Volume 205 — South Western Reporter

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Suit by the Arehenhold Company against H. Schaefer. Flrom a judgment for defendant, : plaintiff appeals.</p>

<p>1. Boundaries @=>40(1) — Construction of Deed — Question for Jury.</p> <p>In trespass to try title, what boundary was intended by a deed of part of a lot held a jury question.</p> <p>2. Evidence @=3274(11) — Declarations of Deceased Person — Boundaries.</p> <p>In determining questions of boundaries, it is competent to show that a third person, who was dead at time of trial, and from whom one of the parties obtained title, while in actual possession, made statements that he did not assert a claim to the boundary subsequently asserted by his grantee.</p>

Error from District Court, McLennan County; Tom L. McCullough, Judge. Suits by Max Goodman against the West-chester Fire Insurance Company and the Western Assurance Company, consolidated for trial. To review judgment for plaintiff, defendants bring error.

<p>1. Appeal and Error <3=1002 — Questions op Fact por the Juey.</p> <p>Where the evidence is in direct conflict, finding of the jury is conclusive on appeal.</p> <p>2. Mortgages <3=280(4) — Conveyance op Land — Assumption op Mortgage.</p> <p>Where grantee under a warranty deed assumed payment of “$721.60' due the N. Co., payable $12.24 monthly,” deed was not inconsistent' with a finding that grantee did not assume payment of interest on the $721.60'.</p> <p>3. Covenants <3=96(1) — Incumbrances — Breach.</p> <p>Any incumbrances which would compel payment of any amount in excess of exception stipulated in a warranty deed would be a breach to that extent of covenant against incumbrances.</p> <p>, 4. Covenants <3=39 — Covenants against In-cumbrances — NOTICE.</p> <p>; In cases of breach of covenant in a warranty deed, notice of adverse claim or incumbrance covenanted against does not affect right of cove-nantee.</p> <p>5. Covenants &wkey;>119 — Evidence—-MaterialITY.</p> <p>In action treated as one for breach of covenant as to amount of incumbrances on land, a deed of trust and record thereof was not material evidence, where no issue of notice was submitted to the jury.</p> <p>6. Fraud <&wkey;52 — Evidence—Admissibility.</p> <p>In an action for deceit, circumstances tending to show that declarations were made after consummation of transaction merely went to the weight of, and did not affect admissibility of, evidence that such representations were made at time of closing the transaction.</p> <p>7. Appeal and Error <&wkey;882(9) — Invited Error-Evidence.</p> <p>A party cannot complain that improper evidence was elicited from his witness on cross-examination, where same evidence had been given on direct examination.</p>

<p>1. Covenants ©==>6 — Mutual Mistake.</p> <p>In action for breach of covenant against in-cumbrances, defendant is precluded from relief from the contract on the ground of mutual mistake, where he noticed the oversight or mistake at time he signed deed.</p> <p>2. Covenants <@==>39 — Warranty Against</p> <p>Incumbrances — Knowledge op Gbantee.</p> <p>That grantee in a warranty deed had knowledge of existence of incumbrances, not excepted in the deed, did not preclude him from relying on the covenant against incumbrances.</p> <p>Appeal from District Court, Cottle County; J. H. Milam, Judge.</p>

<p>1. Trial <&wkey;352(5) — Submission or Issues— Assumption as to Facts.</p> <p>In action for damages to live stock shipped under contract by which all were to be shipped in 13 ears at one time, the carrier having shipped 10 cars one day and 3 the next, submission of issue whether cattle in second shipment lost more than they would have lost if shipped in the first shipment did not erroneously assume that the failure to ship all of the cattle together was negligence, where other instructions submitted the issue of negligence and stated that the issue complained of should not be answered if the jury found there was no negligence.</p> <p>2. Trial &wkey;>350(3) — Live Stock — Damages in Shipment — Instructions.</p> <p>In shipper’s action for damages to live stock by delay in shipment, it was proper to submit issue as to the relative market value of the cattle on the day when they should have arrived and on the day on which they did arrive at the market, so that in the event of a finding of negligence there would be a basis upon which to determine damages.</p> <p>3. Appeal and Error &wkey;>733 — Assignments op Error— Suppioiency.</p> <p>In action for damages to stock in shipment by delay of day in shipping 3 cars and of one day in shipping each of 2 bad order cars, where no damages could be assessed for the extra delay because of bad order under the findings of the jury, and the judgment did not show that any damages were allowed for the delay for bad order, and the assignment of error did not show that the judgment was in excess of the damages properly assessable because 3 cars did not get into the first train, no error was shown.</p>

<p>1. INSURANCE <&wkey;>722 — Mutual Benefit Insurance — Illiteracy of Member.</p> <p>Insurance certificate of member of fraternal association, being a written contract between him and association, fact he could not read or write is no excuse for his not knowing terms thereof, not having been prevented from having same read to him by any fraud or device of association.</p> <p>2. Insurance <&wkey;>718 — Mutual Benefit Insurance — By-Laws as Part of Contract-Statute.</p> <p>It was not necessary that fraternal insurance association’s prohibition against a member’s engaging in saloon business should be stated in either member’s application or certificate, being stated in by-laws of association, which, by Rev. St. art. 4834, were part of contract of insurance.</p> <p>3. Trial <&wkey;396(2) — Finding — Support by Pleadings.</p> <p>Trial court’s finding of fact, not supported by any allegation in pleadings of either party, cannot be considered.</p> <p>4. Pleading <&wkey;387 — Evidence—Support by Pleadings.</p> <p>Evidence which finds no support in pleadings cannot be considered.</p> <p>5. Limitation of Actions <&wkey;96(l) — Suspension of Statute — Mistake of Fact.</p> <p>That member of fraternal insurance association did not know his contract prohibited his engaging in saloon business was not mistake of fact suspending operation of statute of limitations against his cause of action to recover premium payments.</p> <p>6. Insurance <&wkey;743 — Mutual Benefit Insurance — Cancellation — Recovery of Premiums.</p> <p>A fraternal insurance association’s certificate held by a member having been automatically canceled on the date when that member engaged in the saloon business, there was no consideration for his premium payments made thereafter, and he was entitled to recover them, except those barred by limitations.</p>

<p>1. Appeal and Ereoe <&wkey;106 — -Mattees Ap-pealable-Continuance.</p> <p>No appeal lies from an order granting a continuance.</p> <p>2. Stipulations <&wkey;14(3) — Ageeement as to Plea oe Pbivilege — Oonsteuction.</p> <p>An agreement between counsel that defendant would file an answer in a few days after default day, containing a general demurrer and a general denial, did not preclude it on the same day, and before filing such answer, to file a plea of privilege.</p> <p>3. Pleading &wkey;>110 —Plea oe Pbivilege — Abandonment.</p> <p>A motion by defendant for a continuance does not constitute an abandonment of a plea of privilege, where the motion shows that defendant was insisting thereon, and the judgment of the court continuing the hearing on the plea shows that it was continued without prejudice.</p> <p>4. Venue <&wkey;15 — Employees’ Liability Act —Suits against Insueee.</p> <p>That before suit can be brought the matter in controversy must be submitted to some board or referee, or must have some order or certificate or other matter of some department of state, does not give that place venue of a suit afterwards brought; hence in a suit under the' Employers’ Liability Act, the fact that plaintiff was obliged, under the act, to submit the claim to the accident board in a given county did not give such county venue of a suit on the liability.</p>

<p>1. Appeal and Ebboe @=>737 — Multifarious Assignment.</p> <p>Assignment assailing action of court in overruling defendant’s general and special demurrers is multifarious, and not entitled to consideration.</p> <p>2. Appeal and Ebboe @=>1050(1) — Harmless Ebboe — Evidence.</p> <p>In action in nature of motion to correct judgment, error in permitting trial judge who rendered judgment to testify over defendant’s objection as to what judgment he intended to render was harmless, where his testimony contained few facts of any importance.</p> <p>3. Judgment @=>305 — Clerical Ebboe — Correction by Action.</p> <p>Judgment, in suit to determine boundary line, which was not written in accordance with the order of the court, will be corrected on motion to correct the judgment.</p> <p>4. Judgment @=>325 — Correction oe Clerical Error — Issue Not to be Raised.</p> <p>Where, on trial of action to determine boundary line, plaintiff set up defense of limitations, which was disregarded, and no appeal from judgment was prosecuted, if plaintiff was entitled to strip in question by limitations, and failed to get it on original trial, he cannot raise issue in defendant’s action in nature of motion to correct clerical error in judgment.</p>

