith, Special Judge.</p> <p>Action by Gottfried Grabnter against the Texas & Pacific Coal Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Erath County; J. B. Keith, Special Judge.</p> <p>Action by Jim Garbugo against the Texas & Pacific Coal Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Erro® <©=>1064(1) — Harmless Error — Tax Collectors — Duty to Ac-cottnt — Instructions.</p> <p>In action by county to recover from tax collector moneys unlawfully retained by him, where it appeared that he had received credit as for delinquent property for taxes actually collected, and not turned over to the treasurer, instruction that it was his duty to turn over taxes collected to the proper county officers was not prejudicial, though it was his duty to turn them over to the treasurer.</p> <p>2. Appeal and Error <©=>501(4) — Scope — Preservation o-f Exceptions.</p> <p>An assignment of error in an instruction not embodied in the bill of exceptions taken to such instruction cannot be considered.</p> <p>8.Taxation <@=>567 — Action Against Collector — Instructions—Waiver oe Rights.</p> <p>In action by county against tax collector for moneys unlawfully retained, refusal of defendants’ requested instruction defining negligence and submitting issues whether the county commissioners were negligent in failing to discover the fraud before certain different dates was not error, such instruction having a tendency to confuse, especially where defendants failed to object to an instruction using words “due diligence,” or to request definition thereof.</p> <p>4. Appeal and Error <©=>742(5) — Scope—Assignment op Error — Sueeiciency.</p> <p>Assignment of error to refusal of instruction followed by statement containing only conclusions of fact, and not the evidence, cannot be considered.</p> <p>5. Taxation <s=j567 — Collectors—Default-Effect.</p> <p>Negligence of county commissioners in failing to perform statutory duties in passing on reports of tax collector does not necessarily'constitute notice of his defalcation, so that, in the county’s action for moneys unlawfully retained by him requested instruction declaring statutory duties, without requiring knowledge of facts by commissioners as prerequisite to finding such negligence on their part as would bar recovery under plea of limitation was properly refused.</p> <p>6. Evidence <@=>178(3) — Secondary Evidence —Burning Papers.</p> <p>Where tax collector’s original returns were burned by order of court, secondary evidence of their contents was admissible.</p> <p>7. Evidence <@=>186(9) — Secondary Evidence —Competency.</p> <p>Where reports of county taxes filed with commissioners’ court and later destroyed were, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7619, identical as to property covered and taxes collected with reports required to be filed with the state comptroller by article 7618, and, under article 7621, a list of delinquents was filed also with the state, the records of the state taxes were admissible in the county’s action for taxes collected and unlawfully retained.</p> <p>8. Taxation <©=>567 — Tax Collectors — Default Actions — Evidence—Admissibility.</p> <p>In county’s action against tax collector for taxes collected and unlawfully retained, receipts for taxes given owners of property which he reported as delinquent were admissible in evidence.</p> <p>9. Appeal and Error <©=>1051(1) — Harmless Error.</p> <p>In county’s action against tax collector for taxes collected and unlawfully retained, the error, if any, in admitting the draft drawn by the tax collector on one of the property owners for taxes due by him was harmless in view of the fact that the receipt for the same taxes was introduced in evidence and showed beyond controversy the receipt by the tax collector of the taxes for which the draft was drawn.</p> <p>10. Taxation <©=>567 — Tax Collectors — Default Actions — Evidence—Admissibility.</p> <p>In county’s action against tax collector for taxes collected and unlawfully retained, it was not error to exclude testimony that the tax collector was solvent and able to pay his debts while in office.</p> <p>11. Taxation <©=>567 — Tax Collectors — Default Actions — Evidence—Admissibility.</p> <p>In county’s action against tax collector for taxes-collected and unlawfully retained, it was not error to exclude entire tax rolls, which included much immaterial matter.</p> <p>12. Appeal and Error <©=>1052(5) — Harmless Error — Evidence.</p> <p>Error, if any, in permitting a witness to give the aggregate of items of shortage in a tax collector’s accounts, computed from testimony of another witness as to the specific items, was harmless where the jury awarded less than the aggregate.</p> <p>13. Evidence <©=>471(34) — Conclusions — Computation.</p> <p>It was not reversible error to permit a witness to give his conclusions as to a tax collector’s proportionate share of taxes collected; such amount being a mere matter of computation.</p>

<p>Appeal from Motley County. Court; A. B. Crane, Judge.</p> <p>Action by J. K. Patrick against the National Union Fire Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, San Augustine County; A. E. Davis, Judge.</p> <p>Action toy Mrs. S. J. Polk against John H. Broocks, W. C. Crouch, A. Murphy, and Frank Lewis. From the judgment rendered, A. Murphy appeals.</p>

