Volume 204 — South Western Reporter

<p>Appeal from District Court, Austin County; M. C. Jeffrey, Judge. .</p> <p>Pearly Gillum was convicted of assault to murder, and appeals.</p>

<p>1. Judgment <®=>256(2) — Special Findings— Inconsistence,.</p> <p>Where the special issues submitted, together with the answers of the jury thereto, authorize a verdict for either party, such verdict is too contradictory to be the basis of a judgment.</p> <p>2. Trial <S=^350(2) — Special Issues — Intermingling of Issues — Confusing Jury.</p> <p>In view of Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a, requiring special issues to be submitted distinctly and separately and without being intermingled, so that each may be answered separately, the trial court should submit questions upon controlling issues only and should avoid propounding questions calling simply for finding of an evidentiary fact, since the propounding of many questions is likely to confuse the jury.</p> <p>3. New Trial ⅞=>44(3) — Grounds—Misconduct of Jury — Consideration of Matters Not in Evidence.</p> <p>In suit to recover money paid for an automobile because not as warranted, where one juryman, after the jury had retired to consider their verdict, said- he had an engine of similar make, detailed his experiences with it, showing great familiarity with automobiles, and stated that, if the car had been defective as charged, it could not have been driven from the distributing point to another place, and his statements caused a majority of jurors, previously of opinion favorable to plaintiff, to render verdict for defendant, new trial should have been granted.</p> <p>4. Sales <⅜^>126(1) — Rescission for Fraud or Breach of Warranty.</p> <p>The right of'rescission of a sale contract for fraud or breach of warranty must be exercised promptly and notice thereof adhered to, and if after knowledge of breach the purchaser continues to deal with the property, he thereby affirms the contract.</p>

<p>Appeal from District Court, Maverick County; Joseph Jones, Judge.</p> <p>Action .by Compañía Hulera de Monclova against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Judgment <®=»460(1) — Vacation — Sufficiency of Petition.</p> <p>In suit to set aside judgment against plaintiffs on a note for $2,000'and foreclosing of deed of trust, and to rocover statutory penalties for collecting usurious interest, petition setting up an agreement by defendant’s attorney to extend the time of payment of the note, plaintiffs’ reliance on the statements, etc., and defendant’s having taken judgment against them before the cause of action was due, notwithstanding his attorney’s assurance as to the extension, held to state a cause of action.</p> <p>2. Judgment <§=^427 — Vacation.</p> <p>If defendant’s attorney told plaintiff to go about his business, that defendant’s suit on a note would be dismissed, and no judgment taken, and if plaintiffs relied on this statement, and left the county, but, notwithstanding such assurances, defendant, without notice, 'regular trial, and without jury as demanded, took judgment in May before the cause of action was due in October, plaintiffs could vacate such judgment in equity.</p> <p>3. Courts <§=^90(7) — Law of Case — Holding of Other Court of Civil Appeals.</p> <p>A holding of a Court of Civil Appeals that a judgment was not a final decree, unappealed from, is controlling in another Court of Civil Appeals on the lack of finality of such judgment.</p>

<p>Appeal from Distriot Cburt, Tom Gregn County; Jas. Cornell, Special Judge.</p> <p>Suit by H. A. Wootton and Grace E. Wootton against W. O. Jones. Erom judgment sustaining general demurrer to a portion of the petition, plaintiffs appeal.</p>

H. Strength, Judge. Action by Walter Verhalen against the Western Union Telegraph Company for failure to transmit a message. From a judgment for plaintiff, defendant appeals. The appellee, who is engaged in buying and selling fruit, obtained an option, commencing May 18th and ending May 19th, to purchase J. W. Ogburn’s matured peach crop at 75 cents a bushel f. o. b. cars at Ogburn, Tex.

N. Denton, Judge. Suit by Mrs. Pearl Stone Dunken, admin-istratrix of the estate of W. J. Dunken, deceased, against the iEtna Bife Insurance Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from District Court, Dallas County ; Kenneth Foree, Judge.</p> <p>Action by L. A. Goforth against Q. D. Cor-ley, County Judge, and others. From an adverse judgment plaintiff appeals.</p>

Prince, Judge. Suit by R. B. Mallard against Blattie Day. and others. From a judgment adverse to him as against defendants 'Day, plaintiff appeals. This was a suit by appellant against the appellees Mattie Day, Willie Day, Maddox Day, Jean Day, Tommie Day, Will W. Day, Cecil Cook, and Boil Miller, and Ms wife, Gabriella Miller.

<p>Error to Ooke County Court; D. I. Durham, Judge.</p> <p>Suit by the Indiana Silo Company of Texas against G. W. Dark. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Trial <©=>48 — Receiving Evidence Inadmissible as to Coparty.</p> <p>A deed will be admitted in evidence, where it is admissible against one of the defendants, although it may be inadmissible as to another defendant.</p> <p>2. Landlord and Tenant <®=»330(1) — Landlord’s Lien — Failure to Record.</p> <p>A contract giving landlord as rent a share of the crops grown by tenant on the rented farm need not be recorded to give third persons notice of landlord’s interest therein; a landlord’s lien being created by statute.</p> <p>3. Landlord and Tenant <©=>332 — Landlord’s Lien — Crops—Purchaser—Burden oe Pro or.</p> <p>In action by landlord against purchaser of crops on which he has a landlord’s lien, purchaser has burden of proving himself to be innocent purchaser. *</p> <p>4. Chattel Mortgages <©=>138(3) — Crops — Priority — Landlord’s Liens.</p> <p>Where chattel mortgage is executed upon future crops, and mortgagor subsequently sold land, remaining in possession as tenant under agreement to give landlord a share of the crops as rent, the landlord’s lien for rent is prior to mortgagee’s lien; the mortgage becoming effective upon growing of crop, but only as to mortgagor’s interest therein.</p>

<p>1. Trial @=>350(8) — Special Interrogatories — Necessity of Request — Admitted Pacts.</p> <p>Where both parties to an action admit that ’certain goods were sold at an agreed price, court's refusal to submit special issue as to whether such goods were sold at an agreed price is not error.</p> <p>2. Trial @=>351(5) — Special Interrogato-bies — Questions Already Submitted.</p> <p>Refusal of court to submit a special issue involving a question covered by a special issue submitted was not error.</p> <p>3. Trial @=>350(4) — Special Interrogatories — Form of.</p> <p>Refusal to submit special issue, “was there a difference in defendant’s favor between the scale and compress weights,” was not error; such issue submitting question of law and improperly presenting question of whether compress weights were to govern instead of scale weights.</p> <p>4. Appeal and Error @==>930(3) — Presumption — Judgment—Findings.</p> <p>Under Rev. St. 1911, art. 1985, providing that failure to submit issue is not reversible error unless requested, where court does not submit special issue as to a question on which the evidence is conflicting, it will be presumed to have made a finding on such question in support of the judgment.</p>

A. Ward, Judge. Suit by J. Ben Wilson against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals. The appellee’s residence and the effects therein were destroyed by fire occurring near 1 o’clock a. m. The house was situated on a hill about 25 feet higher than and 440 feet north of appellant’s railway track running in a general southerly direction.

Calhoun, Judge. Suit by. Yeronika Ozbolt and others against the Lumbermen’s Idemnity Exchange, From an order changing the venue, plaintiffs appeal. On motion to dismiss appeal. E. C. Gaines, of Austin, for the motion.

<p>Appeal from District Court, McLennan County; E. J. Clark, Judge.</p> <p>. Action by Noah Pemberton against the San Antonio & Aransas Pass Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Coryell County Court; H. E. Bell, Judge.</p> <p>Action by W. E. Rice against J. M. Britain. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Nacogdoches County Court; J. F. Perritte, Judge.</p> <p>Didie Ramos was convicted of violating the local option law, and he appeals.</p>

<p>Attoeney and Client <£xol26(l) — Failure to Pay ovee Money — Motion eoe Judgment.</p> <p>A company which guaranteed that a lawyer would promptly turn over to the party entitled to receive them any moneys which he might recover and receive, on account of the lawyer’s failure to pay over a collection to the collecting agency which placed the account in his hands or to the owner of the account, whereby it was cast in judgment on its guaranty, was not entitled to invoke against the lawyer Vernon’s Sayles’ Ann. Civ. St. 1914, art. 332, providing that each attorney who receives money for his client and refuses to pay it over on demand may be proceeded against by motion of the party injured or his attorney, since payment by the guarantor of the debt of his principal does not operate as an equitable assignment to the guarantor by the creditor of the debt and all its incidents, but in Texas an implied promise is raised by law on the part of the principal to reimburse the guarantor the sum he was bound to pay to satisfy the debt.</p>

<p>1.Guaranty <§=27 — Contract — Construction.</p> <p>The rule that a guaranty of another’s account is to be strictly construed means merely that the liability of the guarantors is not to be enlarged or extended beyond the terms of their contract, and the rule itself is not to be applied until the legal effect and scope of the undertaking has been determined, a matter which must be ascertained as in any other case of contract.</p> <p>2. Guaranty <®=27 — Contract — Construction.</p> <p>The true rule as to the construction of a guaranty is to give the instrument the effect which will accord best with the intention of the parties, as manifested by the terms of the guaranty, taken in connection with the subject-matter to which it relates.</p> <p>3. Guaranty <§=36 (2) — Reincorporation — Intention.</p> <p>Where a mercantile company was incorporated for 10 years, and large stockholders in it guarantied payment of its accounts, the guaranty to continue until revoked by the guarantors, and, at the expiration of the 10 years, a new company was chartered, taking over the assets of the old, the guaranty cannot be limited, without regard to the intention of the parties, to the debts of the old company, though the old company was authorized to do business in two cities, while the new company's charter authorized it to transact business only in one of the two, and though the purpose clause of the old company’s charter was limited to retail business, while" the new company was given the privilege to do both wholesale and retail business.</p> <p>4. Guaranty <§=92(1) — Intention oe Parties —Question oe Fact.</p> <p>In an action on a guaranty of the accounts of a mercantile corporation, the intention of the parties as to whether the guaranty should continue as to the accounts of a new corporation which took over the assets and business of the first was a question of fact.</p> <p>5. Guaranty <§=90 — Action—Evidence—Intention.</p> <p>In an action against stockholders in two mercantile companies, the second of which succeeded and took over the assets of the first, incorporated for 10 years, on their guaranty of the accounts of the first company, though not pleaded or relied on as a basis for plaintiff’s cause of action, testimony of plaintiff’s vice president and manager as to the refusal of plaintiff to extend the indebtedness unless defendants, the alleged guarantors, would consent to the extension, and letters relating to the indebtedness of the mercantile company after the procuring of the new charter, were admissible as tending to shed light on the intention of the parties as to whether the guaranty should cover the accounts of the new company, the controlling issue, and the practical construction they placed upon the contract.</p>

