Volume 202 — South Western Reporter

<p>1. Adverse Possession <§=»85(3) — Claim oe Ownership.</p> <p>A claim of ownership of land, to give rise to a title by limitation, must be open and a distinct claim of ownership, and the mere assertion by an occupant that he might as well have the land as another is not the assertion of an exclusive hostile right or title.</p> <p>2. Adverse Possession <S^>9-1 — Payment oe Taxes — Mistake.</p> <p>A party is charged with what his deed calls for, and where he makes a mistake in paying taxes on one lot instead of another this will not aid him in acquiring adverse possession of the lot on which he meant to pay taxes.</p> <p>3. Adverse Possession <®=o60(4) — Subordí-nate Possession — Change in Character.</p> <p>Where an occupant of land took possession in subordination to a better title, having so entered, he was required thereafter to change the character of his possession, and make it of such character as to indicate unmistakably an assertion of claim of exclusive possession in him, if he sought title by limitation.</p> <p>4. Adverse Possession <ste>79(l) — Breaking oe Seisin — Tax Deed.</p> <p>A tax deed covering land of which an occupant held possession in subordination to the title of the true owner conveyed the title and interest which the occupant possessed, and in effect broke the seisin which he had up to that time, so that, to establish title in himself, he must do so under 10 years’ adverse possession after the tax deed.</p> <p>5. Property c®=>10 — “Seisin in Law.”</p> <p>Seisin in law is constituted by the formal making and recording of a deed, and the seisin ■of the land is effected without a formal entry.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Seisin in Law.]</p>

<p>1. Judgment @=>18(2) — Action for Injuries —Support by Petition.</p> <p>In an action against the seller of a porch swing for injuries to the buyer when a supporting hook gave way, where the buyer did not rest his case alone on the allegation that the seller had breached its warranty safely to hang the swing, but alleged independently that the seller, having agreed to hang and having hung the swing, was guilty of negligence in hanging it, and that such negligence proximately caused the injury, the petition supported judgment for the buyer, though the evidence showed the hanging of the swing was free of charge, and a gratuity by the seller.</p> <p>2. Negligence @=>2 — Liability — Gratuitous Service.</p> <p>Where the seller of a porch swing undertook to hang the same for the buyer, and did so negligently so that a support gave way, and the buyer was injured, the seller was liable to the buyer, though the hanging of the swing was purely gratuitous, for, by undertaking to hang the swing, the seller bound itself to exercise ordinary care to make it reasonably safe for the use to which the buyer intended to put it.</p> <p>3. Trial @=>234(7) — Instructions—Burden of Proof.</p> <p>In an action for injuries, where the case was submitted on special issues, and the court instructed that the burden of proof was on plaintiff to make out his case by a preponderance of the evidence, that was sufficient, and it was not error to refuse defendant’s special charge that the burden was on plaintiff to show want of contributory negligence.</p> <p>4. Appeal and Error @=31067 — Harmless Error — Refusal of Charge.</p> <p>If the special charge should have been given, the error, if any, in refusing it, was not calculated to cause the jury to render improper verdict.</p> <p>5. Corporations @=>491 — Furniture Company-Ultra Vires.</p> <p>The undertaking of a furniture company, which sold porch swings, to hang a swing sold a customer, was not beyond the scope of its charter powers and ultra vires, so that no liability could attach to the company for damages resulting to the customer from a negligent hanging.</p> <p>6. Evidence @=>178(7) — Secondary Evidence — Predicate for Admission.</p> <p>In an action for personal injuries, where plaintiff proved that he had a permit or license from the state to act as insurance agent for a life insurance company, and that the license had been lost or destroyed, parol testimony of plaintiff and his wife that plaintiff had the license, etc., was admissible; proper predicate having been laid, and there being no degrees of secondary evidence.</p>

<p>1. Adverse Possession <©=114(2) — Boundaries — Sueficiency of Evidence.</p> <p>Evidence held sufficient to support a finding that plaintiff in trespass to try title, claiming' by adverse possession, had constructed her buildings within the boundaries of defendant’s land.</p> <p>2. Boundaries <@=335(2) — Surveys — Evidence.</p> <p>Testimony of an old settler was, admissible to show that calls in a grant were consistent with the footsteps of the surveyor.</p> <p>3. Boundaries <@=325 — Surveys.</p> <p>Senior surveys control junior surveys.</p> <p>4. Adverse Possession <@=368 — Possession.</p> <p>Possession is adverse, within the statute, although entry on land is made with no original right, but only for the purpose of acquiring limitation and making a home.</p> <p>5. Adverse Possession <@=345 — Appointment of Receiver — Effect.</p> <p>Appointment of a receiver for a corporation does not stop the running of limitations against the corporation as to one holding land of the corporation adversely.</p> <p>6. Adverse Possession <©=> 114(2) — Extent of Claim.</p> <p>Evidence held not to show that one claiming land adversely claimed only to specified boundaries, so as to render judgment for an undivided 160 acres erroneous.</p> <p>7. Trial <©=3133(2) — Improper Argument.</p> <p>Argument in trespass to try title, “Are you going to allow the H. Oil Company of Texas to move these lines where they want them to be? If you do, there may come a time when it will come and move your lines around your lands” — although highly improper, was not reversible, where the jury was admonished, and there was nothing to show it was influenced thereby.</p> <p>8. Appeal and Erro» <©=3882(8) — Harmless Error — Evidence.</p> <p>Where both sides introduced similar evidence, without objection, one party, cannot later complain that the evidence was improper.</p> <p>9. Boundaries <@=33'd(1) — Surveys — Evidence.</p> <p>It was proper to testify where lines under surveys were actually run upon the ground, and where improvements were located with reference to such lines.</p> <p>10. Trial <@=3244(1) — Submission of Issues —Requested Charges.</p> <p>Where the court gave all the material issues in its charge, it was not error to refuse a special charge, that sought to single out and submit a question to the jury that was not controlling.</p> <p>11. Adverse Possession <©=396 — Issues—Extent of Possession.</p> <p>In action where plaintiff- claimed title to 160 acres of land by adverse possession, the question of encroachment not being raised, the distance plaintiff was on defendant’s land was immaterial.</p>

<p>1. Courts &wkey;>121(3) — County Courts — Jurisdictional Amount — Constitution.</p> <p>Under Const, art. 5, § 16, the county court has jurisdiction to enjoin an injury threatened to property alleged to be $400.</p> <p>2. Intoxicating Liquors <&wkey;74 — Mandamus —Arbitrary Action — City Manager — Refusal of Liquor License.</p> <p>If the action of a city manager in refusing a retail liquor dealer’s license is arbitrary and unreasonable, the courts will review and control such action by mandamus.</p> <p>3. Appeal and Error <&wkey;S74(2) .— Appeal from Order Granting Injunction — Consideration of all Orders.</p> <p>Where the case is before the Court of Civil Appeals on appeal from an order granting a temporary injunction, the court must consider all the orders presented for consideration.</p> <p>4. Municipal Corporations <&wkey;105 — Ordinance-Beginning Phrase — Charter.</p> <p>Under charter of the city of Brownsville, requiring that ordinances begin with the words “Be it ordained by the city of Brownsville,” an ordinance so beginning was not void because it did not begin “Be it ordained by the council of' the city of Brownsville.”</p> <p>5. Intoxicating Liquors <@=3130 — Ordinance Establishing Saloon District.</p> <p>An ordinance of a city establishing a saloon-district was not void because it failed to provide a penalty for its violation.</p> <p>6. Municipal Corporations <&wkey;lll(3) — Saloon District Ordinance — Unreasonableness.</p> <p>Under Brownsville City Charter, § 22, authorizing the establishment of districts or limits-wherein saloons may be located, and authorizing the city to prohibit the location of saloons outside such districts, the mere fact that a saloon, district created had more residences than business houses within it, and the fact that the limits without the-district contained more business-houses than residences, do not warrant the legal conclusion that the ordinance establishing the-saloon district is void as unreasonable.</p>

<p>1. Statutes &wkey;109 — Title—Sufficiency.</p> <p>The constitutional requirement that statutes contain only one subject to be expressed in the title is met where a law has but one general object fairly indicated by the title.</p> <p>2. Statutes &wkey;>121(4) — Title—Sufficiency— Transfer Tax.</p> <p>Act May 16, 1907 (Acts 30th Leg. [1st Called Sess.] e. 21), entitled “An act to tax property passing by will or by descent or by grant or gift; taking effect on the death of the grantor or donor,” does not unconstitutionally extend beyond the title’s scope because providing for the appointment of an administrator to collect inheritance taxes.</p> <p>3. Executors and Administrators <&wkey;20(4) —Appointment—Inheritance Tax.</p> <p>Rev. St. 1911, art. 7491, authorizing the county court to appoint an administrator in inheritance tax proceedings without notice if no application for letters has been made within three months, etc., is • not invalid because not requiring that notice be given, especially as the property cannot be sold to satisfy inheritance tax claims until after notice.</p> <p>4. Constitutional Law &wkey;>67 — Judicial Power — Sufficiency of Notice.</p> <p>Under the inheritance tax law of May 16, 1907, providing that property cannot be sold for taxes until notice is given, the sufficiency of the notice is a judicial question.</p> <p>5. Taxation <&wkey;859(l) — Inheritance Tax-Appraisers.</p> <p>Act May 16, 1907, providing for the appointment of appraisers in inheritance tax proceedings, is constitutional.</p> <p>6. Constitutional Law &wkey;>283 — Due Process-Inheritance Tax — Administrator.</p> <p>Rev. St. 1911, art. 7491, authorizing appointment of an administrator in inheritance tax proceedings, does not deny due process of law contrary to the federal Constitution.</p> <p>7. Statutes <&wkey;95(l) — General or “Special Law” — Inheritance Tax.</p> <p>Act May 16, 1907, imposing inheritance.taxes, is not a special, but a general, law, applying equally and uniformly to every class affected by it.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Special Law.]</p> <p>S. Statutes <&wkey;77(l) — “Special Law” — What Constitutes.</p> <p>A “special law” is one operating upon a portion of a class instead of upon all of the class.</p> <p>9. Taxation <&wkey;S95 (9) — Inheritance Tax-Attacking Appraisal.</p> <p>The appraisers’ report to the county court in inheritance tax proceedings may be attacked before such court, although the inheritance tax law of May 16, 1907, does not provide for an appeal from the report.</p> <p>10. Taxation <&wkey;905(l) — Inheritance Tax-Nature of Proceedings.</p> <p>Under Act May 16, 1907, inheritance tax proceeding's are purely in rem, and no personal judgment can be obtained.</p> <p>11. Executors and Administrators &wkey;>91 — Inheritance Tax.</p> <p>An administrator appointed under the inheritance tax law of May 16, 1907, is governed by the general statutes relating to the administration of estates.</p> <p>12. Taxation <&wkey;900(l) — Inheritance Tax-Appeals.</p> <p>An appeal may be taken to the district court from inheritance tax orders made by the appraisers or the county court.</p> <p>13. Taxation <&wkey;900(l) — Inheritance Tax-Certiorari.</p> <p>Under Rev. St. 1911, art. 733, providing that a county court’s proceedings regarding a decedent’s estate may be reviewed by certiorari, the writ may issue to correct inheritance tax proceedings in the county court.</p> <p>14. Injunction <&wkey;16 — Grounds — Legal Remedy.</p> <p>An injunction will not be granted where appeal or certiorari affords an adequate legal remedy.</p> <p>16. Taxation <&wkey;905(l) — Inheritance Tax Sale.</p> <p>Although Act May 16, 1907, authorizes the sale of property in inheritance tax proceedings after notice, such sale is subject to the requirements of Rev. St. 1911, arts. 3479-3607, relating to the sale of decedents’ property.</p> <p>16. Injunction <&wkey;2S — Grounds — Legal Remedy.</p> <p>An injunction will not be granted to prevent a county judge from enforcing a contract for excessive attorney’s fees in an inheritance tax proceeding, since an adequate legal remedy would be afforded by certiorari proceedings in the district court.</p> <p>17. Executors and Administrators <&wkey;31 — Inheritance Tax.</p> <p>Under Rev. ,St. 1911, art. 3289, providing that an executor under a foreign will filed in Texas should supersede an administrator previously appointed there, an inheritance tax administrator appointed under Rev. St. 1911, art. 7491, is superseded by the executors under a probated foreign will.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by El Paso County against Will I. Watson, Tax Collector, and others as his sureties. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Hunt County; Wm. Pierson, Judge.</p> <p>Action by J. M. Alexander against tbe Texas Refining Company. Erom judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Tarrant County ; Ben M. Terrill, Judge.</p> <p>Action by H. G. Medley against Jesse Brown, County Judge, and others. From judgment for defendants, plaintiff appeals.</p>

