Volume 208 — South Western Reporter

<p>Error to Court of Civil Appeals of Fourth Supreme Judicial District.</p> <p>Action by M. Sapp against F. E. Ebersole and the Houston Home Telephone Company. From a judgment of the Court of Civil Appeals, Fourth District (160 S. W. 1137), affirming a verdict and judgment against defendant, Ebersole, and in favor of the Houston Home Telephone Company, he brings error.</p>

Suit by Mrs. Alice 0. Fielder and others against the Houston Oil Company of Texas and others. Judgment for defendant, and plaintiff appealed to the Court of Civil Appeals (165 S. W. 48), where the judgment was affirmed in part and reversed in part, and both parties bring error.

T. Sluder, Judge. Suit by the Oriental Oil Company and another against the City of San Antonio and' others. Prom an order refusing temporary injunction, plaintiffs appeal.

<p>1. Carriers <&wkey;219(5) — Connecting Carriers — Interstate Shipments.</p> <p>Under U. S. Comp. St. 1916, § 8604a, an initial carrier in the case of an interstate shipment is liable for injuries to the shipment caused either by it or by connecting carriers.</p> <p>2. Judgment <&wkey;415 — Restraining'Enforcement — Grounds.</p> <p>To restrain enforcement of a default judgment, it must appear that the judgment was void on the face of the record or that the defendant was not served and had a meritorious defense which it failed to present without fault.</p> <p>3. Justices op the Peace &wkey;>128(l) — Restraining Enforcement of Judgment — Grounds.</p> <p>Where a judgment in justice court recited that the defendant was duly and legally cited, and it did not appear from any other portion of the record that the recital was untrue, the enforcement of the judgment cannot be restrained1 unless defendant shows a meritorious defense.</p>

<p>Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.</p> <p>Suit by Forest Huffman against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal frota District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by H. G. Tacquard against Eliza Kempner. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Sherman County; Reese Tatum, Judge.</p> <p>Action by John Houser against Sallie Jackson.</p>

<p>1. Appeal and Error &wkey;s733 — Assignments op Error — Generality.</p> <p>Assignments of error that judgment is contrary to evidence and law applicable to ease, that trial court erred in not granting plaintiff’s prayer for temporary injunction on case made, and that judgment is contrary to law and unsupported by evidence or any evidence, held too general to require consideration. ></p> <p>2. Municipal Corporations i&wkey;603 — Protection against Fire — Dilapidated Buildings — Nuisance.</p> <p>Where buildings of plaintiffs, landlord and tenant, were so dilapidated as to render them menace to public safety in their tendency to promote fires, and therefore were a public nuisance, city and officials under ordinance could lawfully remove them, after due notice to and hearing of plaintiffs.</p> <p>3. Municipal Corporations &wkey;>603 — Fire ■Nuisances — Validity op Ordinances.</p> <p>City ordinances, empowering mayor and other officials on due notice and hearing to remove buildings within fire limits of city which are in such condition of dilapidation as to be nuisance in tendency to promote fires, are valid.</p>

T. Sluder, Judge. Suit by the State National Bank against the East Coast Oil Company and others. Plaintiff dismissed as to one of the unnamed defendants, and the other two unnamed defendants defaulted. From a judgment in its favor against the oil company, plaintiff appeals.

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Suit by the Hill Printing & Stationery Company against the Planters’ Oil Company. Verdict and judgment for plaintiff, and defendant appeals.</p>

<p>1. Appeal and Error <@=>725(1) — Assign-joints oe Error — Sufficiency — Rule oe Court.</p> <p>Notwithstanding rules 24 and 25 of Courts of Civil Appeals (142 S. W. xii), an assignment of prejudicial error in sustaining defendant’s plea of limitation in an action on quantum meruit, not affirmatively specifying the grounds of error, would be considered, in view of the liberal rule adopted in reference to the briefing of cases.</p> <p>2. Contracts <@=346(12) — 'Variance.</p> <p>A cause of action upon a quantum meruit is different from a cause of action on an express contract, and, unless the causes are pleaded in the alternative or in different counts, evidence cannot be introduced on the cause not so pleaded.</p> <p>3. Judgment <@=>252(4) — Pleading — Prayer eor Alternative Relief.</p> <p>A judgment on either a cause of action on, a quantum meruit or on an express contract cannot be sustained unless that particular cause of action is pleaded in the alternative or in different counts, and a more prayer for relief in the alternative is not sufficient.</p> <p>4. Limitation of Actions <@=127(13) — Amendment.</p> <p>Where the petition contained a declaration only upon an express contract, with a mere plea in the prayer in the alternative for recovery on quantum meruit, the court properly sustained an exception to an amended petition pleading a quantum meruit in the alternative, filed more than two years after the cause of action accrued.</p> <p>5. Appeal and Error <@=?272(1) — Peremptory Instruction — Review—Exceptions.</p> <p>To have a peremptory instruction reviewed, the giving of the instruction must be excepted to at the time and before it is given to the jury, and unless a bill of exceptions is reserved the giving of the instruction cannot be reviewed.</p> <p>6. Appeal and Error <@=>544(3) — Peremptory Instruction — Review—Fundamental Error.</p> <p>The giving of a peremptory instruction does not raise the question of fundamental error to be reviewed by the court in the absence of bill of exceptions attacking the giving of such instruction.</p> <p>7. Contracts ®=>323(3) — Nonperformance-Question for Jury.</p> <p>In a suit to recover under an express contract to lay tile floors in a neat and workmanlike manner, evidence for plaintiff to show that the floor was laid in a neat and workmanlike manner, or substantially in that manner, heM insufficient to raise an issue for the jury, so that peremptory instruction for defendant was proper.</p> <p>8. Trial <§=>139(1) — Directed Verdict — Evidence.</p> <p>It is the court’s duty to instruct a verdict even though there be slight testimony, if its probative force is so weak that it only raises a mere surmise or suspicion of the facts sought to be established, such testimony falling short of being any evidence.</p> <p>9. Contracts <@=5295(1) — Substantial Performance.</p> <p>Where there was no substantial compliance with a contract to lay tile floors in a neat and workmanlike manner, and any cause of action on quantum meruit or an implied contract having been barred by the two-year statute of limitations, plaintiff could not recover.</p>

Pierson, Judge. Suit by Mrs. Elizabeth Douthit for herself and as next friend for her children, against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.

<p>1. Damages ©=>173(2) — Evidence—Earning Capacity — Measube oe Damages.</p> <p>In an action for personal injury, plaintiff’s testimony as to his income during a period of from 3 to 10 years preceding the accident was admissible, not as a measure of damages, but as a guide in enabling the jury to determine the proper amount by knowing what kind of remuneration would be open to plaintiff in a business he understood, and would and could resume were he not prevented by his injuries.</p> <p>2. Appeal and Ebkob ©=>1060(1) — Haemeess Eeboe — Aegument op Counsel.</p> <p>Remarks of plaintiff’s counsel in negligence case that jury could find contributory negligence and turn plaintiff away penniless, while improper, were not reversible error; facts not 'showing that jury were influenced thereby.</p> <p>3. Evidence ©=>366(2) — City Oedinance.</p> <p>In view of Vernon’s Say les’ Ann. Civ. St. 1914, art. 821, providing that ordinances printed and published shall be admitted in evidence without further proof, the testimony of the mayor and secretary of a city that an ordinance, limiting the speed of trains, was passed, published, and recorded was sufficient to authorize its admission.</p> <p>4. Municipal Corporations ©=122(3) — Oedi-nance — Evidence.</p> <p>It was not error to permit the mayor of the city to testify that an ordinance introduced in evidence was in force and effect at a specified time.</p> <p>5. BailRoads ©=347(8) — Crossing Accidents — Evidence.</p> <p>In an action for injuries received in a crossing accident testimony of the city’s mayor and secretary concerning a conversation they had with the officials of the defendant relative to placing a flagman or electric bells at the crossing held admissible, as tending to show defendant’s negligence.</p> <p>6. Evidence ©=471(24) — Conclusions.</p> <p>An objection that testimony that plaintiff, as result of his injuries, could not rise from a sitting posture and walk as well as he could before was a conclusion of the witnesses is without merit.</p> <p>7. Evidence ©=492 — Speed oe Train — Conclusion.</p> <p>Evidence of a witness that defendant’s train was moving at about 16 miles per hour was admissible, without showing witness’ qualification to judge of its speed.</p> <p>8. Damages ©=134(1) — Excessive Damages —Earning Capacity.</p> <p>Where it was shown that plaintiff had a life expectancy of 15 or 16 years, was permanently injured, totally disabled from performing profitable labor, and for a number of years up until about 2 years previous to injury had earned from $5,000 to $10,000 per year, a verdict for $20,000 is not excessive.</p> <p>9. Damages ©=185.(2) — Permanent Injuries —Evidence.</p> <p>Evidence held sufficient to sustain the jury’s finding that plaintiff’s injuries were permanent.</p> <p>10. Railroads ©=348(5) — Crossing Accidents — Speed—Evidence.</p> <p>In'an action for injuries received in crossing accident, evidence held sufficient to support finding that defendant’s train was running at the rate of 18 miles an hour.</p> <p>Lane, J., dissenting in part.</p>