<p>1. Contracts <⅜=206 — Provision for Attorney’s Ebbs — Accrual of Liability.</p> <p>Where a contract for the payment of money provides for the reasonable attorney’s fees “when incurred,,” such fees are incurred when it becomes necessary to place the claim in the hands of attorneys for collection.</p> <p>2. Mechanics’ Liens <®=>1 — Street Improvements — “Mortgage Lien” — “Mechanic’s Lien’ ’ — “Pledge.’ ’</p> <p>Where a contract for paving, excavating, and guttering a street provided that the contractor was granted a mechanic’s lien on the premises to secure the payment of the contract price, the lien provided for was a “mechanic’s lien,” and not a “mortgage lien,” there being no clause of conveyance in the contract, a mortgage and a mechanic’s lien being different, a mortgage being created by contract, while a mechanic’s lien is created by law, although arising out of contract, nor was the contract a “pledge-of land,” since “pledge” applies to personalty, and not to land.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Mechanic’s Lien; Mortgage; Pledge.]</p> <p>3. Boundaries <§=>20(3) — Conveyance of Land Bordering on Highway.</p> <p>While a conveyance by an individual of land bordering• on a public highway in the absence of provisions to the contrary conveys title to the center of the highway if the grantor owned such land, where the state or municipality owns the land and makes a conveyance calling for a highway, the fee to the highway is not conveyed, and the grantee cannot grant a- valid; mechanic’s lien thereon to a contractor to secure payments under a contract for street improvements.</p> <p>4. Homestead <§=>146 — Exemption—“Ecr'Ceb Sale.”</p> <p>A lien in a contract for street improvement to secure payment to the contractor covering a homestead and given by a widow, if construed as a mortgage, is invalid, since Oonst. art. 16, § 50, excepts homesteads from forced sales, and provides that no mortgage, trust deed, or other lien thereon shall be valid except for purchase-money or improvements, there being no power of sale in the contract, and foreclosure of a mortgage by decree of court, and not under a power, being a forced sale within the constitutional provision.</p> <p>[Ed. Note. — For other definitions, see Words- and Phrases, Eirst and Second Series, Forced Sale.]</p> <p>On Motion to Reform Judgment.</p> <p>5. Appeal and Error <§=>1232 — Supersedeas Bond — Prosecution of Appeal “with Effect” — Reversal.</p> <p>An appeal is prosecuted “with effect” within the meaning of a supersedeas bond where it is ' prosecuted successfully, and appellant succeeds in reversing the judgment in a material part, such as the enforcement of the lien in a suit on a contract to pay money, although the entire judgment is not reversed.</p>

<p>1. Carriers <©=>308 — Carriers oe Passengers —Liability oe Intermediate Carriers.</p> <p>The Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595), making all carriers receiving property for transportation in interstate commerce liable for loss or damage to the property, did not apply where a railroad sold ticket to passenger covering three railroad lines and one bus line controlled by such carrier, and the passenger was injured while on the bus line; only the initial carrier was liable, the subsequent carriers being liable only for their own negligent acts.</p> <p>2. Carriers <©=>308 — Injuries to Passengers — Connecting "Carriers — Liability oe Initial Carrier.</p> <p>Whore initial carrier sold passenger ticket on three lines of railroad and on one bus line, and passenger was injured while riding in the bus, the driver of which was employed for such purpose by such carrier, the passenger’s husband had a cause of action against the initial carrier for such injuries.</p>

<p>Corporations <©=3503(2) — Venue—Privilege —Statute—“Cause oe Action.”</p> <p>A suit against a corporation for the breach of a contract for the sale of cotton under a contract, subject to “Galveston class and weights,” on the ground that the drafts attached to the bills of lading and paid by plaintiff exceeded the contract price, was maintainable in Galveston county under Rev. St. 1911, art. 1830, subd. 24, as at least that part of the cause of action arose in that county; “cause of action” comprehending the agreement between the parties, its performance by one, and its breach by the other.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Cause of Action.]</p>

<p>Appeal from Red River County Court;- R. J. Williams, Judge.</p> <p>Action by J. H. Bridges and others against the Paris & Mt. Pleasant Railroad Company. Prom a judgment for plaintiffs, defendant appeals.</p>

R. Warren, Judge. Action by Golden Belt, by next friend, against M. C. Florence. Judgment for plaintiff, and defendant appeals. In July, 1916, appellee, then 15 years of age suffered injury to his person as a result of the falling of a log upon him while he was working in a sand pit assisting other employes of appellant in removing sand therefrom and loading same on railway cars.

<p>Appeal from District Court, McCulloch County; J. O. Woodward, Judge.</p> <p>Suit by M. C. Dutton against the Gulf, Colorado & Santa Fe Railway Company and another. From judgment for defendants, plaintiff appeals.</p>

<p>1. Trial @=>260(1) — Instructions—Repetition.</p> <p>Refusal of requested instructions sufficiently covered by the main charge is not error.</p> <p>2. Appeal and Error @=>219(2) — Scope op Review.</p> <p>The court’s refusal to make certain special findings of fact should have been raised by request for special charges to be given to the jury,</p> <p>3. Appeal and Error @=>1170(1) — Harmless Error.</p> <p>Where the only errors disclosed are technical, the judgment will not be reversed, in view of rule 62a (149 S. W. x).</p>

Error from District Court, Dallas County; E. B. Muse, Judge. Suit by the Hardy Buggy Company against Pinckard & Sanders and others for foreclosure of a, mortgage, in which Blair & Hughes, a corporation, intervened, asking foreclosure of a mortgage prior to plaintiff’s, judgment for intervener, and plaintiff brings error, and intervener moves to dismiss the writ of error.

A. Ward, Judge. Action by Susan Aldredge against Tom Aldredge and others, in which Douglass Jones joined as plaintiff. Judgment for plaintiff Aldredge in part, and defendant Aldredge appeals. The appellee Susan Aldredge brought the action in trepass to try title to 100 acres of land. Afterwards Douglass Jones joined in the suit as a party plaintiff, claiming under a will a one-twelfth undivided interest in the land.

<p>Appeal from District Court, Bell County;. F. M. Spann, Judge.</p> <p>Petition for injunction by W. W. Littlefield against J. A. 1-Iam. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Suit by E. G. Fergin against S. B. Price. Plaintiff sued out a writ of garnishment against Chas. Vincent, and the defendant impleaded the garnishee, whereupon plaintiff filed a plea in the main suit against the garnishee. Judgment for plaintiff against the defendant Price and against the defendant Vincent as the trustee for the' creditors of Price, and, from that part of judgment discharging the garnishee, plaintiff appeals.</p>

Error from Lamar County Court; Tom L. Beauchamp, Judge. Petition iri the county court by J. M. Brown and others for certiorari to review a judgment of a justice of the peace in the case of F. P. Green against J. M. Brown and others. From a judgment dismissing the petition, the petitioners bring error.

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Suit by the Farmers’ National Bank against E. S. Crumley and others to revive a judgment. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Trial <§=>194(1), 240 — Instructions—Refusal ox Instructions.</p> <p>Instructions which are argumentative and in violation of the statute prohibiting comment on the weight of the evidence are properly refused.</p> <p>2. Trial <§=>229 — Requested Instructions— Repetition.</p> <p>Where the pleadings charged that an arbitrator had acted fraudulently, it was not error for the court to instruct, in response to a question by the jury as to whether or not the arbitrator’s decision, would be binding if he was interested or partial, that a decision by the arbitrator would be binding unless he acted fraudulently and in bad faith, although substantially a repetition of what had been stated in the main charge; the instruction following issues presented by the pleadings.</p> <p>3. Trial <§~=251(1) — Instructions—Issues.</p> <p>Instructions relating to issues not presented by the pleadings are properly refused.</p> <p>4. Appeal and Error <§=>1064(1) — Review-Instructions.</p> <p>Giving an instruction which has the effect of withdrawing an issue not raised by the testimony is not cause for reversal.</p>

<p>Appeal, from District Court, Camp County; J. A. Ward, Judge.</p> <p>Action by E. A. King against G. C. Hopkins and others. Judgment for plaintiff in part, and defendant Hopkins appeals.</p>

<p>1. Chattel Mortgages <⅞=>138(3) — Priority.</p> <p>A chattel mortgage executed and filed before the making of a lease contract is a prior lien over one contained in the lease contract.</p> <p>2. Chattel Mortgages <§=>86 — Filing — Reasonable Time.</p> <p>Where a chattel mortgage was executed in the afternoon and filed at 9 o’clock the next morning, a finding that it was filed within a reasonable time was justified.</p> <p>3. Appeal and Error <@=>181 — Matters Reviewable — Waiving Objections.</p> <p>An assignment of error as to a matter to which no complaint was made in the trial court cannot be considered.</p>

<p>Appeal from Navarro County Court; H. E. Traylor, Judge.</p> <p>Suit by G. E. Green and another against the Denton Milling Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, McLennan County; Geo. N. Denton, Judge.</p> <p>Suit by Gertie Bonine and others against S. S. Fleming and another. Judgment for plaintiffs, and defendants.appeal.</p>

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Action by Naiden P. Lumparoff and others against the Texas Portland Cement Company. Judgment on verdict for plaintiffs, and defendant appeals. The appeal was dismissed, and defendant brought error.</p>

<p>1. Insurance @=>229(4) — Fire Insurance — Cancellation — Agency.</p> <p>Where an owner of property had instructed an insurance agent “to take his insurance and keep it up for him,” and the agent, after writing the policy which the company directed to be canceled, ar-ranged with another insurance company for insurance to take effect after the cancellation, the agent was the agent of the owner for the purpose of acquiescing in the cancellation, notwithstanding that a five-day notice thereof was not given as required by the policy. 2. Insurance @==>112 — Acts of Agent — Ratification.</p> <p>Where an agent of an insurance company who had been instructed to keep up the insurance on certain property canceled the policy under instructions from the company, and delivered to insured a policy in another company, and the property was destroyed by fire, that ratification of such new policy by the insurance company did not occur until after the fire did not prevent the ratification from being binding on the insurer.</p>

<p>1. Damages <S=5l01, 191 — Personal Injury-Items oe Expense — Reasonableness.</p> <p>While the plaintiff may recover for necessary items of expense consequent upon personal injury from defendants wrongful conduct, it must be shown that the amount claimed for such expenses or the amount recovered is a reasonable amount, and defendant is not necessarily liable for the amount plaintiff has agreed to pay, and the fact that plaintiff has paid an item of expense does not show that it was reasonable.</p> <p>2. Damages ®^163(1) — Personal Injury — Reasonableness — Burden oe Prooe.</p> <p>In such case, the burden rests upon the plaintiff to furnish testimony which would justify the jury in finding that the amounts allowed by them are fair and reasonable.</p> <p>3. Trial <S=203(3) — Instructions — Theory oe Case.</p> <p>The refusal of reguested instructions properly framed, and which, if given, would have submitted defendant’s theory more fully and clearly than did the charge of the court, was error.</p>

<p>1. Libel and Slandeb ⅛=»85, 86(2) — Libel-Pleading.</p> <p>In an action against credit company for libel for placing plaintiff’s name in a list of debtors, it was necessary to set out the words in the list which were regarded as libelous, with such innuendoes as were necessary to show they were so.</p> <p>2. Libel and Slandeb <S=>101(3) — Libel — Publication.</p> <p>In action against credit company for libel in placing plaintiff’s name in a list of debtors, it was necessary to prove the publication of words in the list regarded as libelous.</p>