<p>1. CORPORATIONS <&wkey;360(l) — DIRECTORS—NEGLIGENCE — Actions.</p> <p>Where plaintiff, having extended credit to an insolvent corporation in reliance on false financial statements made by the corporation to commercial agencies, sued the directors on the theory that they were guilty of fraud or negligence in permitting false financial statements to be given out, it was unnecessary for the petition to allege that either the corporation or the directors were subscribers to the mercantile agencies, or that it was deceived.</p> <p>2. Corporations <&wkey;335 — Dibectobs — Liability.</p> <p>While ordinarily a director of a corporation is not responsible individually for corporate acts, the directors are personally liable for damages sustained by reason of the insolvency of the corporation when a person is induced to extend credit by false representations, either knowingly made, or which in the exercise of ordinary care the directors should have known were false.</p> <p>3. Cobpobations <&wkey;360(l) — Directors—Actions — Petition.</p> <p>The petition of plaintiff which, having extended credit to an insolvent corporation on faith of statements made to commercial agencies, sought to recover against the directors, properly alleged that the dividends in bankruptcy amounted only to 19 per cent, of plaintiff’s claim; such allegation being permissible as to the question of the insolvency, and affecting the intention and purpose of the financial statements.</p> <p>4. Trial <&wkey;96 — Exclusion ox Evidence-Motion to STRIKE.</p> <p>A motion to strike must be denied, where much of the evidence against which it is direct-, ed is admissible.</p> <p>5. Corporations &wkey;>335 —Directors —Actions — Defenses.</p> <p>In an action against corporate directors by plaintiff which extended credit to the corporation when insolvent, relying on false financial statements given out to mercantile agencies, recovery cannot be defeated because credit was not wholly extended in reliance upon the representations.</p> <p>6. Appeal and Error &wkey;>730(l) — ¡Review-Assignments of Error.</p> <p>Where neither in the assignment of error nor in the proposition thereunder was any specific reason or ground given why error was committed, in the refusal of a requested instruction such assignment need not be considered.-</p> <p>7. Trial <5&wkey;260(l) — Instructions—Refusal —Repetition.</p> <p>The refusal of requests covered by the charge giyen is not error.</p> <p>3. Corporations <&wkey;335 — Actions—Defenses.</p> <p>In an action against corporate directors by plaintiff which extended credit to the corporation, though insolvent, relying on statements issued to mercantile agencies, defendants cannot escape liability because the identical statements rendered to the commercial agencies were not transmitted; it appearing that the material contents were made known to plaintiff and that it extended credit in reliance thereon.</p> <p>9. Trial <&wkey;252(2) — Instruction — Conflict with Testimony.</p> <p>The refusal of a request based on a theory in conflict with the uncontradicted testimony is proper.</p> <p>10. Corporations <&wkey;361 — Fraud of Directors — Actions — Evidence—Admissibility.</p> <p>In an action against corporate directors by plaintiff which extended credit to the corporation on the faith of false statements given to commercial agencies, evidence as to the dividends paid on subsequent bankruptcy of the corporation was admissible.</p>

<p>Venue <$=¿>14 — Place oe Accbuai^Fraud— Plea of Privilege.</p> <p>In an action to recover money paid, wherein defendant set up a plea of privilege based on its residence, and plaintiffs filed a controverting plea, stating payment made to defendant of certain notes procured from them by the fraudulent representation that, unless they gave such notes, plaintiffs’ kinsman would be criminally prosecuted, which representations were made in a county other than that of defendant’s- residence, the plea of privilege was erroneously granted, since venue should have been laid in the latter county, within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, exception -7, providing that, in cases of fraud, suit may be instituted in the colinty in which the fraud was committed, and exception 28, providing that foreign, private, or public corporations may be sued ip the county where the cause of action accrued.</p>

T. Freeman, Judge. Suit by O. S. Gresham, trustee in bankruptcy of the Sherman Cotton Oil Provision Company, against the Planters’ Oil Company and others, wherein the Magnolia Cotton Oil Company intervened. Judgment for plaintiff, and defendants appeal.

<p>Appeal from District Court, Hunt County; Wm. Pierson, Judge.</p> <p>Suit between Willie Highsaw and others and Joe Head and others. From judgment rendered, the former appeal.</p>

R. Owen, Judge. Suit in justice court by C. W. Reagen against the National Equitable Society of Belton. Judgment for plaintiff was reversed by the county court on appeal, and plain- ■ tiff appeals.

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Suit between R. L. Escue and J. T. Hartley. From judgment rendered, the former appeals.</p>

<p>Appeal from District Court, Grayson County; W. M. Peck, Judge.</p> <p>Action by W. M. Harrell and others against Grayson County and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Action by P. E. Woodson and wife against Charles Zeiger. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Adveese Possession <&wkey;112, 115(1) — Burden oe Proof— Questions for Juisv.</p> <p>Though the burden of proving all facts rests on claimant by adverse possession, every presumption being in favor of possession in subordination to the rightful owner, yet where the evidence is conflicting, the weight thereof remains a question for the court or jury trying the issues.</p> <p>2. Adverse Possession &wkey;>47 — Interruption of Possession.</p> <p>If title of the claimant by adverse possession were not already perfect, a lease within the statutory period of only 8 acres out of a tract of over 160 acres, made by the true owner to a third person, would prevent perfection of the adverse claimant’s title; since the possession of the tenant was that of the real owner and gave constructive possession of the whole tract.</p> <p>3. Landlord and Tenant i&wkey;61 — Interruption of Possession.</p> <p>" A lease by the true owner to the son of the claimant by adverse possession, who also held as a lessee of his mother, failed to interrupt the adverse possession, upon the same principle as that which prevents a tenant from attorning to another during the term of his tenancy.</p> <p>4. Pleading &wkey;259 — Tria:d—Amendments.</p> <p>In action to recover lands, where defendant claimed a specific tract by adverse possession, it was not error to permit a trial amendment to the answer praying in the alternative that an undescribed 160-acre tract be set off to her, and that such tract include her improvements.</p> <p>5. Trespass to Try Title <&wkey;47 — (Rights of Claimants — Relief.</p> <p>One who claims title under the 10-year statute of limitation may claim a specific 160 acres out of a larger tract, and, in the alternative, plead 10-year statute of limitation as to an undivided interest of 160 acres in the tract, the same to include his improvements, and the court may, by proper decree, appoint commissioners to make partition as in other cases of partition, so as to segregate and set apart a particular 160 acres to the party whose title under the 10-year statute of limitation is sustained.</p>

B. Daviss, Judge. Suit by J. A. Thompson, in his own behalf and as next friend of his minor son, William Thompson, against Mrs. Anna Lee Thompson, nSe Anna Lee Matthews, and others, to annul a marriage. From an order restraining defendants from communicating with or approaching the minor, the named defendant appeals.

<p>1. Appeal and Eeeoe <S^> 173(2) — Objection Below — Propriety oe Proceedings.</p> <p>Garnishees having interposed no exceptions or pleas to plaintiff’s attempt to hold them. liable in the garnishment proceeding on a direct liability of them to him, objection thereto is not available on appeal.</p> <p>2. Garnishment <@=>13 — Issues.</p> <p>The only issue properly determinable in a garnishment proceeding strictly, as between plaintiff and garnishee., is whether garnishee was indebted or had in its possession effects belonging to defendant in the main action.</p> <p>3. Garnishment <@=>13 — Liability oe Garnishee-Collection eor Third Person..</p> <p>Where S. shipped plaintiff’s goods to him, drawing a draft on him, in 'favor of G., for more than plaintiff owed S., attaching to the draft the bill of lading, and assigned the same to G., the bank to which G. sent the same for collection, and which collected it, not setting up any right or interest in the draft or its proceeds, but simply holding it for collection for G., was not liable as garnishee of S. to plaintiff.</p> <p>4. Payment <@=>87(5) — (Recovery oe Payment —Duress.</p> <p>Where S. shipped plaintiff’s goods 'to him, drawing draft on him in favor of G. for more than plaintiff owed, attaching thereto the bill of lading, and assigned the same to G., plaintiff, paying the same under protest in order to get his goods, could recover the excess of G. as money obtained by duress, G. having no greater rights than S., regardless of good faith in purchasing or taking the draft with bill of lading attached.</p>

H. Burney, Judge. Suit by John T. Briscoe against J. H. Bright, administrator, in which defendant filed a cross-action, making J. W. Fullerton and George Briscoe parties. From the judgment rendered, the administrator appeals.

<p>Appeal from District Court, Jasper County; A. E. Davis, Judge.</p> <p>Action by Gay Hargrove against the Gulf, Colorado &t Santa Fé Railway Company. Judgment on directed verdict for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.</p> <p>Action by T. F. Shelton against the Farmers’ Petroleum Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Cancellation of Instruments <&wkey;37(8)— Petition— Sufficiency.</p> <p>In suit to rescind an executory contract for the sale of land on the ground that the purchase-money note had not been paid, plaintiff’s petition, which did not disclose that any portion or the purchase money had been paid, hut which clearly alleged that the superior title was in him, and that defendants unlawfully entered the premises and ejected plaintiff, and were withholding from him the land, stated a cause of action, though not alleging offer to return or notice of intent to rescind.</p> <p>2. Vendor and Purchaser <&wkey;119 — Rescission — Time.</p> <p>In suit to rescind an executory contract for the sale of land on the ground that the purchase-money note, secured by a vendor’s lien reserved in the deed, had not been fully paid, although Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5694, provides that purchase money will be conclusively presumed to have been paid 4 years after maturity of indebtedness where the right to rescind matured February 23, 1881, a petition filed November 16, 1914, was within time in view of article 5695, providing that the owners of all notes secured by vendor’s liens reserved in deeds, executed prior to July 14, 1905, and which are more than 4 years past due when this act takes effect, shall have 12 months after this act takes effect in which to bring suit; such statute extending time in present case to November 19, 1914.</p> <p>3. Witnesses <&wkey;159 (2) — Transactions with Persons Since Deceased.</p> <p>In a suit against heirs to rescind a contract for the purchase of land on the ground that the purchase-money note had not been paid, plaintiff could not testify in his own behalf that the balance of the note had never been paid, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, as to evidence of transactions with a deceased party in action against heirs.</p> <p>4. Appeal and Error &wkey;>913 — Appearance oe Unknown Heirs — Presumption.</p> <p>Where plaintiff made the unknown heirs parties defendant, as provided by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1875, it must be presumed on appeal that the unknown heirs appeared and answered whore the attorney sign-. ed the answer as the answer of all defendants, and the court did not appoint an attorney ad litem to represent unknown heirs, as required by article 1941, whore they do not appear.</p> <p>5. Appeal and Error <&wkey; 1048(2) — Admission of Incompetent Testimony — Reversible Error.</p> <p>In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3690, providing that the survivor should not be allowed to testify in his own behalf as to any transaction with deceased in suit against heirs in suit to rescind a contract for purchase of land on the ground that the purchase-money_ note had not been paid in full, permitting plaintiff to testify over objection that the balance of the note had never been paid, was reversible error, where it appeared from the face of the note introduced in evidence that it was more than 30 years past due; the legal presumption in such case being that the note had been paid.</p> <p>6. Cancellation of Instruments <&wkey;50— Waiver of Right to Rescind — Question of Fact.</p> <p>In a suit against heirs to rescind a contract for purchase of land on the ground that purchase-money note had not been paid in full, where, under the law, plaintiff owned the superior title until the purchase money was paid in accordance with the contract in evidence, whether he waived the right to rescind was a question of fact to be determined from all the evidence.</p> <p>7. Appeal and Error <&wkey;931 (7) — Failure to Submit Issue — Presumption.</p> <p>Where failure of court to submit question whether plaintiff had waived his right to rescind was not complained of, it will be presumed on appeal that the court resolved such issue in favor of plaintiff, who procured judgment.</p> <p>8. Cancellation of Instruments <&wkey;59 — Rescission by Vendor — Right of Purchaser.</p> <p>In a suit against heirs to rescind a contract for the purchase of land for failure to pay all of purchase-money note, where defendants averred no equitable relief further than that permanent and valuable improvements were put on the land and prayed for the value of such improvements only, the judgment was not erroneous for failure to award to defendants the portion of the purchase money paid and the value of the improvements.</p> <p>9. Trial <®=194(1) — Instructions—Invading Province of Jury.</p> <p>In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, providing that the judge shall not charge or comment on the weight of the evidence, the court properly refused to instruct upon the relative importance of surrounding circumstances and inferences, or to call attention to the evidence thereof.</p> <p>10. Cancellation' of IInstruments <&wkey;50— Improvements Made in G-ood Faith.</p> <p>In suit by vendor to rescind contract for sale of land for failure to pay all of purchase-money note, where plaintiffs answered that note had been fully paid, and that they had in good faith made valuable improvements, whether defendants believed the purchase money had been fully paid was properly submitted.</p> <p>11. Appeal and Error <&wkey;230 — Grounds for Review — Timely Objections and Exceptions.</p> <p>Error as to court’s charge upon burden of proof, not being presented as required by Vernon’s Sayles’ Ann. Civ. St. art. 1971, requiring objections before charge is read to jury, the court on appeal is without authority to review the question.</p> <p>On Motion for Rehearing.</p> <p>12. Cancellation of Instruments <&wkey;43— Issues Raised by Answer of Not Guilty.</p> <p>In suit by vendor to rescind contract for sale of land for failure to pay all of purchase-money note, defendants’ answer, alleging not guilty, raised issues of waiver and laches.</p> <p>13. Cancellation of Instruments <&wkey;47— Right to Rescind — Waiver—Evidence.</p> <p>In suit by vendor to rescind contract. for sale of land defended on the ground of waiver, evidence held to warrant finding for plaintiff on issue of waiver.</p> <p>14. Trespass to Try Title <&wkey;25 — Defense of Laches — Availability.</p> <p>In trespass to try title founded upon legal and not equitable title, laches was no defense; defense of laches being applicable only to suits in equity.</p> <p>15. Payment <&wkey;66(5) — Presumption — Evidence.</p> <p>The presumption of payment of note created by long lapse of time is only prima facie, and other evidence relating to issue of payment, together with the long lapse of time, is to be considered by the jury in determining such issue.</p>

<p>Appeal from District Court, Hill County; Norton B. Porter, Judge.</p> <p>Suit by George F. Sturgis against E. O. Hughes and another, in which E. H. Peyton was made a party. Judgment for plaintiff, and Peyton appeals.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Action by the Overland Automobile Company against H. H-. Adams. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal and Ebror @=>1011(1) — Review — Findings op Fact.</p> <p>The issues of fact having been decided by the trial court, for one party upon conflicting evidence, the verdict will not be disturbed on appeal.</p>

<p>Appeal from District Court,- Bexar County ; J. T. Sluder, Judge.</p> <p>Action by John McLane and others against the San Antonio Sewer Pipe Company. Judgment for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by the Lone Star Life Insurance Company against L. L. Shield. Judgment for plaintiff, and defendant appeals.</p>

W. Dean, Judge. Suit by W. A. Cook against the Trinity County Lumber Company and others for the recovery of land. Judgment for defendants, and plaintiff appealed to th'e Court of Civil Appeals for the First Supreme Judicial District at Galveston, where the statement of facts and bills of exception were stricken on motion. Transferred to this court under order of the Supreme Court.