<p>1. Innkeepers <@=>11(3) — Liability Aá Bailee.</p> <p>An innkeeper is under duty to exercise extraordinary care to prevent the loss of property committed to his custody by a guest.</p> <p>2. Innkeepers <@==>11(12) — Liability as Bailee — Exercise op Care— Sufficiency of Evidence.</p> <p>In action against innkeeper for loss of traveling salesman’s grip containing manicure sets, evidence held not to show an extreme degree of care in protecting-the grip.</p> <p>3. Innkeepers <@=>11(12) — Liability of Bailee — Questions of Fact.</p> <p>In suit against innkeeper for loss of traveling salesman’s grip, where it appeared that when thief was arrested part of goods were recovered, but district attorney kept them to use in evidence, whether innkeeper was liable for loss of worth of goods recovered, or whether they were recovered within a reasonable time, and his liability was simply for delay in delivering them, were questions of fact.</p> <p>4. Innkeepers <@=>11(3) — Liability as Bailee — Insurer.</p> <p>An innkeeper is not an insurer of the safety of his guest’s property intrusted to him, though under duty to exercise extreme care.</p> <p>5. Innkeepers <@=^11(12) — Liability as Bailee — Prima Facie Case — Burden of Proof.</p> <p>In suit against innkeeper for loss of salesman’s grip, proof of delivery and failure to redeliver on demand entitled plaintiff prima facie to recover, and, if innkeeper desired to avoid liability by showing his extreme care, he had burden to allege and prove it.</p> <p>6. Pleading <@=>378 — General Denial — Effect.</p> <p>A general denial only put plaintiff on proof of the allegation of his petition in order to make a prima facie case.</p> <p>7. Trial <@=>352(4) — Submission of Issue — Pleadings.</p> <p>The trial judge should not submit an issue not raised 'by the pleadings.</p> <p>8. Courts <@=>122 — Jurisdictional Amount.</p> <p>The amount of plaintiff’s demand at the time of filing suit fixes the jurisdiction of the court, in the absence of fraudulent intent in making the allegation.</p> <p>9. Innkeepers <@=>11(12) — Liability as Bailee — Damages.</p> <p>In action against innkeeper from whose custody salesman’s grip was stolen, plaintiff company owning grip was entitled to recover full market value of the article and its contents unless returned.</p> <p>10. Innkeepers <@=>11(12) — Action Against— Liability.</p> <p>In action against innkeeper for loss of traveling salesman’s grip from his custody, letter of district attorney' notifying plaintiff company owning grip that goods recovered from thief were ready to be redelivered, was admissible on issue of delay in delivery, and to show extent of liability.</p>

<p>1. Insurance <&wkey;13 — Action on Policy — Parties — 1 ‘Unincorporated Association.”</p> <p>A Lloyd’s association, issuing policies of insurance signed 'by a number of underwriters, the names of whom are attached to the policy, the liability of each being fixed at a certain percentage of the loss, constitutes an “unincorporated association” within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6149, providing that unincorporated joinVstock companies may be sued by their company names.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Association.]</p> <p>2. Insurance <&wkey;009 — Action on Policy-Parties.</p> <p>• A Lloyd’s association doing business in the state by issuing policies signed by numerous underwriters may, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6149, he sued in its distinguishing name and individual underwriters may be joined.</p> <p>3. Insurance <&wkey;609 — Action on Policy — Liability op Underwriters.</p> <p>Where underwriters signed an insurance policy as members of an unincorporated association, their liability to the insurer is that of partners, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6151, making members of unincorporated companies individually liable in suits against such companies, and article 6126, excepting the business of insurance from limited partnership laws, although the policy limited the liability of each one to a certain percentage of the loss.</p> <p>4. Insurance &wkey;>60’9 —Action on Policy — Parties — Joint and Several Judgments.</p> <p>In a suit on an insurance policy signed by numerous underwriters, where their attorneys in fact have executed a bond to pay off any judgment against the company, every member of the company was bound by a joint and several judgment in favor of the insured.</p> <p>5. Insurance @=5665(3) — Action on Policy-Evidence — Suppiciency—“Premises. ’ ’</p> <p>In a suit on a fire insurance policy, which defendant alleged insured had breached by failing to keep a set of books containing a record of the property on the premises, as provided by the policy, evidence held sufficient to support a finding that insured did keep the requisite books; “premises” including not only buildings, but land upon which they are situated.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Premises.]</p> <p>6. Insurance @=5146(3) — Policies — Construction.</p> <p>In construing policies of insurance, the language used in them must be liberally construed in favor of the assured,, so as not to defeat his claim to indemnity.</p> <p>7. Insurance <&wkey;335(3> — Actions on Policy —Defenses.</p> <p>In a suit on a fire insurance policy, wherein defendant alleged the insured had failed to keep a set of books as provided for in the policy, such failure did not defeat the right to recover, in view of Act April 2, 1913 (Acts 33d Leg. c. 105) § 1 (Vernon’s Sayles’ Ann. Civ. St. 19Í4, art. 4874a), providing that no breach of any warranties or conditions shall avoid the policy unless such breach contributes to bring about the destruction of the property.</p> <p>8. Insurance <&wkey;304 — Policies—Promissory Warranties — Defenses.</p> <p>Act April 2, 1913 (Acts 33d Leg. c. 105) § 1 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a), providing that no breach of any warranties or conditions shall avoid an insurance policy unless such breach contributes to bring about the destruction of the property, includes all promissory warranties, and promissory warranties, breach whereof could, in no event, contribute to or bring about loss under the policy, are not impliedly excluded from the effect of the statute.</p> <p>9. Statutes <&wkey;181(l) — Construction — Intent of Legislature.</p> <p>In construing statutes, effect must be given to the intention of the Legislature.</p> <p>10. Statutes @=5188 — Construction — Language</p> <p>Where the meaning of the language of a statute is plain, it must be given effect by the courts.</p> <p>11. Statutes <&wkey;184r^CoNSTRUCTioN — Intent.</p> <p>Every statute must be construed with reference to the object to be accomplished, and in ascertaining such object the occasion and necessity of the enactment of the statute may be considered.</p> <p>12. Insurance @=5675 — Action on Policy— Costs.</p> <p>In action on a fire insurance policy, underwritten by numerous parties, some of whom were not served, costs incurred in attempting to serve such parties were improperly taxed to defendant, although plaintiff prevailed in the suit, since they were not necessary parties.</p> <p>Buck, J., dissenting in part.</p>

<p>1. Usury <§=>127 — Persons Not Parties to Contract.</p> <p>Plaintiffs not being parties to a usurious contract, and having acquired no rights based upon such contract, the contract affords them no grounds for relief against defendant, the lender under the contract.</p> <p>2. Corporations <@=>579(1) — Usury — Right op Successor Corporation — Amalgamation — Merger—Consolidation.</p> <p>Where borrowing companies conveyed all their property to the lender to satisfy indebtedness, which was usurious, and the lender conveyed to a new company formed to unify business of borrowing companies, the new company could not avail itself of fact of usury in contract between lender and borrower companies, transaction not constituting an “amalgamation,” “merger,” or “consolidation” of borrower companies.</p> <p>3. Usury <@=>-127 — Right to Plead.</p> <p>Where new company, as principal, and stockholder, as surety, pursuant to transactions between the old companies and a lender to them, agreed to pay indebtedness of old companies to lender, new company and its stockholder, as against lender, are not entitled to plead usury as to transactions between lender and old dissolved corporations.</p> <p>4. Statutes <@=>239, 241(1) — Penal Statutes —Construction—Statutory Rules.</p> <p>By Rev. St. 1911, Pinal Title, § 3, penal statutes and' those in derogation of the - common law must b.e liberally construed with a view to effect their objects and to promote justice.</p> <p>5. Constitutional Law <@=>14 — Construction.</p> <p>Unless the context indicates otherwise, the language of the Constitution is to be given its ordinary signification.</p> <p>6. Statutes <@=>188 — Construction.</p> <p>Unless the context indicates otherwise, the language of statutes is to be given its ordinary signification.</p> <p>7. Usury <@=>100(2) — Rights oe Debtor-Credit oe Usurious Interest upon Prin- • cipal — Statute.</p> <p>In view of Const, art. 16, § 11, as to interest and usury, Rev. St. 1911, art. 4982, enacted 1892, authorizing recovery of double amount of usurious interest paid, did not abrogate existing rule concerning application to principal of payments made upon usurious interest.</p> <p>8. Statutes <@=>165 — Construction—Repeal oe Penalty.</p> <p>When the law prescribes one penalty for its violation, and thereafter the Legislature prescribes another, proper construction requires holding that latter penalty supersedes and repeals former.</p> <p>9. Usury <@=>100(2) — Election 'oe Debtor.</p> <p>Under Const, art. 16, § 11, as to interest and usury, and Rev. St. 1911, art. 4982, authorizing recovery of double amount of usurious interest paid, in case of usury debtor has election, to sue for penalty, or to have amount paid as usurious interest credited upon principal.</p> <p>10. Bills and Notes <@=>126 — Attorneys’ Dees — Contract eor Indemnity.</p> <p>Obligations to pay attorneys’ fees, stipulated in notes, are contracts for indemnity only, and obligee is entitled to collect only a fair amount as fees, though less than 'per cent, stipulated.</p> <p>11. Compromise And Settlement <^=6(1)— Consideration.</p> <p>Act of creditor in releasing portion of attorneys’ fees stipulated in notes did not constitute consideration for compromise contract of settlement as detriment to him, unless amount agreed to be accepted by him was less than fair compensation for services rendered by attorneys.</p> <p>12. Usury <@=>89 — Payments by Indorsee.</p> <p>Payments of money or property made by an indorser upon notes of a corporation, he being: a party to the notes, and to the corporation’s< suit against the lender, constituted usury, it thereby the lender obtained more than 10 per cent, per annum as compensation for the use of his money by the company.</p> <p>13. Usury <@=>65 — Compensation eor Use oe Money — Extension oe Time eor Payment.</p> <p>If a transaction between a company, the indorser of its notes, and the payee, was intended as compensation for the use of the payee’s money, and was more than 10 per cent, per annum, the transaction was usurious, but if it was compensation for the payee’s agreement to extend time for payment of the notes,, it was not usurious.</p> <p>14. Action <@=>50(2) — Misjoinder oe Parties and Causes oe Action — Usury.</p> <p>There was no misjoinder of parties plaintiff and causes of action because a corporation, which borrowed at usurious interest, and its-stockholder, the indorser of its notes, sued together to recover separate penalties from the payee, especially after the payee filed his cross-action and sought to recover against both, the corporation and its indorser.</p>