<p>1. Insurance <s=^514 — Liability of Insurer —Indemnity Insurance.</p> <p>Under an employer’s liability insurance policy, providing that no action should lie, unless it should be brought by the insured for loss actually sustained and paid in money by the insured in satisfaction of a judgment, where insured became bankrupt after the affirmance of a judgment on a claim covered by the policy, and the surety on its appeal bond paid off the judgment, took an assignment thereof and an assignment of the policy, it was entitled to recover against the insurer as the situation was the same as though insured had borrowed the money and paid the judgment and then transferred it to the surety, and the surety was entitled to all the rights of insured under the policy.</p> <p>2. Insurance <⅜=>622(2) — Actions — Limitation by Policy — Validity.</p> <p>Under Rev. St. 1911, art. 5713, providing that it shall be unlawful to enter into any stipulation, contract, or agreement whereby the time in which to sue thereon is limited to a shorter period than 2 years, and that no stipulation, contract, or agreement for any shorter limitation shall be valid, a provision in an employer’s liability insurance policy that no action should lie, unless brought within 90 days after final judgment against the insured had been paid and satisfied, did not prevent the bringing of the action more than 90 days after the payment of the judgment.</p>

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Action by Emilia Gutierez and another against the Pullman Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Liberty County ; L. B. Hightower, Judge.</p> <p>■Suit by J. E. Mayfield and others against</p> <p>Alfred Tullos and Others. From judgment for plaintiffs, defendants appeal.</p>

<p>Appear and Error <§=931(4) — Failure to Submit Issue — Presumption prom Judgment.</p> <p>Although the question whether the agent who consented to concurrent insurance was still defendant insurer’s agent was not submitted to the jury, where the case was tried upon special issues, and there was testimony tending to show agency, the presumption is that the judge found such fact before judgment was rendered for plaintiff.</p>

<p>1. Evidence <S=^450(8) — Parol Evidence — Ambiguity in Contract.</p> <p>Contract for sale of car of corn, evidenced by letters and. telegrams, held ambiguous, leaving it uncertain as to wbat was meant by the words “delivered” and “inspection allowed.”</p> <p>2. Sales <®=s>88 — Ambiguous Contract — Question for Jury.</p> <p>Both parties introducing testimony tending to show the meaning, according to commercial usage, of the words “delivered” and “delivery,” in an ambiguous contract for sale of a car of corn, defendant, whose testimony on that subject tended to show that title remained in plaintiff when the corn was injured, and that on account thereof he was not required to accept and pay for the com, had a right to have the issue submitted to the jury.</p> <p>3. Evidence >®=>21S(3) — Admission—Letters.</p> <p>Defendant may introduce letters written by plaintiff after the making of their ambiguous contract, where they tend to show that plaintiff then construed it as defendant claims it should be construed.</p> <p>4. Customs and Usages ⅞=»15(2) — Explanation of Contract.</p> <p>A contract for sale of ear of corn being ambiguous -as to meaning of words “inspection allowed,” therein, testimony as to meaning attached thereto among shippers and buyers of carload lots, when used in such a contract, is admissible.</p>