<p>1. Sales &wkey;>8 — Nature of Contract—Recording.</p> <p>Where owner shipped pianos to a factor on consignment, the contract did not fall within the provisions of Rev. St. 1911, arts. 5654, 5655, requiring reservation of title to be recorded.</p> <p>2. Factors <&wkey;52 — Mortgage by Factor — Rights.</p> <p>Where a factor mortgaged goods belonging to his principal without the knowledge of principal or act of estoppel on principal’s part, the principal’s right to the goods is superior to that of mortgagee.</p> <p>3. Appeal and Erbor <&wkey;670(l) — Record — Correction.</p> <p>If a record of a trial court does not speak the truth, the proper place for correction is in that court, and not by affidavits filed in the appellate court.</p>

F. Mullally, Judge. Suit by Nicolas Vela and another against Juan Vela Zamora and another to cancel deeds. Judgment for plaintiffs, and defendants appeal.

<p>1. Chattel Mortgages <&wkey;5 — Bailment— What Constitutes.</p> <p>A contract to hold a piano for salo, the title to remain in the music company, price on sale to be immediately paid over, piano to be returned upon request at any time before sale was a bailment with right to sell, and not a mortgage required by Rev. St. 1911, art. 5654, to be registered.</p> <p>2. Pledges <&wkey;24 — Pledgee as Bona Fide Purchaser.</p> <p>Where a party sold a piano, and received the purchase price thereof, and thereafter pledged another piano, to which he did not have title, to the buyer to secure delivery, and the pledgee subsequently received notice of ownership from the owner of the pledged piano, and later entered into an agreement with the seller to accept the pledged piano in place of the one he bought, the owner can recover the piano, as the pledgee was not a purchaser without notice from one apparently the owner.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Action by J. V. Bond against tbe Camden Eire Insurance Association. Verdict and judgment for tbe plaintiff, and defendant appeals.</p>

<p>1. Partnership <&wkey;243 — “Surviving Partner.”</p> <p>A surviving partner is one who during existence of the partnership outlives the others; and so the relation, with its attaching rights, cannot arise, where the partnership is dissolved by agreement, and the partner continuing the business dies; notwithstanding provision of the dissolution agreement that ho should collect and divide with the retiring partner certain accounts due the partnership.</p> <p>2. Receivers &wkey;>16 — Grounds oe Appointment-Denial op Interest.</p> <p>Mere denial of plaintiff's interest in accounts, which he claims he and defendant’s intestate owned jointly, and intestate agreed to collect and divide the proceeds with him, is not ground for appointment of receiver therefor.</p>

<p>1. Damages <&wkey;132(9) — -Personal Injuries— Excessive Verdict.</p> <p>Where a railroad switchman suffered injuries necessitating the amputation of his right foot, and three subsequent amputations depriving him of his leg to just below the knee, and his injuries subjected him to great pain through the length of his spine up to his head, affected his bladder, kidneys, and heart, destroyed the lubricating oil in his right knee, subjected him to dizziness, and permanently impaired his health, forcing him to spend many weeks in the hospital, and subjecting him to jumping nerves in his leg and pain in his knee joint all the time, verdict in his favor against the railroad for $20,000 was not excessive.</p> <p>2. Damages t&wkey;128 — Amount—Federal Employers’ Liability Act — Excessive Verdict.</p> <p>Public policy does not demand that verdict in a railroad servant’s action for personal injuries should not be as large as $20,000 on any grounds, though the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) is virtually a compensation statute, and fixes liability for defective appliances, regardless of the' question of negligence; compensation being the-end to be attained, as in any case of negligence.</p> <p>3. Appeal and Error <&wkey;>1039(l) — Harmless Error — Ruling on Pleadings— Damages.</p> <p>The ruling of a court on pleadings as to damages is harmless, though incorrect, when the matters alleged are not submitted to the jury.-</p>

<p>1. Principal and Surety <&wkey; 108(2) — Discharge op Surety — Extension op Note-Consideration.</p> <p>Contract for extension of time for payment of a note for a definite period, when the debt bears interest, is on a valuable consideration, and binding on the parties; thus discharging the surety not consenting thereto.</p> <p>2. Principal and Surety &wkey;162(2) — Discharge — Extension—Question por Jury.</p> <p>Whether there was an extension of time for payment of note, discharging the surety held a question for the jury; the payee after urging the surety, when the note became due, to collect it, saying nothing more till nearly two years later, a credit having in the meantime been made on it a year after it was due, and the payee, at the second interview, saying that unless it was paid on its due date he would put it in an attorney’s hand, and this though he states that by this he meant “when it became due at any time.”</p>

<p>Appeal from Criminal District Court, Nueces County; Walter F. Timón, Judge.</p> <p>Simon Alvarado was convicted of crime, and he appeals.</p>

<p>1. Warehousemen <@=>24(1) — Cotton Compress Company — Duties.</p> <p>■Although plaintiff did not agree to pay storage, and it was his purpose to sell the cotton stored with defendant compress company without having it compressed, where the cotton was received with the expectation that defendant would be compensated by compress charges paid by the carrier before shipment, defendant was a bailee for hire, whose duty it was to exercise ordinary diligence in caring for the cotton.</p> <p>2. Evidence <@=3408(7) — Warehouse Receipt —Impeachment by Parol.</p> <p>Ordinarily a warehouseman’s receipt is a contract which cannot be impeached by parol testimony.</p> <p>3. Appeal and Error <@=>671(6) — Matters not Shown by' Statement oe Facts — Review.</p> <p>The terms of the receipt issued by defendant compress company to plaintiff for cotton delivered not being set out in the statement of facts, the court on appeal cannot discuss the effect of the receipt.</p> <p>4. Evidence <@=>69 — Laweul Business — Presumption.</p> <p>The presumption is that defendant compress company, with whom plaintiff stored cotton, was doing a lawful business in a lawful way.</p> <p>5. Pleadings <@=>34(3) — Sufficiency — Absence of Special Exception.</p> <p>Every reasonable intendment will be indulged in favor of the, allegations of plaintiff’s petition in the absence of a special exception.</p> <p>6. Warehousemen <@=>34(4) — Allegations as to Relation — Sufficiency.</p> <p>Plaintiff’s petition alleging that defendant engaged in the compress business and in connection therewith used extensive platforms in storing and caring for cotton delivered, for which a toll was charged, that, at the request of defendant, plaintiff delivered cotton with the understanding that defendant would accept and compress the same in a reasonable time, that there was an agreement to accept the cotton and care for the same, and keep it protected from weather or other damages in consideration, of the usual price for compressing cotton, sufficiently showed the relation of bailor and bailee for hire, in the absence of a special exception.</p> <p>7. WAREHOUSEMEN @=24(1) — COTTON COMPRESS Companies — Duties;</p> <p>Wheie defendant accepted the cotton in connection with its compress business on storage for mutual benefit of both parties, it was not necessary to prove express contract, the law implying a contract and imposing on defendant the duty to use ordinary care.</p> <p>8. Appeal and Error @=>960(3) — Striking Trial Amendment — Discretion.</p> <p>Although court on appeal reaches conclusion that first paragraph of plaintiff’s trial amendment did not set up a new cause of action, where no abuse of discretion is shown in striking out the amendment it will not be held that there was error.</p> <p>9. Limitation oe Actions <&wkey;127(17) — Trial Amendment — New Cause oe Action.</p> <p>Where plaintiff’s original petition alleged that defendant agreed to accept, care for, and keep the cotton delivered by plaintiff, and compress it within a reasonable time, trial amendment alleging that defendant agreed to open the bales and separate the good cotton from the damaged set up a new cause of action within the statute of limitations.</p>

<p>Appeal from Criminal District Court, Nueces County; Walter E. Timón, Judge.</p> <p>Simon Alvarado was convicted of crime, and he appeals.</p>

<p>1. Bills and Notes <&wkey;521 — Issuing Stock eoe Notes — Evidence.</p> <p>Evidence held to show that stock of corporation was issued to defendant in consideration of the notes sued on, and not for money paid or property actually received within Const, art. 12, § 6, so that the notes were void as between the original parties.</p> <p>2. Bills and Notes <&wkey;>525 — Innocent Pue-chaser — Evidence.</p> <p>In suit by commissioner of insurance and banking on two notes, pledged as collateral 'to a bank in process of liquidation, held, under evidence, that notes were unenforceable; the bank not being an innocent purchaser without notice that the notes were executed in consideration of shares of stock, contrary to Const, art. 12, § 6.</p>

<p>1. Attachment &wkey;>176 — Evidence—Admissibility — Title to Property.</p> <p>In an attachment suit, wherein an automobile was levied on as the property of defendant, who retained possession of it by giving a re-plevy bond, defendant cannot prove that it belonged to a firm composed of defendant and another, and that the attachment was therefore invalid because not made as prescribed by Rev. St. art. 3743, regulating a levy on a partner’s interest.</p> <p>2. Attachment &wkey;339 — Replevy Bond — Judgment against Sureties.</p> <p>In an attachment suit there was no_ error in rendering judgment against the sureties on the replevy bond for the value of an automobile as estimated by the sheriff when the bond was given, together with interest, as such judgment is plainly authorized by Rev. St. art. 269, providing that judgment shall be against defendant and his sureties on his replevy bond for the amount of the judgment, interest, and costs, or for the value of the property replevied and interest according to the terms of the bond.</p> <p>3. Attachment <&wkey;339 — Replevy Bond — Judgment against Sureties.</p> <p>In rendering judgment against the sureties on a replevy bond for the value of an attached automobile, there was no necessity for the court to make a finding as to its value, as pursuant to Rev. St. art. 258, the amount of the bond is based on its value as estimated by the officer who takes the bond.</p> <p>4. Appeal and Error &wkey;>1010(l) — Review— Findings oe Fact.</p> <p>A finding of fact by the trial court cannot be set aside on appeal, where there is ample evidence to sustain it.</p>

<p>1. Venue <&wkey;70 — Plea of Pbivilbge — Admissibility.</p> <p>While the general rule is that a plea of privilege is inadmissible as evidence, where defendant’s plea was introduced without objection, the court was authorized to consider it in ’ so far. as it tended to prove defendant’s residence in another county.</p> <p>2. Venue <&wkey;70 — Change—Showing—Sufficiency.</p> <p>Before Acts 35th Leg. c. 176,1 became effective, where plaintiff in suit against member of partnership to defeat defendant’s plea of privilege set up a financial statement, signed by defendant for his firm, agreeing that all indebtedness should be payable in the county where plaintiff brought suit, defendant’s plea alleging in general terms that said statement was procured by fraud, though introduced in evidence without objection,- did not warrant a change of venue.</p> <p>3. Pleading <&wkey;8(15) — Conclusions—Fbaud.</p> <p>A pleading setting up fraud must contain specific allegations of the acts and conduct relied upon, and must be definite and certain.</p> <p>4. Venue &wkey;>70 — Change—Evidence Admissible.</p> <p>Evidence that defendant delivered a draft and certain vendor’s lien notes to plaintiff, for the purpose of paying the indebtedness sued upon, was immaterial and irrelevant upon question of defendant’s right to change of venue.</p>

<p>1. Appeal and Error <&wkey;1058(2) — Harmless Error — Exclusion oe Testimony.</p> <p>Exclusion of testimony is harmless; the same witness having elsewhere given substantially the same testimony.</p> <p>2. Appeal and Errior <&wkey;232 (2). — Review-Objections Below.</p> <p>Testimony cannot be complained of on appeal as hearsay; such objection not having been made below.</p> <p>3. Appeal and Error <&wkey;1050(l) — Harmless Error — Admission oe Evidence.</p> <p>Admission of plaintiff’s testimony of a.conversation with a third person was harmless; such person having testified .thereto without objection.</p> <p>4. New Trial &wkey;>102(l) — Newly Discovered Evidence — Diligence.</p> <p>One is not entitled to new trial for newly discovered evidence; lack of diligence in not discovering it before being apparent.</p> <p>5. New Trial <&wkey;105 — Newly Discovered Evidence — Impeaching Evidence.</p> <p>Newly discovered evidence which is merely impeaching is not ground for new trial.</p> <p>6. Appeal and .Eruor &wkey;>981 — Review—Denial oe New Trial.</p> <p>A clear abuse of discretion in denying a new trial for newly discovered evidence must appear, that such action may be revised.</p> <p>On Motion for Rehearing.</p> <p>7. Appeal and Error <&wkey;742(l) — Assignment oe Error — Propositions and Statement.</p> <p>A reference to the record for a statement is not a compliance with the rule for briefing that an assignment of error be followed by propositions and statement.</p> <p>8. Appeal and Error &wkey;1052(2) — Harmless Error — Admission oe Evidence.</p> <p>Admission of testimony was harmless, the same evidence having, been given by other witnesses without objection.</p>

<p>Appeal from Freestone County Court; G. W. Fryer, Judge.</p> <p>Suit by Max Goltzman against R. H. Wal-drop. From a judgment for plaintiff, defendant appeals.</p>

Munroe, Judge. Action by Mrs. Virginia MoGill, for herself and as next friend for her minor children, against the San Antonio & Aransas Pass Railway Company. From a judgment for plaintiffs, defendant appeals.

