Volume 207 — South Western Reporter

Action by John R. Woodall against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff was affirmed by the Court of Civil Appeals (159 S. W. 1012), and defendant brings error, plaintiff making cross-assignments.

Action by IC Mamar against Mrs. T. J. Clay. Prom a judgment for plaintiff, defendant appealed, and, judgment being affirmed by the Court of Civil Appeals (156 S. W. 1125), defendant brings error.

• Error to Court of Civil Appeals of Eighth Supreme Judicial District. Action by J. A. Greber against E. S. Clark, A. P. Hartfield, and others. From judgment for plaintiff, defendant Hartfield appealed to the Court of Civil Appeals, which affirmed (160 S. W. 603), and he brings error.

<p>1. Master and Servant <@=>255(30) — Railroads — Operation op Signal Board — Duty to Look Out.</p> <p>Railroad employs operating signal board by means of lever in projecting bay window of station was not as a matter of law required to look to see if track was clear before giving signal that operator bad no orders for engineer.</p> <p>2. Master and Servant <@=>286(30) — Injury to Brakeman — Duty op Signal Board Operator — Jury Question.</p> <p>In brakeman’s action for injuries from sagging telephone wires while on top of box car, evidence held insufficient to justify submission to jury of question whether operator of signal board who had given engineer signal to proceed had duty of looking to see if track was clear before giving signal.</p>

Action by Sam Stiles and others against B. F. Hawkins and others. A judgment foh plaintiffs was reversed by the Court of Civil Appeals (158 S. W. 1011), and plaintiffs bring error.

<p>1. Death <S=14(1) — Negligence <®=7 — Grounds or Action — Breach of Duty.</p> <p>In actions to recover damages for injuries to or the death of children, as in cases to recover damages for the death or injuries to adults, suit cannot be maintained unless defendant has been guilty of a breach of duty.</p> <p>2. Negligence <©=33(3) — Dangerous Condition oe Premises — Duty of Owner.</p> <p>Owner, who neither expressly nor impliedly invites public to come upon his premises, is under no obligation to keep them free from pitfalls or in a condition of safety for persons, whether adults or infants, who in pursuit of pleasure or convenience go upon or pass over such premises.</p> <p>3. Negligence <©=32 (4) — Places Attractive to Children — Liability op Owner.</p> <p>If owner of premises invites or allures a child into a place of danger and negligently injures such child while there, he may be held liable, in the absence of contributory negligence for such injury.</p> <p>4. Negligence €=>39 — Places Attractive to Children — Evidence.</p> <p>To warrant inference of implied invitation, the object or thing which induced injured person to go upon premises must, on account of its nature and surroundings, be especially and unusually attractive.</p> <p>5. Negligence <©=39 — Places Attractive to Children — Evidence.</p> <p>If owner maintains upon his premises something which, on account of its nature and surroundings, is especially and unusually calculated to attract and does attract children, invitation of the owner may be inferred.</p> <p>6. Negligence <S=111(1) — Petition—Sufficiency.</p> <p>In suit for death of a son about seven years old due to his falling into an open, unguarded well on defendant’s- vacant property, allegations of petition held to state a cause of action.</p> <p>7. Negligence <®=134(1) — Places Attractive to Children — Evidence.</p> <p>Jury finding that unguarded, open well on defendant’s vacant property into which plaintiff’s intestate, a son about seven years old, fell, was attractive to children by reason of its nature and surroundings, held warranted.</p> <p>8. Negligence <©=135 — Contributory Negligence — Child—Evidence.</p> <p>In suit for death óf a son about seven years old due to his falling into an open, unguarded well on defendant’s vacant property, held, on the evidence, that son was not, considering his age and discretion, guilty of contributory negligence.</p> <p>9. Negligence <©=134(11) — Cause of Injury —Evidence.</p> <p>In suit for death of a son about seven years old due to his falling into an open, unguarded well on defendant’s vacant property, held, on the evidence, that negligence of defendant caused death of son.</p> <p>10. Negligence <®=^23(1) — Tubntable Doctrine-Applicability.</p> <p>The rule that owner cannot escape liability for resulting injury, where he places on his premises and leaves unguarded dangerous machinery unusually attractive to children, should not be restricted to injuries resulting from turntables.</p> <p>11. Death <t=>99(3) — Damages — Excessive Damages.</p> <p>A verdict of $10,000 for the death of a healthy, robust, and bright son about seven years old, is not so large as to indicate that jury was actuated by improper motives, and will not be disturbed on appeal.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Suit by Guadalupe Reyes Coss against Francisco Coss and others. From an order granting a temporary writ of injunction, defendants appeal.</p>

<p>1. Divorce ©=>27(3) — Grounds—“Cruelty.”</p> <p>In an action for divorce upon grounds of cruel treatment, it is not necessary to show actual violence committed; “cruelty,” as used in statute, being broad enough to include outrages upon the feelings inflicting mental pain and anguish, where the conduct has been studied, willful, and deliberate.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cruelty.]</p> <p>2. Divorce ©=>27(1) — Conduct Rendering Living Together Insupportable.</p> <p>Under statutes authorizing divorce for excesses, cruel treatment, or outrages rendering living together insupportable, husband is not entitled to divorce, unless cruelty of wife was intended to injure him.</p> <p>3. Trial ©=>261 — Refusal of Erroneous Instruction.</p> <p>Requested charge that acts or quarrels, the result of sudden outbursts of temper,'are not grounds for divorce, where not correct in its entirety, was properly refused, but sufficiently called court’s attention to omission.</p> <p>4. Divorce ©=>27(1) — Grounds — Marital Wranglings.</p> <p>Parties cannot be divorced for incompatibility, or because they live unhappily together, or merely because they possess unruly tempers, or for marital wranglings.</p> <p>6.Divorce ©=>148 — Cruelty—Instructions.</p> <p>In action by husband for divorce based on statute authorizing divorce for excesses, cruel treatment, or outrages rendering living together insupportable, Jlélói, under facts, that jury should have been instructed that, if conduct of defendant wife was due to her mental or physical condition, occasioned by the state of her health, there would be no cruelty under the statute.</p> <p>6. Divorce ©=>147 — Issues Not Raised by Pleading — Submission.</p> <p>Although recrimination was not pleaded, defendant wife had right to have issue submitted, where raised by the evidence,, since, even where there is no answer, it is the duty of the court to hear any testimony which, shows that plaintiff is not entitled to a divorce.</p> <p>7. Divorce ©=>53 — Defense—Recrimination.</p> <p>While recrimination need not be of equal degree, it must be of the same general character, and such as is reasonably calculated to have provoked the misconduct of defendant.</p> <p>8. Trial ©=>248 — Charge — Sufficiency in General.</p> <p>Where trial judge sought to leave to the jury, not only the findings of facts, but also whether in law they were sufficient to render further relation of husband and wife insupportable, he should have carefully applied the law to the facts, and not simply announced abstract propositions of law in his charge.</p>

Error from District Court, Dallas County; W. E. Whitehurst, Judge. Suit by the Security National Bank and another against W. D. Kynerd and others. Judgment for plaintiffs, motion of defendant named for new trial overruled, and he brings error.

Error from Bexar County Court; John H. Clark, Judge. Action by Ben F. Harless against Mrs. J. D. Richardson and another, begun in justice court and appealed by defendants to the county court, and, from a judgment there for plaintiff, defendants bring error.

<p>1. Appeal and Ebrob ⅞=»555 — Matters Reviewable — Objection.</p> <p>. Where the record shows that appellants objected to the court’s charge, and the authentication of the judge shows that these objections were presented and overruled, and that appellants excepted to the action of the court before the charge was read to the jury, an assignment is sufficient, although the formal bill of exceptions was stricken out by order of this court.</p> <p>2. Appeal and Ebrob <S=»742(1) — Matters Reviewable — Assignments op Eeeoe — Pboposition.</p> <p>A statement under a proposition, which is confined to a statement of the pleadings and the issues sought to be raised, and does not undertake to set out the substance of the evidence bearing on the proposition, is insufficient.</p> <p>3. Bills and Notes @=»537(1) — Extension-Evidence.</p> <p>Telephoning to holder of note regarding extension, and failure of holder to keep promise then made to meet maker, did not even raise a question for the jury on the issue as to whether there was agreement for extension.</p> <p>4. Tendee <®=>7 — Action on Note.</p> <p>A tender by the maker to the payee of a note does not constitute a tender as to the holder of the note, where the maker knows that the payee no longer has any authority in the matter.</p> <p>5. Appeal and Eeroe <⅜=>555 — Matters Reviewable — * ‘Exception’ ’ — Sufficiency.</p> <p>Where the formal exception was stricken out, and the transcript only showed that a charge was presented to the court and refused, and that defendant excepted, as shown by the indorsement of the judge on the special charge, the notation and authentication are insufficient to constitute an “exception” under the statute.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Exception.]</p>

Dannenbaum, Judge. Trespass to try title by L. Lobit and others against I. S. Dolen and others. Judgment for plaintiffs, and defendants appeal.

<p>Error from District Court, Bexar County; W. F. Ezell, Judge.</p> <p>Supplemental motion for rehearing by plaintiff and motion for rehearing by defendant.</p>

<p>Appeal from District Court, Diberty County; J. Dlewellyn, Judge.</p> <p>Action by E. A. Sherrill against the Union Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Yoakum County; W. R. Spencer, Judge.</p> <p>Action by M. B. Harris against W. R. Mann and others. From a judgment sustaining a general exception to the petition, plaintiff appeals.</p>

<p>Appeal from Wheeler County Court; L. D. Miller, Judge.</p> <p>Action by A. Manby against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Partition <§=>83 — Actions—Scope.</p> <p>As no distinction is made between law and equity, questions of conflicting claims may be decided in partition suits, and, where raised, should be disposed of.</p> <p>2. Judgment €=>566 — Merger and Bar — Rights Expressly Reserved.</p> <p>Where a judgment in a former partition suit expressly left the question of title open between plaintiff and defendant, plaintiff may maintain a subsequent suit of trespass to try title; there being no attempt to change, alter, or set aside the judgment.</p> <p>3. Evidence <§=>419(2) — Consideration — Deeds.</p> <p>Testimony to show the true consideration in a deed is always admissible and, notwithstanding tlie recital of consideration, it may be shown that the property was a gift to the grantee, and therefore his separate property.</p>

<p>Appeal from District Court, Webb County: J. P. Mullally, Judge.</p> <p>Action by Manuel A. Saenz against the Hamilton Hotel Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>1. Stipulations <S==>13 — Expect.</p> <p>Though the insurer in an action on an accident policy agreed on trial that plaintiff was the wife of the insured, the insurer is not estop-ped from setting up the true facts when discovered, where it was induced to so agree through fraud or ignorance.</p> <p>2. Insurance <§p^464 — Accident Insurance —Liability.</p> <p>Where an accident policy covering death through violent and external means expressly declared that it should not cover injuries intentionally inflicted upon the insured by himself or by any other1 person except by burglars and robbers, the company is not liable where one not a burglar or robber intentionally shot and killed the insured.</p>

Error from District Court, El Paso County; Ballard Coldwell, Judge. Action by Mrs. Elvira C. Gonzales and her husband against the El Paso Electric Railway Company. Judgment for plaintiffs, and defendant brings error.

<p>Appeal from District Court, Harris County ; J. D. Harvey, Judge.</p> <p>Action by Mrs. Ida Blysard against the American National Insurance Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Cabkiees <§=3228(1) — Carriage oe Live Stock — Evidence oe Loss.</p> <p>To entitle a shipper of live stock to recover for negligent delay which caused loss in weight, he must show the difference between the market value of the animals on arrival, and what would have been the market value if promptly delivered.</p> <p>2. Carriers <§=>213 — Carriage oe Live Stock — Hours oe Service Act.</p> <p>A carrier cannot justify 17 hours’ delay, on the theory that it was complying with the federal law, prohibiting the working of a train crew more than 16 hours at one time, for it will be presumed that a railroad company has more than one crew.</p>

<p>Appeal from Jefferson County Court; D. P. Wheat, Judge.</p> <p>Action by the Rosenthal Dry Goods Company against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Brazoria County ; Samuel J. Styles, Judge.</p> <p>Suit by G. A. Kellner and others against O. J. Ramdohr and others. From a judgment for defendants, plaintiffs appeal.</p>

Sinks, Judge. Suits by M. M. Turney and by tbe Lion Bonding & Surety .Company and others against Bastrop County and others were eón-solidated and tried together. From a judgment therein rendered, the Lion Bonding & Surety Company appeals. Hearing, after by Supreme Court to questions certified. 203 S. W. 593.