<p>1. BROKERS <&wkey;82(l) — Implied Promise.</p> <p>In suit for reasonable value of services rendered by plaintiff in sale of cattle listed with him by defendant, petition which alleged facts upon which law raises implied promise to pay was sufficient; it being unnecessary, in view of Rev. St. 1911, art. 1819, to allege a promise t.o pay, which is required under common-law system of pleading.</p> <p>2. Pleading <&wkey;251 — Amendment — Misnomer.</p> <p>Amendment, entitled “First Amendment of Plaintiff,” being intended as a trial amendment for the purpose of supplementing original petition, misnomer and failure to refer to original pleading will not destroy its real character and purpose.</p> <p>3. Appeal and Error &wkey;>1041(2) — Trial Amendment — Harmless Error.</p> <p>In suit on express contract for commission on sale of cattle, permitting plaintiff to file a trial amendment alleging reasonable value of services, though not proper under district and county court rule 27 (142 S. W. xix), was not an irregularity warranting reversal.</p> <p>4. Appeal and Error <&wkey;SS2(6) — Estoppel to Allege Error — Variance.</p> <p>It being alleged that defendant listed cattle with plaintiff for sale, proof that cattle belonged to a partnership composed of defendant and another will not be held to create a fatal variance; defendant, who personally listed cattle and failed to plead that his partner was jointly liable, being in no position to complain.</p> <p>5. Brokers <&wkey;82(4) — Commissions — Pleading — Variance.</p> <p>In action for commission on sale of cattle, that petition alleged that sale was made to R. and H., and proof showed that contract of sale as finally made was to R. and C. Bros., and H. & Sons, held not a fatal variance; the parties to whom sale was made not being material.</p> <p>6. Brokers <&wkey;88(10) — Commissions — Misleading Instruction.</p> <p>The principal fact issue being whether plaintiff was the procuring cause of sale of defendant’s cattle, and there being testimony justifying either conclusion that defendant did or did not interfere to prevent plaintiff from showing the cattle to purchaser, an instruction that, if defendant assisted another broker in the sale, etc., plaintiff was the procuring cause, was misleading.</p> <p>7. Brokers <&wkey;65(l) — Consummation oe Sale —Interference by Principal.</p> <p>Defendant, having employed two brokers and they being engaged in an effort to sell the property to the same person, could not rightly interfere to prevent consummation of sale by one in order to favor the other, although he could render assistance by accompanying the brokers upon inspection of property, boosting the sale by commendation, etc.</p> <p>8. Evidence &wkey;>472(ll) — Conclusions—Matter in Issue.</p> <p>Answer of witness, “Jones was the person who caused me and Mr. Huddleston to buy the steers,” being a conclusion as to the very fact in issue to be determined by the jury, objection should have been sustained.</p>

<p>1. Carriers •«==>247(2) — ‘ ‘Passenger. ’ ’</p> <p>One who goes to railway depot a reasonable time before scheduled departure of train, with intention in good faith of paying his fare and boarding such train, is a passenger during interim between his arrival and that of the train, even prior to his actual purchase of the ticket.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Passenger.]</p> <p>2. Carriers «=>246 — Injuries to Passengers —Payment of Fare — Presumptions.</p> <p>One intending to become a passenger, who was injured in the depot while waiting for his train, and who subsequently boarded the train, , must be presumed to have paid the regular fare.</p> <p>3. Appeal and Error «=>1064(2) — Harmless Error — Instructions—Assuming Facts.</p> <p>Where the evidence was conclusive that the injury to an intending passenger while in the station waiting for his train was within a reasonable time prior to the departure of the train, there was no harmful error in assuming in an instruction that plaintiff was a passenger when injured.</p> <p>4. Carriers «=>280(1) — Duty to Persons in Stations.</p> <p>In the treatment of passengers awaiting trains in the depot the carrier owes that high degree of care that a very cautious and prudent person would exercise under the same or similar circumstances.</p> <p>5. Carriers «=>347(3) —Injuries to Passengers — Seats in Depots — Contributory Negligence — Questions for Jury.</p> <p>An intending passenger, waiting in the station for a train, who was injured when, in sitting down between two other passengers in what appeared to be a seat, he fell because of the absence of a bottom in the seat, was not negligent as a matter of law.</p> <p>6. Trial «=>351(2) — Submission of Issues— Specific Requests.</p> <p>In action for injuries by intending passenger who was injured when he attempted to sit in a defective seat, submission of the issue, “Was plaintiff himself guilty of contributory negligence in sitting in said seat as he did?” was not erroneous, in the absence of a correct request for a more specific submission, as being restricted to the manner in which he sat, but embraced the element of negligence in not ascertaining that the bottom of the seat was out.</p> <p>7. Damages '«=>216(3) — Injuries to Passengers — Instructions on Damages.</p> <p>In passenger’s action for injuries, instruction, authorizing recovery for physical injury and suffering in the past and for damages to health in the future, was not erroneous.</p> <p>8. Damages «=>216(3) — Injuries to Passengers — Instruction.</p> <p>Where injured passenger sought general damages, but not damages for loss of time or diminished earning capacity, and testified he could no longer work because of injuries received, instruction, submitting what amount would compensate him, should have been followed by limitation, precluding consideration of whether plaintiff sustained damages by loss ®f time or diminished earning capacity; the evidence being insufficient to sustain recovery for damages for loss of time.</p> <p>9. Carriers «=>286(1) — Duty to Intending Passengers.</p> <p>It is the duty of a carrier of passengers to-provide and maintain safe and suitable premises for passengers to occupy while waiting for trains.</p> <p>10. Carriers ©=>318(2) — Injuries to Passengers — ¡Sufficiency of Evidence.</p> <p>When it is shown that a seat in a railway depot is in an unsafe condition, and that plaintiff, an intending passenger, was injured thereby, a finding of negligence was justified without further evidence as to the length of time the condition had existed and the carrier’s knowledge thereof.</p>

<p>1. Limitation of Actions <§=>85(3) — Statute —Suspension.</p> <p>If subsequent grantee from common source, claiming title by adverse possession under five-year statute, was a resident at time deed to him was recorded, the operation of the statute would be suspended during his absence from the state, under Rev. St. 1911, art. 5702, although during such time grantee 'became a nonresident.</p> <p>2. Limitation of Actions <§=>87(4) — Statute —Suspension.</p> <p>If subsequent grantee from common source, claiming title by adverse possession under five-year statute, was a nonresident at time his deed was recorded, mere visits to the state on business or pleasure would not bring the suspensory statute (R. S. 1911, art. 5702) into operation.</p> <p>3. Limitation of Actions ’@=>197(1) — Statute— Suspension.</p> <p>In trespass to try title, evidence held to warrant jury finding that subsequent grantee from common source was a resident at time of recording his deed, so that his subsequent absence from state would suspend statute of limitations, under Rev. St. 1911, art. 5702.</p> <p>4. Limitation of Actions @==>87(4) — Statute —Suspension.</p> <p>Rev. St. 1911, art. 5702, suspending statute of limitation in case of absence from state, applies to one who at time of accrual of cause of action had a “residence” as distinguished from a “domicile” within the state.</p> <p>5. Evidence <@=>271(21) — Declarations as to Residence — Affidavit.</p> <p>In trespass to try title, the principal issue being whether deceased grantee was at time of accrual of cause of action a resident, so that his absence from the state would, under Rev. St. 1911, art. 5702, suspend statute of limitations, a statement of said grantee in an affidavit that his postoffice address was a named place within the state was admissible as a circumstance tending to establish residence.</p> <p>6. Trial <@=>194(2) — Erroneous Requests — Refusal.</p> <p>Requested instruction to effect that declarations made by a party with reference to making testimony in his favor or subserving his interests should be rejected, held a comment on weight of evidence and properly refused.</p> <p>• 7. Judgment <@=>253(1) — Sufficiency of Pleading to Support.</p> <p>In trespass to try title, petition which expressly alleged value of use of premises to be $250 per annum, and asked for judgment for damages, rents, and costs of suit, was sufficient to support judgment for $381 for use of premises for two years prior to beginning of suit.</p> <p>8. Pleading <@=>384^Set-Off — Trespass to Try Title.</p> <p>In trespass to try title, where there was no pleading on the part of defendants of the payment of specific taxes and no prayer for any set-off, the court did not err in refusing to set off against the damages awarded plaintiffs’ taxes paid by defendants, in view of Rev. St. 1911, art. 1907, as to necessary steps to entitle defendant to prove set-off.</p> <p>9. Trespass to Try Title <S=>41(1) — Bona Fide Purchase — Evidence.</p> <p>In trespass to try title, facts held not to warrant submission of issue whether deed from common source to a son whose heirs are plaintiffs was a bona fide sale and purchase or a conveyance in trust to subserve the convenience of the parties.</p> <p>10. Deeds @=>194(5) — Delivery—Evidence. Recording of a deed is presumptive evidence of its delivery.</p> <p>11. Fraudulent Conveyances <@=>210 — Right of Subsequent Grantee.</p> <p>Although conveyance was for the purpose of defrauding creditors, it would be good as to a subsequent grantee having constructive notice thereof. ,</p> <p>12. Trusts <@=>44(3) — Parol Trust — Evidence.</p> <p>A parol trust cannot be ingrafted upon a legal title except by clear and satisfactory evidence.</p> <p>13. Estoppel <§=>119 — Question for Jury.</p> <p>In trespass to try title, evidence held not to warrant submission of issue whether plaintiffs were estopped by their predecessors’ acquiescence in or consent to a subsequent conveyance by his grantor to another.</p>