<p>1. Counties @=>117 — Contracts — Commissioners’ Court — Competition—Statute.</p> <p>Under Acts 35th Beg. c. 141 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 2268a, 2268b), forbidding certain contracts by commissioners’ court except upon notice inviting competition, the court must be prepared to present to bidders some independent and concrete statement of work required to be done and must take such steps as are reasonably and fairly calculated to carry out the act.</p> <p>2. Statutes @=>183 — Construction — Intention.</p> <p>A statute is to be extended to cases not within the words but within the purpose thereof, as a thing within the intention of the legislators is as much within the statute as if it were within the letter.</p> <p>3. Statutes @=>181(1) — Construction — Duty of Court.</p> <p>While it is for the Begislature to make a law, it is the court’s duty to “try out the right intendment” of statutes upon which they are called to pass and to ascertain and enforce them according to their intendment.</p> <p>4. Counties @=>116 — Contracts — Duty of Commissioners’ Court — Statutes.</p> <p>Under Acts 35th Beg. c. 141 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 2268a, 2268b), forbidding commissioners’ court to make certain contracts except upon notice inviting competition, the court, which on the day advertised for receiving bids and upon adjournments resolved to erect a courthouse, employed an architect, adopted his tentative plans, and contracted for its construction subject to modifications, did not comply with the statute.</p> <p>5. Counties @=>117 — Contracts — Publication of Notice of Intent to Void Contract.</p> <p>Under Acts 35th Beg. c. 141 (Vemon’s Ann. Civ. St. Supp. 1918, arts. 2268a, 2268b), forbidding commissioners’ court to enter into certain contracts except , upon notice inviting competition, where published notice inviting bids on February 14th, but where recorded copy thereof fixed the date as February 4th, an award of contract on February 13th did not comply with statute, and contract was void for want of notice.</p> <p>6. Counties <§=>53 — Records oe Commissioners’ Court — 'Verity.</p> <p>The verity of proceedings of commissioners’ court, as disclosed by its minutes, may not be challenged by t'estimony of a commissioner indicating the court’s intent that an approved minute entry should provide for receiving bids for county work on a certain day, as stated in the minutes, as the court, being a court of record, speaks through its minutes.</p> <p>7. Counties <§=>53 — Commissioners’ Court-Amendment oe Record.</p> <p>The proper way to amend the minutes of the commissioners’ court when they fail to speak the truth is by motion made in that court, and not by allegations and proof in another tribunal in which a litigation concerning its orders may arise.</p> <p>8. Counties <§=^>127 — Contracts—Modification — Power oe Commissioners’ Court.</p> <p>The commissioners’ court, having authority to contract for construction of courthouses, etc., subject to Acts 35th Leg. c. 141 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 2268a, 2268b), requiring them to invite competition if cost is $2,000 or more, in absence of constitutional or statutory prohibition, may make necessary changes in details by which price is increased or diminished.</p> <p>9. Counties ⅞=»50 — Contract — Construction oe, Courthouse — Delegation oe Powers bi Commissioners’ Court.</p> <p>A contract by commissioners’ court of a county for the construction of a courthouse in effect making the contractor its agent, with authority to parcel out the contract to subcontractors and thereby releasing him from all liability thereon, was void, because delegating the court’s powers.</p> <p>10. Counties ⅞=»123 — Contracts—Contractor’s Bond — Statute.</p> <p>Vernon’s Ann. Civ. St. Supp. 1918, art. 6394f, requiring one contracting with a county to execute a penal bond with security conditioned to pay for labor, material, etc., is mandatory, and- the commissioners’ court has no authority to release a contractor from the execution of such bond.</p> <p>11. Counties <§=>165 — Contract—Bonds or Warrants.</p> <p>Evidence of indebtedness of a county to a contractor in form of negotiable bonds' with interest coupons attached, for construction of a courthouse, but designated “County Courthouse Warrants,” in view of minutes of commissioners’ court disclosing its intention, were warrants and not bonds.</p> <p>12. Evidence <§==>65 — Presumption oe Purchaser’s Knowledge oe Law.</p> <p>Á purchaser of what purports to be county bonds is presumed to, know the provisions of the law authorizing their issuance and is required to examine into the steps taken by the commissioners’ court in that respect, whether referred to on face of the bonds or not.</p> <p>13. Counties <§=>123 — Contracts — Bond-Statute.</p> <p>Though Vernon’s Ann. Civ. St. Supp. 1918, art. 6394f, requiring a contractor with a county to give a bond conditioned to pay for work, material, etc., before commencing work, is mandatory, there is no objection to deferring its execution to a time prior to beginning the work.</p> <p>14. Counties <§=>122(1) — Contracts—Submission to Inspector oe Public Buildings — Statute.</p> <p>Acts 34th Leg. e. 148 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 6394dd — 639'4dddd), requiring the inspector of masonry, public buildings, and works to inspect the plans, etc., of public buildings, does not require county officials to submit plans to inspector, though requiring them to forward his fees, but failure to conform thereto would not invalidate a contract in other respects valid.</p>

<p>1. Guardian and Wakd @=>107— Sale by Guardian — Collateral Attack.</p> <p>Though application for sale of ward’s land by guardian alleged no grounds for sale set forth in Sayles’ Ann. Civ. St. 1897, art. 2653, judgment ordering sale cannot be attacked collaterally on account of such failure, and sale must be sustained in subsequent action of trespass to try title.</p> <p>2. Guardian and Ward @=>111 —Sale by Guardian — Deed—Lands Included.</p> <p>Deed of ward’s land, executed by guardian in consummation of sale under order in probate, describing land as interest which ward had in real estate belonging to her deceased father’s estate as one of heirs at law, held not to cover lands of ward derived ultimately from father through her deceased brother and mother.</p> <p>3. Guardian and Ward @=>90 — Sale by Guardian — Order oe Court.</p> <p>Under Rev. St. art'. 3480, order of sale is essential to validity of sale of ward’s lands by guardian, so that its terms must control as to property sold.</p> <p>4. Judgment @=>475 — Collateral Attack-Probate Court — Sale oar Lands — Presumption.</p> <p>County court in probate is court of general jurisdiction, and its judgments and orders have absolute verity in collateral proceeding, presumption prevailing that, when, in order for sale by guardian, property is confined to certain interest in certain estate, court understood what it intended should be sold by guardian and confined sale to property described.</p> <p>5. Evidence @=>452 — Parou—Sale oe Land-—Order oe Court — Latent Ambiguity.</p> <p>If there was latent ambiguity in description of ward’s land in order of sale by her guardian, it could be removed only by consulting other parts of probate record, in subsequent action of trespass to try title, and not by testimony of witnesses as to what they thought the term “estate of” meant -at the time.</p> <p>6. Adverse Possession @=>19 — Ten-Tear Limitations — Statute.</p> <p>Under Rev. St. art. 5678, in trespass to try title to recover land fenced with more than 5,000 acres owned by defendant, where testimony did not show that any part of land in controversy was cultivated and used for agricultural or manufacturing purposes, or was in actual possession of defendant, ten-year statute of limitations did not apply.</p> <p>7. Limitation oe Actions @=>14 — Statute oe Limitations — “Actual Possession.”</p> <p>The “actual possession” of Rev. St. art. 5678, providing possession of land belonging to another by person owning or claiming 5,000 acres or more of lands inclosed by fence shall not be peaceable and adverse possession, contemplated -by article 5675, unless there be actual possession thereof, means pedal possession, living upon, occupation of land, or making improvements.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Actual Possession.]</p>

F. Perritte, Judge. Suit by E. E. Mooney against J. B. Stripling in the justice court. Upon appeal to the county court, a judgment was rendered for plaintiff and against defendant and the sureties on his replevin bond, and defendant appeals.