<p>Appeal from District Court, Bexar County; W. S. Anderson, Judge.</p> <p>'Suit by W. G. Bartholomae and another against L. W. Tittle, Acting Comptroller of Texas. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>1. Master and Servant <⅞=»258(19) — Injuries to Servant — Petition—Sufficiency.</p> <p>A petition alleging that plaintiff, while a minor, 17 years old, was employed by defendant, that he was required to perform services in a cotton gin owned by defendant, that the machinery was negligently left exposed, that plaintiff was ignorant of the danger, that he was not warned, and that as a result he sustained injuries, held, as against general demurrer, sufficient to state a cause of action.</p> <p>2. Pleading @=>34(3) — Demurrer — General Demurrer.</p> <p>When a general demurrer is addressed to a pleading, it is the duty of the court to extend every reasonable intendment in its favor.</p>

<p>1. Appeal and Ebrob @=>193(1) — Lack op Objection to Pleadings Below — Objection on Appeal.</p> <p>Where defendant, by general demurrer and denials, merely joined issue on the facts, presenting in the Court of Civil Appeals for the first time question of the sufficiency of the pleadings, his action was permissible if the pleadings presented only one specific cause of action, and the judgment was founded on a fundamentally different one.</p> <p>2. Divobce @=>254 — Decree — Attack pob Fraud — Pleading—Evidence.</p> <p>Averment of divorced wife’s complaint attacking decree dividing community property on ground that it was procured by fraud on her and the court, in absence of special exception, held sufficient to admit evidence as to the exact time when and the.conditions under which her husband’s fraud was discovered.</p> <p>3. Appeal and Ebrob @=>193(1) — Lack op Objection to Pleading oe Evidence Be-tow.</p> <p>Where averment of complaint was sufficient to admit certain necessary evidence, which, in fact, was admitted on trial without exception to-the pleading or objection to the evidence, objection to the sufficiency of the complaint is not one going to foundations of action, and comes too late in Court of Civil Appeals.</p> <p>4. Appeal and Ebrob @=>672 — Fundamental Eeeoe pob Reversal.</p> <p>Assignment of error presenting overruling of defendant appellant’s original motion for new trial as error, in that verdict and judgment were not sustained by evidence, on its face invites examination of entire record to determine sufficiency of evidence on each of the elements of fraud specified by plaintiff, and could not present fundamental error calling for reversal after judgment.,</p> <p>5. Appeal and Ebrob @=>301 — Failure to Object Below — Motion pob New Trial— Waiver op All but Fundamental Eeeob —Rule op Court.</p> <p>In ease of a jury trial, where filing of motion for new trial is a prerequisite to the right of appeal, rule 24 of the Court of Civil Appeals (142 S. W. xii) requires assignments of error to be set forth distinctly in motion for new trial, otherwise such assignments as do not comprehend fundamental error will be treated as Waived.</p> <p>6. Pleading @=>34(7) — Failure to Object to Pleadings — Construction.</p> <p>Pleadings not objected to below, except by interposition of general demurrer, on appeal will be given most liberal construction consistent with their terms, every reasonable intendment being indulged in their favor, a rule particularly applicable to a bill in equity.</p> <p>7. Pleading @=>34(4) — Construction</p> <p>Against Pleader.</p> <p>Particular averments of doubtful meaning, at least in pleadings at law, must be construed against the pleader.</p> <p>8. Divorce @=>254 — Property Rights — Pleading.</p> <p>In cases such as wife’s suit to set aside divorce decree in her favor, in so far as dividing community property as having been procured by husband’s fraud, controlled by Rev. St. 1911, art. 4634, as to division of estate of parties, it is necessary to comply with fundamental rules of pleading, but the court should likewise construe pleadings so as to give effect to any real equities.</p> <p>9. Divorce @=>254 — Decree as to Property-Relief from Fraud — Pleadings.</p> <p>In divorced wife’s suit to set aside decree, in so far as affecting community property, as procured by husband’s fraud, broad scope of wife’s pleadings, and her prayer for general relief, held adequate basis for judgment for her, making a redistribution in money of the community property.</p> <p>Pleasants, O. J., dissenting.</p>

<p>Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.</p> <p>Action by R. H. Templeton against the City of Wellington. From judgment sustaining general and special exceptions to first amended original petition, plaintiff appeals.</p>

W. Dean, Judge. Suit in trespass to try a title by Mrs. Mary A. Martin, as executrix of the last will of William Martin, deceased, against J. M. Martin, who filed a cross-bill. From a judgment for defendant, plaintiff appeals.

<p>1. Mandamus <©=>151(2) — Necessary Parties —Municipalities.</p> <p>The city was not a necessary party in mandamus by district attorney to compel judge and clerk of corporation, court to permit petitioner to prosecute all criminal cases, and to tax costs in such cases in his favor, although city ordinances attempting to deny him such right were involved.</p> <p>2. Statutes <©=>279 — Pleading—Necessity.</p> <p>In mandamus by district attorney to compel the judge and, clerk of a city court to permit plaintiff in the future to prosecute all criminal cases in such court, and to require the clerk to tax fees in the future in plaintiff’s favor, but not to recover any fees, it was not necessary to specifically plead in the petition the state statutes giving him such right.</p> <p>S. Pleading <©=>403(2) — Omissions—Ouee by Answeb.</p> <p>In mandamus against city officer, wherein the right sought was based on city ordinances, the officer could not complain of an order overruling a plea in abatement on the ground that plaintiff did not specially plead the ordinances, where the officer specially pleaded such ordinances in his answer.</p> <p>4. Mandamus <©=>187(4) — Appeai>-Mattebs Reviewable — Saving Objections.</p> <p>In mandamus a party who did not object to the court’s deciding the case on the evidence before it, and did not offer any further evidence, cannot complain that there should have been a further hearing on the facts, if the facts before the court were sufficient to sustain the judgment.</p> <p>5. Mandamus <S=>164(3) — Denials and Fail-uee to Deny.</p> <p>In mandamus by district attorney to compel judge and clerk of the city court to permit him to prosecute all criminal cases in such court, where the judge specially denied an allegation in the petition that he refused to permit the plaintiff to prosecute cases in his court, but did not deny an allegation in a verified supplemental petition that he purposely set cases so that plaintiff or his assistants could not be present, the district court was authorized, in the absence of other evidence, to find that the judge refused to recognize plaintiff’s right.</p> <p>6. Mandamus <©=>187(9) — Appeal—Haemless ■Eeeor.</p> <p>If the facts in mandamus did not show that defendant had denied plaintiff a right commanded by the judgment to be accorded him, the defendant was not prejudiced thereby, where the writ was properly granted upon other grounds.</p> <p>7. District and Prosecuting Attorneys <©=> 5(1) — Compensation—Fees.</p> <p>An ordinance of the town of Magnolia Park, in Harris county, fixing the fees of the city attorney in criminal cases to be taxed against the defendant, but providing that no fees should be taxed unless the city attorney prosecuted in person, will not be construed as forbidding fees to be taxed in favor of the district attorney of such county, allowed him under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 345a, 345b; Code Cr. Proc. 1911, arts. 1177, 1179, 1180.</p> <p>8. District and Prosecuting Attorneys <©=> 5(1) — Fees—City Courts.</p> <p>Although a city in Harris county could, under Code Cr. Proc. 1911, art. 1177, provide that no fees should be allowed attorneys prosecuting criminal cases in the city court, it could not fix a fee to be taxed in cases prosecuted by the city attorney, and then deny the district attorney of the county a right to fees, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 345a, 345b; Code Cr. Proc. 1911, arts. 1179, 1180.</p> <p>9. Criminal Daw <©=>252(1) — Municipal Courts — Notice op Complaint.</p> <p>The judge of a municipal court need not notify the district attorney of the filing of criminal complaints in his court.</p> <p>10. District and Prosecuting Attorneys <S=>7(1) — Disqualification op District Attorney — City Attorney.</p> <p>A city attorney in Harris county may prosecute cases in the city court under state law, where the district attorney is disqualified or refuses to act, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 345a.</p>

B. Minor, Judge. Suit by Emil H. Frick'against the International & Great Northern Railway Company and its receivers. The cause was tried with a jury upon special issues. The jury answered the issues against plaintiff, in accordance with which judgment was rendered, and plaintiff appeals.

<p>1. Appeal and Error &wkey;s719(S) — Assignments of Ebb ok — Fundamental Ebkob.</p> <p>Where a judgment does not conform to the verdict, it presents fundamental error, which the appellate court will review without-assignment.</p> <p>2. PRINCIPAL AND AGENT <&wkey;177(8) — Knowledge oe Agent — Imputation, to Principal.</p> <p>Where the agent of a purchaser of notes, as attorney for the payee, knew of the failure of consideration, such knowledge is imputable to the purchaser, and he cannot recover as a bona fide purchaser without notice.</p>

M. Richey, Special Judge. Action by R. C. Johnson against Mrs. T. K. Johnson, wherein J. M. Bird and another became plaintiffs. From judgment that plaintiffs take nothing, and for defendant, plaintiffs appeal.

<p>Appeal from Jim Wells County Court; W. R. Perkins, Judge.</p> <p>Suit by John E. Dunn against the San Antonio & Aransas Pass Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Floyd County Court; W. B. Clark, Judge.</p> <p>Action by C. A. Alexander and another against T. F. Anderson. Judgment for defendant, and plaintiffs appeal.</p>

<p>Pleading <&wkey;110 — Plea or Privilege — Sufficiency.</p> <p>In suit on money demand filed subsequent to Acts 35th Leg. c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), plea of privilege of one defendant to be sued in county of his residence was prima facie proof of his right to change of venue, and, in absence of controverting plea and proof, plea should have been sustained.</p>

<p>Appeal from District Court, Armstrong County; Hugh L. Umphres, Judge.</p> <p>Action by Otto Eckert and others against S. B. Stewart and others. From a judgment for defendants, plaintiffs appeal.</p>

R. Price, Judge. Action by W. S. Berkshire, temporary administrator and personal representative of the estate of William A. Linder, deceased, against the Southern Pacific Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from District Court, Floyd County; R. C. Joiner, Judge.</p> <p>Action by W. A. Huckabee and wife against the Panhandle & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Nolan County Court; E. E. Ray, Judge.</p> <p>Suit by Thomas McCoy against the Wichita Falls Motor Company and W. H. Bray. 'Judgment for defendants upon a directed verdict, and plaintiff appeals.</p>

L. Tates, Judge. Consolidated actions by the American Brewing Association and the Brownsville Bank & Trust Company against P. Arismendi, Jr., John T. Barbee & Co., and H. H. Weller. Judgment for plaintiffs against the first two defendants, and John T. Barbee & Co. appeals.

<p>Appeal- from Wichita County Court; Harvey Harris, Judge.</p> <p>Action by D. B. Read against O. B. Farqu-harson. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Suit by Joe Morehead against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

M. Bramlett, Judge. Suit by Morgan & Friedlander and others against S. Samuels & Co. and another. From judgment in justice court for the named defendants, plaintiffs appealed to the eoun■ty court, which gave judgment for them against all defendants, and the named defendants appeal.

<p>1. Fixtuebs <&wkey;7— Conveyance by Deed of Land.</p> <p>The purchaser of land by virtue of his deed acquired title to a certain pump, rods, and trough which had been affixed to the realty so as to become a part thereof.</p> <p>2. Pleading- <&wkey;236(3) — Trial Amendment-Discretion of Court.</p> <p>Privilege to file trial amendment is dependent on discretion of trial court, and its denial is not error in absence of showing of abuse of such discretion.</p> <p>3. Sales <&wkey;149 — Bill of Sale — Fixtures to Realty.</p> <p>Bill of sale covering gasoline engine, pipes, pump, rods, and trough could not transfer such part of the property as had become part of the realty under the law of fixtures.</p> <p>4. Fixtures <&wkey;21 — Title to Personalty-Fixation to Land Sold.</p> <p>Title to personalty which had become part of realty was in vendor of land, snbiect to ven-dee’s right to pay the price, failing in which the title, free from any equity in the vendee, passed to his successor, with title to the fixtures constituting a part of the land.</p>

<p>1. Railroads <&wkey;278(2) — Personal Injuries — Duty of Inspection.</p> <p>An employe of a third person engaged in unloading coal cars, injured while attempting to block a car after having released a defective brake, was not required to inspect the car before moving it, defendant knowing of the custom of allowing coal cars to move a short distance by gravity to facilitate unloading.</p> <p>2. Trial <&wkey;191(8) — Instructions — Assumption as to Pacts. .</p> <p>Where an employs of a third person was injured while blocking a coal car moving by gravity after plaintiff had released a defective brake, it was not error to refuse an instruction for defendant, erroneously assuming that plaintiff knew, or ought to have known, of the defective brake, and that he moved the car without inspection.</p> <p>3. Appeal and Error <&wkey;263(3) — Reservation of Objections — Refusal to Instruct.</p> <p>Refusal to give a correct charge in lieu of an erroneous one will not be considered, in the absence of a proper exception and assignment.</p> <p>4. Negligence &wkey;119(7) — Contributory Negligence — Pleading and Proof.</p> <p>In order for a defendant to recover on contributory negligence, he must prove negligence in the way he specially-pleaded it, and the court is restricted to grounds alleged in the answer.</p> <p>5. Trial <&wkey;191(8) — Instructions — Assuming Pacts.</p> <p>Where an employé of a third person was injured while attempting to block a moving car upon which the brake was defective, an instruction, assuming contributory negligence on plaintiff’s part in going in front of the car, was properly refused; evidence showing that plaintiff thought it necessary to act as he did to prevent accident to others on the track.</p> <p>6. Trial <&wkey;314(l) — Conduct of Trial Judge — Coercion of Jury.</p> <p>In a personal injury action against railroad company wherein the jury failed to agree, a statement by the judge after the jury had retired as to the desirability of bringing in a verdict held not coercive.</p> <p>7. Appeal and Error &wkey;>1170(6) — Reversal — Conduct of Trial Judge — Rules of Court.</p> <p>Court of Civil Appeals rule No. 62a, prohibiting reversals for errors of law by the trial court not calculated to cause rendition of an improper judgment, applies where the judge, after the jury had failed to agree, stated to them the desirability of bringing in a verdict; such statement not being coercive or persuasive in favor of either party.</p>