<p>1. Bilis and Notes <@==5245, 437 — Liability oe Indorser.</p> <p>Where J. gave T., as payment or security for a note he owed him, a note payable by W. and M. to J., J. did not become principal obligor on the W. and M. note, by indorsing it, or aft-erwards signing a renewal in order to get an extension of time, but was only a surety thereon, whose discharge by T. did not affect the liability of W. and M. to T.</p> <p>2. Justices oe the PeXce <&wkey;44(8) — Jurisdiction.</p> <p>In action on note in justice court, the court had jurisdiction to enter judgment for the note and accumulated interest as provided in the note, even if the amount exceeded $200; the principal of the note being $100.</p>

<p>1. Appeal and Error <&wkey;1062(2) — Refusal of Special Issue — Harmless Error.</p> <p>An assignment that the court erred in refusing to add to the question whether plaintiff suffered any injuries the inquiry, “If so, which of said injuries did plaintiff suffer?” presents no error requiring reversal, the injuries being such that a jury would have been bound to make a general finding which would have precluded the court on appeal from holding the verdict excessive, and no issue having been framed particularly presenting question which defendants sought to have determined.</p> <p>2. Appeal and Error <&wkey;1004(l) — Excessive Verdict — Reversal.</p> <p>The rendition of a verdict so large that it shows on its face that it is the result of prejudice or passion constitutes error requiring a reversal, unless a suitable remittitur is entered.</p> <p>3. Trial t&wkey;350(6) — Submission ob- Special Issues.</p> <p>Since defendant does not have the privilege of requiring the jury to append to its verdict a list of injuries found to have been sustained, where a case for personal injuries is submitted on a charge calling for general verdict it cannot be said that such privilege is essential to the administration of justice.</p> <p>4. Trial <&wkey;350(6) — Special Issues.</p> <p>In a personal injury suit, the court, as a general rule, is not required to submit a separate issue as to each injury.</p> <p>5. Trial <&wkey;260(8) — General Instructions.</p> <p>Where charge given by court in suit by em-ployé for injuries was correct, it was unnecessary to single out an issue relating to injuries and consequences resulting therefrom, as that could be done by counsel in argument.</p> <p>6. Damages <&wkey;216 (1) — Instructions.</p> <p>Where charge as to measure of damages in personal injury suit by employé was correct, a special charge, with reference thereto, which would merely have had effect of explaining that “reasonable probability” did not mean “mere possibility,” was properly refused.</p> <p>7. Appeal and Error &wkey;>215(l) — Timely Exceptions and Objections.</p> <p>Objections to charge not urged in trial court will not be heard on appeal.</p> <p>8. Appeal and Error <&wkey;231(9) — General Objections — Availability on Appeal.</p> <p>An objection that charge is otherwise involved and uncertain, and gives the jury no clear direction by which to fix damages, is too general to be of any assistance to the trial court, and cannot be aided by making specific objections in the appellate court.</p> <p>9. Trial <&wkey;251(8) — Instructions not Applicable — Refusal.</p> <p>Refusal of an instruction not to include, in any amount found in answer to an issue, doctors’ bills, etc., was proper, where such issue did not include such bills, the same being specifically inquired into in other issues.</p> <p>10. Appeal and Error <&wkey;931(4) — Judgment —Presumption.</p> <p>Although services of doctors were rendered at special instance and upon credit of employer, where no issue was requested as to whether plaintiff employé became liable therefor it will be presumed that court found to that effect, so that reasonable charges for such services were properly included in judgment, there being evidence that services were rendered with plaintiff’s consent under circumstances raising an implied promise to pay.</p> <p>11. Trial &wkey;>252(7) — Submission of All Issues Supported by Evidence.</p> <p>Where negligence was shown beyond dispute, and defendants did not concede the same, thereby eliminating such issue, they cannot complain that instructions submitted too many issues, where the court submitted every issue as to negligence and there was evidence justifying their submission.</p> <p>12. Master and Servant <®=»100(1) — Exempting from Liability — Validity.</p> <p>As the members and trustees of an unincorporated business, trust, or partnership cannot change their legal status so as to make themselves masters of employés in a representative capacity only, they cannot make a valid contract exempting themselves from individual liability for injuries to employés of the association.</p> <p>13. Associations &wkey;19 — Unincorporated-Individual Liability of Members.</p> <p>Trustees and members of an unincorporated association may limit their liability as to some torts, and even relieve the trust estate as to some, since it is not contrary to public policy to stipulate against liability for negligence except where relation of master and servant or passenger and carrier exists.</p> <p>14. Associations <&wkey;16 — 'Unincorporated-Individual Liability of Members.</p> <p>In personal injury suit by employé against unincorporated association and two shareholders, who were trustees and managing officers, the court did not err in refusing to hold such members liable for such part only as would be arrived at by charging each with one-twelfth, there being 12 trustees, or by dividing the liability between all shareholders, such defendants being severally liable for the full amount.</p> <p>On Motion for Rehearing.</p> <p>15. Master and Servant <&wkey;U00(l) — Contract Exempting from Liability-Waridity.</p> <p>The managing shareholders of an unincorporated association are the masters of the servants engaged therein, and may not absolve themselves of personal liability for breach of masters’ duty toward such servants.</p> <p>16. Trusts <&wkey;235 — Contract Exempting from Liability — Validity.</p> <p>The trustees of a trust estate operating as a business company are individually the masters of the servants engaged therein, and may not absolve themselves of personal liability for breach of masters’ duty toward such servants.</p>

<p>1. Judgments <§==>137 — Vacation—Absence. of Written Motion — Statute.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2020, providing that every motion for new trial shall be in writing and signed, and specify the ground on which founded, is directory, and the court had authority to set aside, on its own motion, in the same term, a default judgment against defendants in the absence of written motion invoking the relief.</p> <p>2. Judgment @=>078(1) — “Res Judicata”— Elements.</p> <p>Judgment against a fraternal order in favor of claimed beneficiaries was not res judicata of the claim against the order of the guardian of another beneficiary; since, to constitute “res judicata,” four elements must concur: Identity in the thing sued for, identity of cause of action, identity of persons and of parties to the action, and identity of the quality in the persons for or against whom the claim is made.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Res Ad-judicata.] .</p>

<p>Appeal from Menard County Court; J. D. Scruggs, Judge.</p> <p>Action by J. Zidell against the Et. Worth & Rio Grande Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Uvalde County Court; Jno. W. Hill, Judge.</p> <p>Action by G. N. Gibbons against the Galveston, Harrisburg & San Antonio Railway Company and others. From judgment for plaintiff, defendants appeal.</p>

<p>1. Venue <&wkey;72 — Burden oe Pbooe.</p> <p>Where defendant’s plea of privilege alleged the facts necessary under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, to entitle it to be sued in another county than the one in which suit was brought, and there was nothing in the record showing that plaintiff’s cause of action came within an exception to the statute, the burden was on plaintiff to show his cause of action came within one of the exceptions.</p> <p>2. Insubance <&wkey;198(6) — Venue—Recovery oe Premium — “Suit upon Insurance Policy.”</p> <p>A cause of action against an insurance company, for the return, in view of cancellation of the policy, of the money paid on the first premium, is not a “suit upon an insurance policy” within Rev. St. 1911, art. 4744, providing that “suit upon insurance policies may be instituted * * * where the policy holder or beneficiary resides.”</p>

<p>Appeal.from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Will contest between Mrs. M. A. Cleaves and others, proponents, and Mrs. Bettie Edens and others, contestants. Prom the decree of the district court on appeal from probate court admitting the will to probate, contestants appeal.</p>

R. Blackshear, Judge. Action between O. W. Burton and others and G. 'M. Sells. Judgment for the latter, and the former appealed. Motion by G. M. Sells to affirm on certificate.

<p>' Appeal from El Paso County Court; E. B. McClintoclc, Judge.</p> <p>Action by Mattie M. Kelly and another against the Texas Bank & Trust Company. From judgment for plaintiffs, defendant appeals.</p>

<p>1. Trial &wkey;133(6) — Remarks oe Counsel-Cure oe Error.</p> <p>In an action for wrongful death, remarks by plaintiffs attorney that the jury should award a substantial verdict, that it did not mean much to defendant but would mean everything to plaintiff, that they should apply the Golden Rule, and that but for defendant’s negligence plaintiff’s intestate would still be running an engine to carry United States soldiers _ to the front, did not constitute reversible error in view of instruction by the court not to consider them.</p> <p>2. Death &wkey;99(l) — Damages — Excessive - NESS.</p> <p>$20,000 was not excessive damages for the death of a- stout, healthy man 29 years old, who was earning $125 a month, had a life expectancy of 36 years, and was in line for promotion to locomotive engineer.</p> <p>3. Appeal and Error &wkey;>1048(l) — Harmless Error — Examination oe Witnesses.</p> <p>In an action for wrongful death, questions by plaintiff’s attorney as to why a defendant did not produce parts of the exploded engine held not reversible error.</p>

<p>Appeal and Ekeob &wkey;51011(1) — Review — Findings. i</p> <p>In case tried without a jury, judgment based on conflicting evidence will not be set aside.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by the San Roberto Mining Company against the American Metal Company, Limited. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Pasties &wkey;>52 — Bringing in New parties — Delay.</p> <p>• In city’s action to recover delinquent taxes not assessed until after defendant bought the land under warranty deed, it is proper to permit the answer to make the warrantors parties in the absence of affirmative showing of delay by so doing.</p> <p>2. Municipal Corporations <&wkey;972(3) — Tax Assessment — Description oe Property— Sufficiency.</p> <p>Description of property in municipal tax assessment: “Name, Mrs. B. E. Horton. N. E. pt. of Blk. O. C. Lot 10, City Blk. A. 62. No. of Receipt 16282. Description of property, R. 1 D. C. 5% acres, Land Imp. 265. Total value 265” — is sufficient under the rule that description of property is sufficient when it furnishes the means by which the property can be identified from the description itself or by the use of extrinsic evidence.</p> <p>3. Appeal and Ereoe <&wkey;S82(ll) — Estoppel to Urge Objections — Evidence.</p> <p>In city’s action to recover taxes assessed long after the year in which they were due, where defendant objected to introduction of assessment rolls on the ground that the description of the property was totally void, he could not complain that plaintiff introduced no evidence to identify the land.</p> <p>4. Taxation t&wkey;421(l) — Description oe Property — Suejbtoiency.</p> <p>A vendee cannot insist upon a more accurate description for taxation than. the description given in the conveyance to him.</p> <p>5. Taxation &wkey;3511 — Lien—Innocent Pun-en asees.</p> <p>The purchaser of land is chargeable with notice that the land has not been assessed if such is the fact, and he is not thereafter an innocent purchaser as against taxes for years during whioh the tax was not assessed against the land, and should, have been so assessed in view of Rev. St. 1911, art. 7528, permitting an assessment of omitted property.</p>

<p>Appeal from District Court, Ward County; Chas. Gibbs, Judge.</p> <p>Action between J. W. Ogburn and the Loop Land & Irrigation Company and others. From the judgment rendered, Ogburn appeals.</p>

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

<p>Appeal from District Court, Harris County; Hy. J. Dannenbaum, Judge.</p> <p>Suit by Elizabeth Schnaufer and others against Ira P. Jones, executor of the Estate of Julia Bartels, deceased. Judgment for plaintiffs, and defendant appeals.</p>

<p>Aepeal and Ebbob <&wkey;301 — Motion bob New Trial — Assignments of Ebbob.</p> <p>Under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1612), providing that where a motion for new trial has been filed the assignments therein shall constitute the assignments of error, assignments of error, which are not copies of any paragraphs of the motion for new trial, but are reconstructed assignments, cannot be considered.</p>

<p>Appeal from District Court, Smith County; J. R. Warren, Judge.</p> <p>Elijah Young was convicted of murder, and appeals.</p>

M. Blackmon, Judge. Action by J. J. Beckham, Jr., and others, against John J. Beckham, Sr. From the judgment rendered, the named plaintiff and others appeal.