<p>1. Specific Performance @=>121(5) — Evidence — Yerbal Contract — Possession and Improvement.</p> <p>In suit for specific performance of verbal contract for sale of land, evidence that plaintiff entered and retained possession, and placed valuable and permanent improvements in reliance on contract, 7teW to support findings for plaintiff on such questions.</p> <p>2. Specific Performance @==>47 — Verbal Contract of Sale — Improvements—Insignificant Character.</p> <p>Where buyer of land by verbal contract took possession and made permanent improvements, consisting of a house or shed, a well, corrals, fencing, grubbing, and clearing land, of a total value of $750, such improvements were sufficient to justify specific enforcement of the verbal contract of sale.</p> <p>3. Specific Performance @=>123 — Yerbal Contract of Sale — Instruction.</p> <p>In suit for specific performance of verbal contract to sell land, trial court properly refused defendant’s requested instruction, requiring jury to find rental value of land while plaintiff was in possession.</p>

<p>Appeal from Bell County Court; M. B. Blair, Judge.</p> <p>Action originating in justice court by W. A. Messer against the Gulf, Colorado & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Action by the Wilson Bros. Mercantile Company against J. M. Pate. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Discovery <®=o54 — Corporation — Ex Parte Proceeding.</p> <p>Under Rev. St. 1911, arts. 3689-3682, a corporation has the right to take the depositions of an adverse party upon interrogatories filed, hut cannot proceed ex parte.</p> <p>2. Discovery <S=>70 — Incorrect Docket Number — Failure to Answer Interrogatories.</p> <p>Where, upon interrogatories filed, the case is correctly styled in the notice, commission, etc., but an erroneous docket number was used, refusal of court to treat interrogatories as confessed because of this incorrect numbering cannot be upheld, where it appeared that all parties at various steps of proceedings erroneously used the wrong number, and defect was not discovered until after trial.</p>

<p>Appeal and Error <§==>773(4) — Review-Scope — Failure to File Beiep.</p> <p>Where appellants have filed no brief, the court is not required to search the record for the errors assigned in appellants’ motion for new trial, and, upon consideration of appellees’ brief and finding that the judgment is authorized by the pleadings, the case must be affirmed.-</p>

<p>1. Constitutional Law <s=»154(2) — Gas <S=» ■ 2 — Ordinances—Validity.</p> <p>Where a city ordinance made the price of gas a certain amount, with the privilege of a 10 per cent, discount if paid before a certain date, a later ordinance, omitting the privilege of a discount and providing an additional 10 per cent, for delay in payment, could not be applied retrospectively, under Const, art. 1, § 16, even though the discount feature be considered a mere inchoate right or privilege.</p> <p>2. Constitutional Law <⅞=⅛54(2) — Gas 2 — Ordinances—Validity.</p> <p>A city ordinance, which granted a gas company the right to a minimum charge on meters, could not take effect for the month in the middle of which the ordinance went into effect, under Const, art. 1, § 16.</p> <p>Appeal from District Court, Potter County; Henry S. Bishop, Judge.</p> <p>Suit by the Amarillo Gas Company against the City of Amarillo and others. Judgment for defendants, and the plaintiff appeals. Affirmed.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Suit by Mrs. Mary R. H. King against the ADtna Life Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Carriers &wkey;>283(2) — Injuries to Passenger-Liability oe Master.</p> <p>The master, owner of an elevator, could not have contemplated that employés engaged in operating and repairing an elevator would go outside of their prescribed duties and unnecessarily frighten and injure a passenger therein by idle talk of danger of falling.</p> <p>2. Carriers &wkey;>293 — Elevators—Injury to Passenger.</p> <p>As the electricity for propelling an elevator will at times be cut off, the mere stopping of an elevator thereby was not in any sense a wrongful act toward a passenger, where there was no physical injury caused by it.</p> <p>3. Oaeeiers <&wkey;283(2) — Injuries to Passenger — Acts oe Servants — Scope oe Authority.</p> <p>Where one employed to repair an elevator talked of the danger of the elevator’s falling, in the presence of a passenger, causing her injury from fright, the master was not liable therefor; such being outside the scope of em-ployé’s authority.</p>

E. O’Neal, Judge, f Proceedings to probate a will by J. S. Per-due, contested by Queen A. Perdue and others. Judgment of county court for contestants affirmed by district court, and proponent appeals.

<p>Appeal from Nacogdoches County Court; J. F. Perritte, Judge.</p> <p>Action by B. C. Mast against the Angelina County Lumber Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Cherokee County Court; C. F. Gibson, Judge.</p> <p>Suit by John B. Guinn against the Farmers’ Union Co-operative Clearing House of</p> <p>Rusk. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Set-Off and Counterclaim <&wkey;33(l)— “Liquidated” Claim — Statute.</p> <p>In suit against bank by clerk to recover deposit, bank could set off its claim against clerk for money which it was led to pay its customer through its teller on account of clerk’s negligence in having overstated balance to customer’s credit, bank’s claim being “liquidated,” Rev. St. 1911, art. 1329, as to set-off of unliquidated demands, not being applicable.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Liquidated.]</p> <p>2. Mastee and Servant <&wkey;>53 — Negligence of Clerk — Liability.</p> <p>A bank’s clerk, who negligently reported a customer’s balance, so that the customer drew out more than he was entitled to, was liable to the bank for damages to it through his negligence, regardless of any liability of the customer.</p> <p>3. Damages <&wkey;163 (2) — Negligence of Em-plomé — Reduction of Damages — ¿Burden of Proof.</p> <p>When employer institutes suit against employs for damages through latter’s negligence, he is not called upon to prove he could not reduce damages by suit against another, in relation to whom employe’s negligence occurred, as that burden rests on the employe.</p> <p>4. Master and Servant <&wkey;66 — Action for Negligence — Parties.</p> <p>In- suit against bank by clerk to recover deposit, bank counterclaiming for damages when its customer withdrew more money than he was entitled to on account of negligence of clerk in stating balance to teller, estate of customer was a proper but not a necessary party.</p>

<p>1. Evidence <&wkey;208(6)—Admissions—Aban-doned Pleadings.</p> <p>An abandoned supplemental petition, filed by plaintiff, is admissible in evidence against him, notwithstanding it contained legal conclusions, for the averments in the petition were admissions of the plaintiff.</p> <p>2. Contracts <5&wkey;352(2) — Building Contracts—Issues.</p> <p>In an action for contractor’s breach of agreement, the submission of the issue as to whether plans of the building were drawn by the contractor, or by its agent under the direction of the agent of a lessee, who was a party to the contract, held proper under the evidence.</p> <p>3. Appeal and Ekbor &wkey;>742(l)—Assignment op Erkob—Sufficiency.</p> <p>A reference in an assignment of error to a page of the record for a bill of exceptions, without giving it in full or at least the substance, is not the statement contemplated by rule 31 (142 S. W. xiii), and such assignment is defective.</p> <p>4. Contracts &wkey;>303(5) — Building Contracts—Default op Other Party.</p> <p>Where a tripartite agreement, between the owner, a contractor, and the prospective lessee of the building to be erected, provided that the building should be erected at a cost-not to exceed $125,000, and that it should- be built ac- f cording to designs of the lessee’s agent, held,. that the contractor was not bound to erect the building, where the plans prepared by the lessee’s agent could not be carried out, save at an expenditure greater than $125,000; every part of the agreement being binding on each of the parties.</p>

<p>Appeal from District Court, Donley County; Hugh L. Umphres, Judge.</p> <p>Suit by F. A. Johnson and another against D. J. Schlag. From judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from Potter County Court; T. W. McBride, Judge.</p> <p>Suit by the California State Life Insurance Company against J. D. Kring. From judgment dismissing the cause, plaintiff -appeals.</p>

<p>Appeal from District Court, Webb County t J. F. Mullally, Judge. N</p> <p>Suit by Jesus M. G. Martinez against Ilde-fonso Ramirez. From judgment for plaintiff, defendant appeals.</p>

<p>1. Carriers ⅞=>105(2) — Goods—Delivery— Delay—Measure oe Damages.</p> <p>Where defendant railroad had no notice of any special or contract price and the consignee buyer refused to accept shipment because not delivered within a reasonable time, held that damages sustained by plaintiff seller and consignor was the difference between the market value of the goods at the time they should, have been delivered and their market value at the time plaintiff afterwards disposed of them.</p> <p>2. Carriers <§=>10A—Delay in Delivery-Market Price—Evidence.</p> <p>Where the only evidence tending to show that goods shipped had a market value at destination on date when they should have been delivered greater than that at which they were sold by plaintiff consignor, after buyer consignee refused to accept them, was the sale made by plaintiff to consignee, the court had the right to assume that sale to consignee was at market price.</p> <p>3. Carriers '<§=3105(1)—Failure to Deliver within Reasonable Time—Damages.</p> <p>Where consignee buyer, who refused to accept consignment because not delivered by defendant railroad within a reasonable time, was to pay the freight charges, consignor, who sold the goods at a lower price after paying the freight charges, held entitled in action against defendant railroad to have the freight charges included as damages.</p>

A. Ward, Judge. Action by James J. Gorman and others against Clayton D. Browne. Judgment for plaintiffs decreeing a partition of land and defendant appeals.