<p>1. Negligence @==>136(14) — Questions oe Law and Pact.</p> <p>In actions for personal injuries, whether the parties exercised the required care is for the jury, except in cases where the alleged negligent act is in violation of law, or when the undisputed facts disclose that it was the proximate cause of the injury.</p> <p>2. Railkoads @=350(4,13) —Personal Injury Actions — Questions oe Pact.</p> <p>In an action against a railroad company for personal injuries due to plaintiff’s horse becoming frightened by an approaching train at a crossing and upsetting the wagon, evidence as to defendant’s negligence in failing to give warning, either by signal or by its brakeman then at the crossing, and of plaintiff’s exercise of due care, held to raise questions for the jury.</p> <p>3. Trial @=260(8) — Instructions — Requests.</p> <p>It was not error to refuse an instruction that defendant railroad was not liable if plaintiff’s horse was more readily frightened than an ordinary horse, where the issue of contributory negligence was sufficiently covered by an instruction given.</p>

<p>1. Insurance <&wkey;138(2) — Actions for Premiums — Defenses.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4954, prohibiting discrimination between insurants, an agreement of an insurance company to lend money to one at a low rate of interest if he would take out a certain amount of insurance, not being mentioned in the policy, was void, and the policy holder could not in an action on a note given as a premium set up the defense that the insurer refused to lend the money.</p> <p>2. Insurance <&wkey;131(l) — Scope of Contract —Statutes.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4953, providing that insurance policies shall contain the entire contract, is binding upon the insured as well as the insurer.</p> <p>3. Insurance <&wkey;129 — Modification of Policy — Who May Modify.</p> <p>Where an insurance policy provided that only certain named officers had the power in behalf of the insurer to make or modify any contract of insurance, a promise of a general agent in consideration of an application of insurance to lend the insured money was not binding upon the company.</p> <p>4. Insurance <&wkey;179% — Loans—Equity.</p> <p>Assuming that an agreement of an insurance company to make a loan to be secured by certain real estate, and the insurance taken out could be deemed the legal and inducing cause of the contract of insurance, it would not be equitable to require the insurance company to make a loan at some time subsequent to the period for which the premium had been paid by note and at a time when the insured was delinquent as to the payment of such note.</p>

Suit by the Ely & Walker Dry Goods Company against Sanger Bros., and others. Judgment for plaintiff, and the above-named defendant appeals.

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Contest of application to probate will of Mrs. Mary Ella Cowan by J. S. Daley against John S. Whitaere and others. Verdict in favor of proponents, and contestant appeals.</p>

<p>Appeal from Tarrant County Court; I. T. Valentine, Judge.</p> <p>Suit by the W. W. Kimball Company against R. L. Ray and others. Pleas of privilege overruled, and certain defendants appeal.</p>

Action by J. H. Drinkard against J. J. Jenkins and wife. Judgment for plaintiff. From a judgment on a new trial for plaintiff for only part of the relief asked, and setting aside a sale under the original judgment, plaintiff appeals.

<p>1. Appeal and Error <&wkey;934(l) — Findings op Fact — Presumption.</p> <p>Whore trial was had by the court without a jury, and no findings of fact were filed by the trial judge, every reasonable presumption must be indulged in support of the judgment rendered.</p> <p>2. Fraudulent Conveyances &wkey;>222 —Necessity por Recording — “Creditor.”</p> <p>A creditor who has fixed a lien upon land by the levy of attachment or other judicial process or by the filing of abstract of judgment in the djeed records, is a “creditor” within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6824, making unrecorded deeds of conveyance void as to creditors.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Creditor.]</p> <p>S. Fraudulent Conveyances <&wkey;283 — Creditors — Burden op Proop.</p> <p>In a controversy between a bolder of a prior unrecorded deed and a “creditor” under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6824, the holder of the unrecorded deed has the burden of showing that the creditor had notice at the time his lien attached or prior thereto.</p> <p>4. Judgment <&wkey;788(l) — Lien — Necessity por Recording Deed.</p> <p>The common-law rule that a judgment lien attaches only to such estate in land as is owned by judgment debtor at the time the abstract of judgment was filed, notwithstanding a prior unrecorded deed, has been abrogated by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6824.</p> <p>5. Trusts «=372(1) — Following Trust Property — Burden op Proop.</p> <p>The burden is upon the party claiming a resulting trust in land to trace the funds claimed as his own into the property purchased.</p> <p>6. Evidence <&wkey;113(8) — Cost — Value op Land.</p> <p>In an action wherein it was claimed that a transfer of land from husband to wife was fraudulent, testimony that land convoyed had cost Sgll an acre when bought 15 years prior to the transfer was insufficient to show the value of land under a claim that the land was transferred in' payment of a debt to the wife.</p> <p>7. Fraudulent Conveyances <&wkey;118(2)— Preperring Wipe.</p> <p>A husband may prefer his wife to another creditor in the payment of a debt which he owes her, provided the transaction is free from fraud, and no more property is conveyed than is reasonably necessary at its fair market value to settle the debt.</p> <p>8. Fraudulent Conveyances <&wkey;298(3)— Preperring Wipe.</p> <p>Evidence held to warrant a finding that a transfer of land from husband to wife was made for the purpose of defrauding creditors.</p>

<p>1.Insueancb <&wkey;>500 — Payment of Policy— Agreed Valuation.</p> <p>The parties to an insurance contract may agree upon the value of the property insured and the specific amount to be paid for its loss or damage, and, in the absence of fraud, such agreed valuations are conclusive.</p> <p>2. Insurance <&wkey;579 — Actions on Policy-Settlement — Validity.</p> <p>Where an insured under a hail policy signed a proof claim submitted by the adjustor specifying the amount of damages, but subsequently claimed larger damages in writing, the proof of claim was not conclusive on insured as a settlement; since it was a mere offer which had not been accepted by the insurer prior to withdrawal.</p> <p>3. Insurance &wkey;>668(14) — Actions on Policy — Settlement—Questions oe Fact.</p> <p>In an action on a hail insurance policy, where defendant set up a settlement agreement,a peremptory instruction for defendant was properly refused, where there was sufficient evidence to make an issue as to whether insured had a right to set such settlement aside for mistake as to his rights.</p> <p>4. Insurance <&wkey;539(l) — Notice and ■ Proof oe Loss — Statutes.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5714, requiring stipulations as to notice of claims for damages to be reasonable, invalidating a stipulation for notice of less than 99 days, and providing that notice shall be presumed to be given, unless want thereof be expressly pleaded under oath applies to notice and proofs of loss under a hail insurance policy.</p> <p>5. Insurance &wkey;>561 — Proof of Loss-Waiver.</p> <p>An insurer under a hail insurance policy, who, after having received an unsworn claim for damages, sent an adjuster who viewed the damage, admitted liability, presented a form of proof, filling in only the percentage of loss, and subsequently tendered a settlement after the time limited for filing a formal proof of loss, thereby waived the formal proof, notwithstanding a provision in the policy that no denial of liability or other act by the company should be deemed to waive such proof.</p> <p>6. Insurance <&wkey;282(2) — Application—Misrepresentations — Interest of Insured.</p> <p>An application for hail insurance, requesting insurance “on all interest in”, a specified number of acres of which applicant was tenant, was not an assertion that applicant owned all the interest in the insured property, but that he desired to insure all his interest, and hence was not a misrepresentation avoiding the policy.</p> <p>7. Insurance &wkey;>115(4) — Hail Insurance— Insurable Interest.</p> <p>A tenant farming land under agreement with the owner to do the work, the owner to furnish the money, that whatever was made over living expenses was to be paid on a debt owing by the owner for half of the land, and; that half of the land when so paid was to belong to the tenant had an insurable interest in the grain growing thereon.</p> <p>8. Insurance &wkey;»390 — Hail Insurance — Actions on Policy — Notice of Discovery of Misrepresentations.</p> <p>Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 4948, providing that misrepresentations in applications for insurance will constitute no do-£ense, unless the insurer shall show that. he gave notice within 90 days after discovering the falsity of the misrepresentations, applies to hail insurance.</p> <p>9. Teial <&wkey;261 — Instructions—Refusal of Instructions Requested as a Whole.</p> <p>Where .instructions are requested as a whole, some of which are inconsistent with each other and others obviously improper, the court need not separate the good from the bad and is justified in refusing them all.</p> <p>10. Insurance <&wkey;668(14) — Action on Policy-Question of Pact.</p> <p>In an action on a hail insurance policy, if the insured signed compromise because he misapprehended the provisions of the policy and his rights thereunder, whether such mistake was the result of his own negligence was a question of fact.</p> <p>11. Insurance <&wkey;579 — Construction of Policy by Insured — Negligence of Insured.</p> <p>Where a mistake as to insured’s right under a hail insurance policy inducing him to sign a compromise is mutual or induced by fraud, equity will not ordinarily refuse relief on the ground of negligence on plaintiff’s part.</p> <p>12. Insurance <©=163(½) — 'Hail Insurance —Construction of Policy — “Growing Grain.”</p> <p>That a hail insurance policy insured “growing” grain did not prevent recovery, where the grain when destroyed by hail was ripe, in view of other provisions in the policy insuring the grain up to a certain d,ate and exempting the insurer from liability after the grain was cut.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, Second Series, Growing Grain.]</p>

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Action by J. L. Measeis against the Jami-son Gin Company and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Appeal and Error <S=>930(1) — Questions of Fact — Sufficiency of Evidence.</p> <p>In reviewing an assignment that the evidence was not sufficient to sustain a finding of fact, strongest probative effect must be given to the evidence tending to establish such fact.</p> <p>2. Brokers <®=8(3) — Employment — Sufficiency of Evidence.</p> <p>In a cross-action, wherein commissions, damages, etc., were sought by defendant broker for breach of a contract to receive cattle purchased by plaintiff, evidence held sufficient to sustain a finding that such cattle were purchased upon plaintiff’s order.</p> <p>3. Brokers @=»8(3) — Employment—Evidence.</p> <p>In an action wherein commissions, damages, etc., were sought for breach of a contract to receive cattle, evidence held sufficient to sustain a finding that the person ordering the cattle was acting within authority given him.</p> <p>4. Evidence <S=>80(1) — Laws of Other States — Presumptions .</p> <p>Where statutes and law of another state with reference to the subject of ultra vires acts of a corporation were neither pleaded nor' proven, the law of such other state will be assumed to be the same as that of the forum.</p> <p>5. Corporations <S=»385 — Ultra Vires Acts —Defense.</p> <p>Except in cases where the rights of the public are involved, the plea of ultra vires, whether interposed for or against a corporation, will not be allowed to prevail when it will not advance justice, but will accomplish a legal wrong.</p> <p>6. Corporations <§=»382 — Ultra Vires Acts —Statute—Common Law.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1164, as amended by Acts 35th Leg. c. 15 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1164), is merely declaratory of common law, by which corporations áre strictly confined in their powers to the limits and purposes for which created.</p> <p>7. Corporations <&wkey;374r-CHARTER Powers-Implied Power.</p> <p>In every express grant in a corporate charter, there is implied a power to do what is necessary or reasonably appropriate to the exercise of the authority expressly granted.</p> <p>8. Corporations <&wkey;434 — Powers—Purchase op Property.</p> <p>A corporation, granted power to operate and maintain cotton seed oil mills, etc., and to sell “cotton seed and any and all products and by-products,” had the power to purchase cattle to be fed on hulls at a time when there was practically no market for the hulls.</p> <p>9. Corporations <&wkey;388(l) — Ultra Vires Act —Estoppel.</p> <p>Where a corporation ordered cattle, and the cattle were., actually shipped, corporation was estopped to set up as a defense that it had no power to purchase cattle, in an action for damages and commissions, although shipper again took possession and found another purchaser at the best possible market price.</p> <p>10. Corporations &wkey;>385 — Ultra Vires Acts.</p> <p>Mere general prohibitions against exceeding corporate powers do not make such acts illegal as well as ultra vires.</p> <p>11. New Teial <&wkey;104(3)- — Newly Discovered Evidence — Discretion of Court.</p> <p>In an action involving question whether a contract had been made over telephone, there being a conflict as to whether there was one or two conversations, .court did not abuse its discretion in denying motion for new trial on ground of newly discovered evidence, consisting of affidavit of telephone company employe that files showed two conversations had been had between the parties.</p> <p>12. Brokers <&wkey;82(4) — Actio-n for Commissions and Expenses — Variance.</p> <p>In an action wherein commissions and damages for refusal to receive cattle were sought, where it was pleaded that the cattle were purchased as agent, proof that the sale was consummated through a commission company as shipper, and that the cattle were sold at the cost price, plus $10 a car commission and expenses, was not a material variance; measure of damages being the same.</p>

<p>•1. Master and Servant &wkey;>276(3) — Proximate Cause of Injury — Negligence—Evidence.</p> <p>In coal miner’s suit for injury from negligence in failing to remove débris after fall of earth and coal in mine chamber, evidence held to sustain trial court’s finding that negligence was not proximate cause of injury.</p> <p>2. Negligence &wkey;>59 — “Proximate Cause.”</p> <p>The wrongful act or omission relied upon as constituting “proximate cause” of injury must be such as that therefrom the injury or some similar injury might be reasonably contemplated.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]</p> <p>3. Master and Servant &wkey;3l39 — Negligence in Giving Order — Proximate Cause.</p> <p>Defendant’s mine foreman, even if he negligently directed a coal miner to work on right side of his room, could not have reasonably, contemplated that miner would mine coal almost across the face of his room, leaving a projection, and thereafter undertake to mine under it, causing it to fall.</p> <p>4. Negligence <&wkey;62(3) — “Proximate Cause.”</p> <p>To be a “proximate cause,” act or omission must be the direct or immediate cause having a continuous and natural causal connection between negligence and the injury, and, if broken by another’s intervening, independent act, the original negligence is not the proximate cause.</p>