<p>1. Customs and Usages <Ssw20 — Proof.</p> <p>In an action by seller of oranges, a finding of the court that the custom of Texas jobbers in buying perishable goods only subject to inspection at destination, was not shown by the testimony to be so general and notorious that the seller might be presumed to have had knowledge of it, held against the weight of the evidence.</p> <p>2. Customs and Usages <®=»12(1) — Knowledge of Parties.</p> <p>When it is'shown that both parties to a sale were engaged in the same kind of business, and one of them relied upon a custom in that particular line of business, it is not necessary to show that other party had knowledge or notice of the existence of such custom.</p> <p>3. Customs and Usages @==312(1) — Delivery —Right of Inspection.</p> <p>When merchandise is ordered from another state or distant point, and the 'contract is silent as to where delivery shall be made, it is permissible for the buyer, in order to show that he did not intend to contract for delivery of the property elsewhere than at the place of its destination, to show that it was the custom and usage at the latter point for final delivery to be made, and that purchaser had right of inspection and rejection, although seller was ignorant of the custom.</p> <p>4. Sales <®=>79 — Place of* Delivery.</p> <p>Where the contract is silent, delivery . by seller to carrier'is prima facie evidence of the delivery to the purchaser, but is not conclusive evidence of that fact.</p>

<p>1. Trial <@=>308 — Conclusions of Law — Conformity to Findings of Fact.</p> <p>In suit for partition, involving construction of item of will, if trial court did not consider facts set out in its findings in its conclusion of law in construing item as to whether it contained a latent ambiguity requiring extrinsic evidence to explain, its failure was error.</p> <p>2. Wills <@=>487(2) — Construction — Parol Evidence.</p> <p>Parol evidence of circumstances surrounding testator is admissible that his will may be read ' in the light of the conditions existing around Mm.</p> <p>3. Wills <S=>489(1) — Construction — Parol Evidence.</p> <p>If consideration of parol evidence tending to explain the expression whereby testatrix designated devisees was necessary in order to enable the court to reach a proper understanding of the item of the will, the court was required to consider it.</p> <p>4. Wills <@=>531(4) — Construction—Persons Entitled — Per Stirfes.</p> <p>Where testatrix devised in equal parts to E. W. and the living children of D. A., deceased, “or their heirs,” testatrix being adopted daughter of sister of D. A., and having inherited from her adoptive mother, F. W. and living children of D. A.’s four children, and heirs of D. A.’s deceased children were each entitled to a fifth per stirpes.</p> <p>5. Descent and Distribution <@=>21 — “Heir.”</p> <p>“Heir” means the person applied by law to succeed to a decedent’s estate in the case of intestacy.</p> <p>[Ed. Note. — For other definitions, see Woi’ds and Phrases, First and Second Series, Heir.]</p>

<p>1. Injunction <@=>101 (3) — Picketing—“Intimidation’ “Coercion’’ — Trade Unions —Boycott.</p> <p>The acts of a labor union which seeks to force an employer to unionize his restaurant by means of picketing and boycott amount to. “intimidation” and “coercion,” and are unlawful and subject to injunctive relief, even though no open throat or violence are proven.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Coercion; Intimidation.]</p> <p>2. Injunction <@=>101(1) — Combination-Boycott — Trabe Unions.</p> <p>The constitutional right of an individual to trhde where he pleases does not confer upon a labor union of which he is a member the right to picket and boycott as an organization.</p> <p>3. Injunction <@=>101(1) — Injuries to Business-Boycott.</p> <p>A boycott by a labor union invades the constitutional rights of the employer to conduct his business on terms of equality with others, and is illegal, even though the ultimate object .is the welfare, of the union members rather than injury to the employer.</p> <p>4. Injunction <@=>101(1) — ’Trade Unions — Boycott.</p> <p>Where the acts done by a trade union in a boycott have the inevitable effect of causing injury to plaintiff, seeking injunctive religf, intent to injure is implied.</p> <p>5. Injunction <@=>101(1)— Boycott — Injuries to Business — “Malice.”</p> <p>An injury knowingly and voluntarily inflicted upon plaintiff’s business by picketing and boycott is malicious warranting injunctive relief ; malice, in a legal sense, denoting wrongful acts intentionally done without just cause or excuse.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Malice.]</p> <p>6. Injunction <@=>101(3) — Picketing and Boycott.</p> <p>Where a labor union by concerted action seeks to coerce an employer to unionize his business, and by picketing and boycotting amounting to intimidation injures his business, such interference will be enjoined.</p> <p>7. Monopolies <@=12(2) — Unlawful Combination — Trade Unions — “Trust.”</p> <p>Where a labor union combines to boycott and picket an employer to coerce Mm into unionizing his business, such combination is a trust within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7796, and is illegal under article 7799.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Trust.]</p> <p>8. Monopolies <@=516 — Picketing and Boycott.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5245, providing that it shall not be unlawful for a member of a union to- induce by lawful moans any person to accept or relinquish employment, is not, in view of article 5246', .at variance with the anti-trust laws, and'dpes not permit the picketing. and boycott of' an employer, whoso employes are in harmony with him, with the view of compelling the unionizing of the business.</p>

<p>1. Interest @==>1 — Kinds—Definitions.</p> <p>Interest is of three kinds, conventional interest, fixed by the parties in the contract, legal interest, which is allowed by law when the parties have not agreed upon any particular rate, and interest which is allowed as damages for the detention of money.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interest.]</p> <p>2. Courts @==3169(4) — Jurisdiction oe County Court — Constitution—Interest.</p> <p>The language of Const, art. 5, § 16, providing that the county court shall have concurrent jurisdiction with the district court when the matter in controversy shall exceed $500 and not exceed $1,000, “exclusive of interest,” does not apply, where the interest is given as part of the damages, but only where it is expressly given by statute.</p> <p>3. Courts @=3169(4) — Jurisdiction of County Court — Action for Money — Interest— Constitution and Statute.</p> <p>Under Const, art. 5, § 16, providing that the county court shall have concurrent jurisdiction with the district court when the matter in controversy shall exceed $500 and not exceed $1,000, exclusive of interest, the county court had no jurisdiction of suit by the purchasers of corporate stock for $1,000 on the oral or written agreement of defendant to take such stock off their hands at the end of a year if they were not satisfied, the interest prayed for by plaintiffs being merely damages for the detention of money, for which the legal rate of interest is merely used as the measure of damages; the contract not coming within Vernon’s Sayles’ Texas Civil Statutes 1914, art. 4979, providing that the parties to any written contract may agree to and stipulate for any rate of interest not exceeding 10' per cent, per annum on the amount of the contract.</p> <p>On Motion for Rehearing.</p> <p>4. Courts @=3169(4) — Jurisdiction of County Court — Written Contract — Contract by Agent.</p> <p>The mere fact that an agent had authority in writing to make such a contract would not make a written contract under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4979.</p>

<p>Appeal and Error i@=>999(1) — Weight op Evidence — Written Instruments.</p> <p>Where there is no contradiction in testimony in boundary dispute, and the verdict is simply deduction from facts proven, consisting of field notes and maps, the appellate court will not defer to the verdict of the jury.</p> <p>2. Trial @s=240 — Argumentative Instructions.</p> <p>In a boundary dispute an instruction that surveyor is presumed to have surveyed on the ground all lines called for and ran to all of the artificial objects or lines called for in his field notes, and that original east lines of league of land were marked lines, an artificial boundary, held, under the facts, argumentative.</p> <p>3. Trial @=>194(10) — Instructions—Weight op Evidence.</p> <p>In a boundary dispute an instruction that surveyor is presumed to have surveyed on the ground all lines called for and ran to all of the artificial objects or lines called for in his field notes, and that original east lines of leagues of land were marked lines, an artificial boundary, held, under the facts on the weight of the evidence, in effect calling for a peremptory instruction.</p> <p>4. Boundaries @=>3(1) — Relative Importance op Conplicting Evidence.</p> <p>A call made upon conjecture will not control a call for course and distance.</p> <p>5. Boundaries @=>3(6) — Relative Importance op Conflicting Evidence.</p> <p>The call for a marked line will ordinarily control the call for course and distance.</p> <p>6. Boundaries @=>37(1) — Conflicting Surveys — Sufficiency op Evidence.</p> <p>In a boundary dispute involving conflict between surveys under the 50 cent act and a resurvey of leagues of land set apart by state for building state capitol, in which jury found state was entitled to land as made vacant by the correction of the original survey of state land by resurvey, whereby eastern line of such survey was moved west, evidence held insufficient to sustain the verdict.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Action by W. O. Linden against Bexar County and others. Judgment for plaintiff, and defendant county appeals.</p>

<p>1. Corporations c=s=>430 — Officers—Powers —Adverse Interests.</p> <p>It is a general rule that an officer whose interests are adverse cannot bind the corporation except as to innocent parties, nor are acts of manifest bad faith on the part of the officer binding on the corporation, and strangers who participate in such wrong against the corporation may not profit thereby.</p> <p>2. Banks and Banking «&wkey;309 — Acts ok Officers — Questions fok Juey.</p> <p>In action by savings bank receiver to recover from national bank proceeds of drafts drawn in plaintiff’s name at the direction of its president, which proceeds were received and applied on a claim against the president individually, evidence held to present jury question whether defendant’s officers were charged with knowledge that such president had not arranged to take up the drafts and that his acts in regard thereto were unauthorized.</p> <p>3. Ooepoeations &wkey;>426(7) — Acts ok Officers — Ratification.</p> <p>The assent or approval of a corporation to acts done on its account may be inferred in the same manner that the assent of a natural person may be, and where a corporation, with full knowledge of the unauthorized act of its officers or agents, acquiesces therein, it thereby ratifies them, especially where the acquiescence results in prejudice to a third person.</p> <p>4. Estoppel <&wkey;119 — Questions foe Juey.</p> <p>In action by a savings bank receiver to recover from national bank proceeds of drafts drawn in the name of the savings bank, used by the national bank in discharge of individual liability of the president of the savings bank to it, it being disputed whether the acts of the president were beyond his powers, the question whether the receiver was estopped to recover from the national bank by failure to pursue other assets of the president of the savings bank held, under the evidence, for the jury.</p>

<p>Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.</p> <p>Suit by the City of Ft. Worth and others against the Capps Land Company. From a decree for defendant, plaintiffs appeal.</p>

N. Bonner, Judge. Trespass to try title by Mary O. Harbaugh and others against the St. Louis Union Trust Company and others. Judgment for plaintiffs, and defendants appeal.