R. Price, Judge. Suit by Francisca L. vda. Terrazas for the use of herself and six minor children, against the El Paso Electric Railway Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from District Court, Harris County ; J. D. Harvey, Judge.</p> <p>Consolidated actions by Mrs. Emma Sellers and others against the Galveston, Harrisburg & San Antonio Railway Company. From judgment for defendant, plaintiffs appeal.</p>

Dannenbaum, Judge. Application by H. M. Curtin for the probate ■of the will of T. E. Byrnes, opposed by Dennis Byrnes and another. After appeal to the district court from a judgment refusing probate, the proponent H. M. Curtin filed an amended original petition,’ in which he renounced the appointment of executor and prayed that Mrs. Bertha A. Forest be allowed to make herself a party plaintiff and prosecute the case alone.

<p>Error from District Court, Lamar County; A. P. Dohoney, Judge.</p> <p>Suit between Ben L. Billingsley and the Texas Midland Railroad. Judgment for the latter, and Billingsley brings error.</p>

<p>Appeal from District Court, Gregg County; Daniel Walker, Judge.</p> <p>Action between J. M. Farmer and R. S. McKinley and Etta McKinley. From a judgment for the McKinleys, Farmer appeals.</p>

<p>Brokers <®=^>64(2) — Real Estate Exchange Transaction — Compensation — Conditional Contract.</p> <p>Broker, having contract to procure buyer “suitable” to owner, was not entitled, to commissions for procuring contract for exchange of land conditioned upon ability of each party to .give good title, where exchange was not perfected because of inability of party produced by broker to furnish good title.</p>

<p>1. Carriers ⅞=»227(3) — Live Poultry — Delay in Furnishing Car — Issues.</p> <p>Pleadings held to raise the issue of whether railroad furnished car for shipment of live poultry within a reasonable time after shipper’s application therefor, in compliance with its duty under Interstate Commerce Act (U. ¡3. Comp. St. § 8563, subd. 2).</p> <p>2. Carriers <®=>47(1) — Poultry — Furnishing Car — Authority os’ Agent.</p> <p>In action against railroad for failure to furnish car for shipment within a reasonable time after shipper’s application in violation of its duty under Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), held, that the railroad’s agent at one station had' authority to receive application for car for shipment at another station.</p> <p>3. Carriers 3=5207(1) — Poultry — Application por Oar — Waiver op Irregularities.</p> <p>An irregularity in shipper’s application for ear for shipment of poultry was waived by carrier, where trainmaster received order,'acted on it, and finally furnished the car on the application.</p> <p>4. Carriers <§=5209 — Poultry — Duty op Railroad — Furnishing op Cars.</p> <p>Under Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2) and state laws, where there was a demand along railroad for cars for shipment of live poultry, it was railroad’s duty to furnish cars suitable for such purpose.</p> <p>5. Carriers <§=>42 — Acceptance op Perishable Goods — Duty op Railroad.</p> <p>Railroad accepting perishable goods requiring cars and equipment of a peculiar kind, undertakes, in the absence of some fact changing the nature of the undertaking, that it has such ears and equipment, and that it will properly use them in the transportation of such property.</p> <p>6. Carriers <§=>44^-Acceptance op Perishable Goods — Failure to Furnish Cars — Defenses.</p> <p>Where railroad accepts perishable goods with express or implied notice of the perishable character thereof, it is precluded, upon its failure to furnish cars, from asserting that it did not have the means or facilities for performing the duty it took upon itself; it being no defense that carrier did not own or control such sars or equipment.</p> <p>7. Carriers <s=>40 — Furnishing op Cars — Reasonable Notice by Shipper.</p> <p>Generally, when cars are required by shipper, reasonable notice should be given by him, and a reasonable time.allowed the company in which to procure cars.</p> <p>8. Carriers <®=>45 — Failure to Furnish Car —Action for Damages — Burden of' Proof.</p> <p>As railroad is required to furnish cars for goods accepted, and as facts excusing its failure to furnish cars when proper request is made and freight is offered are peculiarly within railroad’s knowledge, the burden is upon railroad to establish facts constituting an excuse for failure to furnish cars.</p> <p>9. Carriers <®=>40 — Transportation Facilities — Duty of ¡Railroad — “Transportation.”</p> <p>Railroad’s duty to “furnish transportation upon reasonable request,” under Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), requires it to furnish suitable cars as a part of the transportation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transportation.]</p> <p>10. Carriers <3=545 — Failure to Furnish Transportation — Action for Damages — Burden of Proof.</p> <p>In action against railroad, based on railroad’s violation of its duty to furnish transportation, under Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), the burden is on railroad to allege and prove a legal excuse.</p> <p>11. Carriers <§=>39 — Duty as to Transportation — Quasi Public Corporations.</p> <p>Railroads are quasi public corporations, and acquire thereby an exclusive privilege to carry on their business over their highways, which powers are granted with the express view of their rendering adequate and impartial service to the public.</p> <p>12. Carriers <§=>206 — Live Poultry — Failure to Furnish Cars — Defense.</p> <p>Where application was made for car for shipment of live poultry, railroad’s failure to furnish car within reasonable time, as required by Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), was not excused by fact that it relied upon another company to furnish car, where such car was the one commonly used by the railroad for the shipment of poultry.</p> <p>13. Trial <3=o2G0(5) — Instructions Covered by Others Given.</p> <p>In action for failure to furnish car, refusal of requested instruction permitting jury to take conditions surrounding transaction into consideration on question of whether railroad exercised reasonable diligence in furnishing car was not error, where court in its main charge defined reasonable diligence correctly, and told jury to consider railroad’s situation and its ability to furnish particular car requested.</p> <p>14. Appeal and Error <3=>742(3) — Assignments of Error.</p> <p>The proposition that pleadings did not raise certain issue was not relevant under assignment of error that court erred in rendering judgment on findings of the jury on such issue.</p> <p>15. Carriers <§=>230(1) — Failuee to Furnish Car within Reasonable Time — Live Poultry-Jury Question.</p> <p>In action against railroad for failure to furnish car for shipment of live poultry within reasonable time after application therefor, as required by Interstate Commerce Act (TJ. S. Comp. St. § 8563, subd. 2), where there was evidence of shipper’s application for such car, the question of whether railroad furnished car within a reasonable time was for the jury.</p> <p>16. Evidence <§==>131 — Failure to Furnish Car — Similarity of Conditions.</p> <p>In action against railroad for failure to furnish car within a reasonable time after application therefor, as required by Interstate Commerce Act' (⅛. S. Comp. St. § 8563, subd. 2), evidence that plaintiff applied to another railroad for a similar car which was furnished in less time than that in which defendant furnished car was inadmissible, where it was not shown that conditions with reference to the two orders were the same.</p> <p>17. Appear and Error <§=>1050(1) — ¡Review-Harmless Error.</p> <p>In action against railroad for failure to furnish car, as required by Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), the admission of evidence that shipper applied to another railroad for similar car, and was furnished car in less time, was harmless, where there was other evidence of such facts admitted without objection.</p> <p>18. Evidence <§=>129(6) — Delay in Furnishing of Oar — Action, for Damages.</p> <p>In action against railroad for failure to furnish car within a reasonable time after application therefor, as required by Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), evidence that defendant railroad furnished another shipper a similar car on a subsequent application before car was furnished plaintiff was admissible in evidence of unreasonable delay.</p> <p>19. Carriers <§=>228(5) — Delay in Furnishing of Car — Sufficiency of Evidence — Unreasonable Delay.</p> <p>In action against railroad for failure to deliver car for shipment of live poultry within a reasonable time after application, as required by Interstate Commerce Act (U. S. Comp. St. § 8563, subd. 2), evidence held to support verdict for plaintiff.</p>

Action by S. R. Pollard against Thos. P. Jennings and others. From a judgment for plaintiff, defendants appeal. In his petition appellee (plaintiff below) alleged: That at various times he specified he sold appellants railroad ties and wood for which they promised to pay him sums aggregating $1,349.69. That of said aggregate sum appellants had paid him $1,122.47, as follows: In money, $370; in merchandise $712.47; and by canceling a promissory note they held against him, $40.