<p>1. Trial <&wkey;140(l) — Credibililty of Witnesses — Province of Jury.</p> <p>It was the province of the jury to pass upon the credibility of the witnesses.</p> <p>2. Banks and Banking «⅝=5188½ — Transmission of Money — Consideration.</p> <p>In suit to recover damages for wrongful failure of defendant bank to make timely remittance in payment of premium on life policy, where evidence failed to show that agreement to remit on the day in question was based on a valuable consideration, there could be no recovery based upon contract liability.</p> <p>S. Banks and Banking <&wkey;227(S) — Failure to Remit Premium — Negligence—Evidence.</p> <p>In suit to recover damages for wrongful failure of defendant bank to make timely remittance in payment of premium on life policy, evidence held insufficient to show that defendant was negligent in not remitting on the day in question.</p> <p>4. Banks and Banking <&wkey;227(3) — Failure to Remit Premium — Contributory Negligence — Evidence.</p> <p>In suit to recover damages for wrongful failure of defendant bank to make timely remittance in payment of premium on life policy, evidence held to show contributory negligence on the part of plaintiffs.</p> <p>5. Appeal and Error <&wkey;931(4) — Findings to Support Judgment — Presumption.</p> <p>Where defendant interposed plea of contributory negligence which was not submitted, the statute relating to special issues would require the court on appeal to presume that trial court found that plaintiffs were guilty of contributory negligence if it were necessary to an affirmance of judgment.</p> <p>6. Appeal and Error c&wkey;968 — Challenge to Jurors — Abuse of Discretion.</p> <p>Complaint of action of trial court in compelling plaintiffs, after they had exhausted their peremptory challenges, to accept a juror, shown to be a customer of defendant bank for many years, will not be sustained; it not appearing that trial judge abused his discretion.</p> <p>7. Trial <&wkey;306 — Misconduct of Jury.</p> <p>That some of jurors, in passing upon question of negligence of defendant’s agent, stated, in substance, that one of plaintiffs was more guilty of negligence than said agent did not show misconduct.</p>

<p>Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.</p> <p>Action by L. Cartwright against the Missouri Iron & Metal Company. Judgment for plaintiff, and defendant appeals.</p>

Terrell, Judge. Action by the Burrus Mill & Elevator Company against the Farmers’ Guaranty State Bank of Jacksonville and ID. L. Hughes, im-pleaded. From a judgment for plaintiff against defendant bank and in favor of defendant bank over against D. L. Hughes, defendant bank and Hughes appeal.

Styles, Judge. Action by Charles G. Mugler against the Mugler Manufacturing Company, in which Mrs. Gay Ford, the Muncie Oil Engine Company, the Mercantile Trust Company of Illinois, the Southwest General Electric Company, and others intervened, consolidated with action by R. W. Van Valkenburgh against Charles G. Mugler and. others.

<p>Appeal from Clay County Court; E. W. Coleman, Judge.</p> <p>Action by B. B. Collins against Harry Scaling. Defendant was denied a new trial, and appeals.</p>

<p>Appeal from District Court, Taylor County; Joe Burkett, Judge.</p> <p>Action by Milton Phelps, by next friend, W. H. Phelps, against J. E. Hamlett. From a judgment for defendant, plaintiff appeals.</p>

E. L. Roy, Judge. Suit by James A. Baker, receiver of the International & Great Northern Railway Company, against T. Pena and others for an injunction. From a decree for plaintiff, defendants appeal.

<p>1. Mortgages <§=>353 — 'Trust Deeds — Notice oe Sale.</p> <p>A sale of land without notice by a trustee under trust deed is void, and the deed can be set aside as a cloud upon the title of the owner.</p> <p>2. Appeal and Error <©=>216(1) — Matters Reviewable — Special Instructions.</p> <p>Assignment of error complaining that court did not give special instructions cannot be considered, where court was not requested to give them.</p>

<p>1. Work and Labor <§=>£, 29(1) — Services— Damage.</p> <p>Recovery on a quantum meruit does not necessarily depend upon a specific value, and if it be only shown that services were rendered, plaintiff is at least entitled to nominal damages.</p> <p>On Rehearing.</p> <p>2. Trial <g=>145 — Abandonment of Issues— Evidence.</p> <p>Where plaintiff sued on contract, or in the alternative on a quantum meruit, he was entitled to the submission of a quantum meruit, although in his testimony he insisted that he only performed the services by virtue of the alleged contract.</p>

<p>1. Boundaries <S=»37(1) — Evidence—Sufficiency.</p> <p>In suit to determine true boundary between adjoining surveys, held, that boundary was as claimed by plaintiff.</p> <p>2. Boundaries <S=n3(2) — Conflicts in Surveys.</p> <p>In establishing boundaries, those calls will be adopted which are more certain, avoid conflicts in surveys, etc., and harmonize with the evident purpose of the state in making the grant, even though a natural object must be disregarded.</p> <p>3. Boundaries eg=»3(7) — Unmarked Lines— Courses and Distances.</p> <p>When unmarked lines of adjacent surveys are called for, and when, from the other calls of such adjacent surveys, the position of such unmarked lines can be ascertained with accuracy, the unmarked lines will prevail over course and distance.</p> <p>4. Boundaries <S=>3 (5) — 'Unmarked Lines— Courses and Distances.</p> <p>Distance being regarded as more unreliable than course, it follows that, the greater the distance, the greater the probability of error, and vice versa.</p> <p>5. Boundaries @=53(7) — Disregarding Calls —Adjoining Surveys.</p> <p>The fact that in field notes of a survey there is a call for an unidentified corner of a survey ought not to be given controlling effect, if to do so is to entirely disregard calls for adjoining surveys and cause confusion and disagreement.</p>

<p>1. Appeal and Error <S=>527(2) — Bill of Exceptions — Failure to File Conclusions of Fact and Law.</p> <p>Court’s failure to file conclusions of fact and law will not be considered on appeal without a bill of exceptions.</p> <p>2. Quieting Title <®=44(4) — Sufficiency of Evidence — Title of Plaintifj^ — Payment on Land Contract.</p> <p>In suit to remove cloud from title to land, wherein plaintiff’s title was attacked on ground that he had contracted to sell land to third party, had placed such party in possession, and received $1,000 earnest money on contract, evidence held insufficient to warrant finding that plaintiff had received such sum on the contract.</p> <p>3. Vendor and Purchaser <&wkey;54 — Payment of Consideration — Possession—Purchaser’s Equitable Title.</p> <p>Purchaser, having possession of land and having paid the entire consideration, has an equitable title superior to vendor’s legal title.</p> <p>4. Vendor and Purchaser <&wkey;54 — Rights ' of Purchaser.</p> <p>Purchaser who has not paid any of the consideration has not sufficient title to authorize recovery of land from vendor, his only right being to tender consideration and ask for specific performance.</p> <p>5. Quieting Title <§=>10(2) — Right to Bring Action — Title of Plaintiff.</p> <p>Vendor who has received no/part of the consideration has sufficient title to maintain a suit to remove cloud from the title to the land.</p> <p>6. Trespass to Try Title <⅞=^6(1) — Holder of Naked Legal Title.</p> <p>The holder of a naked legal title may maintain an action of trespass to try title.</p> <p>7. Adverse Possession ⅞=»60(3) — Acknowledgment of Right of State.</p> <p>A person in possession of land, though acknowledging a better right in the state, may hold adverse possession as against true owner.</p> <p>8. Adverse Possession <®=>70 — Hostility to Owner.</p> <p>The mere holding of land, under the belief that the land is the state’s and with the purpose of acquiring it lawfully at some future time, does not define the attitude of the possessor as hostile to the claim of the owner of whose existence he is ignorant.</p> <p>9. Adverse Possession <®=»60(3) — Improvements — Possession Adverse to True Owner.</p> <p>Plaintiff, who took possession of land for purpose of acquiring land from state under belief that land was vacant, but who after being told that land was not vacant, and with knowledge of real owner, continued for a period of ten years to hold land and make substantial improvements in fence inclosing land, held to have held land adversely to true owner.</p> <p>10. Adverse Possession ®=^30 — Notice — Fence.</p> <p>Fence inclosing 360 acres of land was a sufficient notorious assertion of holder’s adverse claim, though land was in a very rough, broken, uninhabited country.</p>

<p>Error from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Action by A. J. Anderson against Tom L. Burnett. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, Wichita County ; W. N. Bonner, Judge.</p> <p>Action by E. P. Hendrich against C. E. Sehaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Jury <§=>34(3) — Impairment op Right — Evidence — Questions op Fact.</p> <p>A strong preponderance of evidence on one side or the other is not sufficient to justify a trial court in denying the right of trial by jury.</p> <p>2. Jury ©=34(3) — Impairment op Right — Evidence — Questions op Law and Fact.</p> <p>In view of Const, art. 1, § 15, preserving the right to jury trial, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2024, limiting the number of new trials, it is the province of the jury to determine the credibility of witnesses and the weight of testimony, and the court may not assume its functions by deciding that testimony is entitled to no credit because overborne by contradictory testimony, or that it is so contradictory to circumstances and proof as to he improbable.</p> <p>3. Insurance <§=5668(3) — Actions on Policy —Cancellation op Provisions — Question op Fact.</p> <p>In a suit on an automobile insurance policy, where the car was destroyed in a collision, evidence as to whether or not, subsequent to the issuance of the original policy, the collision features therein had been canceled by mutual agreement between insured and insurer, held in conflict and to make a question for the jury.</p>

<p>1. Master and Servant <§=>125(8) — Negligence — Defects—Presumption.</p> <p>Without proof of master’s actual knowledge of the existence of a defect in appliances, etc., such defect must have existed for such length of time as to raise the presumption of negligence in failing to discover it by reasonable inspection.</p> <p>2. Master and Servant <§=>278(7) — Detects in Equipment — Negligence—Sufficiency of Evidence.</p> <p>In employe’s suit against railroad for injury in operating lever controlling interlocking plant at junction of tracks, evidence held, to sustain jury’s finding that failure of lever to work was due to railroad’s negligence in constructing plant defectively, and in thereafter maintaining it in its defective condition.</p> <p>3. Master and Servant <§=>276(6) — Negligence — Proximate Cause — Evidence.</p> <p>In employe’s suit against railroad for injury in operating lever controlling interlocking plant at junction of tracks, evidence held sufficient to sustain jury’s finding that failure of the lever to work was proximate cause of injury.</p>

<p>Appeal from District Court, Hardeman County; J. A. Nabers, Judge.</p> <p>Suit by John C. Burch against the First Guaranty State Bank of Quanah and others. From the decree, plaintiff appeals.</p>

<p>1. Master and Servant <⅜=>280 — Injury to Servant — Assumption of Risk.</p> <p>In an action by a switchman for alleged injury from being jerked from a car by sudden application of brakes, evidence held to show that plaintiff had assumed the risk.</p> <p>2. Appeal and Error <g=»1060(l) — Harmless Error — Misconduct of Counsel.</p> <p>In an action by a switchman for injuries, where the evidence of negligence was close, improper remarks of plaintiff’s counsel as to competency of engineer and as to plaintiff having to live on half rations or the charity of his friends if not awarded damages must be held to have improperly influenced the jury.</p> <p>S. Master and Servant <⅞=>204(1) — Injury to Servant — Federal Employers’ Liability Law — Assumption of Risk.</p> <p>While the defense of assumed risk is eliminated by the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) in cases of interstate commerce, where the violation by the carrier of the statute enacted for the safety of employes contributed to the injury, in all other cases it is a complete bar.</p>

<p>1. Commerce @=>27 (6) — Employer’s Liability — Servant Engaged in “Interstate Commerce.’’</p> <p>A brakeman on an interstate train, injured while respotting local cars, which were necessarily dislocated when his train had to take a siding, was engaged in “interstate commerce,” within the federal Employers* Liability Act (U. S. Comp. St. §§ 8657-8665).</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Commerce @==>27(6) — Injury to Employe— Federal Safety Appliance Law.</p> <p>A brakeman, injured by defective coupler of a car of an interstate railway\ company, is within the protection of the federal Safety Appliance Law (U. S. Comp. St. § 8606), though not at the time engaged in interstate service.</p>

Suit by G. A. Erwin against C. L. Morgan and another. The unnamed defendant having answered that he did not claim an interest in the land involved, suit was dismissed so far as it was against him. Judgment for defendant named, and plaintiff appeals.

<p>1. Appeal and Error ©=>1033(5) — Harmless Error— Instructions.</p> <p>An improper instruction, more calculated to help than to harm appellant, cannot be complained of by him.</p> <p>2. Railroads <§=3275(1) — Persons Near Tracks — Animals.</p> <p>Where one drove a team onto railroad land at a place used for unloading of cars, the railroad owed him, as an invitee, the duty to use ordinary care for his safety, and was liable, where, by reason of negligently causing noise and, escape of steam, the team was frightened and ran away.</p> <p>3. Railroads <©=>278(2) — Frightening Animals — Contributory Negligence.</p> <p>It is the duty of a person driving any team near a locomotive to exercise such care and prudence to prevent such team from running away and causing injury as a person of ordinary care would exercise under the same or similar circumstances for his own safety.</p> <p>4. Appeal and Error ©=31064 (2) — Harmless Error — Instructions.</p> <p>In an action for damages occasioned by frightening of team by a locomotive, it was harmless error to instruct that persons driving teams “easily frightened” should exercise care for their own safety, where it appeared without dispute that the team was “skittish and would run away sometimes.”</p>

O, Beard, Judge. Action by T. P. McGraw against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Appellee was struck by a locomotive engine and thereby injured while working for appellant in its shops at Marshall. On the ground that appellant’s employés in charge of the engine were guilty of negligence in failing to warn him of its approach, he sued and recovered the judgment for $11,000, from which the appeal is prosecuted.