<p>1. Municipal Gorporations &wkey;>38 — Extending Dimits fob Special Bueposes — Con-STEUCTION OF STEAM RAILROADS.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 783a, providing that cities on navigable streams and under special charters may extend their limits for the purpose of acquiring land for improvements of navigation, does not authorize a city upon passage of an ordinance thereunder to construct a steam railroad along a street included in such extended limits.</p> <p>2. Municipal Corporations &wkey;>671(7)— Streets — Construction op Railroads— Injunction.</p> <p>The owners of residence property abutting a street have the right to enjoin the city from constructing a steam railroad thereon without lawful authority, upon showing special damages to property and personal discomfiture, whether plaintiffs owned the fee to the street or not.</p> <p>3. Eminent Domain &wkey;>119(2) — “Taking” Private Property — Compensation—Use op Street.</p> <p>The construction of a steam railroad upon a street or highway, the fee of which is owned by abutting owners, constitutes a taking of private property for public use which Const, art. 1, § 17, provides cannot be done without making adequate compensation.</p> <p>[Ed. Note. — For other definitions; see Words and Phrases, Ifirst and Second Series, Taking.]</p> <p>4. Pleading <&wkey;428(3) — Petition — Conclusion — Sufficiency.</p> <p>Pleading a conclusion that petitioners for injunction were owners of the fee in a street in the absence of special exception thereto or general denial held to warrant introduction of evidence of ownership of fee.</p>

<p>1. Appeal and Error <&wkey;931(l) — Findings —Review.</p> <p>Trial court having found for defendant, court on appeal will resolve all conflicts in the findings of fact in defendant’s favor.</p> <p>2. Adverse Possession &wkey;>60(2) — Agreement Between Landowners.</p> <p>Where, in fencing their land, defendants procured permission from adjoining landowner to make an offset in their fence for a short distance so as to inclose a parcel which was con-cededly his land, adjustment to be made later, held, there was no adverse possession under 10-years statute as to such parcel, where no further agreement was made which) would give notice that such land was being claimed.</p> <p>3. Adverse Possession &wkey;>66(l) — Pences.</p> <p>Where an adjoining landowner at the time that defendants erected a fence inclosing their land knew that they claimed all the land inclosed except a parcel of his land which was included by an offset in the fence, defendant’s holding, except' as to the parcel included by offset, would be adverse, although the fence, had it been run in a straight line, would not mark true boundary.</p> <p>4. Adverse Possession &wkey;>112 — Trespass to Try Title <&wkey;47(l) — Burden oe Proof —Judgment.</p> <p>In suit for certain land described by metes and bounds and inclosed by defendant’s fence, the burden was on defendant to show what portion he was entitled to, and, where he showed title only to part, the court erred in refusing judgment for plaintiff for the remainder because it was not described in the pleadings or evidence so that a description thereof could be made in the judgment.</p> <p>5. Adverse Possession <&wkey;85(3) — Adverse Claim — Evidence.</p> <p>In suit by plaintiff, adjoining landowner, to recover land inclosed within defendants’ fence, evidence held to warrant a finding that defendants claimed to the fence except for a short distance where the fence departed from the line originally adopted.</p> <p>6. Adverse Possession &wkey;>36 — Character of Holding.</p> <p>That the land claimed by plaintiff was contained in an inclosure containing land owned by both defendant and his father, and that the inclosure was jointly used by both, would not prevent defendant from acquiring title by adverse possession, where the land was claimed by* him and not by his father, the use of the land by the father in such case being in subordination to that of the son.</p>

<p>1.Sales i@==>446(1) — Breach of Warranty— Instruction.</p> <p>In suit for breach of warranty of quality of carload of millet seed, where there was no evidence as to what extent particular seed delivered by defendant was responsible for trash found in entire car, charge that verdict should be for defendant unless jury should find he agreed to sell entire carload of seed, as alleged by plaintiff, and denied, was proper.</p> <p>2. Appeal and Error <©=>882(12) — Invited Error — Request for Instruction.</p> <p>Where an erroneous instruction, conflicting with another, was given at appellant’s request, appellant cannot complain.</p> <p>3. Sales <@=>261(6) — “Express Warranty”— Description.</p> <p>The description of millet seed contracted to be sold as “good, merchantable seed” is not properly an “express warranty,” which is collateral to the contract, while a description of the quality of the goods is regarded as a part of the contract itself.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Express Warranty.]</p> <p>4. Sales <@=>288(2) — Express Warranty — Discharge by Acceptance.</p> <p>An express warranty, being collateral to the agreement of sale, is not discharged by delivery and acceptance under the contract of sale, though the acceptance is made after inspection.</p> <p>5. Sales <@=>179(4) — Description—Remedies of Buyer.</p> <p>If goods tendered in discharge of contract of sale, merely descriptive of quality, did not meet requirements, they may be rejected and seller sued for breach of contract, but where goods are accepted after inspection or opportunity, in absence of fraud, or defect not discoverable by inspection, contract is discharged.</p> <p>6. Sales <@=>179(4) — Remedies of Buyer-Acceptance.</p> <p>Where goods are ordered by particular description, and accepted without opportunity for inspection, it is prevented by fraud, or it would not disclose any defect, the purchaser has practically the same rights as in case of a strict breach of warranty.</p> <p>7. Sales <@=>176(4) — Sale by Description —Opportunity to Inspect.</p> <p>A fair opportunity to inspect the property delivered under a contract of sale by particular description, in the absence of fraud, is regarded as the equivalent of inspection.</p> <p>8. Appeal and Error <@=>1026 — Reversal — Harmless Error.</p> <p>Where no harm probably resulted from erroneous rulings, they do not require reversal.</p>

<p>1. Public Lands <S==>175(7) — Overlapping Surveys — Priority of Right.</p> <p>Where a section of school land was patented before the occupant of an overlapping section of school land had acquired any right and the field notes of the patented section embraced within its calls the overlap, the patentee’s right was superior to that of a subsequent purchaser of the other section.</p> <p>On Motion for Rehearing.</p> <p>2. Boundaries <&=>37(5) — Agreed Bines — Evidence.</p> <p>In an action to determine title to an overlap of two sections of school land, evidence held not sufficient to establish a boundary line by agreement.</p> <p>Appeal from District Court, Lubbock County; W. R. Spencer, Judge.</p> <p>Suit by H. H. Embry against C. W. Post and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered, and rehearing denied.</p>

<p>1. Fixttjbes <§=^>19 — Machinery Sold Subsequently to Mortgage.</p> <p>Where land on which gins stood was sold, and deed'«of trust given, and company with notice of deed sold machinery for gins, chattel mortgage to secure price stipulating it should remain personalty, as against vendor of gins, seeking to foreclose deed of trust, machinery became part of realty, and deed could be foreclosed on it.</p> <p>2. Mortgages <S=^>447 — Foreclosure — Description of Property.</p> <p>Petition by vendor of ginning plants, seeking foreclosure of deed of trust on machinery subsequently installed therein by buyers, held, sufficiently to describe such machinery.</p>

Suit by E. D. Farmer against J. D. Pan-taze and others. From judgment for plaintiff, the named defendant and another appeal.

<p>1. Trial <®=>352(4) —■ Issues — Conformity with Pleadings.</p> <p>Where the bill alleged that two defendants on reorganization of a corporation agreed through a specific agent to pay the pre-existing debts of the corporation, submission of issues whether they or- any one authorized to speak for them agreed to pay such indebtedness was erroneous.</p> <p>2. Contribution <§^>9(G) — Joint Notes — Liability —■ Presumptions and Burden of Proof.</p> <p>Since it will be presumed that all the makers of a joint and several note were equally liable with each, other, the burden of showing the contrary rests upon .such of the makers as allege that their liability is limited and different from that of the other makers.</p> <p>3. Payment @=>41(2) — Application.</p> <p>If no application of a payment is made by debtor or creditor, the law will apply it as the justice of the case demands.</p>

T. Stubbs, Judge. Contest of school election by L. W. Barker and others, in which A. B. Wilson, county attorney, was made eontestee. Judgment for contestee, and the contestants appeal.