<p>1. Abortion &wkey;>l — Giving Medicines.</p> <p>One who gave a pregnant woman medicine, and told her not to use it until he gave her instructions with reference to its use, was not guilty of abortion, if she used the medicine when he was not present and without his instructions, and procured an abortion.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Abortion.]</p> <p>2. Abortion <&wkey;6 — Indictment—Variance.</p> <p>Under an indictment charging that an abortion was procured by administering medicine calculated to produce an abortion, and did then and there destroy the life of the fetus in the womb, and did then and there by the use of the means aforesaid procure an abortion, a conviction could not stand for, procuring a premature birth by such means.</p> <p>3. Abortion <&wkey;8 — Burden of Proof.</p> <p>Under an indictment charging that an abortion was procured by administering medicine calculated to produce an abortion, and did then and there destroy the life of the fetus in the womb, the burden was on the state to" show beyond a reasonable doubt that the child was alive at the time of the administration of the medicine, and that the medicine was administered for the purpose of destroying the fetus while in the womb.</p>

<p>Appeal from District Court, Gregg County; Daniel Walker, Judge.</p> <p>Suit by Chas. O. Austin, Commissioner of Insurance and Banking, against the Lion Bonding & Surety Company. From judgment for the commissioner, defendant appeals.</p>

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Suit by J. S. McCreight and others against Charles Sumner to recover on promissory notes. From a judgment in favor of the plaintiff Mary McCreight for one-half interest, in the notes with foreclosure of lien and that the other plaintiffs take nothing, the plaintiffs appeal.</p>

<p>Appeal from District Court, Franklin County; J. A. Ward, Judge.</p> <p>Petition for injunction by L. H. Smith and others against O. L. Reaves, County Judge, and others. From judgment refusiDg injunction, plaintiffs appeal.</p>

<p>1. Appeal and Eeeoe @=>1008(1) — Finding of Fact — Location op Land.</p> <p>In trespass to try title, in which defendants disclaimed as to all of section sued for, except a specific 160 acres claimed under 10-year statute of limitation, held that court’s finding with reference to true location thereof will not be disturbed.</p> <p>2. Appeal and Eeeoe @=>1099(8) — Decision oe Foemee Appeal — Law oe the Case.</p> <p>The Oourt of Oivil Appeals having previously determined that the true location of the section involved was a question of fact, it will not review a finding of the trial court with reference thereto on this appeal.</p> <p>3. Appeal and Eeeoe @=>1010(1) — Findings —Review.</p> <p>Where the great preponderance of testimony sustains the findings of the trial court under assignment that “court erred in rendering judgment for defendants for the 160 acres of land, claimed by them under their limitation plea, because the evidence shows their occupancy thereof to have been under full recognition of the title of another,” assignment will be overruled.</p>

<p>Appeal from District Court, Red River County; Ben H. Denton, Judge.</p> <p>Suit by Anderson Guest and others against Mrs. Lela Guest and others. From judgment for plaintiffs in part, they appeal.</p>

B. Minor, Judge. Action on benefit certificate by Elizabeth Cooper and husband against the Sovereign Camp of the Woodmen of the World, in which the former Lela Cooper, wife of deceased, and her second husband intervene. Judgment for plaintiffs, and defendant appeals.

<p>1. Deeds <§==>82 — Title—Recordation.</p> <p>When a deed is executed and delivered, the title to the land vests in the grantee, whether the deed is recorded or not.</p> <p>2. Judgment <⅞=»788(1) — Lien — Priority — Unrecorded Deed.</p> <p>Under Rev. St. 1911, art. 5616, despite article 1104, purchaser of land sold on alias execution under judgment recovered by vendors against vendee and assigned, abstract of judgment being legally issued and filed for record, held to take subject to title previously conveyed away by vendee by deed not filed for record, until more than three weeks after abstract of judgment was filed, recorded, and indexed, as record of abstract of judgment creates lien only on property actually owned by judgment debtor.</p>

<p>Appeal from Hill County Court; R. T. Burns, Judge.</p> <p>Suit by W. C. Caldwell against W. M. Carver and another. Judgment for plaintiff, and defendant Carver appeals.</p>

<p>1. Evidence <§==>547 — Expert.</p> <p>In action against a feed company for death of a horse, alleged to be due to poison in feed, I issue being as to what killed horse, it was proper to allow veterinarian to testify that, when he called to see plaintiff’s horses, four of them were sick; the horse in question being one of the four.</p> <p>2. Negligence <§=>124(1) — Materiality.</p> <p>In action against feed company for death of horse, alleged to have been caused by rat poison in feed, evidence that defendant picked up sweepings from floor of warehouse and put them in sacks at some time prior to death of plaintiff’s horse was admissible, as tending to show how poison got in feed.</p> <p>3. Appeal and Error <§=>970(4) — Trial <§=> 68(1) — Reopening Case — Discretion oe Court.</p> <p>The trial court is vested with a liberal discretion in reopening a case, after plaintiff has closed and defendant has declined to offer any testimony, and its action In regard thereto will not be reversed, unless it appears that complaining party has suffered injury.</p> <p>4. Trial <§=>121(1) — Argument.</p> <p>In action against feed company for death of horse, caused by rat poison in feed, argument of plaintiff’s attorney: “A specimen. A specimen of what, gentlemen? Of that rat poison that F. got out of the feed that he bought from the W. Grain Company” — was proper.</p> <p>5. Trial <§=>120(2) — Argument oe Counsel.</p> <p>An argument: “Gentlemen, Mr. H. has tried to make you believe that poor old man F. is a liar, a robber, and a thief. I will tell you that neither J. nor old man F. would swear a lie for this horse, another, and yet another. If you knew them like I do, you couldn’t be made to believe so” — was improper, because an attorney should not make a witness of himself in his argument to the jury.</p> <p>6. Trial <§=>129 — Argument oe Counsel — Retaliatory Statements.</p> <p>Argument of attorney: “I will tell you that neither J. nor old man F. would swear a lie for this horse, another, and yet another. If you knew them like I do, you couldn’t be made to believe so” — was not reversible, where in reply to argument of opposing counsel of the effect that F. was manufacturing and concealing testimony.</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Suit for divorce by Dessie Mahurin against Otho Mahurin. From judgment for plaintiff, defendant appeals.</p>

<p>Bills and Notes <⅝==>94(1) — Consideration-Indebtedness or Third Party.</p> <p>Note executed to pay indebtedness of third party for goods furnished prior to execution of note, and not at request of maker, was without consideration and was not collectable.</p>

<p>1. Courts @=8 — Action Under Laws oe Other State — Federal Safety Appliance Act — Right to Sue.</p> <p>In a servant’s action for injuries, based on the defendant railroad’s violation of the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.), the master’s liability was enforceable in courts of Texas, without reference to the laws of California, where the tort occurred.</p> <p>2. Master and Servant @=129 (6) — Federal Safety Appliance Act — Proximate Cause of Injury.</p> <p>A cause of action for' injuries under the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.) arises where the accident occurred when a string of cars ran down a line where not intended because of their becoming uncoupled, owing to defective couplers, and where a hand brake on the front car was out of repair.</p> <p>3. Depositions @=83(3) — Suppression — Grounds.</p> <p>In a servant’s action against master for injuries, the materiality of a letter from plaintiff, asking the witness to testify in the case, not being apparent, the witness’ failure to comply with request to attach it to his deposition did not furnish sufficient ground for suppressing deposition.</p> <p>4. Depositions @=90 — Effect oe Presence oe Witness at Trial.</p> <p>Where a witness was present at the trial by procurement of defendant, having been brought from California, and was sworn and placed under the rule, it was not an abuse of discretion to permit plaintiff to introduce the deposition of the witness.</p> <p>5. Depositions @=88 — Transcript oe Testimony on Former Trial.</p> <p>There is no rule requiring plaintiff to use-a transcript of the oral testimony given by a witness on a former trial, instead of his written deposition taken in the manner prescribed by law.</p> <p>6. Witnesses @=388(2) — Impeachment — Foundation.</p> <p>Where the proper predicate had not been laid to impeach the witness, the transcript of his evidence on a former trial was not admissible.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Suit by C. M. McKinney and wife against Edgar D. Brown. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Witnesses <@=>129 — Transaction with Decedent — “Legal Representative.”</p> <p>Rev. St. 1911, art. 3690, providing in actions by or against executors, etc., neither party shall testify against the other as to any transaction with the decedent, unless called by the opposite party, including all actions by or against heirs or “legal representatives” of decedent, arising out of transaction with him, does not include or apply to purchaser from decedent, suing purchaser from decedent’s heirs in trespass to try title.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Legal Representative.]</p> <p>2. Witnesses <@=>139(2) — Transactions with Decedent — “Parties”—Heirs.</p> <p>In trespass to try title by purchaser from decedent against purchaser from decedent’s heirs, heirs, who have not been called upon to defend title, and are not apparently in a situation to be concluded by any judgment rendered, are not “parties,” within meaning of Rev. ,St. 1911, art. 3690, prohibiting either party from testifying as to transactions with decedent, etc., though term should not in every case be limited to those named in pleadings.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Parties.]</p> <p>3. Evidence <@=>271(17) — Declaration' oar Decedent-Interest.</p> <p>In trespass to try title by purchaser from decedent against purchaser from decedent’s heirs, testimony of decedent’s daughter, to prove by his declarations that deed he had made to plaintiff was only a mortgage, being in decedent’s interest, was inadmissible.</p> <p>4. Appeal and Error <@=>231(3) — Review-Objections to Testimony.</p> <p>In reviewing rulings of trial courts in excluding and admitting testimony usually only those objections urged will be considered.</p> <p>5. Appeal and Error <@=>856(2) — Review— Exclusion oe Evidence — Grounds Not Considered.</p> <p>Judgment will not be reversed for error in excluding testimony on objection to which it was not subject, where it was inadmissible on other grounds not raised.</p> <p>6. Appeal and Error <@=>1056(3) — Harmless Error — Evidence.</p> <p>In trespass to try title, any error in excluding certain testimony as hearsay held immaterial; probative value of testimony being small.</p> <p>7. Evidence @=»317(2) — Hearsay.</p> <p>In trespass to try title by purchaser from decedent against purchaser from decedent’s heirs, declarations of decedent’s widow as to what plaintiff said to her, when repeated by decedent’s daughter as a witness to prove admissions by plaintiff, were properly excluded as hearsay.</p>