<p>Appeal from District Court, Camp County; J. A. Ward, Judge.</p> <p>Suit by H. L. Sewell against Alice Walton and others. From a judgment for defendants, dismissing the case on demurrer, plaintiff appeals.</p> <p>The suit was commenced by a petition filed September 1, 1917. Appellant was the plaintiff, and appellees, Alice Walton, her husband, Cline Walton, and C. G. Engledow, were the defendants. Appellant’s original petition contained allegations as follows :•</p> <p>(1) That said appellant on December 22, 1903, sold and by a deed of that date conveyed 100 acres of land, particularly described, to appelldb Alice Walton, the consideration being her five promissory notes of that date, for $110 and interest each, payable October 1, 1907, 1908, 1909, 1910, and 1911, and secured by a vendor’s lien expressly retained on said land.</p> <p>(2) That said Alice Walton afterwards paid the one of said notes which first matured.</p> <p>(3)' That on September 23, 1913, the other four notes were unpaid; that on that day Alice Wlalton, “who in the meantime had intermarried with one Cline Walton, came to plaintiff and represented that she and her said husband, Cline, were separated and were living separate and apart; that she did not wish him to have, and refused to allow him to have, anything to do with her affairs; that she was not then able to pay the balance” of the purchase price and interest, to wit, $792, due on the land; and that she then executed and delivered to appellant her note for said sum of $792 and interest, payable October 1, 1&3, in lieu of said four unpaid notes.</p> <p>(4) That on October 12, 1914, said Alice Walton and appellant “entered into an agreement for the extension, and extending, the said vendor’s lien which was retained in said original four notes, as well as in said note for $792 given -in renewal of said four notes as aforesaid, and extending further the time of payment of the money represented by said notes to the 1st day of October in the year 1915.”</p> <p>(5) That although said four notes for $110 each, and said note for $792 made in lieu of same, had long been due, said Alice Walton, though often requested to do so, had not paid same or any part of same.</p> <p>(G) That said agreement extending the time for the payment of said debt was in writing, signed by both appellant and said Alice Walton, “and duly acknowledged as required by law,” and was “duly recorded in the proper records of Camp county.”</p> <p>The prayer was for a rescission of the contract whereby appellant sold the land to Alice Walton, and a decree devesting title out of her and the other appellees, and vesting same in appellant, or, in the alternative, for judgment for the amount — principal, interest, and ' attorney’s fees — of the debt evidenced by the notes, and foreclosing the vendor’s lien retained to secure the payment of the notes.</p> <p>Demurrers challenging the sufficiency of the petition having been sustained, and appellant having refused to amend same, his suit was dismissed. Thereupon he prosecuted this appeal.</p> <p>The demurrers sustained were: (1) To the part of the petition charging that Alice Walton executed the renewal note for $792, because it appeared she was then a married woman and that her husband did not join her in the execution of the note. (2) To all that part of the petition charging that Alice Walton made the agre&nent of Octob%r 12, 1914, for an extension to October 1, 1915, of the time of payment of the indebtedness evidenced by the notes, because it did not appear that her husband joined her in the execution of said agreement, and “no facts were alleged which, if true, would have authorized her to execute said 'contract of extension without being joined therein by her husband.” (3) To the entire petition, because it appeared that appellant’s cause of action was barred by the statute of limitations. Articles 5694, 5695, Vernon’s Statutes. This was on the theory that Alice Walton was not bound by the renewal note of September 23, 1913, for $792, nor the agreement to extend the time of payment of the indebtedness to October 1, 1915.</p>

Error from District Court, Jim Wells County; V. W. Taylor, Judgfe. Action by Celso Arispe and another against Porrest Clark and another. Judgment for defendants, and plaintiffs bring error. .

<p>Appeal from District Court, Henderson County; John S. Prince, Judge.</p> <p>Suit by L. B. Manning and others against the Spikes-Nash Company and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1.Master and Servant @=389 — Workmen’s Compensation Act — Subrogation op Insurer-Statute.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246qq, the subrogation clause of the workmen’s compensation statute (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz) by its expressed terms not applying to independent or subcontractors on any contract which is merely auxiliary and incidental to, and is not a part of or process in, the trade or business carried on by the subscriber, did not entitle a workman’s compensation insurer which paid an award to recover over on any theory of subrogation against the elevator company which was responsible for the accident, which consisted in the death of a painter employed by a subcontractor with a building contractor who was remodeling and repairing the building used by a mercantile company ; such mercantile company and the contractor being the insured parties.</p> <p>2. Pleading @=34(3) — General Demurrer-Intendments.</p> <p>As against a general demurrer, every reasonable intendment should be indulged in favor of the sufficiency of the petition.</p> <p>3. Master and Servant @=389 — Workmen’s Compensation Act — Subrogation.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art, 5246qq, only gives the right of subrogation when a cause of action for an injury to an employe-caused by a third person has vested in the injured employé.</p> <p>4. Statutes @=176 — Construction.</p> <p>The courts are not authorized to extend the scope and application of a statute merely because there is apparently no reason why the right given in one case should not have been given in other cases.</p> <p>5. Master and Servant @=388 — Workmen’s Compensation Act — Cause op Action op Beneficiarles.</p> <p>Under the workmen’s compensation statute the amount which the relátives of an employé who loses his life in the course of his employment are entitled to receive does not come to them by inheritance from the deceased, nor does it become a part of his estate, and the only cause of action which the relatives have is given by the statute, and vests originally in the beneficiaries named in the statute.</p> <p>6. Master and Servant @=>389 — 'Workmen’s Compensation Act — Insurer’s Right op Subrogation.</p> <p>An elevator company which caused the death of an employé of a subcontractor painting the store building of a merchandise company, which gave the work of remodeling and repairing the building to an independent contractor, not having become liable to the deceased employé for any sum under the workmen’s compensation statute, no right of subrogation against the elevator company is given by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246qq, to the insurer of the merchandise company and the independent contractor, which paid an award for the death.</p> <p>7. Master and Servant @=389 — Workmen’s Compensation Act — Subrogation op Insurer.</p> <p>The right of equitable subrogation exists in favor of a fire insurance company which has paid for loss occasioned by the negligence of third persons, but no such right exists in favor of a workmen’s compensation insurer, despite the fact that premiums for such insurance are not paid directly by the employés.</p>

Suit for divorce by Susan Skeen against W. E. Skeen, plea in abatement being sustained and divorce denied, wherein during the proceedings written agreement was made by the attorneys providing for division of the community property. On motion by J. E. Skeen, as next friend of Susan Skeen, she being insane, to enforce the agreement for division of property after judgment refusing divorce. Prom judgment denying the motion, movant appeals.

<p>Appeal from Delta County Court; T. E. McMillan, Judge.</p> <p>Suit by J. O. Hargrove against P. E. Chapman. Judgment for plaintiff, and defendant appeals.</p>

O'. Beard, Judge. Suit by T. E. Hodnett against the Texas & Pacific Railway Company. From judgment for plaintiff on verdict assessing damages at $10,500, from which was deducted one-half on account of contributory negligence, plaintiff appeals.

<p>Appeal and Error <&wkey;1175(l) — Reversal— Rendering Judgment — Construction.</p> <p>Where on reversal judgment was rendered in trespass to try title giving defendant right to writ of possession provided plaintiff did not make certain payment into court within 12 months, and on default defendant to make a payment within 6 months after expiration of such 12 months, and retain possession, the time within which payment could be made did not start running, where writ of error was asked for, until application therefor had been passed on.</p>

B. Lytal, Judge. Suit by the Texas Produce Company against T. N. Coleman, executor. Judgment for plaintiff, and defendant appeals. The appellee brought the suit against appellant in his capacity as independent executor of the estate of Susan C. Whitteridge, deceased.

<p>Appeal from District Court, Nolan County; C. E. Dubois, Judge.</p> <p>Suit by Paul B. Sorenson against J. A. J. Bradford. Judgment for plaintiff, and defendant appeals.</p>

Picton, Jr., Judge. Action by A. S. Lewis against W. G. Taylor and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded. On motion for rehearing.

<p>1. Criminal Law <⅞^595 (2) — Continuance— Absent Witness — Immaterial Evidence.</p> <p>Refusal of continuance in prosecution for larceny for absence of witness is not error; his promised testimony being immaterial.</p> <p>2. Criminal Law <¾=>950'(5) — New Trial — Absent Witness — Motion—Affidavit.</p> <p>To motion for new trial for refusal of continuance for absence of witness should be attached her affidavit that she would have testified as alleged.</p> <p>3. Criminal Law <⅜^>409 — Evidence—Statements of Accused — Time oe Making.</p> <p>Statements of defendant to arresting officer are properly admitted over defendant’s mere objection that they were made after his arrest; the officer testifying they .were made before he had stated he intended to arrest.</p>

<p>Appeal and Eeeoe <®=>781(2) — Right to Remedy — Showing on Appeal.</p> <p>Where a complainant sought injunction to restrain interference with the construction of a canal, and defendant sought injunction to restrain construction of the canal, but admitted on appeal that the canal had been constructed, the appeal would be dismissed; the only matter left for litigation being the question of costs.</p>

<p>Appeal from District Court, Burleson County ; R. J. Alexander, Judge.</p> <p>Action by S. B. Bluitt against the/ Gulf, Colorado & Santa Eé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Highways <⅞=>7(1) — Railroad Rights op Way — Prescription.</p> <p>Where roadway on railroad right of way outside the poles carrying telegraph wires was used generally by the public for hauling and travel for more than 20 years to the knowledge of the railroad, and was worked by the citizens, there was. a public road by prescription.</p>

<p>1. Carriers <§=>230(4) — Injuries to Cattle— Contributory Negligence — Evidence.</p> <p>In action for injuries to cattle in shipment, testimony of plaintiff’s agent that the cars were not properly bedded, and that he knew that cattle could not properly be shipped in unbedded cars for any distance, did not show contributory negligence as a matter of law, in the absence of evidence as to the .distance the cattle were shipped.</p> <p>2. Railroads <§=265 — Receivers—Injury to Live Stock Shipped.</p> <p>To make a railway corporation liable for injuries to properties of a shipper while the railway was in the hands of and being operated by a receiver appointed by a federal court, it must be shown that the receivership has terminated and the railway returned to the corporation with such liability imposed upon it 'by the decree of the court as a condition to receive it, or that the revenues received by the receiver were expended by him in betterments.</p>

<p>1. Municipal Corporations <@==>164 — Reduction oe Salary — Statute.</p> <p>Rev. St. 1911, art. 816, applying to the salaries of officers of a city incorporated under the provisions of the title, provides that the salaries of officers appointed by the city council on or before the 1st day of January next preceding every election shall be fixed by the council, and that the compensation so established shall not be changed during the term. Article 784 provides that the city attorney shall be elected by the qualified electors and hold office for two years, etc. The city adopted a commission form of government, the charter providing that the present city attorney should hold office and enjoy emoluments thereof until the first Tuesday in April, 1916. By an ordinance passed on May 26, 1913, a salary of $100 per month was appropriated for the city attorney. Held, that such ordinance established his salary, that under the new charter he was entitled to enjoy it, and that it could not be reduced before expiration of his term in April, '1916.</p> <p>2. Municipal Corporations <@=>122(2) — Officers — Salaries.</p> <p>Where ordinance appropriated money “until further commanded by order of the city council” to pay city attorney’s salary, it must be presumed that the appropriation was made within Rev. St. 1911, art. 816, and was intended to provide for payment of officers to be elected in the following year.</p>

O. Beard, Judge. Action by Dave Beatty against the Waterman Lumber Company. Judgment for plaintiff, and defendant appeals. The action is for damages for personal injuries. The negligence alleged is in employing an inexperienced youth under 15 years of age to do and perform the work of a railway brakeman, and to do and perform the work required of the plaintiff, and in not warning him of the danger incident to the work.

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Action by J. A. Harris against Dr. W. S. Hamilton. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Fraud <§=>42, 46 — Pleading- — SUFFICIENCY.</p> <p>In an action on notes given for price of land, cross-hill, alleging that the notes were given in payment-for land on condition and under representations of plaintiff that the land would be irrigated adequately, and that the irrigation was not adequate, and further setting up the measure of damages, was demurrable for failure to allege that defendants were induced to enter the contract by the misrepresentations or to allege that plaintiff did not intend to irrigate.</p> <p>2. Fraud <§=>12 — Promises of Future Performance.</p> <p>Promises to perform an act in the future will not generally constitute fraud, although the propelling inducement to the execution of a contract, unless the promisor, when making the promise, intended not to perform it, and made it to defraud and deceive.</p> <p>8. Fraud <§=>59(3) — Damages—Measure.</p> <p>The measure of damages for fraud in misrepresenting lands sold is the difference between the contract price and the actual value at the time of contracting.</p> <p>4. Frauds, Statute of <§=>44(1) — Parol Promise.</p> <p>A parol promise of the vendor to have the land irrigated, which could not have been performed within one year, was in violation of the statute of frauds (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3965).</p>

R. Warren, Judge. Suit by Mrs. Lillie Leath against Wood County. Judgment for plaintiff, and the defendant appeals. The suit was by appellee to reqover of appellant $2,525 which she claimed to be entitled to as commissions on moneys received and paid out by her as county treasurer. The trial was to the court without a jury. The appeal is from a judgment in appellee’s favor for $1,490.60.