<p>Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.</p> <p>Action by the Billingslea Grain Company against John Howell and others. From judgment for defendants, plaintiff appeals.</p>

<p>Action between E. T. Martin and wife and L. Granger, trustee.</p>

<p>1. Public Lands &wkey;>172(ll) — Right of Way Over — Width.</p> <p>Under Rev. ,St. 1911, art. 6482, giving railroads right of way over public lands, a railroad, which constructed its main line over a hundred foot right of way condemned through private lands, is entitled to a right of way of like width only over adjacent public lands against a county seeking to open a road.</p> <p>2. Public Lands &wkey;>172(l]) — Width of Right of Way — Burden of Pboof.</p> <p>A railroad; claiming, under Rev. St. 1911, art. 6482, a right of way over public lands in excess of the hundred foot width which it condemned over private lands for its main line, had the burden to show the necessity for a way over public lands exceeding 100 feet in width.</p> <p>3. Railroads <&wkey;73(l) — Exclusion oit Trespassers — Right op Way.</p> <p>A railroad company may exclude trespassers from its right of way, and take reasonable steps to effect that purpose and protect itself therefrom.</p>

<p>1. Appeal and Error <@=>719(6) — Fundamental Ekroe — Dibection op Yebdict.</p> <p>The action of the trial court in peremptorily instructing the jury presents fundamental error, to be noticed though assignment of error thereon is defective.</p> <p>2. Appeal and Error <@=>927(7) — Reversal Aeter Directed Verdict — Evidence. _</p> <p>_ In action under federal Employers’ Liability Act (U. S. Comp. St. 1916, §§ 8657-8665) for death of a brakeman, the judgment would be reversed on appeal from a directed verdict for defendants if the evidence, taken most favorably to appellant, would authorize men of reasonable minds to conclude that defendants’ negligence proximately resulted in death.</p> <p>3. Master and Servant <@=>286(5) — Federal Employers’ Liability Act — Negligence-Question por Jury.</p> <p>In action under federal Employers’ Liability Act (IT. S. Comp. St. 1916, §§ 8657-8665) for the death of a freight brakeman, evidence as to defendants’ negligence held to make a question for the jury.</p> <p>4. Master and Servant <@=>124(4) — Federal Employers’ Liability Aot — Inspection op Foreign Cars.</p> <p>A railroad is bound to inspect the cars of another railroad used on its road just as it would inspect its own cars, and owes such duty as master, and is responsible for the consequences of such defects as would be discovered by ordinary inspection.</p> <p>5. Evidence <@=>93 — Inspection op Foreign Oars — Burden op Proof.</p> <p>In action under federal Employers’ Liability Act (Ü. S. Comp, St. 1916, §§ 8657-8665) for death of a brakeman, the question whether a foreign car was inspected before being placed in charge of a train crew was a fact lying peculiarly within defendants’ knowledge, and the burden of proof was on them.</p> <p>6. Master and Servant <@=>286(24) — Federal Employers’ Liability Act — Inspection op Foreign Cars — Question por Jury.</p> <p>On evidence in action under federal Employers’ Liability Act 0J. S. Comp. St. 1916, §§ 8657-8665) for death of a brakeman, held, that defendants’ negligence in not properly inspecting a foreign car before it was placed in charge of a train crew was for the jury.</p> <p>7. Courts <@=>97(5) — Federal Statute — Precedents.</p> <p>In action under federal Employers’ Liability Act (U. S. Comp. St. 1916, _§§ 8657-8665), the federal court decisions in similar cases are to be followed by the state courts in 'considering the issues.</p> <p>8. Master and Servant <@=>289(33) — Federal Employers’ Liability Act — Contributory Negligence — Question por Jury.</p> <p>In action under federal Employers’ Liability Act (ü. S. Comp. St. 1916, §§ 8657-8665) for death of a brakeman, held, on the evidence, that his contributory negligence in stepping upon the pin lifter so as to uncouple the cars was for the jury.</p>

Umphres, Judge. Suit by the First National Bank of Canyon against D. A. Park, who answered by general denial and by cross-action against L. T. Lester. There was a judgment in favor of the hank against Park and in favor of Park against Lester, and the latter appeals.

Suit by D. E. Powell against Etta M. Lewis to foreclose a vendor’s lien. J. H. Lewis and another intervene as defendants. Judgment for plaintiff, and defendants appeal.

<p>1. Evidence <&wkey;444(0) — Parol Agreement-Note.</p> <p>In action on note for corporate stock, under defendant’s plea of failure of consideration court could not admit evidence showing contemporaneous parol agreement, contradictory of note, that defendant should not pay it, unless from commissions for selling stock.</p> <p>2. Evidence &wkey;>419(l) — Parol Evidence Affecting Writing — Consideration.</p> <p>Consideration recited in written contract can be explained or contradicted by parol, except where parol proof of consideration shows an entirely different contract.</p> <p>3. Evidence <&wkey;444(6) — Parol Evidence Affecting Writing — Consideration.</p> <p>Fact that statute requires all facts to be alleged and plea of failure of consideration to be verified does not change rule of evidence that parol evidence showing an entirely different contract, making payment of note conditional, is inadmissible.</p> <p>4. Bills and Notes &wkey;>485 — Title oe In-dorsee — Prima Facie Sufficiency of Assignment-Statute.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 588, assignment of note by payee company by indorsement of secretary to plaintiff was sufficient to show title in plaintiff to note, sued on by him, no verified plea of non est factum being filed by defendant.</p> <p>5. Corporations <&wkey;642(2) — Foreign Corporation — “Doing Business” — Statute.</p> <p>Timber company which sold stock for note to its agent to sell stock, and transacted no other business in state, did not “do business” in state in violation of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1314.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Doing Business.]</p>

<p>1. Insurance <@=>819(2) — Fraternal Beneficiary Association — Health of Insured-Evidence.</p> <p>In suit on benefit certificate, held, on the evidence, that insured, who stated in her application as a warranty that she was in robust health and free from disease, was not then suffering from pellagra.</p> <p>2. Insurance <@=>723(6) — Fraternal Beneficiary Association — Question as to Health — Construction.</p> <p>A question in application, “Have you consulted or been under the care of a physician, any time within the past ten years? (explain fully giving cause of illness, dates and names and address of all physicians consulted),” required applicant to answer only as to consultation for illness.</p> <p>3. Insurance <@=>723(6) — Fraternal Beneficiary Association — Health of Insured—</p> <p>■ “Illness.”</p> <p>Under question in application for benefit certificate as to whether applicant had been under consultation or care of a physician for any illness, sunburn resulting in peeling of skin was not an “illness”; that meaning more than a temporary and trivial indisposition not substantially impairing the! health (citing Words and Phrases, Second Series, Illness).</p> <p>4. Insurance <@=>819(2) — Fraternal Beneficiary Association — Answer as to Applicant’s Health — Question for Jury.</p> <p>Evidence, in suit on benefit certificate, held not sufficient to justify peremptory instruction for defendant on theory that applicant’s answer to question whether she had been under care of physician within ten years, and as to cause of illness, physician consulted, etc., was false.</p> <p>5. Insurance <@=>825(2) — Fraternal Beneficiary Association — Statements in Application — Truth—Waiver or Estoppel.</p> <p>Evidence, in action on benefit certificate, held to present a question of fact as to waiver or es-toppel against a defense based on falsity of statement in application as to health by reason of medical examiner’s approval of, and local agent’s acceptance and forwarding of application.</p> <p>6. Insurance <@=>825(21 — Fraternal Beneficiary Association — Statements in Application-Good Faith — Evidence.</p> <p>Evidence, in suit on benefit certificate, held to make a question of fact as to whether applicant in answering question as to her health and consultation with physician did so in good faith. -</p> <p>7. Insurance <@=>724(1) — Fraternal Beneficiary Association — Knowledge of Agent —Imputation to Insurer.</p> <p>Knowledge acquired by an association’s medical examiner and local agent in the discharge of their duty in connection with the application, and in reporting it to insurer for its information before its final action on application, was to be imputed to insurer.</p> <p>8. Insurance <@=>724(3) — Fraternal Beneficiary Association — Knowledge of Agent —Estoppel.</p> <p>If both insured and insurer’s examiner and agent knew of falsity of statement in application and insured was not acting in good faith, and'if agent acted in collusion with insured, the insured could not claim benefit of an estoppel on account of agent’s knowledge.</p> <p>9. Appeal and Error <@=>1151(2) — Determination of Cause — Modification of Judgment — Interest.</p> <p>In suit on benefit certificate, where there was no pleading of any contract or facts authorizing entry of judgment bearing interest at 10 per cent, from its date, it would be reformed on appeal to bear 6 per cent, interest from its date and affirmed.</p> <p>10. Appeal and Error <@=733 — Assignment of Error — Judgment—Exoessiveness.</p> <p>An assignment that a judgment is excessive is, in so far as excessivenoss is concerned, too general to require consideration.</p> <p>11. Appeal and Error <@=719(8) — Assignments of Error — Judgment—Fundamental Error.</p> <p>Though an assignment that a judgment is excessive is too general to require consideration, yet, where a judgment includes 10 per cent, interest without any authority therefor, the error is fundamental.</p>

Trial of right of property to sequestered cotton between the Wichita Falls Warehouse Company, plaintiff, and the King-Collie Company, claimant. Judgment for plaintiff, new trial denied, an-d claimant appeals.