<p>Appeal from District Court, Coryell 'County; J. H. Arnold, Judge.</p> <p>Suit by W. H. Winters and others to contest an election held in the Independent School District of Evant. From a judgment sustaining the election, the plaintiffs appeal.</p>

<p>Error from Randall County Court; O. R. Flesher, Judge.</p> <p>Suit by L. T. Lester against Grady Old-ham. Judgment for defendant, and plaintiff brings error.</p>

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

Suit by the Bank of Miami against D. J. Young and others. From a judgment of the Court of Civil Appeals (161 S. W. 436) reversing a judgment in favor of plaintiff, plaintiff brings error.

<p>1. Vendor and Purchaser <©=346 — Construction oe Contract.</p> <p>Land contract must be construed as a whole, and cannot be paragraphed and paragraphs construed in severalty without reference to each other, where it is apparent that they are core-lated and interdependent.</p> <p>2. Vendor and Purchaser <®=>143 — Insufficiency oe Abstract — Waiver.</p> <p>Where land contract gave purchaser specified period after vendor had furnished abstract in which to examine same and specify defects of title, purchaser, upon failure to object to sufficiency of abstract during such period, could not, after expiration thereof, urge such insufficiency as a breach of the contract and as ground for his refusal to perform.</p> <p>3. Vendor and Purchaser @=>105(1) — Nonperformance — Forfeiture oe Earnest Money.</p> <p>Where land contract obligated purchaser to point out defects in title within specified time, purchaser, refusing to perform and failing to point out defects during specified period held to forfeit note deposited by him.</p>

<p>1. Municipal Coepokations @=>225(5) — Conveyances — Validation — Cubative Act.</p> <p>' Where plaintiff claimed title under a conveyance by the officers of the town of San Eliza-rio, held that, even if an attempt to incorporate the town in 1879 under general statute was of no effect, the special charter not having been repealed, the title was validated by Acts 21st Leg. Special Laws (9 Gammel’s Laws, p. 1371), and Acts 34th Leg. (1st Called Sess.) c. 12, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5393a).</p> <p>2. Teespass to Try Title @=>12 — Actions— Possession.</p> <p>Though plaintiff failed to deraign title from the state, yet where defendants’ plea of title by limitations was not sustained, and plaintiff showed prior possession of the land in his grantors, judgment for plaintiff was proper.</p> <p>3. Landlord and Tenant @=>63(1) — Estop-pel of Tenant.</p> <p>A tenant, who has recognized the title of his landlord by renting the land and paying rent, cannot attack the landlord’s title.</p>

<p>Appeal from Nacogdoches County Court; J. F. Perritte, Judge.</p> <p>Suit by D. White against J. Thomas Hall. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge. '</p> <p>Suit by John C. Scott against Annie Johnson and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Live Oak County Court; W. W. Caves, Judge.</p> <p>Suit by Duval West and another, receivers of the San Antonio, Uvalde & Gulf Railroad Company, against O. McMahon, wherein defendant filed a cross-action. From a judgment for plaintiffs, and against defendant on his cross-action, defendant appealed to the county court; and from a judgment there for defendant against plaintiffs on the cross-action, and against plaintiffs and for defendant on plaintiffs’ cause of action, plaintiffs appeal.</p>

<p>Appeal from District Court, Webb County; J. P. Mullally, Judge.</p> <p>Trespass to try title by T. A. Bunn against thé City of Laredo. Judgment against plaintiff, and he appeals.</p>

B. Blair, Judge. Suit by T. T. Moore against S. H. Camp, wherein writ of sequestration was sued out, J. W. Wheeler claiming the property levied upon. From a judgment for plaintiff, claimant Wheeler appeals.

<p>1. Vendor and Pukchaseb <§=>239(1) — Innocent Purchaser for Value.</p> <p>If purchaser of land did not know prior to purchase that deed to his grantor was a mortgage, he was in law an innocent purchaser for value as against heirs of mortgagor.</p> <p>2. Vendor and Purchaser <§=>244 — Purchase with Notice oe Equity — Sufficiency of Evidence.</p> <p>In statutory trespass to try title, defendants, heirs of widow from whom plaintiff’s grantor acquired title, setting up that widow’s deed was mortgage and known to have been such by plaintiff when he purchased,, evidence tending to prove defense held insufficient to sustain verdict for defendants.</p>

<p>1. Cancellation of Instruments @=>37(1) —Pleading—Sufficiency of Petition — Illegal Transaction.</p> <p>Petition seeking cancellation of deeds alleged to have been executed to defendant as accommodation to secure dealings in cotton futures was not subject to general demurrer because of allegation of plaintiff’s knowledge that money was to be used for illegal purpose, where it did not appear from petition that, plaintiff was in pari delicto with defendant, as the cancellation of the deeds would not be in furtherance of the illegal transaction.</p> <p>2. Appeal and Error @=>1099(6) — Subsequent Appeal — Law of Case — Sufficiency of Petition.</p> <p>Decision of Supreme Court denying writ of error to review decision of Court of Civil Appeals sustaining sufficiency of petition to state cause of action -as against general demurrer was binding on subsequent appeal involving sufficiency of same petition.</p> <p>3. Appeal and Error @=>999(1) — Review— iSpecial Verdict.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1986, providing that a special verdict is conclusive between the parties as to the facts found by the jury, a special verdict should be upheld unless there is no evidence to sustain it.</p> <p>4. Judgment @=>198 — Rendition on Special Verdict.</p> <p>In view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1986, 1990, the trial court should render judgment on jury’s findings of special issues unless verdict be set aside or new trial granted.</p> <p>5-. Cancellation of Instruments @=>50— Questions for Jury — Consideration.</p> <p>In action to cancel deeds alleged to have been executed as an accommodation to defendant for use in raising money, without intention to pass title or possession, where defense was that deeds were executed in settlement of plaintiff’s indebtedness to defendant, evidence hold insufficient to entitle defendant to instructed verdict.</p> <p>6. Evidence ©=>443(3) — Warranty .Deed —Parol Agreement.</p> <p>In action to cancel warranty deeds alleged to have been executed for accommodation of defendant for use as collateral for loan without intention to fully pass title, evidence as to agreement at time of execution, whereby plaintiff’s wife was to continue collecting rents from property, was admissible to prove that such agreement was part of consideration.</p> <p>7. Evidence ©=>419(2) — Parol Evidence -^Consideration' oe Deed.</p> <p>Parol evidence is admissible to show the true consideration of a deed although it may not be disclosed upon its face.</p> <p>8. Cancellation oe Instruments ©=>50 — Deeds — Jury Question — Nature oe Transaction.</p> <p>In action to cancel deeds alleged to have been executed without intention to pass title or possession, but for accommodation of defendant for use in raising money, whether it was understood between parties at time of execution that property was to vest in defendant, purely for purpose of enabling him to raise money, was an issue of fact for the jury.</p> <p>9. Judgment ©=>198 — Special Verdict — Conflicting Evidence.</p> <p>Whore evidence was conflicting, and tended to support theory of both defendant and plaintiff, where findings of jury were in support of plaintiff’s theory of case, court properly entered judgment for plaintiff.</p> <p>10. Appeal and EfeROR ©=>930(3) — Review-Presumptions.</p> <p>In action to cancel, deeds claimed by defendant to have been deeds of trust to secure sum advanced by defendant for plaintiff, where defendant failed to request special finding in favor of lien on land, it will be presumed on appeal, in support of judgment for plaintiff, that court found against legality of lien.</p> <p>11. Appeal and Error ©=>930(3) — Review —Presumptions.</p> <p>Where defendant did not request special finding of certain issue raised by plaintiff’s supplemental petition in reply to defendant’s cross-action, it will be presumed on appeal that court found against defendant on such issue.</p> <p>12.- Gaming ©=>18 — Foreclosure oe Mortgage.</p> <p>Where deed of trust was executed to secure grantor’s indebtedness to grantee, which was incurred by grantor in furtherance of cotton future transactionls wherein grantee acted as grantor’s agent, the court will refuse to foreclose lien.</p> <p>13. Gaming ©=>18 — Deeds oe Trust.</p> <p>Where deed of trust was executed to secure grantee against loss in guaranteeing grantor’s indebtedness, and the written guaranties were executed at time of execution of deed, but no money passed at such time, the guaranties and deed of trust did not become effective until the delivery of the guaranties by grantor to grantee, and, where delivered in settlement of cotton future transactions between them, the deed of trust and guaranties became a part of such illegal transaction.</p>