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Action by the Texas Auto Supply Company against the Gulf Refining Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County; T. M. Kennerly, Special Judge.</p> <p>Action by J. H. McParlane and others against the Gulf Production Company for injunction. Judgment for defendant, and plaintiffs appeal.</p>

<p>1. Trial <®=>125(5) — Argument op Counsel.</p> <p>It was ’ highly improper, in mortgage foreclosure suit, for defendant’s .counsel to argue that the matter was of little importance to the bank, as plaintiff, but of great importance to defendant, who was a poor widow, having no other property, and that, if the jury did not want the bank to have the property, it should answer a special issue in the affirmative, both because such argument played on the passion and prejudice of the jury, and indicated to the jury the effect of its answers on the special issue.</p> <p>2. Evidence <®=o471(29) — Opinion — Construction op Chattel Mortgage.</p> <p>In suit to foreclose trust deed, where defendant set up homestead, and the sole issue was whether the land was part of a rural homestead, testimony concerning defendant’s understanding of a chattel mortgage should have been excluded as irrelevant.</p> <p>3. Homestead <§=^81i — Establishment—Good Title.</p> <p>Mere fact that mortgagor had not acquired good title to a tract upon which he actually resided did not affect his residence, for the purpose of establishing homestead.</p> <p>4. Homestead <⅜=>13 — Urban and Rural Homestead.</p> <p>One person cannot have an urban and a rural homestead at the same time.</p> <p>5. Homestead ⅞»70 — Rural Homestead — Extent — Detached Tracts.</p> <p>The mortgagor is entitled to claim three detached rural tracts as a homestead, if their total acreage is less than 200 acres.</p>

Masterson, Judge. Suit by Mrs. Love Blair and husband against B. C. Armstrong and others. Judgment by default against defendant Armstrong, and for other defendants upon a directed verdict, and plaintiffs appeal.

<p>Insurance @=>451(1) — Accident Insurance —Exemptions—Cerebrau Hemorrhage.</p> <p>Under an accident policy covering bodily injuries through external, violent, or accidental means, and exempting the insurer from liability for disability caused by cerebral hemorrhage, though caused by accidental means, where insured accidentally fell, striking his bead and rupturing a blood vessel in his brain, causing cerebral hemorrhage, which caused partial paralysis and a total disability for eight weeks, he could not recover from the insurer though the accident was the proximate cause of disability.</p>

<p>Appeal from District Court, Cherokee County; L. D. Guinn, Judge.</p> <p>Action by D. J. Johnston against E. B. Johnston. From judgment for plaintiff, defendant appeals.</p>

G. Tayloe, Judge. Action by the Aaron Frank. Clothing Company against J. L. Deegan and wife and another. Judgment on directed verdict for defendants, and plaintiff appeals.

R. Warren, Judge. Suit by the City of Tyler against Ben B. Cain. Bh-om judgment of dismissal, plaintiff appeals. Appellant was the plaintiff in the court below. Demurrers to the petition having been sustained, and appellant having refused to amend same, the suit was dismissed. The appeal is from the judgment of dismissal. The petition is too long to set out here.

L. Reaves, Judge. Suit by J. C. Stinson against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. As made by bis pleadings, appellee’s suit was for $250 damages be claims be bad suffered because of injury to 158 bead of cattle owned by bim and delivered by bim to appellant at Texarkana, Tex., on the afternoon of January 12, 1917, for transportation to Mt. Vernon, Tex.

P. Dohoney, Jr., Judge. Suit by Eldridge Carter & Son against the Texas & Pacific Railway Company. From judgment for plaintiffs, defendant appeals.

<p>Appeal from District Court, Dallas County; Kenneth Eoree, Judge.</p> <p>Suit by the Eidt-Summerfield Company against R. P. Hull and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.</p> <p>Action by T. E. Daniels against the Beaumont, Sour Lake & Western Railway Company. Judgment for plaintiff, and defendant appeals.</p>

County; J. R. Warren, Judge. Suit by B. I. Castle and others against Elisha Campbell. Judgment for plaintiffs, and the defendant appeals. Appellees, ail of whom were heirs and some of whom were also assignees of heirs of J. M. Castle, who died in 1893, were the plaintiffs in the court below, and appellant was the defendant. The suit was commenced January 25, 1917. It was to try the title to and the right to possession of a tract of land in Smith county.

Muse, Judge. Proceeding by P. P. Martinez commenced by suing out a distress warrant before a justice of the peace -against the John Church Company of Texas, for an indebtedness for rents, which warrant was levied on certain personal property situated in the building and returned to the district court, whereupon the John Church Company filed a claimant’s oath and bond and took possession of such property, and plaintiff filed his petition in the district court against the John…

M. Spann, Judge. Action by Fred Kriegel against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals. Motion to strike out statement of facts and to dismiss the appeal. Motion to strike out the statement of facts sustained. Motion to dismiss the appeal overruled.

<p>Appeal from Orange County Court; D. O. Bland, Judge.</p> <p>Action by C. W. Wilson against the Texar-kana & Ft. Smith Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>Sales @=379 — Place oe Delivery.</p> <p>Where contract of sale of cotton by farmer to cotton buyers mentioned no place for delivery of the cotton, but specified it was to be delivered f. o. b. cars, the inference was that it was deliverable at the nearest railroad shipping point.</p>

<p>1. Divob.ce @=⅞48 — Grounds — “Condonation.”</p> <p>“Condonation” is the forgiveness of an antecedent matrimonial offense on condition that it shall not be repeated, and that the offending spouse shall thereafter treat the injured party with conjugal kindness.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Condo-nation.]</p> <p>2. Divorce @=o51 — 'Grounds—Condonation.</p> <p>Condonation is not absolute, but is based upon the repentance of the guilty party, and conditioned upon nonrepetition of the offense and future kind treatment; a violation of it in either respect reviving the original offense.</p>

Action by C. E. Holland against Jim Johnson, Sr., Annie Johnson, and Jim Johnson, Jr. From a judgment for plaintiff against defendant Annie Johnson alone, said defendant appeals. The suit is by the appellee on. a promissory note. Jim Johnson, Jr., pleaded his minority as a defense, and Annie Johnson her cover-ture. Jim Johnson, Sr., pleaded non est factum. On March 30, 1914, Annie Johnson and son Jim Johnson, Jr., signed and delivered to the plaintiff the note sued on.

Prince, Judge. Action by H. L. Brown against John W. Searls. From a judgment for plaintiff, defendant appeals. This action is by appellee against the appellant for damages predicated upon alleged fraud and deceit practiced in the exchange of property. The defendant denied any fraud or deceit. The court entered judgment in favor of th'e lflaintiff upon the special findings of the jury. The appellee owned 320 acres of land, which he valued at $26 an; acre.

O. Beard, Judge. Suit by L. Granger, trustee for the St. Joseph’s Catholic Church fund, against F. T. Martin and wife. From a judgment for plaintiff, defendants appeal.

<p>1. CONSTITUTIONAL LAW <&wkey;80 (3)—DELEGA-TION of Judicial Powers—Judgment.</p> <p>Rev. St. 1911, § 7107, authorizing sheriff to judge of reasonable amount of damage to property if damaged while in possession under re-plevin bond, is void as undertaking to invest the sheriff with judicial power.</p> <p>2. Sequestration <&wkey;20—Damages to Property-Right to Judgment.</p> <p>Where petition in sequestration showed that the property taken by defendant under replevin bond was not surrendered, plaintiff had a valid judgment against the surety for the amount of the debt, but no cause of action to recover for loss or injury to the property, although the sheriff may have levied upon such property as he could find.</p> <p>3. Sequestration <&wkey;15—Replevin Bond— Effect.</p> <p>The giving of replevy bond in sequestration proceedings and the rendition of judgment against the sureties thereon does not pass the title to the property to the defendant, or destroy plaintiff’s right to .subject the same to the payment of his debt.</p> <p>4. Sequestration <&wkey;20—Replevin Bond-Effect.</p> <p>Where in sequestration proceedings the sheriff subjects part of the property covered by the replevin bond to the debt, the sureties on the replevin bond are not thereby released from the remainder of the judgment.</p>

F. O’Neal, Judge. Action by Mrs. Ophelia Hays against T. C. Morris. Judgment for defendant, and plain-' tiff appeals. The suit was by appellant against appellee to try the title to 42 acres of the John Kit-trell survey and for damages. The petition contained only the averments usually made by the plaintiff in a statutory action of trespass to try title.

<p>1. Specific Performance <§=>81 — Unexecut-ed Contracts.</p> <p>If a contract, because material terms were left for future adjustment, was uncompleted, it was in law no contract at all, and could not be specifically enforced.</p> <p>2. Specific Performance <§=>31 — Land Con-XEAC.TS — Material Parts.</p> <p>The rate of interest and time of payment are material parts of contract to convey land, so that, where such items are left to future adjustment, the contract is not completed, so as to be specifically enforced.</p> <p>3. Contracts <§=>47 — Bight to Commission —Making of Contract — Consiberation.</p> <p>The breach of the principal’s oral promise without consideration to the broker to complete a contract whereby broker lost commissions from other contracting party did not entitle the broker to damages.</p> <p>4. Contracts <§=>81 — Bight to Commission-Making of Contract — Consideration.</p> <p>Where broker without principal’s knowledge acted for the other party, her waiver of commission, if the principal would make a certain contract, was no consideration for his promise to make it, since she was not entitled to any commission from the principal.</p> <p>5. Brokers <§=>40 — Bight to Commission — Making of Contract — Consideration.</p> <p>Where the principal, ignorant of fact that broker was acting for other party, refused to complete deal, but on broker’s promise to look to other for commission agreed to make the contract, whatever the broker thereafter did was as the agent for the other, and not for the principal.</p> <p>6. Brokers <§=>45 — Bight to Commission —Making of Contract — Consideration.</p> <p>Where broker was entitled to commission, only when she had found an exchange to which the principal could and did agree, the principal owed her nothing, where she renounced her claim and agreed to look to the other party at a time when no agreement had been reached.</p> <p>7. Specific Performance <§=>17 — Bight to Bemedy — Interest in Contract.</p> <p>A broker has no such interest in a written contract between the principals as would entitle her to specific performance, even assuming that one principal was entitled to that remedy.</p>

<p>Appeal from District Court, Grayson County ; W. M. Peck, Judge.</p> <p>Suit by Dave Fearis against B. F. Gafford, as County Attorney of Grayson County, and others. Decree for defendants, and plaintiff appeals.</p>

<p>Shipping <®=j108 — Space op Shipment — Action — Eight op Recovery.</p> <p>Where steamship owners sued cotton shippers because cotton shipped was not “Webb high density cotton” as agreed, and took up too much room, they could not recover when court found that cotton turned out by Webb high density presses in workmanlike manner, without reference to density, was generally regarded as compliance with contract calling' for such cotton, notwithstanding further finding that such cotton should have specified average minimum density.</p>