County; P. O. Beard, Judge. Trespass, to try title by W. C. Snider against C. D. Lancaster and others. Judgment for plaintiff, and defendants appeal.. This was a suit of trespass to try title, brought by appellee against appellants. The-land involved was 290 acres of the Jedekiah Payne survey in Plarrison county.

<p>Application for writ of mandamus by the Matagorda Canal Company against Samuel J. Styles.</p>

<p>1. Landlord and Tenant <§=»277(½) — Recovery op Premises — Liability op Lessor.</p> <p>Where a lease of office rooms provides for re-entry without notice or demand, if any part of the rent remained unpaid for two days after it is due, a lessor on default in payment of rent for more than two days incurs no liability by ousting lessee from the premises.</p> <p>2. Trover and Conversion <§=w7 — Conversion by Lessor — Access to Personal Property.</p> <p>A landlord who, after ousting a tenant from the premises for nonpayment of rent, takes possession of the tenant’s personal effects found on the leased premises, and excludes the tenant from access thereto temporarily, ir> guilty of conversion.</p> <p>3. Trover and Conversion <®=>22 — «Right op Action — Refusal of Tender as Defense.</p> <p>Where a lessor upon ousting lessee from the premises has taken possession of the lessee’s personal property, the lessee did not abridge his rights to recover for conversion by refusing a tender of the property after the conversion was complete.</p> <p>4. Limitation of Actions <§p»127(2) — Commencement of Suit — Amendment of PLEADINGS.</p> <p>A petition which as against a general demurrer is insufficient to state a cause of action is sufficient to stop the running of limitations if the defects therein are afterward cured by an amended pleading, even though such pleading is filed after limitations have run.</p> <p>5. Limitation of Actions €=>127(8) — Commencement of Suit — Amendment of Pleadings.</p> <p>In an action by a former lessee against his lessor for conversion of personal property alleged to have been committed by lessor, an amendment to the complaint that the acts were committed by lessor’s agent was not barred'by limitations, although the statutory period had elapsed at time of amendment.</p> <p>6. Pleading €fc=o430(2) — Variance—Waiver— Failure to Object.</p> <p>In a former lessee’s action against his landlord for conversion alleged to have been committed by the lessor, evidence that the conversion was committed by the lessor’s agent did not constitute such a variance that it could not be waived by defendant’s failure to object.</p> <p>7. Appeal and Error @=1041(4) — Review-Harmless Error.</p> <p>Where the one object of a trial amendment in a conversion suit was to serve as a basis for proof of its allegations that the conversion was committed by lessor’s agent, error in sustaining an exception to such amendment held) harmless, where proof under the amendment was admitted without objection.</p>

<p>Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.</p> <p>Suit by the Ealfurrias Mercantile Company against the Citizens’ State Bank. From judgment for defendant, plaintiff appeals.</p>

A. Work, Judge. Suit by the Iroquois Manufacturing Company against H. G. Martin. From a judgment of the county court, on appeal from a judgment for plaintiff in justice’s court, in favor of the plaintiff, defendant appeals.

Error from District Court, Foard County; J. A. Nabers, Judge. Suit by E. P. Bomar and another against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for plaintiffs, and the defendant brings error.

Action by B. H. Williams against Charles Ogerly. From an adverse judgment, plaintiff appeals. Appellant brought the suit against the ap-pellee to recover the sum of $1,900, alleged to be due and owing as the balance of the purchase price of a certain tract of land sold by the appellant to the appellee. Appellant in the petition asked that an equitable lien be fixed and foreclosed on the land.

A. Ward, Judge. Suit by Robert Spearman against Charlie Mims and others. The trial court rendered judgment against plaintiff for the land he sued for, but rendered judgment in his favor for other lands, suit for which he abandoned when he filed amended petition, and plaintiff appeals. The suit was by appellant against appel-lees, Charlie Mims, R. B. Rogers, Elva Johnson, and Will Johnson.

<p>Appeal from District Court, Cass County; H. E. O’Neal, Judge.</p> <p>Suit by C. T. Duke against H. S. Hatcher. Judgment for defendant, and plaintiff appeals.</p> <p>This was a suit by appellant against ap-pellee to recover possession of a tract of land in Cass county which appellee claimed he had rented of appellant for the year 1915. At the time he commenced his suit, to wit, March 30, 1915, appellant procured the issuance of a writ of sequestration, by virtue of which he had appellee evicted from the land April 20, 1915. By a cross-action against appellant, appellee sought a recovery of actual damages in the sum of $1,288.83 which he claimed he suffered by reason of appellant’s breach of the alleged rental contract and his eviction from the land, and also sought a recovery of $1,000 as exemplary damages. The trial resulted in a judgment in appellant’s favor for the land, and in ap-pellee’s favor for $200 as actual damages he was entitled to recover of appellant.</p> <p>Appellee testified that crops he had planted were growing on the land at the time he was evicted therefrom. He further testified that, had he not been evicted, his part of crops he would have grown on the land would have been worth', after deducting the cost to him, aside from the value of his own labor and that of members of his family, about $700. He further testified that he endeavored, after he was evicted, to rent other land to cultivate during the year 1915, but could not, except that he worked 17 days at the rate of $35 a month. Appellee’s testimony as to the crops he would have grown on the land, and their value, if he had been permitted to grow them, was hot disputed by any other testimony, but to some extent was corroborated by testimony admitted. His-testimony as to efforts he made to secure-other land to cultivate after he was evicted- and to secure other employment seems to-have been neither affirmed nor denied by other testimony.</p> <p>The court instructed the jury as follows:</p> <p>“If you believe from a preponderance of the evidence that the plaintiff, C. T. Duke, entered into a contract with the defendant, W. S. Hatch-er, by which the plaintiff, O. T. Duke, rented to-the defendant about 50 acres of land for the year 1915, for which the defendant was to pay to the plaintiff one-third of the corn and one-fourth of the cotton raised thereon, and you further believe that thereafter the plaintiff in violation of said contract (if there was one) on, to wit, the 31st day of March, 1915, wrongfully caused a writ of sequestration to be levied on said 50 acres of land, and the defendant was wrongfully dispossessed of said land, and that by reason of the wrongful levy of such sequestration he was unable to make a crop during said year 1915 on said premises, and that by reason thereof he was damaged, then you will find for the defendant such damages as will reasonably compensate him for his being deprived of the right to occupy, cultivate, and use said premises for said year 1915. In considering such damages for the wrongful dispossession of a tenant, you may take into consideration the tenant’s part of the market value of the crops he would reasonably be expected to raise on the premises during the said year 1915, less the expenses necessary in planting, cultivating, harvesting, and marketing the said crops.”</p> <p>The court refused the request of appellant that he instruct the jury as follows:</p> <p>“If you find from a preponderance of the evidence that the defendant, W. S. Hatcher, was wrongfully ejected from the premises in controversy, by the plaintiff, and he was damaged thereby, then you are further charged that it was the duty of the defendant, W. S. Hatcher, to use reasonable diligence to procure other land upon which to plant and make a crop during the year 1915 and thereby lessen the damages ■sustained, if any. You are further instructed that if, after having used due diligence to procure other land upon which to make a crop during the year 1915, if such diligence has been shown, the said defendant, W. S. Hatcher, failed to procure same, it was his further duty to diligently seek such other employment, and in estimating damages sustained by the defendant, if any, you will take into consideration the amount that he earned, or by .reasonable diligence could have earned, after being ejected from the premises in controversy by virtue of the writ of sequestration issued herein.”</p> <p>The contention on this appeal is that the trial court erred when he refused to give the requested special charge just set out above.</p>

A. McDowell, Judge. Bill of review by Stephen McBride against H. B. Kaulbaeh and others to set aside a judgment. Judgment for defendants, and plaintiff appeals.

R. Bond, Judge. Bill of review by the Texas & Pacific Railway Company and others, seeking a revision and cancellation of a judgment rendered against the- Railway Company and in favor of R. L. Duff. Bill dismissed, and plaintiffs appeal.

<p>1. Evidence <S=>317 (5) — Hearsay — Ownebship.</p> <p>In a garnishment proceeding where the judgment debtor had deposited money in the name of his wife, the bank will not be permitted to prove that it did not owe the judgment debt- or by introducing in evidence hearsay statements of the judgment debtor and his wife concerning the ownership of the money.</p> <p>2, Garnishment <S=»164 — Deposits in Bank —Evidence.</p> <p>The fact that money was deposited in the name of another, when standing alone, will make a prima facie case of ownership by such other; but where it appears that control of deposit .was reserved by an agreement that it was to be paid out on checks drawn by the depositor as agent for the other, and the depositor on being garnished hastily withdrew the deposit and transferred it to the name of still another person, the court will find, in a garnishment proceeding, that the money belonged to the depositor.</p>

<p>Error from District Court, Marion County; J. A. Ward, Judge.</p> <p>Suit by Jeff Dowell against D. W. Downey and another. To review judgment for plaintiff, defendant named brings error.</p>

Action by thelParlin-Oreaidorff Implement Company against M. AV. AVarren and others, in which certain creditors intervened. From the judgment rendered, M. AV. AVarren and others appeal.

<p>Appeal from District Court, Red River County; Ben H. Denton, Judge.</p> <p>Proceeding by Ida Johnson to probate the will of T. C. Edmondson, deceased, contested by Baura Edmondson and others. Decree for proponent, and contestants appeal.</p>

R. Price, Judge. Suit by Stewart & Threadgill against the El Paso & Southwestern Company and the Galveston, Harrisburg & San Antonio Railway Company. Judgment by the court, sitting without a jury, dismissing the El Paso & Southwestern Railway Company from the suit, and in favor of the Galveston, Harrisburg & San Antonio (Railway Company, and plaintiffs appeal.

<p>1. Alteration op Instruments 12-Notes Given as Part op Order — Separation' by Payee — Authority.</p> <p>A contract order for the purchase of goods payable by a series of negotiable notes; providing that the payee might detach the notes from the order, being consistent, contemporaneous agreement, authorized the payee to detach the notes.</p> <p>2. Bills and Notes <©==>47 — Notes Attached to Order por Goods — Construction.</p> <p>A mere recital in a contract order that the purchase price of the goods might be paid in notes attached thereto did not make the payer’s obligation a conditional one.</p> <p>3. Alteration of Instruments 16— “Material Alteration” — Effect.</p> <p>Any material alteration of an instrument destroys its obligation and renders it unenforceable, and any alteration causing the instrument to speak differently in legal effect from that which it spoke originally is a “material alteration.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Material Alteration.]</p> <p>4. Alteration of Instruments ⅞^9 — Detaching Note from Contract Order — Materiality.</p> <p>The payee’s detachment of a series of negotiable notes from a contract order permitting their detachment was not a material alteration rendering the notes void.</p> <p>5. Bills and Notes <S=>365(1) — Liability of Maker — Innocent Holder.</p> <p>The maker Of negotiable notes attached to a contract order permitting their detachment by the payee would be liable to an innocent holder even though the order contract and notes were revoked in the hands of the payee and it could not maintain an action thereon against the maker.</p> <p>6. Bills and Notes <§=>363 — Action on N ote — Consideration—Recovery.</p> <p>In action on notes originally attached to a contract order and detached by the payee, as permitted by the order, and sold to plaintiff, an innocent holder, for 76 per cent, of the face of the notes until the remainder should be paid by the maker, the holder’s recovery should be limited to 76 per cent, of the face of the notes.</p>

Gibbs, Judge. Petition by C. K. McKnight against the Pecos & Toyah Lake Irrigation Company and others to enjoin proceedings before the Board of Water Engineers. Judgment for defendants, and plaintiff appeals.

<p>Error from Nacogdoches County Court; J. E. Perritte, Judge.</p> <p>Action by W. M. Finck & Co. against the Nacogdoches Mercantile Company. Erom the judgment rendered, plaintiff brings error.</p>

<p>Appeal from Hardeman County Court; D. E. Magee, Judge.</p> <p>Suit by G. G. Kemp against the Ft. Worth & Denver City Railway Company and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Ybndoe and Purchaser <S=>334(1) — Breach by Vendor — Recovery oe Purchase Money.</p> <p>Where vendor agreed to sink well and provide irrigation plant by certain date, purchaser was entitled to recover amount paid on contract upon vendor’s failure to sink well by such date or within a reasonable time thereafter.</p> <p>2. Vendor and Purchaser <§==>339 — Recovery of Purchase Money — Condition Precedent.</p> <p>Where vendor agreed to sink irrigation well upon premises after purchaser had entered into written contract of sale or exchanged deeds, purchaser could not recover purchase money paid on contract, unless vendor refused to sink well after purchaser had offered to enter into written contract or exchanged deeds.</p> <p>3. Sabes <®=>3 — Vendor and Purchaser <§=> 3(1) — Exchange of Property — Damages.</p> <p>Where, in an exchange of property, the value of the land or personalty is agreed upon, the transaction is a sale and not an exchange, and the rules of law governing in cases of sales will control rather than the law of exchange.</p> <p>4. Vendor and Purchaser <S=v341(5) — Agreed Value — Trade.</p> <p>Where value of automobile given as part consideration in land deal was agreed upon, the purchaser in recovering consideration paid, upon vendor’s breach, was entitled to the agreed value of the automobile, and not its market or intrinsic value, where automobile itself was not in condition to be returned.</p> <p>5. Evidence <⅜=>213(1), 271(2) — Self-Serving Declarations — Offers of Compromise.</p> <p>In a purchaser’s action to recover payment made upon vendor’s failure to deliver deed and sink well by agreed date, any testimony tending to show vendor’s willingness to comply with the contract within reasonable time after such date is admissible; but self-serving declarations, counter propositions, or offers in the nature of a compromise, should not be admitted.</p>

Thomas, Judge. Suit in nature of quo warranto by the State, on relation of J. D. Miller and others, against Charles T. Troell and others. Judgment for defendants, and plaintiffs appeal.