<p>1. Raileoads <&wkey;212 — Receivers—'“Obligations’ ’ — Negligence.</p> <p>Where court ordered railroad to take back its assets from the receiver with all the “obligations” of the receiver, the word “obligation” ineltided cause of action by an employé for injuries from negligence of the -receiver.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Obligation.)</p> <p>2. Railroads <&wkey;212 — Negligence — Liability oe Company in Hands op Receiver.</p> <p>Receipt for property by railroad which “released and relieved” the receiver .“from all liabilities, claims, or demands and actions” was supported by a consideration and implied a promise to pay liabilities occasioned by .negligence of receiver, and could be sued on by injured employé.</p> <p>3. Appeal and Error- (&wkey;301 — Motion for New Trial — Change of Venue.</p> <p>Under court rules 24 and 70 (142 S. W. xii, xxii), rules 1 and 101a (159 S. W. viii, xi), and Vernon’s Say les’ Ann. Civ. St. 1914, art. 1612, overruling of a plea of privilege for change of venue cannot be reviewed where not set up in the motion for new trial.</p> <p>4. Damages &wkey;>132(l) — Amount—Injuries to Arm and Head.</p> <p>$6,500 was not excessive damages where arm was rendered useless, head and face were scarred, and brain affected, and 48 days were spent in hospital.</p>

<p>1. GUARANTY -&wkey;27 — CONSTRUCTION.</p> <p>The language of a guaranteeing telegram and the circumstances surrounding the parties at the time it was sent will be looked to in determining the parties' intention.</p> <p>2. Guaeanty @=336(2) — '“Absolute Guaranty on Payment.”</p> <p>Where a bank telegraphed a bank at place of seller’s residence that “we guarantee payment $300 by” a named “produce company for carload watermelons,” neither bank being a party to the contract of sale of the carload between the seller and the produce company, the guaranty contract was one of absolute guaranty of payment, rather than a guaranty of its collection ; a guaranty of payment of an 'obligation without words of limitation or condition being construed as an absolute guaranty.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Absolute Guaranty; Guaranty of Payment.]</p> <p>3. Guaranty <&wkey;78(l) — Absolute Guaranty —Defenses.</p> <p>Where a bank absolutely guaranteed payment of $300 for a carload of watermelons by a produce company, the guaranty not referring to the contract of sale, it was no defense to suit on the guaranty that the.car was not shipped within the time agreed upon between the seller and producp company, or that the melons were not up to the agreed standard in weight or quality.</p> <p>4. Banks and Banking <&wkey;261(3) — Ultra Vires.</p> <p>Where a bank, on faith of guaranty by another bank of payment by a produce company of a certain sum for a carload of melons, permitted the seller thereof to withdraw the guaranteed sum from the bank, the guaranteeing bank could not, in action on its guarantee, plead that the contract of guaranty was beyond its charter powers.</p>

E. Perritte, Judge. Suit by Wilton Ratcliff and others against R. E. Levers & Co. and the Houston, East & West Texas Railway Company. Judgment for plaintiff in a justice court was affirmed in the county court, and the Railway Company appeals.

<p>Appeal from District Court, Galveston County; Clay S. Briggs, Judge.</p> <p>Roscoe Ferguson was convicted of burglary, and be appeals.</p>

<p>Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.</p> <p>'Albert Manuel was convicted of burglary, and he appeals.</p>

<p>1. Criminal Law <@=>305(3) — Evidence—Res Gestjb.</p> <p>In a prosecution for assault with, intent to murder, fact that after the assaulted person had received the injuries inflicted by defendant, and after he had fallen, his brother engaged in an encounter with defendant, during which defendant’s brother entered the fight and stabbed the assaulted person’s brother in the back, was admissible as part of the res gestse.</p> <p>2. Criminal Law <@=>404(1,4) — Evidence — Coat of Injured Person.</p> <p>In such prosecution the brother of the person assaulted was improperly permitted, there being no question as to the location, effect, and character of his wounds, to pull off the coat he was wearing at the time of the encounter and exhibit it to the jury to indicate where it was cut, pointing out the blood which resulted from the wounds he received; for, though it is often permissible to introduce in evidence the garments worn by one who has received injuries, this is only when the evidence serves to illustrate or solve some question in controversy.</p> <p>3. Criminal Law <@=>543(1) — Former Testimony-Predicate.</p> <p>In the absence of predicate laid for the reproduction of testimony of an absent witness on former trial by showing his death or removal from the state, it was not competent for the state to reproduce his former testimony.</p> <p>4. Criminal Law <@=3407(1) — Evidence — Implied Confession — Silence.</p> <p>Where a statement or remark was made in defendant’s presence which he understood and which called for a reply, his silence or acquiescence may be shown as a confession if he was not under arrest.</p> <p>5. Criminal Law <@=>539(1) — Evidence — Former Testimony — Implied Confession by Silence.</p> <p>In view of Code Cr. Proc. art. 790, providing that defendant may testify, but that his failure to do so shall not be held against him, defendant’s silence on first trial, when a witness, absent on second trial, testified that defendant, at the time of the affray involved, made a remark indicating murderous intent, does not render admissible on second trial the testimony of the absent witness as to such remark on the ground that, defendant having been present at first trial when the witness gave the testimony, and having heard it, his silence was a confession.</p> <p>6. Homicide <@=3h>(>(2) — Assault to Murder —Evidence—Intent.</p> <p>In a prosecution for assault with intent to murder the fact that after the assault, when the assaulted person’s brother fell on the bed, defendant said, “God damn you, I will kill you, too. while I am at it,” was admissible against defendant as bearing on his intent to kill the assaulted person.</p> <p>7. Criminal L'aw <@=>1109(6) — Appeal — Prejudicial Error.</p> <p>In a prosecution for assault to murder, the improper admission of former testimony of an absent witness as to a threat, and the improper admission of the bloody coat of the assaulted person’s brother, taken in connection with the record, and verdict fixing punishment at seven years’ confinement in the penitentiary, were error requiring reversal of conviction.</p>

<p>1. Larceny <&wkey;55 — House Theft — Evidence —Sufficiency.</p> <p>Evidence held sufficient to sustain conviction of the crime of horse theft.</p> <p>2. Criminal Law <&wkey;1170%(6) — Appeal — Harmless Error.</p> <p>Erroneous cross-examination of accused’s wife was harmless, where the judge, on his own motion, stopped the county attorney and did not permit the questions to be answered.</p> <p>3. Witnesses <&wkey;337(6) — Cross-Examination —Other Offenses — Admissibility.</p> <p>In prosecution for horse theft, it was not error for the county attorney to ask accused if he was the same person who had been arrested for theft, where on redirect examination accused stated that he had pleaded guilty to theft but denied his guilt.</p> <p>4. Criminal Law <®=»1083 — Recognizance— Jurisdiction of Lower Court.</p> <p>Where accused on conviction gave notice of appeal and recognizance before he was sentenced, the court nevertheless had jurisdiction to set aside the recognizance and sentence accused and to require a new recognizance.</p> <p>5. Affidavits <&wkey;5 — New Trial — Affidavit.</p> <p>An affidavit attached to a motion for new trial cannot be taken by attorney for accused.</p>

Gibbs, Judge. Injunction by Eloyd Goodrich and others against the Porterville Irrigation Company. From an order granting application for a temporary writ, defendant appeals.

<p>1. Elections <&wkey;295(l) — Fraudulent Substitution of Ballots — Sufficiency of Evidence.</p> <p>In an election contest for fraudulent substitution of ballots, where it appears that ballots found in the box accredited to the voters challenging the ballots bear the proper numbers and the unimpeached signature of the presiding judge, and the box containing the ballots appears to have been kept in the custody of the proper officer, and there is no evidence of irregularity in holding the election, in making returns, or of fraud other than the uncorroborated testimony of voters repudiating their ballots, such testimony is insufficient to support a finding of fraudulent substitution of ballots.</p> <p>2. Elections <@=3295(1) — Contest — Sufficiency of Evidence.</p> <p>In suit contesting an election as to whether or not a road district should issue bonds, evidence held sufficient to support the findings of the trial judge that 28 voters, returned as voting for the issuance of the bonds and the levy of the tax, in fact voted against the issuance and levy.</p> <p>3. Elections <&wkey;299(4) — Contest—Ballots— Consideration of Irregularities by Judge.</p> <p>In an election contest, where undisputed irregularities in the ballots might have been discovered and noted when they were being. examined by the judge and counsel in a private room, and counsel for both sides knew that the trial judge had noted the irregularities and taken possession of the ballots showing them, the consideration of such irregularities by the judge, without the ballots being formally again tendered in the courtroom for his judicial consideration, was not reversible error.</p> <p>4. Elections <@=>298(2) — Contest—Fraudulent Votes — Subtraction.</p> <p>Under Bev. St. 1911, art. 3062, providing that if, on trial of any contested election case, any votes be found to be illegal or fraudulent, the court shall subtract such votes from the poll of the candidate who received them, and decide to which of the contesting parties the office belongs, in suit contesting an election on the issuance of bonds by a road district, where the court found that 28 votes were in fact cast against the bond issue, but fraudulently made to appear for it, it properly subtracted such 28 votes from the total for the issue as returned, and added them to the total against the issue.</p> <p>5. Highways <&wkey;90 — Boad Districts — Bonds — Election—Contest—Judgment.</p> <p>In suit contesting an election as to whether a road district should issue bonds, the court finding that the election failed to carry, because more than one-third of the qualified voters voted ag;ainst. the proposition, the purported road district failed of incorporation, and the court properly ordered that its attempted creation was null and void, thus declaring th'e true result of the election.</p>

<p>Appeal from District Court, Kaufman County; F. L. I-Iawkins, Judge.</p> <p>Suit by Will Nobles and wife against T. T. Long, in which Mary Nobles intervened. From an adverse judgment, plaintiffs and intervener appeal.</p> <p>By a deed dated October 31, 1911, Mrs. D. Smith conveyed 160 acres of land to plaintiff in error Will Nobles, the consideration being $400 then paid to her and said Nobles’ three promissory notes, one for $600, and the others for $500 each, payable to her one, two, and three years, respectively, after said October 31, 1911, and secured by a vendor’s lien retained on the land. Nobles was a married man, and purchased the land for use as a homestead. He afterwards so used all of it except 46 acres in the northwest corner of the tract, which were occupied and used as a homestead by his mother, plaintiff in error Mary Nobles. It seems that she furnished the $400 paid on the land at the time Will Nobles purchased it, and that it was agreed between them that she should have said 46 acres. Before any of the notes mentioned matured one Nash' became the owner of them, he having acquired same in due course of trade for value. Will Nobles was not able to pay the notes as they matured, and wished to arrange with a loan company to carry the debt for him. Defendant in error'Long, in consideration of $100 which Will Nobles agreed to pay him, undertook to so arrange with a loan company, and in pursuance of his undertaking, it seems, purchased the notes held by Nash, then aggregating, with interest which had accrued thereon, the sum of $1,760. Thereafterwards, by a deed dated October 16, 1913, Will Nobles conveyed the land to Long, in consideration, it was recited in the deed, of $900 paid to him by Long and the assumption by Long of the payment of the notes he had purchased of Nash. As a matter of fact no part of the $900 mentioned in the deed as having been paid by Long was paid by him. Alleging that he was induced to execute the deed by fraud on Long’s part, Will Nobles commenced a suit against Long to cancel same. Pending the suit Long, by a deed dated June 23,1914, reconveyed the land to Will Nobles, the consideration recited in the deed being the latter’s promissory note, secured by a lien on the land, for $2,250 payable to Long' July 1, 1914. The $2,250 note was not paid when it matured, and Long commenced suit on it, seeking thereby a recovery against Will Nobles for the amount of the note and a foreclosure of the vendor’s lien retained to secure it. This suit and the one commenced by Will Nobles against Long to cancel the deed made by the former to the latter were consolidated by an order of the court. The consolidated ease was disposed of by an agreed judgment, rendered March 25, 1916, in favor of Long for the land as against the Nobles and Boss Huffmaster, who had intervened therein; Will Nobles and his wife having conveyed the land to him by a deed dated March 21, 1916. It was provided in the agreement for the judgment rendered in the consolidated case that after judgment for the land was entered in favor of Long he should convey it to Huffmaster for the latter’s two notes, one for $1,400, payable in 20 days, and the other for $866.91, payable in one year, to be secured by a trust deed to be executed by Huffmaster on the land when it was so conveyed to him. In compliance with the agreement, Long by a deed dated March 27, 1916, conveyed the land to Huffmaster, who at the same time executed and delivered to Long his two notes for $1,400 and $866.91, respectively, and to Nestor Morrow a deed conveying the land to him in trust to secure the payment of the notes. Default having been made in the payment of the $1,400 note when it matured, Morrow as trustee sold and conveyed the land to Long June 6, 1916. This suit was by Will Nobles and his wife against Long to vacate the judgment referred to, and to cancel the various deeds and notes (except the deed from Mrs. Smith to Will Nobles and the notes made by him to Mrs. Smith) mentioned, on the ground of fraud. Mary Nobles, the mother of Will Nobles, intervened in the suit, claiming that she owned 46 acres of the land by purchase from said Mrs. D. Smith. On findings of his own and findings made by a jury on special issues submitted to them, the court rendered judgment (1) vacating the judgment referred to and canceling the deeds and notes mentioned, except the deed from Mrs. Smith to Will Nobles and the notes made by him to Mrs. Smith; (2) in favor of Will Nobles and his wife against the other parties, except his mother, Mary Nobles, for the land; (3) in favor of Long against Will Nobles for $2,-432.17 as the amount, principal, interest, etc., due on the three notes made by him to Mrs. Smith, foreclosing, as against said Will Nobles and his wife, and as against Mary Nobles, his mother, and as against Ross Huff-master and one Aston, who were parties to the suit, the vendor’s lien retained on the land to secure the payment of said three notes, directing a sale of said land and providing that if the proceeds of such sale were more than sufficient to pay said sum of $2,432.17 the excess to the amount of $400 should be paid to said Mary Nobles; (4) de-vesting title in the other parties to 46 acres out of the northwest corner of the 160 acres, and vesting same in said Mary Nobles, but subject to the foreclosure in favor of said Long; and (5) that said Huffmaster and Aston take nothing except that the latter “keep and hold possession of a portion of the land during the remainder of the present calendar year” (1916). The writ of error is by Will Nobles and wife and his mother, Mary Nobles.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Suit by H. B. Cline against Martin Morales. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Master and Servant <&wkey;278(18) — Injury to Employé — Negligence — Question for Jury.</p> <p>Evidence, in action for the killing of head brakeman of a freight train, which with two others had been standing on a passing track, held sufficient to support finding of negligenco in backing the train.</p> <p>2. Appeal and Error &wkey;>1062(5) — 'Harmless Error — Submitting Immaterial Issues.</p> <p>That the court required the jury to find on immaterial issues is not reversible error, the number and character of questions propounded not resulting in confusing the jury.</p> <p>3. Appeal and Error &wkey;>743(l) — Assignment of Error — Specifying Ground of Error.</p> <p>Reference, under a proposition following an assignment of error, to a statement of a hundred pages in the first part of the brief, is not sufficient for a distinct specification of grounds of error relied on, required by Courts of Appeals rule 24 (142 S. W. xii).</p> <p>4. Appeal and Error &wkey;?742(6) — Assignments of Error — Specification of Error —“Distinct Specification of Error.”</p> <p>Propositions following an assignment of error, that it is prejudicial in submitting special issues to give undue prominence to a party’s theory of the case, and that repetition thereof by numerous questions calling for findings of evidentiary facts renders the charge argumentative. and is calculated to lead the jury to believe the court entertains certain opinion, are not distinct specifications of error required by Courts of Civil Appeals rule 24 (142 S. W. xii).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Distinct Specification of Error.]</p> <p>5. Appeal and Error <&wkey;1032(l) — Review-Showing Injury.</p> <p>Appellant under Courts of Civil Appeals rule 62a (149 S. W. x), prohibiting reversal for error at trial, unless the court consider it probably prejudiced him, must show prejudice from submission of numerous issues calling for immaterial and evidentiary facts.</p> <p>6. Trial <&wkey;352(6) — Special Issues — Submission.</p> <p>It is proper, in submitting the case on special issues, to ask leading questions, if not so framed as to suggest the answer.</p> <p>7. Trial i&wkey;352(5) — Submission of Issues— Grounds of Negligence.</p> <p>The several grounds of negligence which plaintiff pleads and supports by evidence should be submitted separately to the jury.</p> <p>8. Appeal and Error <&wkey;232(l) — Review-Instructions — Waiver of Objection.</p> <p>Objections to the charge, different from those made and filed before it was read to the jury, are under Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1971, 2061), waived.</p> <p>9. Trial <&wkey;349(l)— Submission of Issues— Evidence.</p> <p>A special issue need not be submitted, there being no evidence in support of it.</p> <p>10. Appeal and Error &wkey;>204(l) — Review-Objection Below.</p> <p>Objection to admission of evidence not urged in the trial court cannot be considered on appeal.</p> <p>11. Appeal and Error <&wkey;728(l) — Assignments of Error — Reference for Objections.</p> <p>Assignments of error to admission of evidence, merely referring to several bills of exceptions for the objections made, will not be considered. ■</p>