<p>• Appeal from District Court, Collingsworth County; J. A. Nabers, Judges</p> <p>Action by Dora Morrow and another and Lillie C. Kelley and another against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals.</p>

Error from Dallas County Court; T. A. Work, Judge. Suit by J. A. Johnson and Will Henderson against'the Automatic Music Manufacturing Company, plaintiffs impleading D. E. Wag-goner, and executing bond, with A. 0. Sage and A. H. Abies as sureties, to procure issuance of writ of injunction, Waggoner bringing cross-action, praying judgment against plaintiffs and the sureties on the injunction bond.

<p>Appeal from District Court, Orange County; W. T. Davis, Judge.</p> <p>Trespass to fry title by Charles Staffen against W. H. Stark. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Insurance <®=»146(3) — Bonds — Construction.</p> <p>Where a surety bond is fairly open to two. constructions, one of which will uphold and the other defeat claims against the surety, that which is most favorable to claimants will be-adopted.</p> <p>2. Municipal Corporations <@=>703(1) —<- Jitneys — Bonds — Construction.</p> <p>Though city ordinance for the licensing of operators of jitney busses required such operators to file a bond in the amount of $1,000 conditioned on payment of all damages from negligence, etc., declared that in no event should the sureties be liable for more than the amount of the bond, yet, where a bus operator filed two-bonds each in the amount of $1,000, the liability of the sureties is not restricted to $500 each, and in event of a judgment for more than $2,000 against the operator, surety is liable to the full amount of the bond, though the other surety had paid $900 in compromise of the claim against him.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Action by the Frost National Bank against Mabel Mills. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Insurance <§⅝134(2) — Statute Requiring Policy to Contain Entire Contract — Applicability — '“Annual Premium Plan.”</p> <p>Defendant accident insurance company, which, under policy sued on, required premium to be paid monthly, was not engaged in the insurance business upon the “annual premium plan,” within Rev. St. 1911, art. 4957, providing that chapter does not apply to companies carrying on business upon such plan, and it was not exempt from articles 4953 and 4955, requiring policy to contain all the terms of the contract, and providing that application may be made a part thereof.</p> <p>2. Statutes <3=>167(2) — Codification—Original Act as Controlling.</p> <p>Rev. St. 1911 constitutes a mere codification and continuation of laws formerly enacted, and therefore article 4957, which was intended to be a codification of section 65, Acts 31st Leg. c. 108, is controlled thereby.</p>

<p>Appeal from Hamilton County Court; Joe H. Eidson, Judge.</p> <p>Suit by E. W. Rector against Hugh Brown. Judgment for defendant, and plaintiff appeals.</p>

R. Price, Judge. Action by E. G. Taylor against Annie M. Benton, administratrix of the estate of William Benton, deceased, in which defendant filed cross-action. From judgment that plaintiff take nothing of defendant and that defendant take nothing of plaintiff, defendant appeals and plaintiff cross-appeals.

Suit by Thomas Beggs and another against Tom Angus, to recover for commission due for building a house, labor, and costs of material, and, pending the suit, the parties agreed to submit the controversy to three named arbitrators. The arbitrators heard the matter, and made an award to plaintiffs, which was contested by defendant, and the court sustained the award by a judgment, from which defendant appeals.

<p>Appeal from District Court, Motley County ; J. H. Milam, Judge.</p> <p>Action by Ered Bone against the Quanah, Acme & Pacific Railway Company. Prom a judgment for plaintiff, defendant appeals.</p>

Action by F. L. Williams against the Mexico' Northwestern Railway Company and another. From a judgment for plaintiff against the named defendant, it appeals.

<p>1. Judgment <&wkey;251(l) — Conformity to Pleadings—Negligence—Pleading.</p> <p>In actions against a common carrier for injuries, negligence not alleged, though proved, cannot form basis of judgment.</p> <p>2. Trial <&wkey;54(l)—Statement by Injured Person—Unlimited Introduction.</p> <p>In action for injuries sustained when leaving train by person accompanying passengers, plaintiff’s statement to railroad’s claim agent, having been introduced by railroad without limitations as to its purpose, should he considered and treated for all purposes.</p> <p>3. Carriers <&wkey;318(10) — Oarriag-e or Passengers — Injury While Alighting — Proximate Cause — Sufficiency of Evidence.</p> <p>In action against railroad for injuries to man while alighting as train started, after he had placed his wife and daughter aboard, evidence held to authorize finding that railroad’s failure to hold train a reasonable length of time at station, to enable plaintiff to alight, was proximate cause of his injuries.</p> <p>4. Trial <&wkey;352(l) — Instruction — Submission on Special/Issues.</p> <p>Where case was submitted on special issues, a requested charge, applicable only if the case had been submitted on a general charge, was properly refused.</p> <p>5'. Trial <&wkey;352(l) — Instructions—Submission on Special Issues.</p> <p>Requested instructions, merely general and without reference or not directing the jury’s attention to any particular special issues submitted in the court’s charge, are properly refused.</p> <p>6. Carriers @=>304(3) — Persons Accompanying Passengers — Duty to Hold Train.</p> <p>If, at a railroad’s station, custom prevailed for men to escort women passengers on board trains, railroad holding trains long enough to permit men to alight, it was duty of railroad on particular occasion to observe custom, and allow a man who had seen his wife and daughter aboard the train reasonable time to alight.</p> <p>7. Trial @=>252(10) — Instruction—Support in Evidence.</p> <p>In action for injuries sustained when leaving train by person accompanying passengers, instruction on effect of ignorance of brakeman of plaintiff’s intention to alight held properly refused, in absence of evidence on which to base it.</p> <p>8. Trial @=>352(1) — Instruction — Weight op Evidence.</p> <p>In action for injuries sustained when leaving train by person accompanying pasengers, charge submitting special issue held not upon weight of evidence.</p> <p>9. Trial @=>352(4) — Instructions—Support by Pleading.</p> <p>In action for injuries sustained when leaving train by person accompanying passengers, special issues or instructions requested by railroad held properly refused, where no such issues were presented by the pleadings.</p> <p>10. Trial @=>352(4) — Instruction—Indecisive Character.</p> <p>In action for injuries sustained when leaving train by person accompanying passengers, a special issue or instruction requested by the railroad which would have been decisive of no issue in the case, however it might have been answered, was properly refused.</p> <p>11. Appeal and Error @=>1050(1) — Harmless Error — Evidence.</p> <p>In action for injuries to a man leaving a train after placing his wife and daughter aboard, action of court in overruling road’s objection to answer bf daughter as a witness as irrelevant, immaterial, and hearsay, and also as opinion, held harmless. '</p> <p>12. Appeal and Error @=>1050(1) — Harmless Error — Opinion Evidence.</p> <p>In action against railroad for injuries to man leaving train after placing wife and daughter on board, assignment complaining of admission of testimony of daughter that train did not stop long enough to permit plaintiff to assist herself and her mother on board, and to alight, objected to as hearsay, and conclusion, will be overruled where witness had stated the facts, and the same fact was testified to by plaintiff appellee without objection.</p> <p>13. Appeal and Error @=>1050(1) — Harmless Error — Evidence.</p> <p>In action for injuries to a man leaving a train after placing,his wife and daughter on board, admission of testimony of daughter that road’s brakeman heard her father tell her he would assist her on train and carry her grip, if it was a conclusion of the witness, held harmless.</p> <p>14. Trial @=>350(1) — Submission op Issue.</p> <p>Only where there is a dispute in evidence touching some material issue is the trial court required to submit such issue for the jury’s determination.</p> <p>On Motion for Rehearing.</p> <p>15. Trial @=>352(4) — Issue Hypothesizing Specific Facts — Contributory Negligence.</p> <p>In action against railroad for injuries to man leaving train after placing wife and daughter on board, court erred in refusing to submit special issue as to contributory negligence requested by railroad, which issue hypothesized specific facts requiring finding of contributory negligence, though road had interposed only general plea of contributory negligence.</p> <p>16. Trial @=>352(1) — Submission of Special Issue — Contributory Negligence.</p> <p>In action for injuries sustained when leaving train by person accompanying passengers, special issue as to contributory negligence, submission of which was requested by road, held not correctly refused as taking from jury issue of proximate cause.</p> <p>17. Carriers @=>339 — Passengers — Injury —Contributory Negligence — Proximate Cause.</p> <p>If man in attempting to leave train, which had started, after placing his wife and daughter on board, was negligent, as matter of law, such negligence proximately contributed to his injury when he fell from steps of car.</p>