<p>1. E&tortion <⅝=11 — Penalty—Pleading.</p> <p>A suit, under Rev. St. 1911, art. 3915, to recover four times the amount of excessive fees charged by a county surveyor, is one for a penalty, and the petition is subject to strict construction.</p> <p>2. Penalties <®=32 — Pleading.</p> <p>A petition, in an action in which penalties are sought to be recovered, should state all the statutory requirements with the same degree of certainty as is required in an indictment' in a criminal case.</p> <p>3. Extortion <©=>11 — Penalty—Pleading-Excessive Pees.</p> <p>A petition against a county surveyor, under Rev. St. 1911, art. 3915, to recover statutory penalty of four times amount of excessive fees charged, must allege that application under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5904c, for survey, was made to surveyor in proper county, and that land surveyed was situated in such county.</p> <p>4. Boundaries <S=>54(7) — Surveyors—Fees— “Land.”</p> <p>In an action, under Rev. St. 1911, art. 3915, to recover statutory penalty from county surveyor on account of excessive fees charged for a survey made under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5904c, the fees prescribed in Rev. St. 1911, art. 3876, for surveying “land” will not be held to apply, where the land was covered by waters of Nueces Bay.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Land.]</p>

<p>Appeal from Lamar County Court; Tom L. Beauchamp, Judge.</p> <p>Action by E. B. Bills against the Mosaic Templars of America, who filed an answer interpleading J. H. Bills. Erom a- judgment for plaintiff the defendant interpleaded appeals.</p>

<p>1. Caeeiers <§=3116 — Diversion of Shipment —Negligence.</p> <p>Where agent of carrier consented to cause diversion of shipment and secured change in destination, and by negligently giving erroneous directions concerning consignee caused loss, carrier was liable.</p> <p>2. Carriers <§=380 — Diversion of Shipment.</p> <p>Instructions for change in destination of freight must emanate from party who is real owner, or one who has authority to divert; otherwise carrier alters destination at its peril.</p> <p>8. Carriers <§=>177(3) — Connecting Carriers — Diversion of Shipment — Concurring Negligence.</p> <p>Carrier was liable for negligence in diverting shipment, resulting in loss of the goods, though negligence of agent was not sole cause of loss, but concurred with that of connecting carrier.</p> <p>On Motion for Rehearing.</p> <p>4. Evidence <§=>593 — Hearsay—Sufficiency.</p> <p>Hearsay testimony, unsupported, is insufficient to establish an essential-fact.</p> <p>5. Carriers <§=>123 — Diversion of Shipment —Proximate Cause of Loss.</p> <p>If shipper knew, or should have known, that shipment had been billed to original consignee, and was being held in Mexico, after negligent diversion by initial carrier, for tariff charges, but made no effort to redeem or forward it, failure of carrier correctly to designate new consignee in order of diversion was not proximate cause of loss of shipment through sale to pay customs charges.</p> <p>6. Carriers <§=>134 — Diversion of Shipment —Negligence—Sufficiency of Evidence.</p> <p>In suit by shipper for loss of shipment as caused by negligence of carrier’s agent in effecting diversion, evidence that negligence of agent was cause of loss held, insufficient to support verdict for plaintiff.</p>

<p>1. Contracts <S=»322(1) — Action Under Building Contract — Burden or Proof.</p> <p>Under a contract to settle a controversy under a building construction contract, whereby part of the agreed price was placed in escrow subject to completion of the contract by plaintiff, and which provided that if the tin work was not done the owner might complete the work and recover for it as itemized statements from competent workmen showed actual cost, the burden was on the owner to show the cost of completing the tin work in order to recover therefor.</p> <p>2. Contracts <®=o!98(2) — Building Contracts — Construction.</p> <p>Under a building contract expressly providing that tin work must be properly done with proper fall, the duty rested on the contractor of leveling the building if such action was necessary to give the guttering the proper fall.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Suits by Berta V. Samuell against S. B. Brooks and others, and by S. B. Brooks against Berta V. Samuell and another, consolidated. From an adverse judgment, Berta Y. Samuell appeals.</p>

P. Dohoney, Judge. Trespass to try title by W. C. Rodgers against J. H. Bell and others, with cross-bill by defendants. Judgment for defendants, and plaintiff appeals.

<p>Appeal from Upshur County Court; W. H. McClelland, Judge.</p> <p>Action by Mrs. Dora Belle Fenton and another against J. L. Miller. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.</p> <p>In 1907 appellee Mrs. Dora Belle Fenton, a married woman, purchased certain mill and gin machinery of one Jones, paying him $1,-000 therefor out of her separate estate and agreeing to pay him $400 more in accordance with the terms of her two promissory notes for $200 each which she then made and delivered to him. She afterwards sold an undivided one-half interest in the property to her son J. R. Fenton in consideration of his undertaking to pay said notes and operate the mill and gin on their joint account. Thereafterwards J. R. Fenton built a gin-house, into which, it seems, he moved the machinery, and where, .it seems, he operated the mill and gin during the seasons of 1908, 1909, and 1910. It does not appear from the record sent to this court whether the house was built on land belonging to J. R. Fenton, or to his mother, or to her husband, or to some other person, nor whether it was attached to the . land otherwise than by its own weight, nor whether it was placed on the land with or without an agreement as to its removal, etc. In 1910 J.' R. Fenton sold the interest he had acquired in the machinery and gin-house back to his mother for $400, $247 of which she then paid to him with money acquired by her in the operation of the gin and mill, and the remainder of which had not been paid to said J. R. Fenton at the date of the trial, to wit, May 31, 1918. When she purchased the interest of J. R. Fenton, Mrs. Fenton placed another one of her sons in charge of the property and thereafterwards to the date of the trial, it seems continued to operate the mill and gin. March 22, 1918, the sheriff of Upshur county levied upon the mill and gin machinery by virtue of an execution on a judgment in favor of appellant against appellee R. Fenton, who was Mrs. Dora Belle Fenton’s husband. April 24,1918, said sheriff, by virtue of another execution on said judgment, levied upon the ginhoiise. At sales made under the executions appellant was the purchaser of said machinery and ginhouse. This suit was by Mrs. Fenton,-joined by her said husband, against appellant. She alleged that she was the owner of the machinery and ginhouse at the times the executions -were respectively levied as stated, and that the levy théreori and sale thereof By the sheriff therefore was unlawful. She did not allege that she was not herself in possession of the property at the time she commenced her suit, nor did she allege that appellant then, or ever, was in possession thereof. She prayed judgment for the property, or, in the alternative, for its value, which she alleged to be $900. Appellant’s answer consisted of a general demurrer, a general denial and a special plea that the property belonged to the community estate between Mrs. Fenton and R. Fenton, and therefore was subject to seizure and sale for the purpose of satisfying his (appellant’s) judgment against said R. Fen-ton. The trial was by the court without a jury, and he found the facts to be as we have stated them. There is no statement of facts with the record sent to this court. The appeal is from a judgment in favor of Mrs. Fen-ton for the property in controversy.</p>

<p>Appeal from District Court, Dimmit County; J. F. Mullally, Judge.</p> <p>Action by C. O. Harris against G. M. H. Wagner & Sons. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Bexar County.</p> <p>Suit by M. Schulz and others against J. R. Davis, County Judge, and others. Special exceptions to petition sustained and cause dismissed, and plaintiffs appeal.</p>

Action by the State of Texas against Goode Hunt. Prom a judgment for defendant, plaintiff appeals.

N. Bonner, Judge. Suit by Earl Wilkinson and others against D. K. Lyon and others. From an order denying prayer for temporary injunction, plaintiffs appeal.

R. Price, Judge. Action by the Guaranty Trust & Banking Company and others against Adelle Miller and others. From the judgment rendered, defendant named, by her guardian ad litem and next friend, W. H. Anderson, appeals.

<p>1. Appeal and Error <®=>544(3) — Necessity op Exceptions — Decision on Plea op Privilege.</p> <p>Under Vernon’s Say les’ Ann. Civ. St. 1914, art. 2062, providing that, where the ruling or other action of the court appears otherwise of record, no bill of exceptions shall be necessary to reserve an exception thereto, an exception is not necessary where a plea of privilege was overruled and the evidence heard was incorporated in the record.</p> <p>2. Appeal and Error <§=>544(1) — Bill op Exceptions — Necessity—Plea op Privilege-Necessity op Exceptions.</p> <p>Although the effect of sustaining a plea of privilege is to change the venue of the suit, a motion for change of venue and a plea of privilege are entirely different proceedings, and pleas of privilege are .not included within district and county courts rule 55 (142 S. W. xxi), providing for bills of exceptions to review rulings on change of venue.</p> <p>3. Venue <§=>7 — Place op Performance op Contracts — Implied Promises.</p> <p>An implied promise to perform a contract in a county other than that of defendant’s residence will not place the venue of a suit thereon in such county.</p> <p>4. Venue <§=>21 — Residence op Dependant-Exceptions.</p> <p>One who sues a defendant in a county other than that of his residence must bring his case clearly within the exceptions to the general rule that a defendant is entitled to be sued in the county of his own residence.</p> <p>5. Venue <®=>7 — Place , of Perpormance op Contract.</p> <p>If the terms of a written contract are such that it must necessarily be performed in a certain county, suit can be maintained thereon in such county.</p> <p>6.Venue <®=>7 — Place of Performance of Oral Contract.</p> <p>Suit on an oral contract to return overpay-ments, if any, on a sale of cotton upon being scaled and weighed in the county of the purchaser’s residence, cannot be brought in such county under section 5 of the venue statute, but must be brought in the county of the seller’s residence.</p>

<p>1. Street Railroads <©=’85(5) — Use of Track Between Crossings — Rights of Railroad and of Public.</p> <p>While a street railroad does not have the exclusive right to use its tracks upon a city street, yet its rights to their use between crossings is so far superior as to require of travelers a higher degree of caution.</p> <p>2. Negligence <©=>136(14) — Degree of Care —Question for Court.</p> <p>It is always a question of law for the court to say whether or not any care is required under a given state of facts.</p> <p>3. Street Railroads <©=>99(14) — Collision-Contributory Negligence.</p> <p>Where plaintiff at driver’s invitation jumped upon the runboard of an automobile upon a city street between crossings, and before he could enter the automobile it was struck by a street car, which was in plain view, and plaintiff did not attempt to keep any lookout, he was guilty of contributory negligence.</p> <p>4. Street Railroads <©=>114(21) — Contributory Negligence — Mistake of Judgment-Evidence.</p> <p>Evidence held, to show that plaintiff’s injury, resulting from his jumping upon the runboard of an automobile just before its collision with a street car, was caused by contributory negligence in not seeing the car, and not by mistake of judgment.</p> <p>King, J., dissenting.</p>

<p>Appeal from District Court, Tarrant County ; Bruce Young, Judge.</p> <p>Action by Tom B. Owens against the Providence-Washington Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

Denton, Judge. Suit by H. F. Booker against A. G. Booker, who filed a cross-action. Judgment for plaintiff, and defendant appeals. The suit was commenced by appellee. It was for a divorce from appellant on the ground of cruel treatment. In a cross-action appellant sought a divorce from appellee on the same ground. It appeared that when the parties married July 8, 1917, appellant was a widower about 62 years of age, and that appellee was a widow about 58 years of age.