B. Hopkins, Judge. Petition in the nature of bill of review to set aside a judgment by Eli Elstun against Mrs. Annie Scanlan and others. From judgment sustaining demurrer to the petition, plaintiff appeals.

<p>Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.</p> <p>Action by W. A. Goodson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. FRAUD <&wkey;4 — REPRESENTATIONS —</p> <p>Promises — Intent—Pleading. Representations by vendor that he would put water on land within 60 days will not amount to fraud, unless it is alleged and proved' that he had no intent to perform at the time of making them.</p> <p>2. Fraud <&wkey;13(2) — Representation of Fact —Rescission.</p> <p>Representations of a vendor as to an existing fact may be basis for relief, although believed by him to be true.</p>

<p>Appeal from District Court, Taylor County ; Joe Burkett, Judge.</p> <p>Action by Mrs. Ellen Jinkens against the Kansas City Life Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

Action by J. E. Ragsdale against the Town of Jacksonville. Judgment for plaintiff, and defendant appeals. The town of Jacksonville is incorporated under the general laws of the state, and has established and operates a water supply system. The pipe line extends southward from the reservoir in part across the land of the appellee and across the right of way of the International & Great Northern Railway Company.

A. Ward, Judge. Action by B. E. Sherrill against the Kirklin-York Company. From a judgment for plaintiff for less than the amount claimed, plaintiff appeals. The appellee, a mercantile firm, leased a one-story building from the appellant for the term of one year from January, 1915, for an agreed rent of $20 a month, payable on the 1st day of the next month.

<p>Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.</p> <p>Trespass to try title by H. C. Engelking against August Mertens. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Death <&wkey;18(3) — Right or Action — Doss oa Injury.</p> <p>In action for death of an adult son the financial condition of parents was no bar to right of recovery, the inquiry being whether deceased, had he lived, would probably have contributed in a financial way to the benefit of plaintiffs.</p> <p>2. Death <&wkey;99(5) — Damages — Excessive Damages.</p> <p>In an action by surviving parents, respectively 65 and 63 years old, for the death of an adult son, where it appeared that the son was an only child, single, and living with his parents, that he was active in the performance of the various duties about plaintiffs’ farm, consisting of 160 acres in cultivation, and several hundred acres in pasture land, that he nursed plaintiffs, giving them medicine during their .illness, was attentive and affectionate in the performance of his duties, declared his intention of remaining with' his parents permanently, that the reasonable value of his services was $60 a month, and that he had been paid practically nothing., for what he had done, a verdict of $2,750 was warranted.</p> <p>3. Evidence -&wkey;?123(10) — Res Gestas.</p> <p>Testimony of a witness, who went to the scene of the wreck immediately after it happened, that it was about 20 minutes before the members of .the train crew who went away returned, and that deceased was not removed from the wreckage until they got back, was part of the res gestae.</p> <p>4. Appeal and Errob &wkey;>907(2) — Admissibility oe Evidence under Pleadings— Presumptions.</p> <p>Where plaintiffs alleged, in an action for wrongful death, the abandonment of the wreck and their son as one of the acts of negligence, and it does not appear from the record that such allegation was excepted to, the court on appeal is authorized to conclude that the court properly admitted evidence to the effect that the son was not removed from the wreck for some time after the accident.</p> <p>5. Appeal and Error <&wkey;1052(5) — Irrelevant Testimony — Harmless Error.</p> <p>In action for wrongful death, although testimony of witness, who went to scene of wreck immediately, that deceased was not removed from wreckage until over 20 minutes later, when members of crew returned, was no part of the res gestas, its admission was harmless under rule 62a (149 S. W. x), since the size of the verdict does not show passion or prejudice.</p> <p>6. Death <&wkey;64 — Action — Evidence — Admissibility.</p> <p>In action for death of adult son,, evidence that son had stated that he was going away to work a few weeks for spending money, because he received no pay from plaintiffs, and that he intended to stay with' plaintiffs, parents, until their death, was admissible on the issue of the parents’ expectancy of future aid from the son.</p> <p>7. Death t&wkey;64 — Action — Evidence — Admissibility.</p> <p>In suit by parents for death of adult son, evidence that the father was suffering with typhoid fever nine years before, from which he had never fully recovered, was admissible, since it showed that the father was in such condition as to require services of the son.</p> <p>8. Appeal and Error <g=»907(2) — Obedience to Rules — Presumption.</p> <p>The evidence showing that intestate was on top of the train, it will be presumed on appeal, in the absence of evidence to the contrary, that he was there in obedience to a rule of defendant company requiring freight brakeman to be on the top of trains, approaching stations, etc.</p>

<p>Appeal from District Court, Rockwall County; Kenneth Foree, Judge.</p> <p>Suit by W. L. Myre against J. S. Rascoe. From a judgment for plaintiff, defendant appeals.</p>

<p>Error from Dallas County Court; T. A. Work, Judge.</p> <p>Action by C. A. Crouch and others against the Northern Texas Traction Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. InsuRanoe <&wkey;328(2) — Fire Insurance— Change in Title — Sale — Delivery of Deed.</p> <p>Where the holder of a fire policy covering a dwelling house sold the dwelling house and executed deed to the buyer, with an assignment of the policy, and he, being unable to pay the purchase-money notes, reconveyed the premises to his vendor, and, after destruction of the house by fire, assigned the insurance policy back, if, when delivered from the buyers to their vendor, their deed became effective as a> conveyance, it passed title within the meaning of the stipulation in the policy avoiding it for such change.</p> <p>2. Deeds <&wkey;208(7) — Delivery—Sufficiency oe Evidence.</p> <p>In an acti.on on a fire policy, wherein the-insurer claimed that the policy was avoided by a change in title, evidence held to show conclusively that deed back to plaintiff, executed by the husband and wife to whom he had sold, became effective as a conveyance when it was delivered to plaintiff; the delivery not being to the bank of which plaintiff was president to hold until he obtained and canceled the husband’s purchase money notes.</p> <p>3. Escrows <&wkey;3 — Delivery in Escrow — Intervention oe Third Person.</p> <p>The grantee named in a deed cannot hold it as an escrow, and it takes effect on delivery despite his agreement that it shall not be effective as a conveyance until he has done certain things.</p> <p>4. Insurance <&wkey;328(l) — Fire Insurance— Stipulation as to Change in Title — 'Validity.</p> <p>Stipulation in a fire policy that it should1 be void on any change in the title of the insured' premises was valid.</p>

<p>1. Brokers <&wkey;86(4) — Action for Commis-. sion — Sufficiency of Evidence.</p> <p>Evidence held to sustain finding that plaintiffs were the efficient procuring cause of the exchange of properties between defendant andi another.</p> <p>2. Brokers &wkey;>56(2) — Right to Commission..</p> <p>An employer who concludes a transaction with a party procured by a broker is not relieved1 from liability for commissions because he was. ignorant at the time he dealt with such party that such party was procured by the broker.</p> <p>3. Brokers <&wkey;65(4) — Action foe Commission-Defenses.</p> <p>That, pending negotiations for exchange ok property, plaintiffs’ brokers paid part of the expenses of broker for the other party to the exchange in showing defendant the land, would not bar action for commission, where it did not appear that plaintiffs undertook to represent such other party.</p>

<p>Judgment &wkey;>ll — Time fob Rendition — 'Violation of Court Rule — Effect.</p> <p>Judgment in cause submitted to the judge on the law and facts is not void so as to authorize enjoining of execution thereon, because rendered within two days of end of term, in violation of District and County Courts rule 66 (142 S. W. xxii).</p>

B. Muse, Judge. Suit by the Mosher Manufacturing Company against the Equitable Surety Company and another. Judgment for plaintiff, and the named defendant appeals.,

Action hy W. F. Barringer against W. W. Bost. Judgment for plaintiff, and defendant appeals. The appellee agreed to furnish the appellant dressed meat at a stated price for the period of one year. Appellant conducted a meat market in the town of Royse. The ap-pellee furnished meat until February 7,1915, on which date appellant refused to accept any more meat under the contract.

<p>1. Appeal and Error &wkey;>1043(7) — Harmless Error — Surprise—Continuance.</p> <p>There was no prejudice in refusing to grant a continuance on the ground of surprise as to new matter contained in an amended petition, where the findings on the old issues were sufficient to support the judgment.</p> <p>2. Continuance &wkey;>37 — Grounds—Application.</p> <p>Where application for continuance on ground of illness of witness did not state how long the illness had existed, so as to excuse failure to take deposition, or that he could have added to testimony on a former trial which was introduced in evidence; its refusal was not error.</p> <p>3. Appeal and Error <&wkey;1043(7) — Harmless Error — Continuance.</p> <p>A party was not harmed by refusal of a continuance to obtain deposition of a witness as'to an agreement, which was shown in a deed admitted in evidence.</p> <p>4. Continuance <&wkey;37 — Grounds por — Surprise — Diligence—Application.</p> <p>Where application for continuance, claiming surprise as to new -matter in amended petition served five days before trial, did not show that time was too short to procure testimony, there was no error in refusing a continuance.</p> <p>5. Appeal and Error <&wkey;1070(2) — Harmless Error — Unimportant Issues.</p> <p>Where • findings of jury not attacked would support the judgment, insufficiency of evidence to support other findings was harmless.</p> <p>6. Appeal and Error <&wkey;1062(2) — Harmless Error — Refusal op Issues.</p> <p>Refusal to submit a special issue is harmless, where the verdict on the issues submitted amply supports the judgment.</p> <p>7. Fraud <&wkey;66 — Action—Special Issues.</p> <p>In an action for fraudulent representations by a vendor a special issue whether the purchaser could by ordinary prudence discover the value of the land sold to him was improper, unless, as a matter of law, the purchaser undertook to discover the truth with regard to such value.</p> <p>8. Fraud <&wkey;64(5) — Representations as to Value — Inspection of Land — Jury Question.</p> <p>The mere fact that a purchaser demanded the privilege of inspecting the land would not, as a matter of law, establish that he undertook to discover the truth with regard to representations as to value:</p>

<p>Appeal from District Court, Orange County.</p> <p>Action by Frank H. White against the Louisiana Western Railroad Company and others. From a judgment against the named defendant, it appeals.</p>

<p>1. Judges <&wkey;50 — Refusal to Act.</p> <p>A judge should not try a case in which there is the least ground upon which to base a claim for his disqualification, and if an error is ever made as to disqualification, it should be in favor of the disqualification rather than against it.</p> <p>2. Trial <&wkey; 194(2) — Instructions — Province oe Jury — “Casual.”</p> <p>The word “casual” meaning something by chance without being foreseen or expected, an instruction referring to a conversation as casual when the evidence tended to show it to have been material and sought by one of the parties was on the weight of the evidence.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Casual.]</p> <p>3. New Trial <&wkey; 108(2) — Newly Discovered Evidence.</p> <p>After judgment for defendants in an action to set aside a previous judgment because of disqualification of the judge, the discovery of a letter, tending to show such judge had acted as advisor and attorney for defendants as to the claim upon which they recovered in the former action, was sufficient to warrant new trial, the evidence not being cumulative.</p> <p>4. Appeal and Error <&wkey;933(l) — Review-Discretion oe Lower Court.</p> <p>Appellate courts treat with great deference the action of lower courts on motions for new trial, but where motion is based on newly discovered evidence that is material and will have an important bearing on the issues, and where the ends of justice will probably be obtained by another trial, new trial will be granted.</p>

Action by T. L. Camp against the American Surety Company and another. Judgment for plaintiff, and defendant named appeals.