<p>1. Tbial <S==>352(1) — Carriage ox Live Stock —Special Issues — “Bbasonabus Time.”</p> <p>In an action for damages to a shipment of cattle through delay in transit, where the court, in its main charge, in connection with the submission of special issues,. instructed that the duty of defendant roads in regard to the cattle was to use ordinary care in loading, forwarding, and transporting them, etc., the special issues whether defendants transported the cattle within a reasonable time after they were received by defendants for transportation were not erroneous as imposing an absolute duty on the roads to transport the shipment within a reasonable time; it being reasonably clear from the other instructions that the term “reasonable time” in the special issues meant such time as that in which the railroads in the exercise of ordinary care should have completed the transportation.</p> <p>[Ed. Note. — Eor other definitions,, see Word® and Phrases, Eirst and Second Series, Reasonable Time.]</p> <p>2. Tut at. @=>352(5) — CARRIAGE OB HIVE Stock — Special Issues.</p> <p>In such action, where the court charged that issues should not be considered unless it should first be found under the special issues submitted that the cattle were not transported within a reasonable time, the submission of such issues, as whether the cattle lost any more in weight than .they would have lost had they been transported and delivered within a reasonable time, was not erroneous on the ground that the issues assumed the cattle were not transported within a reasonable time.</p> <p>3. Carriers @=3210 — Carriage oe Live Stock — Duty to Furnish Facilities eor Unloading — Interstate Commerce Act.</p> <p>Under Interstate Commerce Act Feb. 4, 1887, c. 104, § 1 (2), 24 Stat. 379 (U. S. Comp. St. 1916, § 8563[2]), the duty of railroads carrying cattle to furnish the facilities necessary for unloading and delivering them is nondelega-ble, and if agents. are employed to perform it the liability remains the same.</p> <p>4. Appeal and Error @=>909(1) — Carriage oe Live Stock — Assumption oe Matter oe Fact in Absence oe Evidence.</p> <p>In an action for damage to a shipment of cattle from delay in transit, in the absence of evidence to show that delivery of the cattle was accepted by the consignee on the cars at destination and that the stockyards company acted for the consignee in unloading, the Court of Civil Appeals cannot assume that the stockyards company in unloading was not performing one of the duties of transportation incumbent on the carriers.</p> <p>5. Carriers @=3230(8) — Carriage oe Live Stock — Instruction.</p> <p>In an action for damage to a shipment of cattle from delay in transit, the charge that the responsibility of the railway company ceased when the cattle were delivered to- the stockyards company at destination and unloaded into its pens was as favorable as defendant railroads could ask, in the absence of evidence to show that delivery was accepted by the consignee on the cars at destination, and that the stockyards company acted for the consignee in unloading the shipment.</p> <p>6. Trial @=3252(7) — Instruction — Evidence.</p> <p>The evidence and issues submitted having ao reference to any depreciation caused by an extraordinary run of cattle and the crowded conditions of the pens at destination, an instruction that the jury should not consider any damage resulting on account of an unusual run and such crowded conditions was properly refused.</p>

' Appeal from District Court, Montgomery County; J. Llewellyn, Judge. Action by Mrs. Mattie E. McGaughey against the Western Union Telegraph Company. Judgment for plaintiff and defendant appeals. Opinion modified on motion for rehearing, 198 S. W. 1174.

<p>Appeal from District Oourt, Tarrant County; Bruce Young, Judge.</p> <p>Action by the Free and Accepted Masons of Texas (colored) against B. R. Bluitt and others. Judgment for plaintiff, and defendant Western Indemnity Company appealed.</p>

<p>Error from Ellis County Court; W. M. Tidwell, Judge.</p> <p>• Action by W. C. Biggers and others against J. T. Couch. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Judgment <§»256(2) — Conformity to Verdict.</p> <p>When a case is submitted to the jury on special issues, the trial court cannot, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1986, disregard its finding, though without support in the evidence, and must enter judgment in conformity with the verdict.</p> <p>2. Dismissal and Nonsuit ¡§=s75 — Grounds— False Claim of Damages.</p> <p>Where the jury found that plaintiff had falsely stated his damages for the killing of dogs at such sum as to give jurisdiction to the county court, the court was without jurisdiction; and the proper judgment entry was one of dismissal, and not for the defendants on the merits.</p> <p>3. Appeal and Error @=^916(1) — Presumption.</p> <p>Since the delay in filing a plea in abatement and the fact that the plea was not sworn to may be waived, it will on appeal be assumed that they were waived where the facts do not appear from the record and all the parties went to trial on the issue raised by the plea.</p> <p>4. Courts <⅛=121(8) — Jurisdiction—How Attacked — Pleas in Abatement.</p> <p>To establish plea in abatement that the plaintiff laid his damages excessively so as to secure jurisdiction, the evidence must show not only that the property was of a value less than the jurisdictional amount, but that the value laid was for the fraudulent purpose of conferring jurisdiction.</p>

E. Ashe, Judge. Action by Norman 6. Kittrell, Jr., as receiver of the property of A. C. Allen and Mrs. Margaret E. Allen, against the Dickson Car Wheel Company, wherein W. V. Lauraine, administrator of Mrs. Margaret E.. Allen, deceased, intervened. Judgment for the receiver, and the administrator appeals.

<p>On motion for rehearing.</p>

<p>Appeal from District Court, Nolan County; W. W. Beall, Judge.</p> <p>Action by Sanger Bros, against W. T. Trammell and wife. From a judgment in favor of the defendant named, plaintiff appeals.</p>

J. Oxford, Judge. Action by R. B. Spencer & Co. against J. G. Brown and another. Judgment against defendant named for the amount of the account sued for, but denying foreclosure of lien, and plaintiffs appeal.

R. Warren, Judge. Action between J. C. Winn and others and the Town of Gilmer. Judgment for the latter, and the former appeal.

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

<p>Appeal from District Court, Ellis County; F. L. Hawkins, Judge. Darrell Miedford was convicted of burglary, and he appeals.</p>