<p>Appeal from District Court, Harrison County; P. O. Beard, Judge.</p> <p>Action by H. R. Mays against J. L. Lancaster and Pearl Wright, receivers. From a judgment for plaintiff, defendants appeal.</p> <p>Appellee was the fireman on an engine of a passenger train which belonged to the Texas & Pacific Railway Company and which was operated between Marshall, Tex., and New 'Orleans, La., by appellants as the receivers of said company.</p> <p>On a night in February, 1918, the train was moving on the main line track near Boyce, La., at a speed of from 30 to 40 miles an hour, when, because of an open switch, it ran on to a side track and collided with cars standing thereon. The engine was within 75 or 100 feet of the switch before appel-lee discovered that it was open. He at once hallooed to the engineer advising him of the fact, and prepared to jump from the engine. He (appellee) fell or was thrown from the engine about the time it collided with the cars on the side track, and was thereby seriously and permanently injured. He testified:</p> <p>“What knocked me off, I suppose, is when the engine goes on a curve on the spur track, at first it turns to the left and then turns to the right. I think I fell off before the engine struck the cars on the side track, but am not sure.”</p> <p>On the theory that the injury he suffered was due to negligence on the part of appellants which rendered them liable to him, ap-pellee sued and recovered the judgment for $7,500, from which the appeal is prosecuted.</p> <p>In their answer appellants denied that the accident was due to negligence. on their part, but alleged that—</p> <p>“Same was caused by some other person, not in the employ of this defendant, but acting maliciously, turned, broke, and changed the switch, which caused the engine to go on the wrong track and cause the accident and injury.”</p> <p>There was testimony to support findings as follows: (1) That the switch was thrown for the side track; (2) that it was the' duty of the engineer as he approached the switch to use care to discover if it was so thrown;</p> <p>(3) that in the exercise of proper care he should have discovered that it was so thrown when his engine was as far as from 175 to 200 yards from it, whereas he did not discover that the switch was so thrown until his engine was within 75 to 100 feet thereof;</p> <p>(4) that he could have stopped-the train in a distance of 100 yards.</p> <p>In his charge, after defining “negligence,” “ordinary care,” and “proximate cause,” and telling the jury that it was the duty of both the engineer and appellee to keep a lookout to see that the track was safe for the train, and that it was the duty of the engineer “to exercise ordinary care in the operation of the train to discover any dangers ahead, and to exercise ordinary care to avoid injuring the plaintiff,” the court further instructed the jury as follows:</p> <p>“(6) Bearing in mind the foregoing definitions and explanation, if the jury shall believe from a preponderance of the evidence that the engineer in charge of the train was guilty of negligence in that he failed to exercise ordinary care in keeping a lookout for the condition of the track over which he was running, and that he negligently failed to discover that the switch was turned so as to allow the train to run upon the side track and its cars thereon, in time to have stopped the train and to have avoided the injury, and that as a proximate result of such negligence, if any, the plaintiff was injured, or if the jury should believe from the evidence that the circumstances of the situation made it appear that it was necessary for the plaintiff to jump from the engine in order to extricate himself from the danger, if any, and in jumping from said engine he received said injuries by reason of the negligence of the engineer in the respects herein referred to, then in either event you will find in favor of the plaintiff, unless you find for the defendants under other portions of this charge. But if you fail to find that the engineer was guilty of negligence in the respects above submitted to you, then you shall find for the defendants.</p> <p>“(7) If some unauthorized person or persons not in the employ of defendants turned or changed the switch in question, the defendants would not be responsible for that act, and the mere fact that by reason of such facts, if any, the switch was in a position to allow the train to go in upon the spur track would not be negligence on the part of the defendants, and you cannot find a verdict for the plaintiff unless you further find that the engineer failed to exercise ordinary care in discovering the condition of the switch. So if the jury shall believe that the engineer operating the train exercised the care of an ordinarily prudent person to discover whether the switch was set for the main line or spur track, he did everything in his power consistent with the safety of the passengers and the train to stop the train and to avoid the injury to plaintiff, then in that event the engineer would not be negligent, and it would be your duty to return a verdict for the defendants.”</p>

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Suit by Willard W. White and others against W. C. Davis and others. Judgment for plaintiffs, and defendants John M. Wyatt</p> <p>and T. M. Wingo appeal.</p>

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Suit by J. K. Ayers against R. D. MacDonald, in which John B. Peyton intervened. Judgment for plaintiff and intervener, and MacDonald appeals.</p>

<p>Appeal from District Court, Reeves County; P. R. Price, Judge.</p> <p>■Suit by Ella Youngblood and others against Abbie L. C. Benjamin and husband. From the judgment rendered, defendants appeal.</p>

Consolidated actions by J. H. Wiles against L. H. Bradford and another and against B. M. Daugherty and another, respectively. Judgment for plaintiff was affirmed by the Court of Civil Appeals (156 S. W. 10S9), and defendants Daugherty and an- other bring error.

<p>1. Damages <&wkey;112--MEASURE — Destruction of Grass.</p> <p>In action for the negligent burning of grass in a pasture, a charge, permitting recovery for the cost of feed and expenses of caring for cattle, does not furnish a certain rule of damages, but the correct rule is to permit recovery for the value of the grass at the date of its destruction.</p> <p>2. Damages <&wkey;112 — Measure—Destruction of Grass.</p> <p>The market value of grass for the purpose for which it was used is the measure of damages for its negligent burning, but if there was no market value, then recovery should be for the reasonable value of the grass for the purpose for which it was being used or for which intended.</p> <p>3. Evidence <&wkey;113(ll) — Market Value of Grass — Rental for Pasture.</p> <p>The rent paid by plaintiff for pasture could not determine the market value of grass destroyed by fire, but. if there was no market value, the rent might be a circumstance to be considered in arriving at the value of the grass for the purpose for which it was intended.</p> <p>4. Appeal and Error <®=>1064(l)-dÜRRONEous Instruction — Reversible Error.</p> <p>In an action for negligent burning of grass in a pasture, erroneously instructing that plaintiff was entitled to recover the cost of feed for his cattle and the expense necessary in feeding them was reversible error.</p>

Action by Tom Weisner and others against the Missouri, Kansas & Texas Railway Company of Texas; Judgment for defendant was affirmed by the Court of Civil Appeals (164 S. W. 405), and plaintiffs bring error.

Action by D. Sullivan & Co. and others against Carrie Coleman, consolidated with an ■action by D. M. Poor against Helen Raley and others. A judgment in favor of D. M. Poor against Helen Raley and another, and in favor of D. Sullivan & Co., was affirmed by the Court of Civil Appeals (159 S. W. 99), and Helen Raley and others bring error.

Action by M. H. Harmon against W. R. Thompson and others. To review judgment (152 S. W. 1161) of the Court of Civil Appeals affirming judgment against all defendants, they bring'* error.

Suit by T. J. Richards against Johnnie Floyce Rule. A judgment for plaintiff was reversed, and judgment rendered for defendant-by the Court of Civil Appeals (159 S. W. 386), and plaintiff brings error.

Action by B. F. Reynolds against S. Webb and others. From a judgment of the Court of Civil Appeals, Second District (160 S. W. 152), affirming the trial court’s judgment for plaintiff on appeal by defendants Webb and Hill, they bring error.

Appeals of Fourth Supreme Judicial District. Action by West Bros, and others against the Texas & Pacific Railway Company and the St. Louis, Iron Mountain & Southern Railway Company and others.

Action by A. D. Polemanakos against the Austin Fire Insurance Company. A judgment for defendant was reversed by the Court of Civil Appeals (160 S. W. 1134), and defendant brings error.

Terrell, Judge. Action by R. E1. Harding and others against Maud Lovelady and others, with cross-action by defendant Fakes & Co. From adverse judgment the named defendants appeal.

<p>' Appeal from District Court, Cass County; H. F. O’Neal, Judge.</p> <p>Suit by J. M. McDowell against Mabe Boy and others. Judgment for plaintiff, and defendants appeal.</p>

A. Ward, Judge. Suit by the Morris County National Bank against W. M. Parrish and others. From judgment for defendants, plaintiff appeals. Appellee Parrish was county treasurer of Morris county. The other appellees were sureties on a bond made by him as such treasurer in November, 1914. Appellant claimed to be the duly qualified depository, under the act of 1905 (Vernon’s Statutes, arts. 2440 to 2453), of moneys belonging to said county.

<p>1. Evidence <&wkey;>10(4) — Judicial Knowledge —Counties.</p> <p>The Court of Civil Appeals judicially knows that Fannin county is a subdivision of the state of Texas.</p> <p>2. Divorce <&wkey;124 — Residence—Sufficiency of Evidence.</p> <p>Evidence held to show that plaintiff was a bona fide inhabitant of the state, and had resided in county in which divorce action was brought the requisite time to give court jurisdiction.</p> <p>3. Divoboe <&wkey;37(o) — Abandonment—Visits.</p> <p>Fact that husband visited wife, who had abandoned him, for purpose of trying to persuade her to return, did not interrupt running of period of abandonment.</p> <p>4. Divorce &wkey;>184(6) — Review—Weight of Evidence.</p> <p>In divorce action, where evidence was conflicting, it was for trial court to weigh evidence and settle issues.</p>

<p>1. Words and Piteases — '“Insolvent.”</p> <p>One may have sufficient property out of which to pay any percentage of his debt less than 100 per cent., and yet be insolvent, and the conclusion that one is insolvent does not justify the conclusion that his note is wholly worthless.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Insolvent.]</p> <p>2. Mortgages <&wkey;28 — “Equitable Lien” — “Equitable Mortgages.”</p> <p>Where purchase-money notes recited that they were secured by deed of trust lien on land, one who took notes believing they were in fact so secured is entitled to equitable lien on the land, notwithstanding no deed of trust was in fact executed (citing Words and Phrases, First and Second Series, Equitable Liens and Equitable Mortgages).</p> <p>3. Liens <&wkey;>7 — Equitable Liens — Executo-ry Agreement to Give Lien.</p> <p>An executory agreement in writing to give a lien on land is sufficient to create a lien in equity on such land, though mortgage or lien is itself never executed, under the maxim that equity regards that as done which ought to be done.</p> <p>4. Vendor and Purchaser <&wkey;254(l) — Equitable Vendor’s Lien.</p> <p>Purchase-money notes are secured by an equitable vendor’s lien, though there is no express reservation of a lien either in notes themselves or in deed.</p> <p>5. Fraud <&wkey;59 (3) — Damages.</p> <p>In vendor’s action for damages against purchaser for misrepresentation as to solvency of maker of notes received in part payment, and as to value of land upon which notes were to be a vendor’s lien, vendor’s measure of damages, if action is to be taken as one of deceit, is difference between land conveyed and consideration received.</p> <p>6. Fraud &wkey;>59(3) — Notes as Part Payment —Solvency op Maker — Evidence.</p> <p>In-vendor’s cross-action for misrepresentation of purchaser as to solvency of maker of notes accepted by vendor in part payment, evidence of maker’s insolvency should be with reference to time of alleged false representations or as to time when value of notes is to be determined.</p>

<p>Appeal from District Court, Harrison. County; P. O. Beard, Judge.</p> <p>Suit by C. M. Abney against J. M. Bryson. From a judgment denying an injunction sought by plaintiff and awarding damages to defendant, defendant appeals, claiming that the amount was insufficient, and plaintiff files cross-assignments of error.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Action by J. G. Trevino against J. G. Griner,- and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Injunction <@=>119 — Answer — General Denial.</p> <p>Where an answer in an injunction proceeding contained a general denial pursuant, .to Rev. St. art. 4663, allowing a defendant in injunction proceedings to answer as in other civil actions, a demurrer to the answer must be overruled.</p> <p>2. Escrows <@=>3 — Depositaries.</p> <p>A deed cannot be delivered to the grantee as an escrow, and if delivered to him it becomes an operative deed, freed from any condition not expressed in the deed itself.</p> <p>3. Escrows <@=9 — Conditions.</p> <p>Where a deed was delivered in escrow, on condition that it should not be effective until certain acts were performed by the grantee, such condition was a condition precedent to the taking effect of the grant.</p> <p>4. Deeds <@=>162 — Conditions — Condition Subsequent.</p> <p>A substantial compliance with the terms of a condition subsequent will satisfy the law and prevent a forfeiture of title.</p> <p>5. Deeds <@=>155 — Conditions — Conditions Subsequent.</p> <p>The general rule is that where a deed is to take effect on the performance of a condition by the grantee, and the grant is without other consideration, no title will pass until the condition is performed; but where other conditions have been performed, and especially where full value has been paid, the condition will be considered a condition subsequent.</p> <p>6. Escrows <@=9 — Conditions Subsequent-Performance.</p> <p>Where a landowner who conveyed property to a city for a street, and received a valuable consideration, insisted that the deed should be held in escrow until the city widened a certain street according to its agreement, held that, as the failure of the city to widen the street within the time limit fixed did not injure the grantor or his property, such failure did not prevent the passage of title, for the condition should be treated as a condition subsequent.</p> <p>7. Appeal and Error <@=>544(1) — Review-Bill of Exceptions.</p> <p>Where no bill of exceptions was reserved to the admission of testimony, an assignment complaining of such testimony must be overruled.</p> <p>8. Appeal and Error <@=>1050(1) — Review-Harmless Error.</p> <p>Where similar testimony was admitted without objection, an assignment complaining of the admission of testimony must be overruled.</p> <p>9. Evidence <@=>419(2) — Parol—Consideration.</p> <p>Where a deed recited that the consideration was $1 and other considerations, parol evidence is admissible to establish the true consideration.</p>

Munroe, Judge. Action between the Burlington State Bank and others and the Marlin National Bank and. others. ’ From a judgment for the lat- ter, the former appeal.