<p>1. Mandamus <§=>168(1) — To 'Justice of Peace — Appeal in Fokma Pauperis.</p> <p>The question for the county court on hearing of petition for mandamus to a justice of the peace to allow appeal in forma pauperis is, not whether the justice erred in refusing such appeal on the evidence before him, but whether on the further evidence before the court there is a right thereto.</p> <p>2. Mandamus <§==>27 — 1To Public Officer— Ministerial Duty.</p> <p>1 Mandamus will not issue against a public officer save to compel performance of a ministerial duty, neither involving discretion nor i leaving any alternative.</p> <p>3. Justices oe the Peace <§==>159(2) — Appeal in Fokma Paupebis — Questions on Contest.</p> <p>The question on contest of right, under Vernon's Sayies’ Ann. Civ. St. 1914, art. 2394. to appeal in forma pauperis from a justice of the peace, is of inability to give security for, as well as pay, costs.</p> <p>4. Mandamus <®=>3 (12) — Remedy by Gek-tiorabt.</p> <p>Writs of mandamus will not be issued where there is a clear legal remedy, as by certiorari, by which the statute authorizes a cause to be removed from justice court to the county court.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by R. H. Creekmore against the Texas Mexican Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Contracts <&wkey;116(l) — Legality — Contracts in Restraint of Trade.</p> <p>A contract whose main purpose, considered with circumstances and conditions giving rise to its execution, or whose necessary result was the establishing of a combination or trust, is •unenforceable.</p> <p>2. Contracts &wkey;>141(3) — Legality — Contracts in Restraint of Trade — Evidence.</p> <p>Evidence held to support finding that contract of sale of business and good will with agreement not to re-engage in the> same business in same town while purchaser was in that business therein was not illegal as a combination or trust.</p> <p>S. Good -Will <&wkey;7 — Sale—Bbeach—Meas-ure of Damages.</p> <p>Where defendant sold a business and good will with agreement not to re-engage in such business and broke the contract, buyer could recover profits of which he was thereby deprived upon evidence as to the amount of such profits.</p>

W. Walker, Judge. Action by the Lillard Milling Company against Brooks & Few. Judgment for plaintiff in the justice court, and defendant appealed to county court. From the judgment of the county court giving him insufficient relief, plaintiff appeals.

<p>Appeal from District Court, Dimmit County ; J. F. Mullally, Judge.</p> <p>Action by Z. T. Nesbit against Mary I. Richardson, executrix, and Dittleton V. Richardson, executor, of Asher Richardson, deceased. Judgment for plaintiff and defendants appeal.</p>

<p>Appeal from District Court, Johnson County ; O. L. Lockett, Judge.</p> <p>Action by Geo. W. Drennan against the Gulf, Colorado & Santa FS Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Harris County Court; Murray B. Jones, Judge.</p> <p>Action by I. Gross against the Gulf, Colorado & Santa F'é Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Judgment igr^oS — Former Judgment — Parties — Evidence.</p> <p>In trespass to try title, a decree in a former action, introduced by defendants, without any pleading or testimony to show what land was involved, or what issues were disposed of, held not to identify defendants therein with defendants mentioned in the amended petition in the present suit.</p> <p>2. Judgment <§=>585(1) — Res Judicata — Former Decree.</p> <p>In such case, where there was no evidence that the issues and parties in the former suit and the present suit were the same, the decree in the former was not admissible to prove res judicata, nor outstanding title.</p> <p>3. Evidence <§==>43(3) — Judicial Notice — Pleading and Proof in Former Suit. '</p> <p>In trespass to try title, the court could not take judicial notice of all the facts stated in the pleadings in a former suit and all the facts proven in that cause as presented in the transcript and statement of facts, making the record on appeal of that case to the Court of Civil Appeals.</p>

<p>1. Receivers <@=o71 — Rights—Property.</p> <p>A receiver appointed in partition proceedings becomes invested with the full right to the possession and control of the property.</p> <p>2. Brokers <§=3'54 — Compensation—Ability and Willingness oe Procured Purchaser.</p> <p>A real estate broker is not entitled to commissions until he has procured purchaser ready, able, and willing to purchase upon the terms given by the owner of the land.</p> <p>3. Receivers <®=o135 — Rights oe Owners — Sale oe Land — Terms.</p> <p>Where a receiver is appointed to take possession of and sell certain real estate, the owners of the property have no rights to fix the terms upon which the land is to be sold.</p> <p>4. Brokers <S=>58 — Commissions—Authority —Receivers.</p> <p>Broker cannot recover on contract with owners of property, whereby he was to produce buyer at stipulated price, where he knew that a receiver had'been appointed to sell the land at the time broker’s contract had been entered into; such appointment having terminated owner’s right to stipulate terms of sale;</p>

<p>1. Master and Seevant <®=^192(1) — Relation.</p> <p>Where soldiers, not under the control of defendant, were placed on guard around his power plant in the interest of the general public by the United States military authorities during a warlike situation, to suppress a hostile invasion, which was imminent, and not at defendant’s request, defendant- was not liable to a servant, shot through the negligence of a soldier, al-ihough,- if he were master of the soldiers, he would be liable, .</p> <p>2. Appeal and Eeeoe 1050(2) — Harmless Error — Evidence, .</p> <p>In action against master for injuries occasioned by a soldier guarding defendant’s plant, where it clearly appeared that the soldier was not a servant, testimony relevant only to the question of whether the soldier was negligent, if improperly admitted, was not reversible error.</p>

<p>1. Frauds, Statute of <§=>70 — Paboi Agreement — Change in Known Boundary.</p> <p>A parol agreement between owners of adjacent lands to fix their boundary line at a place other than its known and established location. is in contravention of the statute of frauds, and therefore ineffectual to cliang'e the true location of the line.</p> <p>2. Frauds, Statute of <§=>70 — Parol Agreement-Boundaries.</p> <p>Where adjacent landowners, the boundary between them never having been marked or fixed on the ground by a surveyor, and there being nothing in their deeds whereby the location could be fixed, other than the calls for courses and distances, employed a surveyor to locate the line, and, having no reason to doubt the line a's fixed by him was the true line, accepted it as such, and erected their fences accordingly, their parol agreement establishing boundary was valid, and not within the statute of frauds.</p> <p>3. Frauds, Statute of <§=>70 — Parol Agreement — Boundaries — Discovery of Mistake.</p> <p>A parol agreement fixing boundary line will not be set aside merely because it is subsequently discovered that the agreed line is not the true line.</p> <p>4. Boundaries <§=>42 — Action to Establish —Verdict.</p> <p>In trespass to try title to establish boundary, where the line claimed by plaintiff was definitely described in his petition, general verdict for plaintiff established the line as dcscrib-,ed, and was sufficiently definite to ¡support a judgment establishing the line as claimed.</p> <p>5. Judgment <§=>256(1) — Conformity to Verdict — Action to Establish Boundary.</p> <p>The fact that, in addition to the description of the line given in the petition, the judgment gives the variation at which the line is run, and other data shown by the undisputed evidence identifying the line- described in the peti- . tion, does not make it obnoxious to the rule which requires the' judgment to follow the verdict.</p>

<p>1. COMPROMISE AND SETTLEMENT <⅜=>23(3) — Evidence — Sufficiency.</p> <p>Evidence held insufficient to establish an oral contract of settlement between the parties .by which a pending suit was to be dismissed' and attached cotton taken by defendant at a specified price.</p> <p>2. Appeal and Error ®=»843^^Review-Unnecessary Questions.</p> <p>. It is unnecessary to determine the effect given to the jury’s answer to a special issue concerning agreement by defendant to hold goods in warehouse, where neither such agreement nor claim for breach thereof were pleaded, and the cause must be reversed on other grounds.</p>

County; John S’. Prince, Judge. Consolidated actions between the First National Bank of Crockett and J. F. I-Iardtt and others. From a judgment denying foreclosure of an attachment lien, the Bank appeals.

P. Whitehurst, Judge. Proceeding in the county court by E. C. Blesi and others to probate a purported will of C. H. Dangdeau. A contest was instituted by Mrs. Josephine Pruitt and others. Prom an order admitting the will to probate, an appeal was taken to the district court, where the will was again admitted to probate, and contestants again appeal.

<p>Appeal from Titus County Court; J. W. Tabb, Judge.</p> <p>Action by Reed & Reed against Mrs. N. J. McKee and others. Judgment for defendants, and complainants appeal.</p> <p>The appellants, who were practicing attorneys, sued the appellees for the value of alleged legal services rendered in the prosecution of a civil action in the district court. The appellees, defendants below, did not make answer to the suit and did not appear - on the call of the case for trial, and a judgment by default was entered in favor of the plaintiffs on May 22, 1917. An execution issued on the judgment on June 16, 1917, and was levied on real estate owned by N. J. McKee. Then on July 13, 1917, the said defendants filed a petition setting up the former suit and the default judgment and alleging certain misrepresentations on the part of the plaintiffs that solely prevented the defendants from appearing and making a defense to the suit. The defense, as alleged, was:</p> <p>“That they (defendants in the original suit) do not and did not owe the defendants (plaintiffs in judgment in the original suit) five hundred dollars, nor did they agree to pay five hundred dollars to defendants, but that said contract was based on a contingency that never happened If -the contract was made.”</p> <p>The petition prayed for injunction restraining the enforcement of the execution and for general relief. The appellants answered by demurrer, general denial, and specially averring that valuable legal services were rendered under contract to do so. The case was tried to the court without a jury, and upon the finding of misrepresentation as alleged there was judgment entered perpetually enjoining the enforcement of the judgment.</p> <p>S. P. Pounders, of Mt. Pleasant, for appellants. Rolston & Brown, of Mt. Pleasant, for appellees.</p>

<p>Trial <3=^388(1) — Failure to File Findings and Conclusions.</p> <p>Where, by the pleadings and evidence, issues of fact are raised, failure of the trial judge after due request to file findings of fact and conclusions of law, as required by Vernon’s Sayles’ Ann. Giv. St.-1914, arts. 1989, 2075, is reversible error.</p>

<p>Insurance c®=3165 — Eire Insurance — Location oe Property.</p> <p>Policy insuring carriages against fire, “all while contained in the one-story metal roof, iron-clad building,” at a certain address, did not render the insurer liable for damage to a carriage while in different shop undergoing repairs.</p>

<p>1. Master and Servant <§=41(5) — Wrongful Discharge — Exemplary Damages.</p> <p>Generally an employé suing for unwarranted discharge as breach of contract cannot recover exemplary damages.</p> <p>2. Master and Servant <®=»3'9(1) — Pleading.</p> <p>An employé suing for wrongful discharge as breach of contract, who failed to plead expenses incurred in effort to secure other employment, could not recover such expenses, though testimony showed the amount thereof.</p> <p>3. Master and Servant <©=341(1) — Wrongful Discharge — Measure of Damages.</p> <p>An employé suing for breach of contract of employment may recover difference between contract salary and amount paid him by the employer, plus other amounts earned during the term.</p>