<p>1. Judgment <&wkey;743(2) — Res Judicata— Right to Recover Land.</p> <p>A judgment merely denying to plaintiff recovery of land, without vesting, title thereto in defendant, is not res judicata as to right to recover the land in a subsequent -suit.</p> <p>2. Vendor and Purchaser <&wkey;54 — Title Before Payment.</p> <p>Vendor has the superior title until payment, by vendee.</p> <p>3. Vendor and Purchaser) &wkey;o208 — Superior Title op Vendor — Assignment.</p> <p>Vendor may pass his superior legal title to the holder of unpaid purchase-money notes.</p> <p>4. Vendor and Purchaser &wkey;>261(l) — Vendor’s Interest — Assignment.</p> <p>As vendor may pass his superior legal title to the holder of an unpaid purchase-money note, the assignee of the note and superior title may likewise pass such title to a subsequent assignee of the same unpaid note.</p> <p>5. Vendor and Purchaser &wkey;3261(l) — Vendor’s Interest — Assignment.</p> <p>The fact that a transfer of a. purchase-money note and lien and vendor’s superior legal title occurs at different dates would not affect the transferee’s right to recover the land.</p> <p>6. Judgment &wkey;>743(2) —• Res Judicata — Title to Land.</p> <p>Plaintiff in a suit to recover land is not precluded by a former judgment from asserting a subsequently acquired title.</p> <p>7. Vendor and Purchaser i&wkey;299(l) — Limitations — Recovery- of Land.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5694, limiting right to recover land by vendor or his transferee to four years after maturity of the purchase-money note, applies to an action for the recovery of land by the owner of a purchase-money note and the vendor’s superior title.</p>

<p>Appeal from District Court, Rusk County; Jno. O. Douglas, Judge.</p> <p>Action by R. H. Hightower against Rusk County. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Kaufman County Court; J. P. Coon, Judge.</p> <p>Suit by R. C. Hawthorn against Pierce Hubbard, in which Coates Brothftrs were made defendants. Prom a judgment for plaintiff as against Hubbard and that plaintiff take nothing as against Coates Brothers, plaintiff appeals. '</p> <p>R. C. Hawthorn owns 90 acres of land which he rented to Pierce Hubbard for agricultural purposes for the year 1916. Coates Bros, obtained a money judgment against Pierce BCubbard, and caused to be levied an execution on five bales of the cotton raised by Pierce Hubbard on the rented premises during the year 1916. Then R. C. Hawthorn as landlord brought this suit against Pierce Hubbard, the tenant, for the balance due for rent and for the supplies and advances to make the crop, and to foreclose a lien on the five bales of cotton. Coates Bros, were made defendants in this case, the plaintiff claiming against them a superior lien on the cotton. The petition alleged a rental contract as follows;</p> <p>“The plaintiff agreed to furnish the defendant Hubbard 90 acres of land and the teams and tools to cultivate the same. The defendant agreed to cultivate the land and to deliver plaintiff as rent one-half of all the crops raised on the land during the rental year and to pay 10 per cent, interest on all the moneys, supplies, and labor furnished by plaintiff to defendant to enable the defendant to make the crop. It was further agreed that the plaintiff was to have all the cotton seed arising from the seed produced by the defendant on the land during said rental year. It was agreed that the plaintiff should pay all expense of wrapping and ginning the cotton and was to furnish feed for all the animals necessary to make and raise the crop.”</p> <p>And to that part of the petition setting up the rental contract the defendants Coates Bros, entered an exception reading as follows:</p> <p>“The petition shows on its face a rental contract in contravention of the laws of the state, and the plaintiff has no-landlord’s lien to foreclose as against the defendants Coates Bros.”</p> <p>The court sustained the special demurrer and then.-entered judgment in favor of the plaintiff against the tenant, on his answer, for the amount of the debt sued for; and further that the plaintiff take nothing by his suit against Coates Bros. The appeal is by the plaintiff to revise the ruling of the court sustaining the demurrer.</p>

Petition in the matter of the insolvency of the People’s State. Bank by the Houston National Exchange Bank of Houston for allowance of claim, and a preference on the assets of the bank. Gregg County and others protested. Judgment for plaintiff for the amount of its claim, but denying a priority, and it appeals.

R. Owens, Judge. Suit by the First State Bank of Richland, Tex., against T. B. Poindexter and another. The defendant Poindexter filed a plea of special privilege, which was denied, and upon trial judgment was rendered for plaintiff, and the defendant Poindexter appeals. Judgment reversed and cause remanded as to the defendant Poindexter, and affirmed as to the other defendant. The suit was commenced in title county court of Navarro county.

R. Warren, Judge. Suit by W. B. Wright against S. G. Blalock and others, and by the same plaintiff against W. W. Dickerson. The suits were consolidated and tried together. From decree rendered, Blalock appeals.

<p>1. Sams <&wkey;201 (4) — Delivery to Carrier-Contract.</p> <p>Under a contract in which, the buyer designated shipment by rail to destination, delivery by the seller to a steamship company was not delivery to the buyer, and the seller must bear loss of goods in transportation.</p> <p>2. Appeal and Error <&wkey;1011(l) — Review-Conflicting Testimony.</p> <p>In a trial before the court without a jury, where the testimony was sharply conflicting on the point at issue, the finding of the- trial court will not be set aside.</p>

<p>Appeal from Lamar County Court; Tom L. Beauchamp, Judge.</p> <p>Action by Mrs.' Fannie C. Aiken against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Error from District Court, Marion County; J. A. Ward, Judge. Trespass to try title by E. W. Goff and others against Bose Paire and others. Judgment for plaintiffs, and defendants bring error.

<p>Appeal and Error’ &wkey;U001(l) — Review-Findings op Fact. ' ■</p> <p>The evidence making peculiarly an issue for the jury, their finding, in trespass to try title, that improvements by defendants were not made in good faith as to location of boundary, will be sustained on appeal. ■</p>

<p>Appeal from District Court, Gregg County; John M. Tipps, Judge. ■</p> <p>Suit by Elmer E. Reeves and wife against the Texas & Pacific Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Harris County Court; W. E. Monteith, Judge.</p> <p>Action by C. C. Rhodes against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Wharton County; Samuel J. Styles, Judge.</p> <p>Tobe Williams was convicted of murder, and appeals.</p>

<p>Appeal from, District Court, Hale County; R. C. Joiner, Judge.</p> <p>Bob Payne was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, Caldwell County; M. C. Jeffrey, Judge.</p> <p>Joe Meredith was convicted of burglary, and he appeals.</p>

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>Will Chambers was convicted of robbery, and appeals.</p>

Kennon, Judge. Suit by the Gonzales Independent School District against W. B. Houston. Defendant having died, the executors of his estate, J. D. Houston and Mrs. J. A. Mathews, were made parties defendant. Judgment for plaintiff,- and defendants appeal.

<p>Appeal from District Court, Harris County ; J.* D. Harvey, Judge.</p> <p>Í Action by the Pastime Theater against the Mutual Film Corporation. Judgment for plaintiff, and. defendant appeals.</p>

<p>Sheriffs and Constables <&wkey;171 — Liability of Sheriff-Action — Instructions.</p> <p>In an action against a sheriff and his sureties for damages for refusing to give plaintiff reasonable time to furnish bail, an instruction that it was the sheriff’s duty, under Code Or. Proc. 1911, arts. 336, 343, 345, 518, to prepare the bail bond, was not required, where the evidence showed that plaintiff was at no time prior to his incarceration ready to give bond,</p>

County ; J. R. Warren, Judge. Suit by A. P. Baldwin against R. F. Williams and others; certain persons intervening. With this the suit of R. W. Patterson against A. P. Baldwin was consolidated. From the judgment, Williams and others and Patterson appeal.

<p>Injunction <@=»137(2) — Tempobaby Whit — Pkopeibtí.</p> <p>In a suit for an injunction against the use of air hammers in a boiler factory adjacent to a residence district on the ground that the use of the hammers created a noise injurious to the rest, comfort, and health of the inhabitants of the vicinity, it was error to issue a temporary injunction and prohibit the use of such hammers determinative of the whole controversy, since the status quo was thereby destrpyed, the plant put out of business pending hearing, and the use of lawful contrivances that had been in constant use for about six years prohibited.</p> <p>Hightower, C. J., dissenting.</p>

<p>1. Corporations <®=^657(3) — Foreign Corporations — Interstate Commerce.</p> <p>Where defendant gave order for machinery to a third person, who without authorization transmitted it to the plaintiff, a corporation of another state, and after the machine arrived he agreed to and did give a new order “on the terms stipulated in ' the original order,” there was a ratification of the interstate contract which permitted recovery by the foreign _ corporation, although it had received no permit to do business within the state.</p> <p>2. Commerce &wkey;>40(l) — “Interstate Commerce” — Sale op Goods.</p> <p>Assuming a single sale of a machine by a foreign corporation was made wholly within the state, it was, nevertheless, in interstate commerce.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>3. Evidence <&wkey;80(l) — Foreign States — Presumption.</p> <p>In the absence of showing what was the law of the state wherein a note was given as to which the statute of limitations might have accrued, had there not been letters preventing the bar, the court must presume such law to be the same as the law of the state wherein the action is brought.</p>

<p>1. Process <§=387 — Service by Publication —Transient Person.</p> <p>Service by publication as on a transient person gives the court no jurisdiction over her person, unless she is in fact a transient, for if she is not such the process and service are unauthorized.</p> <p>2. Process <§=>85 — Constructive Service-Statutes — Construction.</p> <p>Statutes authorizing constructive service of citation are strictly construed.</p> <p>3. Process <§=387 — Service by Publication —Statutes—“Transient Person.’’</p> <p>A woman who had no fixed place of residence, but lived around over the state with her three or four children, though she could not call any of her children’s homes her own, was not a “transient person” within Rev. St. 1911, art. 1874, authorizing service by publication on such a person.</p> <p>[Ed. Note. — For other definitions, see Words and phrases, First and Second Series, Transient.]</p> <p>4. Process <§=>84^-Personal Service — Difficulty — Necessity.</p> <p>That personal service of citation on a defendant is difficult to obtain does not dispense with its necessity.</p>

Jones, Judge. Action by the Detroit Steel Products Company against the Houston Printing Company and another. Prom a judgment for less than asked for, plaintiff appeals.

O. Beard, Judge. Action by O. J. Sprole against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Appellant, as a common carrier engaged in interstate commerce, operated a line of railway from New Orleans, in Louisiana, to El Paso, in Texas. Appellee was a brakeman on one of appellant’s freight trains.

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>' Action by Miss Katherine Porter against Wells Fargo & Co. in justice court. There was a judgment for plaintiff in that court, and on appeal to the county court, and defendant appeals.</p>

<p>1. Insurance @=>438 — Life Policy — Execution for Crime — Liability.</p> <p>An ordinary life policy, in the absence of provision regarding death of insured by legal execution as punishment for crime, does not insure against death by such means.</p> <p>2. Insurance @=>438 — Life Policy — Execution for Crime — Liability,</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4741, subd. 3, providing for clauses of incontestability in life policies, does not change the public policy of the state, so as to permit recovery for death of insured by legal execution as punishment for crime.</p>

<p>Appeal and Error <@=>493 — Transcript Showing Jurisdiction.</p> <p>The record on appeal, showing no citation to defendant, waiver, or appearance, fails to show the trial court had jurisdiction, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2109, 2110, as to transcript; recital in judgment of due citation not being enough.</p>

<p>Error from District Court, Coryell County; J. H. Arnold, Judge.</p> <p>Action by H. E. Moore against the Philadelphia Underwriters’ Agency of Fire Association of Philadelphia. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Error @=>715(2) — Power to Ascertain Jurisdiction — Affidavits.</p> <p>A suit was brought by a copartnership alleged to be composed of Mont Beckham, Charles Dublin, and others. The judgment rendered was in favor of J. H. Beckham, C. A. Dublin, and others. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1593, provides that courts of appeal shall have power, upon affidavit, or otherwise, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction. Held, that assignment that there was no final judgment disposing of Mont Beckham and Charles Dublin would not be sustained where appellees, by affidavit, showed that Mont Beck-ham and J. H. Beckham are the same person, and the same as to Dublin; there being no showing to the contrary.</p>

<p>Error to District Court, Coleinan County; C. E. Dubois, Judge.</p> <p>Suit by Wm. I. Bragg against the Sovereign Camp of the Woodmen of the World and T. Z. Bragg. Judgment for plaintiff, and T. Z. Bragg brings error.</p>

<p>Appeal from El Paso County Court at Law; W. P. Brady, Judge.</p> <p>Suit by Miller Bros. & Co. against the H. Lesinsky Company in the justice court, and upon appeal to the county court an instructed verdict was rendered for the defendant, from which the plaintiffs appeal.</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Suit by W. T. Montgomery against Paul Gallas. Ffom judgment rendered, plaintiff appeals.</p>

<p>Appeal from San Saba County Court; W. Y. Dean, Judge.</p> <p>Controversy between R. W. Kuehn and Carl Leubner and others. Kuehn appeals.</p>

<p>Appeal from District Court, El Paso County; Ballard Cold well, Judge. '</p> <p>Suit by F. H. Benjamin and others against the {El Paso Electric Railway) Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Injunction <@=U23 — Pleading and Pboof —Title to Land — Deed.</p> <p>In a suit for injunction to compel removal of a ditch constructed by defendant across plaintiff’s land, a special warranty deed to plaintiff from his vendor was admissible as a link in his chain of title, though plaintiff’s allegations did not show title from the sovereignty of the soil, where he testified without objection that he was the owner of the lot, and there was other evidence carrying his title back to the sovereignty of the soil, and there was neither plea nor proof that any one other than plaintiff owned the land.</p>