<p>1. Adverse Possession <®=^94 — Five-Year Statute — Raiment oe Taxes.</p> <p>The five-year statute of limitation does not require, in order to acquire title by adverse possession, that taxes be paid before they become delinquent, but only that they be paid before suit.</p> <p>2. Limitation oe Actions <@==>5(1) — Statutes — Construction.</p> <p>Statutes of limitations are curative, and confer rights of property, which are as much entitled to protection as any other legal right. 8. Adverse Possession <@=>71(2) — Forged Deed — “Forgery. ’ ’</p> <p>The fact that a deed -was executed by “Wesley Baker” as “the sole heir of G. W. Baker, of Fayette county, Illinois,” does not render the deed a “forgery,” within the meaning of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5674, relating to advers'e possession, by reason of the fact that the deed conveys land which was at one time owned by George W. Baker, who has no descendant or relative named Wesley Baker.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and 'Second Series, Forgery.] 4. Adverse Possession <§=»71(2) — Forged Deeds</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5674, relating to adverse possession, it is immaterial that there is a forged deed in a chain of title, where other deeds are alone relied on to establish title.</p>

<p>1. Boundaries <§=>3(3) — Control op ObJECTS*</p> <p>In boundary suit, instruction that, in locating land lines and corners, resort must first be had to natural and artificial objects called for, without variation for course, distance, quantity, or other facts, was proper.</p> <p>2. Boundaries <§^41 — Instructions — Disputed Landmarks.</p> <p>' In boundary suit, where plaintiffs claimed corner at tree marked p, and defendants claimed the corner at a different tree, alleged to be so marked, but on which the letter was indistinct, instruction describing plaintiffs’ claimed tree, and requiring verdict for plaintiffs, if such was the corner, held proper.</p> <p>3. Trial @=>203(3), 350(1) — Instructions — Special Issues — Issues op Each Party.</p> <p>When a case is submitted on a general charge, issues of each party should be affirmatively submitted, but such is not the case if the submission is on special issues.</p> <p>4. Boundaries @=>25 — Junior Survey — Coincident Corners.</p> <p>Where junior survey located northwest corner at the southwest corner of a senior survey, and called for a marked tree at that point, instruction controlling findings by the call for the tree in the junior survey held proper.</p>

<p>1. Appeal and Error <&wkey;1099(l) — Law oe the Case.</p> <p>Express holdings on former appeal that limits of city were legally extended, and that even were this not so there was a de facto municipality which Could be attacked only by the state, foreclose the questions.</p> <p>2. Constitutional Law <&wkey;63(2) — Powee oe Legislature — Change by Constitution.</p> <p>Power to extend city limits, previously vested in the Legislature, could, by amendment of the Constitution, be vested in the voters of the city.</p> <p>3. Constitutional Law <&wkey;65 — Powee oe LEGISLATURE — DELEGATION TO YOTEBS — MUNICIPAL Boundaries.</p> <p>Power of Legislature to extend city limits could by statute be delegated to the voters of the city.</p> <p>4. Municipal Corporations <&wkey;3&wkey;ExTENsion oe Limits — Submission to Vote — Curative Acts.</p> <p>If the voters of a city had not been given power to extend city limits by amending its charter, without vote of the inhabitants of the outlying territory required by Rev. St. 1911, art. 781, then such an attempt, subsequent to enactment of Acts 33d Leg. c. 147 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1096a-1096i), was rendered effectual, by Acts 34th Leg. e. 94, § 1 (Vernon’s Ann. Oiv. St. Supp. 1918, art. 1096j), and Acts 35th Leg. c. 30, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1096k), in terms validating attempted amendment of charter in such a city at such time.</p>

<p>1. Accord and Satisfaction <&wkey;26(3) — 'Dispute as to Amount Due — Sufficiency of Evidence.</p> <p>In action against lumber company for balance due on piling contracts, where plaintiff had received from such company a voucher on its face that it was for balance in full and accord and satisfaction was claimed, evidence held insufficient to show a bona fide dispute as to amount due plaintiff.</p> <p>2. Sales <&wkey;288(2) — Performance — Waiver —Acceptance.</p> <p>Where lumber company, having entered into piling contracts, accepts piling as performance of the contract without objection or complaint and uses and converts the timber, it cannot thereafter be heard to say that the piling delivered was not the piling called for by the terms of the contract.</p> <p>3. Appeal and Error <&wkey; 173(1) — Issues Not Urged in Lower Court.</p> <p>Where lumber company enters into two piling contracts with same party and accepts 300 extra pieces under and as part performance of the contracts, in latter’s action to recover balance due on the contracts, the company cannot urge on appeal that it is liable as to excess only on implied contract, where it did not plead or urge such defense during trial.</p> <p>4. Appeal and Error t&wkey;218(l) — Assignment of Error — Failure to Except to General Charge — Failure to Bequest Special Charge.</p> <p>An assignment of error attacking the verdict and judgment cannot be sustained, where appellant did not except to the general charge and did not request special charge covering the particular phase of the case covered by the assignment.</p> <p>5. Trial <&wkey;219 — Instructions—Refusal to Define Bona Fide Controversy.</p> <p>In action for balance due on contracts, where court submitted special issue of whether there was bona fide dispute as to amount due plaintiff when he accepted defendant’s voucher stating that it was for balance in full, court’s refusal to give special charges defining “bona fide controversy” held not error.</p> <p>6. Pleading &wkey;>237(6) — Trial Amendment— Admissibility of Evidence.</p> <p>Where evidence as to modifications of a contract was objected to upon the ground that the pleadings did not support such evidence, the defect in the pleading could be cured by a trial amendment.</p> <p>7. Appeal and Error <&wkey;197(l) — Objection to Evidence — Reservation in Lower Court.</p> <p>Objection to admissibility of evidence under the pleadings cannot be raised for first time in Court of Civil Appeals.</p> <p>8. Evidence <&wkey;177 — Secondary Evidence— Carbon Copy of Letter.</p> <p>Where original of letter showing terms of contract could not be produced, carbon copy held admissible.</p> <p>9. Trial <&wkey;350(4) — Special Issues.</p> <p>In action against lumber company for balance due on piling contracts involving question of whether there was a dispute as to. amount due plaintiff when he accepted defendant’s voucher stating that it was for balance in full, refusal to submit requested special issue as to whether defendant’s agent acted for protection of company when he refused to settle with plaintiff until claim of third party, which he claimed could be set off against plaintiff, was settled, held no error.</p> <p>10. Trial <&wkey;350(4) — Requested Special Issues.</p> <p>In action against lumber company for balance due on piling contracts, refusal to submit requested special issue as to whether the piling plaintiff agreed to furnish by a certain contract was the piling described in a certain letter held no error.</p> <p>11. Appeal and Error <&wkey;994(2) — Review— Credibility of Witnesses.</p> <p>The credibility of witnesses was for the jury, not the appellate court.</p> <p>12. Appeal and Error <&wkey;995 — Review— Weight of Evidence.</p> <p>The weight of the evidence is for the jury, not the appellate court.</p>

<p>1. Sales <§=>85(1) — Conditions — Pekforiiance.</p> <p>Where plaintiff agreed to allow defendant credit on the note sued on of $500 for used car taken in trade, and $500 more when it should be sold, but plaintiff made such car into a service car and kept it, refusing an offer of $1,000 for it, plaintiff could not be heard to say that the last credit could not be made because the car had not been sold.</p> <p>2. Appeal and Error <g==>260(2) — Reservation oe Exceptions — Exclusion of Evidence.</p> <p>Evidence objected to by defendant was admitted temporarily subject to further ruling and after its admission defendant demanded a ruling, and argument was heard whereupon court without announcing any ruling peremptorily instructed a verdict for plaintiff. Held that if directed verdict was intended to exclude the evidence, no exception was necessary to review the exclusion.</p>

<p>1. Master and Servant <§=>367 — Workmen’s Compensation Acts — Relation oe Parties —“Employé. ”</p> <p>Where contract provided that buyer of timber should reimburse seller for wages paid scalers, not to exceed $50 per month each, a scaler employed by, and who worked under direction of, seller, at a salary of $70 a month, was not an employé of buyer, within Workmen’s Compensation Act, arts. 5246h, 5246yyy.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Employe,]</p> <p>2. Negligence <§=>88 — Contributory Negligence-Sleeping.</p> <p>A person who was injured through lumber company employes’ negligence in felling a tree, and who was not an employe of the company, cannot recover damages from company where his own negligence in lying down and going to sleep near the tree contributed to injury.</p>

Calhoun, Judge. Suit by the First National Bank of Teague against Charles O. Austin, Commissioner of Insurance and Banking, the Farmers’ & 'Merchants’ State Bank of Teague, and J. D. Moore, its receiver. From the judgment the commissioner appeals.

D. Hdrvey, Judge. Divorce suit by Adela B. Lefevre against Arthur Lefevre, in which defendant filed a cross-bill. Judgment against plaintiff on her claim for divorce, and in favor of defendant on his cross-action for divorce, and plaintiff appeals.

<p>1. Negligence <S=3l35 — Contributory Negligence oe Child — Sufficiency oe Evidence.</p> <p>In a personal injury action, evidence 1held sufficient to sustain jury’s special finding that the injured boy had sufficient intelligence to appreciate, and sufficient discretion to avoid, the danger from which the injury resulted.</p> <p>2. Witnesses <s=>269(12) — Gross-Examination of Child — Mental Capacity.</p> <p>Upon a question of contributory negligence of a boy injured by purposely exploding a dynamite cap while playing on defendant’s property, evidence, on his cross-examination, as to what he knew and had been told in the matter of taking or meddling with others’ property was. relevant on the question of intelligence and discretion, particularly where plaintiff offered evidence of the • boy’s brightness and average record in school.</p> <p>3. Evidence <®==»272 — Declaration Against Interest.</p> <p>Evidence that plaintiff, suing for personal injury, stated soon after injury that it was his fault, and he blamed no one therefor, was admissible as a declaration against interest.</p> <p>4. New Trial <3=5143(2) — Grounds — Impeachment of Verdict — Answers to Interrogatories — “Misconduct of Jury.”</p> <p>Rev. St. 1911, art. 2021, permitting testimony of jurors in open court to impeach their verdict for “.misconduct of jury,” would not include reception of testimony to show that jurors did not understand the legal effect of their answers to special interrogatories.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Misconduct.]</p>

<p>1. Judgment &wkey;>307 — Failure to Dispose of Issue — Amendment at Dater Term.</p> <p>Where a judgment, through mistake of court and counsel, did not dispose of an abandoned issue, the court may at a later term amend the judgment and make'it final.</p> <p>2. Trial <&wkey;143 — Province of Jury — Peremptory Instruction — Conflicting Evidence.</p> <p>Where there was a decided conflict in the testimony, the court properly refused to direct a verdict because of preponderance of evidence.</p> <p>3. Appeal and Error <&wkey;10O2 — Review — Conflicting Evidence.</p> <p>Where there is a decided conflict in the testimony, the Court of Civil Appeals will not attempt to resolve the conflict.</p> <p>4. Contracts <&wkey;232(2) — Implied Promise— ' Extra Work — Buildings.</p> <p>Where extra work is done on building, and extra material furnished under agreed direction and supervision of owner’s architect, and pursuant to changes in plans and specifications made at demand of, and by authority of, owner, and where owner, upon completion of the work, approved, accepted, and appropriated building to her own use, the law will imply a promise to compensate builder for the extra work and material.</p>

F. Whitehurst, Judge. Action by E. O. Harpold and wife against B. L. Cameron and another. From judgment for the named defendant against defendant Otis Elevator Company, that company appealed; and, from judgment for plaintiff against Cameron, he brought error, which was consolidated with the appeal.