<p>1. Courts <S~=»37(3) — Jurisdiction—Waiver.</p> <p>Since jurisdiction over subject-matter cannot be conferred even by express consent, objection may be raised by plaintiff at any stage of the proceeding.</p> <p>2. Courts <§j=o122 — Jurisdiction — Title to Bands—* ‘Title’ ‘ ‘Possession.”</p> <p>Petition alleging that defendant was interfering with plaintiffs’ right of possession of land sufficiently showed jurisdiction in the district court, under Const, art. 5, § 8, as amended September 22, 1891, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1705, par. 4, and articles 1712 and 1913, since “title” to lands is the means whereby the owner has possession, and “possession” means the actual control of the property and is prima facie evidence of and one of the elements of title, but is not title within such sections (citing Words and Phrases, Second Series, Title; see also, Words and Phrases, Eirst and Second Series,’Possession).</p> <p>3. Equity <§=>39 (1) — Relies1—Retaining Jurisdiction.</p> <p>Jurisdiction having been obtained by reason of suit for injunction, the court may retain Jurisdiction to adjudicate all the issues properly involved.</p> <p>4. LANDLORD AND TENANT <§=>320(5, 6) — Renting on Shares — Crops—Conversion— Measure oe Damages.</p> <p>Where tenant set up share-cropping contract, and alleged that landlord and a thfrd person conspired to oust him of the crop, it was not errpr to award him as damages the value of his share of the crop, without deducting the cost of harvesting, since a conspiracy includes a corrupt motive for which penalty may be inflicted.</p> <p>5. Appeal and Error <§=>1073(1) — Harmless Error — Jud gment.</p> <p>Where testimony conflicted as to amount due plaintiff, but some testimony warranted allowance of an additional amount approximately equal to defendant’s admitted counterclaim, error in failing specifically to allow the counterclaim or in failing to recite in the judgment the finding as to the counterclaim was harmless.</p>

<p>1. New Trial <§=>108(4) — Grounds—Newly Discovered Evidence.</p> <p>After verdict against a railroad company for personal injuries to a pedestrian, struck by a loose door when the tram passed him, newly discovered evidence that the pedestrian was attempting to board the train when injured required a new trial.</p> <p>2. New Tbial <§=>105 — Grounds—Newly Discovered Evidence.</p> <p>After verdict against a railroad company for personal injuries to a pedestrian, struck by a swinging door as the train passed him, newly discovered evidence that plaintiff’s witness stated, in plaintiff’s hearing, without denial, that plaintiff was trying to jump the train and fell, was more than impeaching testimony, and required a new trial.</p> <p>3. Railroads <§=>397(2) — Injury to Pedestrians — Evidence—Admissibility.</p> <p>In suit for personal injuries to pedestrian, struck by swinging door on passing train, testimony for plaintiff that witness had seen loose and swingmg car doors at other times and on other cars was admissible, to show that it was not unusual or improbable for a car door to be loose and swinging.</p>

<p>Appeal from District Court, Tarrant County; Bruce Voung, Judge.</p> <p>Action by Swift & Co. against M. Merri-man. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Sales <§=>422 — Action for Breach ojp Contract — Findings.</p> <p>In an action for damages from the failure to deliver certain canned goods ordered by plaintiff, held that there was no error in refusing to find the increase in the price of the goods when the seller told plaintiff that it did not intend to comply with its contract, over the contract price.</p> <p>2. Sales <§=^422 —Breach—Findings—Construction.</p> <p>In such action, a finding “that both of the parties to said contract construed same to mean that said goods could be delivered, and said contract enforced against plaintiff at any time up to and including November 30, 1916,’’ was not an attempt, without support in the evidence, to determine that both parties actually treated the contract as a continuing one after the date of the seller’s express repudiation.</p> <p>3. Sales <©=3175 — Action foe Breach of Contract — Divisible Contract.</p> <p>Where the buyer of goods to be delivered throughout the fall of a year, merely through a mistake as to goods tendered being intended for him, did not receive them, the seller would not be free from liability upon the whole or any part of its contract.</p> <p>4. Appeal and Eero® <©=3931(3) — Presumption — Finding Necessary to Support Judgment.</p> <p>In such case, if a finding that the contract was entire and indivisible was essential to the validity of the judgment for plaintiff, and the court did not specifically state such conclusion, if there was evidence in the statement of facts upon which such finding might have been based, it will be presumed when necessary to support the judgment.</p> <p>5. Sales <©=398 — Rescission of Contract-Right of Seller.</p> <p>Where a buyer of goods for delivery during the fall of a year neither repudiated nor rescinded the contract by his mere mistaken refusal to accept a delivery of goods tendered, the seller had • no right to refuse performance and ex parte to declare the contract rescinded in its entirety.</p> <p>6. Sales <©=3418(¾) — Seller’s Breach of Contract-Amount of Recovery.</p> <p>Where a seller breached its contract for ilie sale and delivery of goods during a certain fall, a recovery upon the basis of the market value of all the goods on the last day of the delivery period was proper.</p>

<p>1. Brokers <§=354 — Right to Commission — Conditional Sale.</p> <p>A broker’s commission is earned when the principals execute a contract of sale, notwithstanding it is a conditional contract, and the seller cannot thereafter object that the purchaser was not ready, willing, or able to buy.</p> <p>2. Brokers @=>64(1) — Right to Commission-Conditional Sale.</p> <p>Where broker secured purchaser with whom his principal executed a sale contract, the mere fact that purchaser afterwards refused to comply with terms of the contract did not release the principal from liability to the broker.</p>

<p>Trespass to Try Title <®=s>6(1) — Plaintiff's Title.</p> <p>Under Vernon’s Sayles’ Ann. Civ.. St. 1914, art. 7733, par. 4, as to plaintiff’s possession, • plaintiff could not maintain trespass to try title, where prior to suit he had conveyed the land by warranty deed, although his deed reserved vendor’s lien to secure several notes, and provided for reconveyance by purchaser if plaintiff could not secure possession for the purchaser.</p>

<p>Appeal from Tarrant County Court; I. T. Valentine, Judge.</p> <p>Action between the C.-R.-C. Law List Company and S. O. Rowe. Judgment for latter, and former appeals.</p>

<p>Covenants @=122 — Breach—Evidence.</p> <p>Evidence held insufficient to show breach oi vendors’ covenant to deliver peaceable possession of land, and to defend against paramount claims, incumbrances, and adverse possession.</p>

N. Bonner, Judge. Suit by J. L. Anderson against D. F. Wilson and another, wherein Wilson filed a cross-action. Judgment for defendants, and for Wilson in the cross-action, and plaintiff appeals.

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Suit by George W. Lingwiler against Mrs. Earl Lingwiler. Decree for plaintiff, and defendant appeals.</p>

<p>Appeal from Fayette County Court; George Willrich, Judge.</p> <p>■Suit by J. C. Spreekels against Mrs. Isolda. Zapp. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.</p> <p>Action by J. H. King against the New Fen-field Townsite Company. Judgment for plaintiff, and defendant appeals.</p>

E. Monteith, Judge. Suit by the Harriss-Irby Cotton Company against the St. Louis & Southwestern Railway Company, In which the Mallory Steamship Company was made a party defendant. Judgment for plaintiff against the railway company and in favor of the railway company against the steamship company, from which judgment the latter appeals.

<p>Error from District Court, Jim Hogg County ; Y. W. Taylor, Judge.</p> <p>Suit by B. R. Allen and others against J. J. Draper and others. There was a decree against plaintiff named, and he brings error.</p>

<p>1. Accord and Satisfaction' <§=>5 — Agreements — “Consideration.”</p> <p>While consideration is essential to an accord and satisfaction, slight modification of status of parties is sufficient.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Consideration.]</p> <p>2. Accord and Satisfaction <§=>8(1) — Contracts — “Consideration”—Enforcement.</p> <p>Where maker of note was solvent, an unperformed promise by payee to accept a lesser sum: as Lull payment was without consideration.</p> <p>3. Accord and Satisfaction <3=v>8(1) — Contracts — Expense of Negotiating Loans as “Consideration.”</p> <p>Where solvent maker of note, not having sufficient funds for payment borrowed the money, the expense being no greater to borrow only part than to borrow all, such expense was not consideration for agreement to accept a part of debt in full payment.</p> <p>4. Appeal and Error ⅞^»1060(3) — Misconduct of Counsel — Statements to Jury-Effect.</p> <p>Inflammatory statements to the jury by defendant’s counsel regarding the tyranny of plaintiff’s manager, unwarranted by evidence, per-... mitted over objection, held prejudicial eri•pjtt'''</p>

<p>Appeal from District Court, Camp County; J. A. Ward, Judge.</p> <p>Action by Jeff Mundy, as the Mundy Fuel Company, against ‘Stine & Clark. Judgment for plaintiff and defendants appeal. Affirmed. On motion for rehearing.</p>

<p>Appeal from District Court, McLennan County; B. J. Clark, Judge.</p> <p>Proceedings by J. P. Cavitt, administrator de bonis non, to sell land for payment of debts of C. R. Phillips, deceased, opposed by the Beall Hardware <& Implement Company. There was a decision for the administrator in the county court, and the company appealed to the district court, where th'e decision was reversed; whereupon the administrator and the First National Bank of Mc-Gregor, a creditor of the estate, appeal.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Action by the Dallas Waste Mills against the Texas Cake & Dinter Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Nuisance ⅞=⅞35 — Injunction—Terms.</p> <p>In suit to restrain nuisance of hog ranch near plaintiff’s land situated on a tract of 50 acres only 4 acres of which nearest plaintiff’s was so used, injunction merely restraining use of such land as to constitute a nuisance was erroneous as too vague, indefinite and uncertain, and amounting to absolute prohibition against the conducting of a hog ranch anywhere on the 50-acre tract.</p> <p>2. Nuisance ¡@=>3(10) — ■Nuisance Per Se — Hog- Ranch.</p> <p>Hog ranch situated in the countoy seven or eight miles from any city or town is not a nuisance per se.</p> <p>3. Nuisance <®=19 — Remedy—Injunction.</p> <p>If a landowner keeps such a number of hogs in such small pens or in such a way or feeds them with garbage in such a way as to produce disagreeable and noxious odors interfering with the comfort, use, and enjoyment of another owner, such owner is entitled to injunction abating the nuisance.</p>

<p>Appeal from Bexar County Court for Civil Oases; John H. Clark, Judge.</p> <p>Action by the J. W. Jenkins’ Sons’ Music Company against Dr. H. E. Truex. Judgment for defendant, and plaintiff appeals. Affirmed. On motion for rehearing.</p>

<p>Appeal from District Court, Tarrant County ; Ben M. Terrell, Judge.</p> <p>Action by J. W. Buchanan and another against J. M. Popplewell. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, Denton County; C. F. Spencer, Judge.</p> <p>Suit by the National Loan & Investment Company of Detroit, Mich., against Doretta I-Iarrop and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.</p> <p>Suit by C. A. O’Keefe against Charles Nim-mo. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Bints and Notes <&wkey;489(7) — Pleading and Proof — 'Variance.</p> <p>Where plaintiff suing on notes alleged that it acquired them by written transfer and evidence showed that there was no indorsement or writing, there was nevertheless no variance, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1994, as to variances, and article 582, permitting suit by assignee of a note; production of the note being presumptive _ evidence of ownership, especially where the original payee was a party.</p> <p>2. TRIAL <&wkey;352(5) — Submission oe Issues— Form.</p> <p>In action on note where fact of transfer was disputed, issue whether payee transferred the notes to plaintiff in good faith before due should have been divided; one issue being whether there was a transfer, and the other whether it was in good faith before the due date.</p> <p>ii. Trial <&wkey;252(13) — Instructions — Conformity with Evidence.</p> <p>In action on note defended on ground of breach of warranty, in the absence of evidence that alleged warranty was mere statement oí opinion, instruction that defendant was not liable if the alleged warranty was mere statement of opinion, was erroneous,</p> <p>i. Bills and Notes <⅜»537(5) — Actions— Questions for Jury.</p> <p>Evidence held to present jury question whether plaintiff in action on note was the owner of the note.</p> <p>5. Trial <&wkey;350(4) — Special Issues — Sales.</p> <p>In action on note for price of automobile, defense being breach of warranty, the court should have submitted the special issue what, If any, was the difference between the reasonable market value of the automobile in its defective condition and its reasonable market value if it had been as represented.</p> <p>6. Sales &wkey;>440(2) — Breach oe Warranty —Evidence.</p> <p>In action on note, for price of automobile, defense being breach of warranty, plaintiff’s president could testify that he had instructed salesman not to warrant the automobile.</p> <p>7. Principal and Agent <&wkey;150(2) — Acts oe Agent — Warranty—Liability oe Principal.</p> <p>Notwithstanding principal had instructed agent not to warrant automobile, it was liable on the warranty if actually made by the agent.</p>