<p>Mandamus <®=v106 — Counts' Treasurer — Mingling Funds — Shortage on Predecessor.</p> <p>Where a county treasurer has defaulted, and it is impossible to ascertain from which funds the money was taken, his successor cannot be compelled by mandamus to pay the full amount of funds due to a drainage district, and it is immaterial that he may have wrongfully paid money out of other funds; and Rev. St. 1911, art. 700, prohibiting the diverting of interest and sinking funds, and article 2608, requiring a special bond for drainage funds, have no application.</p>

<p>1. Boundabies @=46(1) — Settlement by Pa-bol Ageeement.</p> <p>Boundary disputes may be settled so as to pass title by definite and unconditional parol agreements between the owners of abutting tracts.</p> <p>2. Boundabies @=46(1) — Settlement by Pa-eol — Validity oe Ageeement.</p> <p>Where the former owner of plaintiff’s tract agreed with the former owner of defendant’s tract to a line surveyed as a boundary between the tracts, upon condition that his tract should not be left with less than 80 acres, and defendant admits that plaintiff was entitled to recover, unless defeated by some special defense pleaded, the line surveyed cannot be held to be the true boundary.</p> <p>3. Evidence <@=>265(5) — Admissions—Bound-abies.</p> <p>Defendant’s admission that plaintiff was entitled to recover, unless defeated by some of the special defenses pleaded, was an admission that plaintiff’s deed and the deeds through which ho deraigned title conveyed the legal title to the strip in controversy.</p> <p>4. Boundabies <@=>48(6) — Acquiescence—Ee-xbot.</p> <p>In suit involving title to a strip of land on a boundary between the tracts of plaintiff and defendant, plaintiff’s failure to protest against improvement of strip, and his apparent silent acquiescence in claims asserted by owners of defendant’s tract, held at most to show that the true boundary line was where defendant claimed it to be.</p> <p>5.- Boundaries <@=>47(3) — Acquiescence in Improvements — Ignorance.</p> <p>Mere silence and failure of plaintiff to protest against improvements by defendant at great expense of a strip on the boundary would not estop plaintiff from claiming the strip as against defendant, where plaintiff did not know the location of the true boundary line at the time the improvements wore made; the means of ascertaining the true boundary being as open to defendant as they were to plaintiff.</p> <p>6. Boundaeies ©=347(3) — Estoppel — Improvements.</p> <p>Allegations that defendant was ignorant of the location of the boundary lino, that the same was known to plaintiff, and that by silence of plaintiff defendant was induced to make improvements on the strip in controversy, were necessary to show an estoppel against plaintiff.</p> <p>7. Boundaries ©=>47(5) — Estoppel.</p> <p>Binding that when the survey was made by T., L., who then owned defendant’s tract, informed W., who then owned plaintiff’s tract, of his intention to sell the land by the acre, and up to the line located by T., and that W. replied that he would agree to said line, that it suited him just so he had his 80 acres, and that pursuant to said agreement B. sold to M., up to said line, would not show an estoppel: first, because there was no proof that L. was thereby placed in a worse position; second, because there was no proof that -by reason of such conditional agreement M. was induced to buy such excess in acreage; and, third, because none of the facts were pleaded by defendant as an estoppel against plaintiff.</p> <p>8. .Trespass to Try Title ©=>59 — On Correction op Judgment — Value op Improvements — Findings.</p> <p>A finding of the value of the improvements placed by defendant on the strip in controversy was essential for rendition of final judgment for value of improvements by the court, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7763-7768, as to damages for improvements in trespass to try title, and as to judgment or decree reciting estimated value of the premises without the improvements.</p>

W. Taylor, Judge. Suit by Thomas O’Conor against Dario Sanchez and others, in which other parties intervened. From the judgment for defendants, plaintiff and the interveners appeal.

<p>1. REFORMATION OF INSTRUMENTS <&wkey;45(3)— Specific Performance — Evidence.</p> <p>In a suit to reform and specifically enforce contract for sale and exchange of lands in which plaintiff based his right of action on the fact that property was signed up under a government irrigation project, and that contract by mistake failed to make defendant take subject to such project, evidence held sufficient to show that property was signed up under the project.</p> <p>2. Action &wkey;>69 — Contract for Sale and Exchange of Lands — Relief as Depending on Other Litigation.</p> <p>Specific performance of a contract for sale and exchange of lands whereby defendant was to assume plaintiff’s contract with a water user’s. association under a government irrigation, project is not dependent on termination of litigation seeking adjudication of water appropriation under the project and the respective rights of parties in the waters; there being no claim that assessments on the lands involved in the suit for specific performance had not been paid..</p>

<p>Appeal from District Court, Crockett County; J. W. Timmins, Judge.</p> <p>Su,it by Charles Schauer against Otto Schauer. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Potter County; Hugh L. Umphres, Judge.</p> <p>Action by John E. Griffin against the Palatine' Insurance Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Estoppel &wkey;>83(2)—Title to Confiscated PROPERTY.</p> <p>Where plaintiff and defendant smelter agreed that defendant was to receive, smelt, and pay for ore coming from plaintiff’s mines only, and would not receive ore title to which depended upon confiscation, plaintiff, who, through his agent, delivered as his own, to defendant, ore coming from the mine of another company, would be estopped to set up that such company was deprived of title by confiscation of the Mexican government, so that defendant got good title, defendant having paid such company for ore.</p> <p>2. Principal and Agent <&wkey;25(l)—Estoppel to Deny Agency.</p> <p>A father who placed his son, who was in fact his agent for some purposes, in a position to deceive defendants, would be estopped to deny the agency, whether he had in fact authorized son or not, defendants having in fact been deceived.</p> <p>3. EVIDENCE t&wkey;26 — Judicial Notice — Midi-tary Government in Mexico.</p> <p>The Court of Appeals will take judicial notice that Carranza was the head of a military government in northern Mexico at the time the ores in question were imported, that such government could seize and sell property for military purposes, and that by such sale by its authorized officers title would pass to the purchaser.</p>

<p>Appeal from District Court, Presidio County; Jos. Jones, Judge.</p> <p>Action by Mrs. Annie Childers against James D. Shannon and wife. From an adverse judgment, defendants appeal.</p>

<p>Appeal from District Court, Dallas County; W. L. Whitehurst, Judge.</p> <p>Trespass to try title by Wood Nash and others against the Dallas Hunting & Fishing Club. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Contbacts <&wkey;91 — Option — Consideration.</p> <p>Seventy dollars cash actually paid for an option to explore and develop oil lands was sufficient to make the issue of valuable and adequate consideration one of fact to be passed on by the court or the jury.</p> <p>2. Appeal and Error <&wkey;909(l) — Presumptions — Decision of Issues.</p> <p>The Court of Civil Appeals must presume that the trial court decided all controverted issues of fact not submitted to the jury in harmony with the judgment rendered.</p> <p>3. Contracts <&wkey;59 —Option or Privilege —Cash Consideration — Lack of Mutuality.</p> <p>Where the $76 cash paid by defendants to plaintiffs, was a valuable and adequate consideration for an option or exclusive privilege to explore and develop the mineral resources of plaintiffs’ oil land which plaintiffs gave to defendants, though defendants did not bind themselves to exercise their option or privilege, or to do anything toward development of the mineral resources of the land, the contract was not subject to cancellation on account of its unilateral character on its face, imposing an obligation only on plaintiffs, since mutual promises are necessary only when there is no other consideration.</p> <p>4. Mines and Minerals <&wkey;75 — Option to Develop Mineral Lands — Consideration.</p> <p>The $70 cash paid by defendants was not only the consideration for the privilege extending over the first term of six months, but for all the rights and privileges, conditional or unconditional, which the contract conferred, including the conditional right of claiming an extension of the option; payment of the $70 being what induced the execution of the contract, and being the consideration for all the rights and- privileges therein granted.</p> <p>5. Contracts <&wkey;143 — Construction.</p> <p>In construing a contract, it must be viewed (n its entirety. . ,</p> <p>6. Mines and Minerals &wkey;>59 — Option to Develop Oil Land — Lack of Intention to Drill.</p> <p>Where defendants acquired from plaintiffs for cash an option to develop plaintiffs’ land for oil with a view to sell the privilege at a profit, not binding themselves to sink wells, violating no agreement by failing to do so, the fact that they acquired the option without intention to drill is no ground for cancellation at plaintiffs’ suit.</p> <p>7. Mines and Minerals <&wkey;59-OiL Option or Lease — Failure oe Wipe to Sign.</p> <p>Whore the wife of a joint owner of land having a homestead right failed to sign lease or option to develop the land for oil, her failure could only be invoked to limit the rights the lessees or optionees might claim, not as ground for cancellation at suit of tho lessors.</p> <p>On Motion for Rehearing.</p> <p>8. Contracts <&wkey;53 — Consideration — Adequacy.</p> <p>Where the consideration is sufficient to be denominated valuable, courts do not concern themselves with the relative value of tho properties exchanged, a rule subject to some exceptions, as where the consideration is so grossly out of proportion to the property conveyed as to shock the conscience, or bear evidence of fraud on its face.</p>

E. D. Roy, Judge. Suit by Mrs. Julia A. Thornton, as independent executrix of the will of John A. Thornton, deceased, and in her individual right, against W. O. Wear and others to enjoin the sale under execution of an alleged homestead. From judgment in her favor for part of the relief asked, plaintiff appeals.

W. Taylor, Judge. Suit by Ed. C. Lasater and other taxpayers of Duval County against Alonzo Lopez, county treasurer, and others, to have a road contract declared void and warrants canceled and their payment enjoined. Austin Bros., a corporation, intervened. Judgment for defendants, and intervener and plaintiffs appeal.

<p>1. War <@=>14^-Military Seizure — Question eor Jury.</p> <p>In a suit for damages for conversion of ears of ore, where the defense was that the ore had been seized within the Republic of Mexico as a military necessity by Gen. Villa, being taken and sold by his fiscal agent, and there were circumstances showing- the agent’s private use as well as military use of the ore, the question was for the jury.</p> <p>2. Trover and Conversion <@=347 — Damages —Measure of.</p> <p>The measure of damages for ore converted is its value at the time and place of conversion.</p> <p>3. Trial <@=>208 — Instructions—Excluding Evidence from Consideration.</p> <p>An instruction submitting the true measure of damages for conversion of ore, but not excluding inadmissible evidence of value of the ore at times other than the date of conversion, is reversible error, where it cannot be determined whether such evidence influenced the verdict.</p> <p>4. Appeal and Error <@=>1050(2) — Harmless Error — Evidence—Admissibility.</p> <p>In a suit for damages for conversion of ore, where the inquiry was whether or not the ores were confiscated and sold for military purposes of the army of Gen. Villa, the introduction of evidence of his mistreating prisoners, killing women, children, and Chinamen, etc., was prejudicial error.</p> <p>5.' Trial <@=>208 — Instructions—Excluding Evidence from Consideration.</p> <p>The court did not err in charging the jury not to consider the decree of Gen. Carranza confiscating ore, the conversion of which was the subject of the suit, where at such time he and Gen. Villa were acting together, and when the ore was converted they • were contending with each other, and the defense claimed they were seized by Villa.</p>

<p>Appeal from District Court, Bowie County; H. F. O’Neal, Judge.</p> <p>Action by B. H. Brown against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Costs <§=^144, 145 — Execution Against Surety on Cost Bond — Action.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2051, the justice court final judgment must expressly recite the liability of the sureties on the bond given for costs, in order to support execution levied on the property of the sureties; otherwise, a distinct action on the bond by the officers is the proper remedy.</p> <p>2. Execution <®=»171(1) — Relief Against— Injun otion.</p> <p>In a suit for conversion in unlawfully seizing property on an execution, to support which there is no judgment, a writ of injunction may issue to prevent the sale of the property prior to final determination.</p> <p>3. Courts <&^>121(3) —Jurisdiction—Texas— District Couet.</p> <p>The district court is without jurisdiction of an action for conversion, based on seizure of property valued at $175 under an invalid execution, for exemplary damages in sum of $50, and for an injunction restraining sale; the amount involved being within the exclusive jui-isdiction of the county court.</p>

<p>Appeal from Tom Green County Court; Oscar Frink, Judge.</p> <p>Suit by Fred L. Stephens against J. R. Miller. Verdict and judgment for defendant, and plaintiff appeals.</p>

<p>1. Taxation <@=3549(1) — Tax Collector — Fees—“Record.”</p> <p>The word “record,” as used in Acts 34th Leg. c. 147, fixing the compensation of the tax collector for preparing a delinquent tax record at “five cents each and every line of yearly delinquency entered on such delinquent record,” is not synonymous with “book,” “volume,” or “copy,” and the collector is not entitled to double the fee where he copied the compiled matter into a duplicate book.</p> <p>[Ed. Note.—Eor other definitions, see Words and Phrases, First and Second Series, Record.]</p> <p>2. Evidence <@=>387(10) —Parol Evidence — Contracting Oeeicial Records.</p> <p>In view of Rev. St. 1911, art. 2276, where tax collector sues county for fees for preparation of a delinquent tax record, under an order of the commissioners’ court, parol evidence that the order did not correctly describe the contract is inadmissible, as contradicting the record.</p>

<p>Appeal from Harrison County Court; W. H. Strength, Judge. '</p> <p>Action by H. D. Bausley against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Hopkins County Court; T. J. Tucker, Judge.</p> <p>Action by L. E. Gee against J. S. Dewberry. From a judgment for plaintiff, defendant appeals.</p>