<p>1. Appeal and Error <@=>1062(5) — Harmless Error — Submission op Immaterial Issue.</p> <p>If, for any reason, failure to give plaintiff notice of sale foreclosing lien for street improvements, as required by law, was immaterial under facts, submission of issue in suit to set aside sale and recover realty was harmless to defendant.</p> <p>2. Appeal and Error <@=>742(2) — Briefing Assignments.</p> <p>Multifarious assignments of error, unaccompanied by statement of proceedings and evidence necessary to enable Court of Civil Appeals to determine whether or not there was error in submission of certain issues, are not briefed in accordance with rules, and are not entitled to consideration.</p> <p>3. Trial <§==350(3) — Submission op Issue — Judicial Sales — Setting Aside.</p> <p>In suit to set aside constable’s sale of realty to foreclose lien for street improvements, though property was heavily incumbered at time of sale and defendant’s purchase, its reasonable value was a proper issue for submission.</p> <p>4. Municipal Corporations <@=>578 — Street Improvement — Lien—Foreclosure — Suit to Set Aside Sale.</p> <p>In suit to set aside constable’s sale of realty to foreclose street improvement lien, any in-cumbrance at time of sale should have been considered in determining whether or not defendant purchased at grossly inadequate price.</p> <p>5. Appeal and Error <@=>1062(1) — Harmless Error — Submission op Issue.</p> <p>In suit to set aside constable’s sale of realty to foreclose street improvement lien, any error in submitting plaintiff’s requested issue as to conduct of defendant purchaser, and its result in bringing about sale of property, held immaterial.</p> <p>6. Trial <@=>350(3) — Submission of Issue.</p> <p>In suit to set aside constable’s sale of realty to foreclose street improvement lien, court properly submitted, at plaintiff’s request, issue whether defendant purchaser at time of making improvements possessed in good faith, an issue raised by pleadings and evidence.</p> <p>7. Municipal Corporations <@=>579 — Assessments — Sale — Improvements — Good Faith.</p> <p>If purchaser at constable’s sale to foreclose street improvement lien was not in adverse possession of the land in good faith when he made improvements, he was not entitled to recover value of improvements in suit against him to recover land.</p> <p>8. Appeal and Error <@=>1070(2) — Harmless Error — Finding.</p> <p>In suit to set aside constable’s sale of realty to foreclose street improvement lien, jury having found defendant was not in, possession in good faith after sale to him, their incorrect finding ■ that improvements made by him were of no value was harmless.</p> <p>9. Appeal and Error <S=5l062(l) — Harmless Ebror — Submission op Issue.</p> <p>In suit to set aside constable’s sale of realty to foreclose street improvement lien, submission of issue as to whether or not defendant failed to make certain payments agreed to be made by him and plaintiff on the lien claim held harmless to defendant.</p> <p>10. Trial <@=»350(3) — Submission op Issue— Judgment.</p> <p>In suit to set aside constable’s sale of realty to foreclose street improvement lien, court’s action in' submitting issue of defendant’s right to compensation for improvements, and judgment denying defendant compensation for his improvements, held not reversible error.</p>

<p>1. Landlord and Tenant <@=>139(2) — Right to Emblements.</p> <p>It is the general rule that in cases of uncertain tenure, such as a tenancy at will, if the landlord, without fault of the tenant, terminates the tenancy, tenant is entitled to harvest and remove growing crops planted by him in due course of husbandry.</p> <p>2. Evidence <@=>13 — Judicial Notice — Matter of Common Knowledge — Winter WHEAt.</p> <p>It is matter of common knowledge that in the latitude of Texas wheat is sown in the autumn and harvested the following summer.</p> <p>3. Landlord and Tenant <@=>139(2) — Emble-ments.</p> <p>Under lease for five years, lessor having right to sell meanwhile, providing in that event lessee should have until next April 1st after notice to surrender possession, etc., and that any lease money should be returned for time yet to run, lessees were not entitled, after sale and notice, to hold after April 1st to harvest crop of wheat in July.</p> <p>4. Damages <@=>85 — Discharge — Provision as to Damages — Enforcement.</p> <p>A contract may provide a method whereby it may be discharged fixing the measure of damages or compensation recoverable, which is permissible, and such provision will be enforced.</p> <p>5. Landlord and Tenant <@=>95 — Termination of Lease — Stipulation.</p> <p>Stipulation that lease may be terminated by sale of land is valid, and will be upheld.</p> <p>6. Landlord and Tenant <@=>139(2) — Termination of Tenancy at Will — Emble-ments.</p> <p>Doctrine of emblements does not prevent parties from so contracting that lessee in tenancy at will will not be entitled to growing crops on termination of lease, and if agreement is to give up possession, on sale of premises by lessor, on repayment of unearned rent, it will be enforced.</p>

<p>1. TELEGRAPHS AND TELEPHONES &wkey;>38(6)— Death Messages — Delay—Notice to Company.</p> <p>Company, which failed to deliver message reading: “Mr. J. S., Mother dead. Come home at once” — held liable to J. V. S., the son, notwithstanding delayed delivery to J. W. S., his father, at same address, having been put on inquiry by word “mother” and by agent’s conversation with sender.</p> <p>2. Telegraphs and Telephones <&wkey;37(9)— Death Messages — Notice to Company-Care Required.</p> <p>Where telegraph company receivedi notice from the face of the message that death message was for the son, and not the father, it was under the duty of exercising ordinary care to make delivery to the son.</p> <p>3. Apteal and Error <&wkey;931(6) — Presumptions — Incompetent Evidence.</p> <p>In action for delay in -delivering death message, where there was competent evidence that plaintiff was the intended addressee, it will be presumed that the court did not consider the sender’s testimony that he sent the message for plaintiff, if such testimony was incompetent.</p>

<p>1. Appeal and Error <©=>501 (2) — Review— Assignment-Record — Sufficiency.</p> <p>An assignment assailing the sustaining of demurrer to an answer and cross-action should not be considered, where the record contains no indication that the demurrer was acted on, except a bill of exceptions objecting to the overruling of a general demurrer.</p> <p>2. Animals <©=348 — Running at Large.</p> <p>There is no general law prohibiting stock running at large.</p> <p>3. Appeal and Error <©=>664(4) — Record— Conelict Between Statement op Facts and Bill op Exceptions.</p> <p>The statement of facts showing that a witness’ testimony was rejected will prevail over a bill of exceptions objecting that witness was incompetent and that his testimony was admitted.</p> <p>4. Trlal <&wkey;260(l) — Refusal of Charge 'Already Given.</p> <p>It is not error to reject a requested charge, where the matter has already been submitted by other charges.</p> <p>5. Highways <&wkey;177 — Use — Speed — Negligence.</p> <p>It is negligence per se to run an automobile upon a highway at a greater rate of speed than that permitted by statute, and renders the driver liable for damages resulting therefrom.</p>

<p>Appeal from Hill County Court; R. T. Burns, Judge.</p> <p>Action by the Elgin-Butler Brick & Tile Company against the Hillsboro Independent School District. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District .Court, McLennan County; R. I. Munroe, Judge.</p> <p>Homer Bybee was convicted of violating the local option law, and he appeals.</p>

<p>Indictment and Information <&wkey;159(3) — Amendment — Place of Offense.</p> <p>Allegation in indictment as to county in which offense was committed is matter of substance, amendment of which is prohibited by Code Or. Proe. 1911, art. 598.</p>

<p>Criminal Law <§=*1092(7), 1099(6) — Bills of Exception — Time, foe Filing.</p> <p>Statement of facts and bills of exception, not filed within 20 days after adjournment of court as provided by statute, cannot be considered on appeal.</p>

<p>1. Pleading <®=*34(3) — Construction—General Demurrer.</p> <p>Every reasonable intendment must be indulged in favor of a pleading, when assailed through a general demurrer.</p> <p>2. Pleading <§=*205(1) — Complaint—General Demurrer.</p> <p>A complaint for recovery of an occupation tax paid under duress set out, and held sufficient as against a general demurrer, though it may have been subject to special exception.</p> <p>3. Licenses <®=>3A — Recovery of Tax Paid-Duress.</p> <p>Where a foreigner, dealing in merchandise, but not selling cannon crackers or toy pistols, as described in Rev. St. 1911, art. 7356, paid a city an illegal occupation tax under threats of prosecution, fines, and imprisonment, his action for recovery thereof was not subject to defense of voluntary payment.</p>

<p>Appeal from Bell County Court; J. B. Hubbard, Special Judge.</p> <p>Action- between Fred Cawthon and M. F. Buford. From a judgment for the latter, the former appeals.</p>