<p>1. Insurance <&wkey;693 — Fraternal Insurance— By-Laws.</p> <p>Act Cong. June 29, 1894, c. 119, § 4, provides that Knights of Pythias shall have power to amend their constitution, provided they do not conflict with laws of United States, or any state. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5707, provides that any person absent for seven years shall be presumed to be dead. Held, that a by-law, to the effect that disappearance shall not be regarded as evidence of death until full term of life expectancy of assured has expired, cannot be given effect.</p> <p>2. Insurance <&wkey;719(l) — Fraternal Insurance — Bt-Laws—Reasonableness.</p> <p>Fraternal insurance company’s by-law that absence for seven years shall not be evidence of death until full term of life expectancy of insured has expired was unreasonable as to a policy already existing.</p> <p>3. Insurance <&wkey;719(l) — Fraternal Insurance — Bt-Laws—Reasonableness.</p> <p>A by-law1 of ai fraternal insurance company that no recovery could be had upon any certificate of insured absent seven years until J after the expiration of life expectancy was un-/ reasonable as to an existing- certificate.</p> <p>4. Insurance <&wkey;146(3) — Contract oe Insurance-Construction.</p> <p>Insurance policy, ambiguous in its terms, will be construed most strongly in favor of insured.</p> <p>5. Insurance <&wkey;805(l) — Fraternal Insurance-Time for Proof.</p> <p>A by-law of a fraternal insurance company, providing that no action can be brought on a policy unless proof of death be furnished within one year, nor unless action is commenced within two years, does not apply, where plaintiff must rely upon Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5707, relating to presumption of death, to establish death.</p> <p>6. Insurance <&wkey;789(l) — Proof of Death— Necbssitt for MAKINe.</p> <p>Where holder of certificate of fraternal insurance, relying on presumption arising from seven years’ absence of insured, waited seven years before attempting’ to prove death, action of insurer, in refusing payment by reason of by-laws concerning proof of death of absentees, was of itself sufficient to justify finding that it would have been useless to attempt to furnish proof of death under a by-law requiring proof to be made within a year.</p> <p>7. Insurance <&wkey;S12 — Fraternal Insurance — Limitations.</p> <p>Under fraternal insurance certificate payable only “upon satisfactory proof of death,” where it was impossible to establish death until after expiration of seven-year period creating presumption of death under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5707, cause of action on policy did not accrue until then.</p>

<p>Appeal from District Court, Frio County; Covey C. Thomas, Judge.</p> <p>Suit by E. A. Lilly against the Cummer Manufacturing Company. From an order overruling its plea of privilege to be sued in another county, defendant appeals.</p>

<p>1. Evidence <®=»116 — Absence oe Witness —Explanation.</p> <p>In suit to establish parol trust in land, plaintiff could testify in explaining the absence of her mother, who knew more about the case, that her mother was in bad health and not of strong mind.</p> <p>2. Appeal and Error <&wkey;-1050(l) — Harmless Erbor.</p> <p>In suit to establish parol trust in land error, if any, in permitting plaintiff to explain absence of her mother’s testimony by saying that she was in bad health, and not of strong mind, was not reversible.</p> <p>3. Witnesses <&wkey;268(l) — Cross-Examination — Scope.</p> <p>Admission of testimony on cross-examination, which is merely an amplification of testimony of same witness brought out by the other party on direct examination, is not error.</p> <p>4. Appeal and Erbori <&wkey;209(2) — Waiver of Errors.</p> <p>In suit to establish parol trust in land by certain heirs, failure to challenge finding that that property given to a certain child was not in settlement of his interest in the community estate, as not being supported by the evidence, committed appellants to the proposition that there was sufficient evidence to sustain the finding.</p> <p>5. Husband and Wife <&wkey;274(4) — Community Property.</p> <p>If a father recognized the interest of his children in land purchased with community property, and there was no repudiation of such, interest, the statutes of limitation did not begin to operate until his death, nor was the suit to establish a trust in the land a stale demand when brought within a very few years after the father’s death.</p>

<p>1. Homestead &wkey;>33 — Sufficiency of Possession-Soldier’s Wife.</p> <p>Where husband is a soldier, land may be impressed in the character of a homestead, although the husband and wife never lived together on the land.</p> <p>2. Homestead <&wkey;181 (1) — Abandonment.</p> <p>To show abandonment of homestead by wife who had not been living with husband, it was incumbent upon defendants not only to establish a separation, but to show that wife left husband and home without good cause and without his consent.</p> <p>3. Homestead <&wkey;177(l) — Abandonment—Es-toppel.</p> <p>A wife is not estopped from asserting her homestead rights by fraudulent acts of her husband in borrowing money on the homestead, where she did not join him in the fraudulent acts.</p> <p>Appeal from District Court, Webb County; J. P. Mullally, Judge. •</p> <p>Trespass to try title by Rebecca C. Mark-ley against S. M. Barlow, receiver of the estate of John R. Davis, and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.</p>

<p>Cabeiebs <s=3'13S — Relation — Destkuction op Goods — Liability.</p> <p>Where goods were consigned to place in Texas, care of third person “not for purpose of delivery,” ultimate delivery being to consignee in Mexico, and it was the custom of the carrier after goods had been changed to Mexican car to transfer them across border to carrier in Mexico, payment of freight and notice to carrier by consignee that he had transferred goods to Mexican car was sufficient to render carrier liable, as a carrier, and not as warehouseman for negligent delay in transporting the car whereby goods were destroyed by fire; no formal acceptance being necessary.</p>

<p>Error from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Suit by C. M. Pruitt against Jesse Run-nells. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Bell County; F. M. Spann, Judge..</p> <p>Action by Mrs. Docie Saint, administratrix of the estate of Albert R. Saint, against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Receivers ®=o55 — Petition for Appointment — Eotteot oe Insufficiency.</p> <p>Mere defects in the petition upon which the receiver was appointed would not render the receivership proceedings void.</p> <p>2. Receivers <®=o56 — Appointment — Who may Question.</p> <p>Where petition for appointment of receiver stated a cause of action within the jurisdiction of the court, the judgment, however erroneous, cannot be set aside for defects in the pleading, especially when attacked by parties who actively procured its rendition and acquiesced in subsequent orders.</p> <p>3. Receivers <®=»56 — Appointment—Failure to Object — Effect.</p> <p>The failure of defendants to' except to the petition or appeal from the’ order appointing a receiver precludes them, on denial of later motion to vacate the order of appointment, from complaining on the ground that the petition for appointment was defective and the order improvidently made.</p> <p>4. Receivers <®=>60 — Termination of Receivership.</p> <p>Where none of the judgments have been executed, and no judgment has been rendered in a suit in intervention against the receiver, there is a necessity for continuing the receivership, although the receivership is no longer necessary for the protection, preservation, and disposition of the insolvent’s property.</p> <p>5. Receivers <⅜=60 — Termination of Receivership.</p> <p>If Vernon’s Sayles’ Ann. Giv. St. 1914, art. 2153, requiring corporation receiverships to terminate within three years in the absence of litigation pa-eventing it, could be held to apply to individual receiverships, it would not authorize termination of receivership of individual, pending litigation.</p>

<p>Appeal from District Court, Waller County; J. D. Harvey, Judge.</p> <p>Action by W. R. Patterson against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Witnesses <S=al39(l) — Transactions with Decedent — Will Contest.</p> <p>In a will contest, testimony by a contestant concerning statements by or transactions with the testator is not admissible over objection based on Rev. St. 1911, art. 3690.</p> <p>2. Trial <®=^260'(5) — Instructions—Covered by Other Instructions.</p> <p>. Where, in a will contest, the court, in addition to -giving in its main charge a definition of mental capacity which was not objected to, gave a special charge for plaintiffs, again explaining the meaning of mental capacity, it properly refused an additional charge for plaintiffs on mental capacity, even though correct as an abstract legal proposition, since giving it would have unduly emphasized the issue.</p> <p>3. Jury <®=>72(1) — Completing Panel.</p> <p>Where sheriff’s return shows that, although he served some of the jurors selected by the jury commissioners for a certain week of court, he did not serve the remainder, because “not found after due diligence and search,” the court, at the beginning of such week, on finding that a sufficient number of jurors are not in attendance, is not required to try the question of thei diligence of the sheriff before causing sufficient jurors to be summoned to make up a suitable panel for the week, but, to proceed with the dispatch of business, may complete his panel as provided by Rev. St 1911, arts. 5167, 5168, regardless of the reasons for the absence of jurors selected by jury commissioners.</p> <p>4. Jury <⅜=82 (2) — Objections.</p> <p>Objections to sheriff’s return of service of jurors selected by jury commissioners, as not stating facts showing diligence, or reasons wliy certain jurors were not summoned, should be made in time to invoke the court’s action, when it would not require discharge of a portion of a panel from which cases have been tried.</p> <p>On Motion for Rehearing.</p> <p>5. Wills <⅜=>163(1) — Congest — Burden of Proof.</p> <p>Notwithstanding suspicious circumstances as to the making of a will, such as that the chief beneficiary wrote the will and maintained secrecy as to its execution and existence until after testator’s death, the burden of the whole caso remains upon contestants as to fraud and undue influence.</p> <p>6. Wills <§⅛164(5) — Testamentary Capacity — Advice.</p> <p>Where a will is plain, and testator is capable of fully understanding it, and either carefully reads it or has it correctly read to him, that the beneficiaries or' beneficiary fail to advise him fully as to claims of others is immaterial.</p> <p>7. Appeal and Error <⅞⅛>994(2) — Review-Credibility op Witnesses.</p> <p>Appellants cannot contend that the appellate court is authorized to discredit the testimony of an adverse party, whom they placed on the stand and whom the jury believed.</p>

<p>1. Insurance <§s=>665(6) — Life Policies — Defenses — Suicide—Evidence—Weight and Sufficiency.</p> <p>In an action on a life insurance policy stipulating against suicide, evidence held to show conclusively that the insured committed suicide intentionally by the use of carbolic acid.</p> <p>2. Insurance <®=665 (6) — Life Policies — Suicide.</p> <p>Evidence that insured had at other timos given directions as to the collection of his life insurance policies, in case of death, similar to those given just previous to his death in the absence of proof of disease likely to produce sudden death, hold not to disprove suicide, nor weaken the conelusiveness of evidence thereof. 3. Insurance <§=>668(12) — Life Policies — Actions — Suicide—-Directed Verdict.</p> <p>In an action on a life insurance policy stipulating against suicide, evidence of suicide held such that refusal to direct a verdict for defendant was error.</p>

<p>Appeal from District Court, Shackelford County; Joe Burkett, Judge.</p> <p>Suit by C. H. King against C. E. Scbaff, receiver of the Missouri, Kansas & Topeka Railway Company of Texas. Relief denied, and plaintiff appeals.</p> <p>Reversed and remanded, with instructions.</p>

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Suit by Lee Lewis and others against Eddie Van Grinderbeck and others. From an order appointing a receiver, the defendants appeal.</p>

<p>Appeal from District Court, Clay County. Suit by Young County, Tex., against I. B. Padgett and others, in which the Graham National Bank and its sureties were also made defendants. Erom a judgment for plaintiff against the original defendants, and denying the latter recovery against the bank and its sureties for the amount of such judgment, the original’ defendants appeal.</p>