<p>1. Vendob and Pubchaseb <§=187 — Acceptance oe Payment — Waives.</p> <p>Where a land contract provided that the sale might be declared void if the first note with interest were not paid on a fixed date, and the grantee refused to accept the payment, he waived his right to payment on such date.</p> <p>2. Vendob and Pubchaseb <§=320 — Action BOB PUBCHASE MONEY — ATTOBNEY’S FEES.</p> <p>Where notes given for purchase price of land contained only the usual stipulations regarding payment of attorney’s fees, refusal of vendor and payee to accept payment of the first note when it became due, at which time the maker of the notes and his vendee were ready and able to pay, estopped the payee from claiming attorney’s fees.</p>

<p>1. Highways @=>159(2) — Restraining Obstruction-Decree.</p> <p>Judgment establishing plaintiff’s right to the use of particular roadway held not objectionable as decreeing title to the land.</p> <p>2. Dedication @=>16(1) — Roadway — Judgments — Acts oe Public Officials.</p> <p>Where road had long been used as public roadway, a judgment sanctioning agreement that road be opened up and dedicated as a public road, in connection with another judgment ordering road to be opened and an obstruction removed and the acts of the parties to the judgment, owners of land upon which right of way was located and public officials treating road as public highway, constituted a dedication to public use.</p> <p>3. Dedication @=>16(1) — Public Road — Judgment by Agreement.</p> <p>District court’s judgment giving legal sanction to agreement of parties, whereby road long used as public road was opened up and dedicated as a public road, was not invalid as an infringement upon exclusive rights of commissioners’ court to lay out public road.</p> <p>4. Highways @=>153 — Obstruction of Public Highway.</p> <p>The obstruction of a public highway is a nuisance.</p> <p>5. Highways <S=»155 — Injunction—Obstruction.</p> <p>The right of a private party to restrain the obstruction of a public highway is dependent upon sustaining some special injury different in hind from that sustained by the public.</p> <p>6. Highways @=>155 — Obstruction — Right to Enjoin — Special Injury.</p> <p>Owner of land materially affected in value by obstruction of public highway has the right to restrain such obstruction, having sustained a special injury different from that sustained by general public.</p> <p>7. Highways @=>76, 153 — Rights in Public ■Highway — Authority op Commissioners’ Court.</p> <p>A road never located by a jury of view may be ordered closed without notice or hearing, but where a landowner’s rights were not confined to general rights of public, but had been established by a judgment long prior to litigation, commissioners’ court could not waive such rights for him nor authorize closing or obstructing of roadway without his consent.</p>

Mann, Judge. Action by A. L. Moller against Ray G. Harris begun in justice court and appealed by defendant to the county court. From a judgment there for plaintiff, defendant again appeals.

<p>1. Husband and Wiíe @=^273(9) — Community Debt — Wife’s Payment of Puroha.se-Money Note.</p> <p>Where notes held by defendant constituted a valid, subsisting community debt, secured by a vendor’s lien on the land, the purchaser’s surviving wife had a legal right, if necessary, to convey the land in settlement of the notes.</p> <p>2. Deeds ©fc=69 — Ignorance of Character and Contents — Rescission.</p> <p>Without culpable negligence on part of a grantor, and where the rights of innocent third parties do not intervene, one executing a deed in ignorance of its character and contents and delivering it under the impression that it was for another purpose, under certain conditions, may be relieved from its terms.</p> <p>3. Trespass to Tey Title ©=>35(2) — Plea of Not Guilty — Pboof—Latitude.</p> <p>Much latitude is allowed in suits to recover the title and possession of realty when plaintiff’s petition is in the/ ordinary form of an action of trespass to try title and is only met by a plea of not guilty.</p> <p>4. Trespass to Try Title ©=>35(2) — Invalidity of Deed — Pleading—Fraud.</p> <p>In trespass to try title met only by a plea of not guilty, either party may offer evidence by way of confession and avoidance, and, under certain conditions, may prove that a deed relied upon by his adversary is void because procured by fraud, or as the result of mistake.</p> <p>5. Trespass to Try Title ©=>47{1) — Affirmative Relief — Pleadings.</p> <p>In trespass to try title, met . only by a plea of not guilty, affirmative relief to plaintiff, because the deed relied upon by his adversary was void for fraud or mistake, will be granted in response to appropriate pleadings bringing himself within the conditions that entitle him to a rescission.</p> <p>6. Cancellation of Instruments ©=>37(4)— Deeds — Restoration of Consideration.</p> <p>When transaction out of which a conveyance results involves payment of a valuable consideration by grantee, tbe grantor cannot have the land and the money too, and if he elects to rescind and reclaim land he must restore or offer to restore what he has received from his grantee, and should by his pleading inform the court as to such facts.</p> <p>7. Tbespass to Try Title Conditions Precedent,</p> <p>Surviving wife and children, suing in trespass to try title after decedent’s notes secured by a vendor’s lien had been barred by limitations, might satisfy the debt or offer to pay it as a condition to cancellation of surviving wife’s deed to defendant, and so enable court to adjust their equities.</p> <p>8. Tbespass to Tby Title <®=»25 — Laches.</p> <p>One seeking to repudiate a contract for fraud or mistake must act promptly on discovery thereof, and where plaintiff admitted that in 1913, less than a year after her deed to defendant, she learned that he was claiming the land, a suit in trespass to try title not filed until latter part of February, 1916, justified a finding that the right of possession had been lost.</p> <p>9. Deeds <s=»17(2) — Inadequacy oe CONSIDERATION.</p> <p>Where, in payment of indebtedness of about $1,000, land was conveyed which the evidence offered by grantor tended to show was worth about $1,500, the difference between its value and the indebtedness was not so great as to require court to set aside deed for inadequacy of consideration alone.</p> <p>10. Appeal and Ereok t&=»736 — Assignment of. Ebbob — Multifabiousness.</p> <p>An assignment of error complaining of the court’s refusal to submit certain different issues was multifarious, and for that reason should be disregarded.</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by Mrs. G. A. Gschwender and others against the San Antonio Portland Cement Company. Judgment for plaintiff named, and defendant appeals.</p>

<p>Injunction <®=»137(3) — Tempobaby Injunction — Propriety.</p> <p>Where a county had opened a public road through plaintiff’s land, and plaintiff had fenced along the road, and it had been used by the public for several years, a temporary injunction restraining the use of the road prior to trial of a suit of trespass to try title to the strip of land used for the road was properly refused in view of the situation of the parties and the interest of the public.</p>

<p>Telegraphs and Telephones <§=»68(1) — Delay IN TRANSMISSION OP MONEY — MENTAL</p> <p>Suefering — Cause.</p> <p>Plaintiff could not recover from telegraph company for mental anguish suffered by his wife, where, on learning that his wife, away from home, among strangers, desired to bring on her mother’s body, he wired her funds, which she received in time to take train she had intended, though there was delay causing her apprehension; such anguish resulting from apprehension of a situation which did not occur.</p>

<p>Appeal from Bowie County Court; J. B. Lytal, Judge.</p> <p>Action by the First State Bank of De Kalb against A. R. Weeks and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.</p> <p>Action by George Williams against Joe R. Gillespie. Judgment for plaintiff, and defendant appeals.</p> <p>December 28, 1912, appellee and appellant entered into a contract whereby the former, in consideration of $8,200 to be paid to him, undertook to furnish the material and build and complete a dwelling house for the latter.</p> <p>By this suit appellee sought to recover of appellant $548.95, which he claimed as a balance unpaid of the $8,200, and $404.08, which he claimed was due him for material furnished and work done at appellant’s request, not covered by the contract between them.</p> <p>In his pleadings appellant admitted he had not paid to appellee $423.63 of the $8,-200; denied that appellee at his request had furnished material and did work he was not bound by the contract to do; asserted that, if appellee furnished such material and did such work, he nevertheless was not entitled to recover therefor, because of a provision in the contract set out below; charged that appellee, in various particulars specified, had failed to comply, with his undertaking, whereby he (appellant) was damaged in sums aggregating $2,769.70; and prayed for a recovery against appellee of $2,346.07 —the difference between the $423.63 of the $8,200 which he admitted he had- not paid, and the $2,769.70 which he claimed as the damages he was entitled to recover of ap-pellee.</p> <p>Appellant’s claim to $635 of the $2,769.70 damages he sought to recover was based on a stipulation in the contract as follows:</p> <p>“Work to begin on said building at as early a day as practicable and to be completed and ready for occupancy by the 1st day of next May, and for each and every day after the 1st day of May that the building shall remain uncompleted the said Williams shall forfeit to the said Gillespie the sum of $5, to be deducted from the contract price hereinafter stated.”</p> <p>It appeared from the testimony that the building was not completed and ready for occupancy before September 5, 1913. Ap-pellee contended that appellant waived the right he had to demand a compliance with the stipulation set out above, and was estop-ped from asserting against him a liability on account of the delay in the completion of the building.</p> <p>The' provision in the contract referred to above as relied upon by appellant as a bar to a recovery by appellee of anything for material he might have furnished and work he might have done at appellant’s request not covered by the contract was as follows:</p> <p>“Any change in the plans and specifications hereafter agreed on by the parties hereto that contemplate an increase or reduction of the price to be paid for said house must be reduced to writing and signed by both the parties and such reduction specified.”</p> <p>On special issues submitted to them the jury found: (1) That appellant had not paid $488.20 of the $8,200 he agreed to pay appellee for building the house. (2) That by agreement with appellant appellee furnished material and did work, specifying same, not covered by the contract, of the value of $346.10. (3) That by • agreement a change was made in walls of the building, whereby the cost thereof was reduced $52.-80 below the amount same would have cost, had the change not been made. (4) That appellant declared, when the agreements covering the changes in the contract were made, that it was unnecessary to reduce the same to writing. (5) That appellant “expressly agreed that he would waive the clause of the contract which provided for a forfeiture of $5 per day for each day the house was not completed after May 1, 1913. (6) That the reasonable rental value of the house from May 1 to September 5, 1913, was $25 per month.</p> <p>On the ground that it conclusively appeared that appellee had failed to perform his contract in certain particulars specified by appellant to the damage of the latter in the sum of $63, the court found in appellant’s favor for that amount, and, overruling a motion by appellant to make other findings in his favor and on such findings, when made, and those made by the jury, to render judgment in his favor, rendered judgment for appellee against appellant for the sum of $718.50 and interest thereon from September 5, 1913, amounting together, to the sum of $854.32.</p> <p>It appears that the $718.50 adjudged to appellee was the difference between the aggregate (to wit, $834.30) of findings by the jury in his favor as follows: Balance of the $8,200 unpaid, $488.20; difference in price of certain material bought of Phillips, instead of Bacon, which appellant agreed to pay, $86.20; difference in cost, mantels used, placed in building, and those appellee agreed to place therein $74.90; cost of change made in back porch, $130; cost of china closet, $55 — and the aggregate (to wit, $115.-80) of the finding by the jury of $52.80 in appellant’s favor on account of decreased cost of walls and the findings by the court in his favor, amounting to $63.</p>

<p>Appeal from District Court, Eranklin County; J. A. Ward, Judge.</p> <p>Suit by Mrs. T. J. Barrett and another against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by Mrs. J. O. Robertson and husband against Tony Ayo and others. Judgment for plaintiffs, and defendants appeal.</p>

P. Dohoney, Judge. Suit by the J. I. Case Threshing Machine Company against John E. Butcher and others. Judgment for plaintiff, and defendants appeal. September 22, 1914, the Mineóla Box Manufacturing Company, a corporation under the laws of Texas, made and delivered its five promissory notes for sums aggregating $1,820 to appellee. The notes were not.paid when they matured.

<p>Appeal from Jim Wells County Court; L. Broeter, Judge.</p> <p>Suit by J. W. Sutherland against the St. Louis, Brownsville & Mexico Railway Company and another. Judgment for plaintiff. Upon appeal to the county court judgment was again rendered for plaintiff in a lesser amount, and the named defendant appeals.</p>

A. Ward, Judge. Suit by Marion County against T. D. Row-ell, as County Judge, and the sureties on his official bond. Demurrer to petition sustained, and the County appeals.

<p>Appeal from District Court, Harrison County; P. O. Beard, Judge.</p> <p>Action by Mrs. Clara Allen, administratrix, against Lancaster & Wight, receivers. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error >&wkey;346(l) — Decisions Appealable — Time.</p> <p>Where a temporary injunction was granted on September 18th, and on October 30th a motion to dissolve was overruled, an appeal taken November 7th is too late, for under the statute an appeal from the granting of a temporary injunction must be taken within 15 days, and the action of the court on October 30th in no way modified or changed the original injunction; hence, appeal not having been taken in time, it must be dismissed.</p> <p>2. Appeal and Error <&wkey;100(2) — Decisions Appealable.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4644, no appeal is allowed from a judgment denying a motion to dissolve a temporary injunction previously granted.</p>

A. Ward, Judge. Action by J. M. De Ware and others against W. D. Chew and others. Judgment on verdict for plaintiffs, and defendants appeal. The republic of Texas issued a patent on January 25, 1842, to Robert Potter for 22 labors of land situated in what is now Marion county on Ferry or Caddo Lake. The west boundary line of the survey calls for the lake. Since the time of the location of the survey, there has been, it appears, recession of waters of the lake.

<p>Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge. R. J. Hughes was convicted of aggravated assault, and he appeals.</p>

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District. Action by J. W. Penn against Briscoe County. From a judgment of the Court of Civil Appeals (162 S. W. 916), affirming a judgment for defendant, plaintiff brings error.</p>

Action by J. S. Ellis against the Orange Lumber Company. A judgment for plaintiff was reversed by the Court of Civil Appeals (153 S. W. 1180), and upon an affirmance of the judgment of the trial court on rehearing, defendant brings error.

<p>Appeal from District Court, Orange County; W. R. Blaekshear, Judge. Action between Felix Weil and O. M. Hatton and others. Prom the judgment rendered, Weil appeals.</p>

<p>Appeal from District Court, Liberty County; J. L. Maury, Judge. Suit by Ed Pruett and others against Will L. Barbee and others. Judgment for plaintiffs, ana defendants appeal.</p>

<p>Appeal from Nacogdoches County Court; J. P. Perritte, Judge. Proceedings between Hiram Knox and B. K. King & Son. Prom a judgment for B. K. King & Son, Knox appeals.</p>