<p>1. Limitation or Actions <⅜=>127(8) — Amendment as New Cause oe Action — Conversion and Negligence.</p> <p>In suit for conversion based on contract to store and return cotton on demand, and refusal on ground cotton had been destroyed by fire, amendment alleging loss occurred through defendant’s negligence, filed more than two years after accrual of cause of action, did not state new cause of action, barred by statute of limitations.</p> <p>2. Warehousemen <⅜=»10 — Construction oe Contract Against Drawer.</p> <p>A contract covering the storage of cotton, presumably written by the warehouse company, must be construed most strongly against it.</p> <p>3. Warehousemen <⅞^24(7) — Storage oe Cotton-Limiting Liability — Negligence.</p> <p>Contract of warehouse company, covering storage of cotton, and stipulating that company would not be responsible for loss by fire or otherwise, not stipulating against responsibility for loss through fire caused by its own negligence, did not exempt company from liability for loss by fire so caused.</p> <p>4. Warehousemen <®=34(9) — Negligence — Question oe Pact.</p> <p>In action against warehousing company for destruction of cotton by fire, whether company was negligent lield a jury question.</p> <p>5. Warehousemen <@=>24(1) — Storage oe Cotton — “Bailee eor Hire.”</p> <p>A cotton compress and warehouse company, which charged for compressing cotton, and stored it as a mere incident'to the compression, was a “bailee for hire” of the cotton while in storage, and responsible for failure to exercise ordinary care.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, Second Series, Bailee for Hire.]</p>

<p>1. Evidence <9=344-1(11) — Parol Evidence Rule.</p> <p>In action on. note, contemporaneous oral agreement that at time of execution of note nothing was due plaintiff because of a sum due to defendant upon a proper accounting could not be shown.</p> <p>2. Appeal and Erbor <⅞^>1040(7) — Sustaining Objection to Pleas — Harmless Er-kor.</p> <p>Where defenses presented in defendant’s pleas to which objections were sustained were substantially presented in other paragraphs of answer to which court sustained no exception, so that substantially the same evidence and defense were available, defendant was not deprived of any substantial right.</p> <p>3. Homestead <@=3213 — Pleading.</p> <p>Since defendant was not entitled to entire section as a homestead, court was not bound to recognize her plea of homestead, where she did not point out specific 200 acres that constituted her homestead.</p> <p>4. Homestead <@=3162(1) — Abandonment — Evidence.</p> <p>Where only dwelling shown to have been upon homestead was removed, and there was no evidence, of any intention to return building or build a new one, and the husband had purchased, occupied, and used homesteads in other places for long periods of time, intention to return will be held to have been abandoned.</p> <p>5. Husband and Wife <@=3133½ — Separate Property of Wife — Question of Fact.</p> <p>In action on notes in which it was sought to foreclose trust deed alleged! to have been given to secure notes, evidence held to raise issue whether realty was separate pz-operty of defendant wife.</p> <p>C. Trusts <§=381 (2) — Resulting Trusts.</p> <p>Where wife out of her own separate property furnished all money invested in land, a resulting trust existed asi between husband and wife which in legal effect vested equitable title in wife.</p> <p>7. Trusts <@=>356(1) — Resulting Trust — Transfer of Property.</p> <p>Right of defendant wife who furnished all money paid for land would be supez-ior to that of plaintiff, to whom defendant husband gave trust deed on land, unless wile was party to deed or plaintiff had no knowledge of her equitable title.</p> <p>8. Husband and Wife <@=3102 — Trust Deed.</p> <p>Where husband alone signed trust deed and alone appeared as grantor, that later when correction in description was made a notation thereof was signed by both husband and wife, and separate acknowledgments made by them, would not make the wife a party to trust deed so as to convey her equitable title.</p> <p>0. Trusts <@=^357(3) — Resulting Trust — Bona Fide Purchaser — Consideration.</p> <p>Wliez-e a judgment was rendered against a husband, holding title to wife’s land under resulting trust, and another, who as to the debt was a surety only, the surety taking note of husband secured by a trust deed on the wife’s land without notice and paying the judgment was a bona fide purchaser as against the wife, but not as to balance of a note which had been given by the husband prior to the trust deed and mentioned therein as being- secured.</p>

<p>1. Contracts <g=94(l) — Validity — Misrepresentations — Intent.</p> <p>Misrepresentation of a material fact is sufficient to avoid a contract induced thereby, though made without any specific intent to defraud.</p> <p>2. Bills and Notes <5=332 — Innocent Pue-ciiasebs — Knowledge oe Misrepbesenta-tions.</p> <p>Buyers of notes from payees, knowing of their misrepresentations inducing the making of the contract under which they were given, are not innocent purchasers, though not knowing of the fraudulent intent, or the particular means by which each fraud was perpetrated.</p> <p>3. Bills and Notes <5=333 — Innocent Pite-oiiasees — Knowledge op One Paktner.</p> <p>Where purchasers of notes are partners therein, knowledge of one is knowledge of all, as regards their being innocent purchasers.</p> <p>4. Evidence <§=591 — Hearsay — Party Objecting.</p> <p>Though offer of answer in deposition is by party other than those who propounded the interrogatory, objection of hearsay is available; it becoming his testimony on offering it.</p> <p>5. Evidence <§=253(2) — Acts and Declarations op Conspirator.</p> <p>Acts or declarations of conspirator, made before completion of conspiracy, in respect to its execution, or in furtherance of common design, is admissible against his co-conspirators, regardless of when they entered into the conspiracy.</p> <p>6. Evidence <s=260 — Acts op Conspieatoe —Preliminary Proop.</p> <p>A prima facie case of conspiracy must be proved, before act or declaration of one is admissible against others as co-conspirators.</p> <p>7. Evidence <S=281 — Acts op Conspirators —Preliminary Proof — Determination.</p> <p>The trial court is judge of whether a prima facie case of conspiracy has been proved, necessary for admission of act or declaration of one against others as co-conspirators.</p> <p>8. Evidence <§=584(1) — “Prima Eaoie Case.”</p> <p>A prima fade case is one in which the evidence in favor of a proposition is sufficient to support a finding in its favor, if all of the evidence to the contrary be disregarded (citing Words and Phrases, Prima Eacie Case).</p>

Dannebaum, Judge. Suit by the Calcasieu Trust & Savings Bank against Andral Vann and another as administrators of the estate of Francis A. Ogden, deceased. Judgment for plaintiff, and defendants appeal.

<p>Appeal from District Court, McLennan County; Geo. N. Denton, Judge.</p> <p>Suit by F. P. Launder against J. R. Milam and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Abbest <§==>63(1) — Arbest Without Warrant — Ordinances—Validity.</p> <p>Ordinances authorizing policemen of a city to make arrests without warrant for all violations of law, passed under the charter of the city empowering it to pass such ordinances, are legal.</p>

<p>Appeal from District Court, Hamilton County; J. H. Arnold, Judge.</p> <p>Action by J. V.. Lewis against the JEtna Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. ContRacis <&wkey;51 — .Consideration — Benefit to Promisor.</p> <p>Whqre D. accepted, in renewal of J.’s note, note signed by J. and L. as principals, D.’s agreement, with L.’s consent, made at the time of extending the renewal note, that D. would let J. work off the debt on D.’s farm, was without consideration, where it did not appear that any advantage accrued to D. on account of such promise.</p> <p>2. Estoppel <&wkey;78(5) — Contract.</p> <p>Where debtor, J„ gave note to D., secured by chattel mortgage and to meet unsecured obligation.1 due L., all parties agreed, to a renewal note signed by L. and J., as principals, and release of mortgage, and a subsequent agreement was made, on extending the renewal note, whereby D. was to let J. work off debt on a farm, which _ agreement was superseded, because of inability of J. to got supplies, by contract to work farm, D. to furnish supplies and to be reimbursed therefor, D. heU not estopped by original contract from suing L., where the bill for supplies exceeded the amount of work J. did.</p>

<p>1. Evidence <⅞=>174(2) — Books oe Account —Ledgers—Books oe Obiginal Entby.</p> <p>' ; ; A ledger account for sending and receiving telegrams, made up from the telegrams themselves, and in which for the first time are entered the amount of the charges, held admissible as book of original entry, notwithstanding a counter blotter in which was made a partial record of telegrams.</p> <p>• 2. Telegraphs and Telephones &wkey;33(%) —Action eob Charges — Pleading and Evidence.</p> <p>i j * The proof in action for transmitting telegrams being that the charges were the usual and customary rates, recovery must be regarded as had on a quantum meruit; and it is immaterial that plaintiff, pleading it was under Interstate Commerce Commission’s jurisdiction, and charges based on its order, but at trial waiving this contention, did not prove charges were based on Commission’s order and filed in office.</p> <p>3. Telegraphs and Telephones &wkey;>66(l)— ERROR in Transmission—Damages—Proof.</p> <p>Though price at which agent was authorized to sell was less in telegram as transmitted than in message filed, it is necessary, for recovery from company, to prove the value of goods exceeded the amount realized from agent’s sale.</p>

O. Woodward, Judge. Proceeding by the City of Ballinger to enjoin C. S. Miller and others from pumping water out of the Colorado river. Erom an order granting a temporary writ of injunction, defendants appeal.

<p>Principal and Surety <&wkey;112 — Discharge or Surety — Payment by Principal.</p> <p>Where the principal maker of a note pays it with money secured from a third person, and takes it up without any ássignment of it being made, the debt is discharged, and the person who furnishes the money cannot recover on the note against the surety therein.</p>

• Appeal from District Court, Bell County; F. M. Spann, Judge. Suit 'by the Trussed Concrete Steel Company of Texas and others against the Hess & Skinner Engineering Company and the Dion Bonding & Surety Company. From Judgment for plaintiffs, the Bonding & Surety Company appeals.

P. Alexander, Judge. Suit by F. W. Deeley and another against T. Mioore Hays and another. Judgment for plaintiffs against the named defendant, and he appeals.

<p>Appeal from District Court, McLennan County; E. J. Clark, Judge.</p> <p>Suit by the Early-Foster Company against the Taylor Cotton Oil Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Master AND Servant &wkey;>354 — Workmen’s Compensation Act — Actions Against Third Persons.</p> <p>A settlement by the Industrial Accident Board, as provided in Acts 33d Leg. c. 179 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), with an employé of a subscriber, does not preclude an action by the em-ployé against a third party to recover damages occasioned by negligence of such third party.</p> <p>2. Judgment <&wkey;888 — Satisfaction — Release-Joint Tort-Feasors.</p> <p>Where an injury is occasioned by acts of two or more joint tort-feasors, though the party injured may have judgment against all of them, he can have but one satisfaction for the injury received.</p> <p>3. Release <&wkey;29(4) — Joint Tort-Feasors— Settlement.</p> <p>Where a plaintiff settles with one tort-feas- or, but does not release his cause of action, another tort-feasor is entitled to have such payment credited as an offset, pro tanto, against damages that may be recovered against him.</p> <p>4. Master and Servant <&wkey;389 — Workmen’s Compensation Act — Subrogation.</p> <p>Under Workmen’s Compensation. Act, pt. 2, § 6 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. insurance association is not subrogat-ed to rights of employé against third person, whose negligence alone caused injury, and is given no right to indemnify itself against such wrongdoer, save only where he is an independent or sub contractor.</p>

<p>Appeal from District Court, Cass County; H. F. O’Neal, Judge.</p> <p>Action by W. D. Philpot against the Texar-kana & .Ft. Smith Railway Company. Judgment for plaintiff, and .defendant appeals.</p> <p>Affirmed.</p>