<p>Appeal from Dallas County Court; W. L. Thornton, Judge.</p> <p>Action by F. Pitchford. against the Dallas Trust & Savings Bank, guardian. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Potter County; Hugh L. Umphres, Judge.</p> <p>Suit by the Commercial Security Company against J. W. Collins and another. From judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.</p> <p>Action by E. N. Lewis against tbe Weld-Neville Cotton Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge. \</p> <p>Suit by Ruth Allen against the El Paso Electric Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Nacogdoches County Court; J. F. Perritte, Judge.</p> <p>Action by E. T. Mettauer against the Hickory Jones Company and others. From a judgment for plaintiff, defendant company appeals.</p>

<p>Appeal from Lampasas -County Court; J. Tom Higgins, Judge.</p> <p>Suit by E. N. Fletcher against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. InsubaNce <&wkey;668(3) — Life Insurance— Delivery of Policies — Question for Jury.</p> <p>In suit on note given for first year’s premium on life policies issued to defendants, question of delivery of policies through a bank to defendants held for jury under'evidence.</p> <p>2. Appeal and Error <&wkey;742(4) — Statement Under Assignment of Error — Admission of Evidence.</p> <p>Where court is simply left to presume that exceptions were taken to admission of evidence complained of, and that proper bills were prepared, approved, and filed, in such condition of brief appellant is not entitled to have ruling complained of reviewed.</p> <p>On Motion to Reverse and Render.</p> <p>3. Insurance <&wkey;136(2) — Life Insurance-Delivery of Policies.</p> <p>Contract of life insurance was not complete without delivery of policies to insured, and delivery to a bank was not a delivery to insured, unless they agreed to or instructed such delivery.</p> <p>4. Appeal and Error <&wkey;742(5) — Briefs — Statement Under Assignment of Error.</p> <p>Statement under third assignment of error, “same as under first assignment of error,” which asserted court erred in instructing to find for defendants, held not in compliance with rules as to briefing, statement under first assignment covering four pages of typewritten brief, and including nearly all testimony.</p> <p>5. Appeal and Erkoe i&wkey;499(3) — Questions Reviewable — Biles oe Exception —Exclusion op Evidence.</p> <p>Bills of exception not disclosing specific ground of objection, if any, urged to introduction in evidence of each particular receipt offered, merely reciting court excluded each receipt from evidence, and plaintiff appellant duly excepted, held insufficient to authorize review of rulings.</p>

<p>Appeal from Kendall County Court; J. W. Lawhon, Judge.</p> <p>Suit by L. N. Moore against the San Antonia & Aransas Pass Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Beokers &wkey;88(2) — Right to Compensation — Employment—Sufficiency oe Evidence.</p> <p>In suit by realty broker for services in endeavoring to exchange defendant’s land with third person, evidence that there was never any employment of plaintiff by defendant 1veld to sustain verdict for defendant.</p> <p>2. Brokers <&wkey;67(2) — Compensation — Representation oe Both Parties.</p> <p>Where realty broker was representing person who had listed his land for sale or exchange, he could not legally represent his principal and defendant whom he endeavored to procure to exchange land, unless both principal and defendant knew he was representing both, and could not recover compensation or commission from defendant.</p> <p>3. Brokers <&wkey;106 — Action by Broker-Liability oe Customer in Default.</p> <p>A realty broker, who procures defendant to agree to exchange his land for the land of the broker’s principal, is not entitled to recover damages by way of lost commissions from defendant, who has refused to perform.</p>

<p>Judgment <&wkey;17(5) — Process to Support-Naming Dependants — Default.</p> <p>Under Rev. St. 1911, art. 1852, providing names of all parties shall be stated in citation, service of citation, in action against residents of the county and residents of another county, had upon the latter, was insufficient to warrant judgment by default against them, where citation named none of defendants except one of resident guarantors.</p>

<p>1. Chattel Mortgages <&wkey;138(3) — Mortgage on Chop — Landlord’s Lien.</p> <p>Under Rev. St. art. 5475> a mortgage on a crop given prior to the time when a landlord’s lien attached would not take precedence' over the latter.</p> <p>2. Witnesses <&wkey;150(3) — Transaction with Deceased Person.</p> <p>Where one of several plaintiffs died after suit commenced, and his heirs were substituted as plaintiffs, defendant could not testify as to a conversation had with him, under Rev. St. 1911, art. 3690.</p> <p>3. Trial &wkey;>356(l) — Verdict—Sufficiency.</p> <p>In an action on a note, where without objection on the part of defendants the court instructed the jury that, if they answered a third question as to a waiver of the landlord’s lien and the acceptance of 20 bales of cotton to settle the note in the affirmative, then they should answer issue No. 4, and the jury answered issue No. 3 in the negative, it was unnecessary to repeat under the fourth issue that the cotton was not delivered as indicated.</p> <p>4. Appeal and Error <&wkey;759 — Matters Re-VIEWABLEr-BRIEF.</p> <p>Where an assignment of error is not copied in the brief, propositions thereunder will not be considered.</p>

<p>1. Corporations <⅝^503(2) — Venue — BREACH OX CONTEAOT — ACTION AGAINST COEPOEATION.</p> <p>Where contract for sale of 50 carloads of hay was.made at Bexar county, so that cause of action for its breach arose in part in such county, the seller being private corporation, buyer’s suit for damages could be brought in Bexar county, under Rev. St. 1911, art. 1830, subd. 24.</p> <p>2. Venue <⅞=7 — Breach ox Contract — Place ox Perxormance.</p> <p>Contract for sale of 50 carloads of hay held performable, in Bexar county, where it was made, at least under subsequent amendment, whereby seller agreed to deliver hay in said county, despite clause that all obligations pertaining to or growing out- of contract were payable at point in Grayson county.</p>

Action by Martha A. Keith against the Ft. Worth & Rio Grande Railway Company for wrongful death. Judgment for plaintiff was affirmed by the Court of Civil Appeals (163 S. W. 142), and defendant brings error.

Suit by L. H. Roberts against R. E. Tra-bue, doing business under the name of the ^Carthage Ice & Light Company, and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (166 S. W. 12), and the Security Trust Company of Houston brings error.

Action by Nancy Gaddis and - others against the Gulf, Colorado & Santa Fé Railway Company. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (166 S. W. 124), and defendant brings error.

Action by J. L. Isaacs against the International & Great Northern Railway Company, From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which, affirmed the judgment (168 S. W. 872), and defendant brings error.

Action by E. M. Jaimes against the Peden Iron & Steel Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals (162 S. W. 965) and defendant brings error.

Suit by J. A. Whittenburg against R. F. Groves, resulting in judgment for plaintiff, which was reversed by the Court of Civil Appeals (165 S. W. 889), and plaintiff brings error.

Action by the Mercedes Plantation Company against the American Rio Grande Land & Irrigation Company. Judgment of-the trial court for plaintiff was affirmed in part and reversed in part by the Court of Civil Appeals (155 S. W. 286), and defendant brings error.

Error tp Court of Civil Appeals of Fourth Supreme Judicial District. Suit by the Bank of Siiyder and others against Eli Howell and another, resulting in judgment for plaintiffs, which was affirmed as to the unnamed defendant, and reversed as to the named defendant and rendered in his favor by the Court of Civil Appeals (158 S. W. 574), and plaintiffs bring error.

<p>1. Carriers <§=>280(1) — Carriage of Passengers — Duty of Carrier — Negligence.</p> <p>Railroad companies are not insurers of the safety of their passengers further than could be required by the exercise of such a high degree of foresight as to possible dangers and such a high degree of prudence in guarding against them as would be used by a very cautious, prudent, and competent person under similar circumstances, the failure to exercise such care being actionable negligence.</p> <p>2. Negligence <$=>63 — “Actionable Negligence.”</p> <p>For negligence to be actionable, the injury must be observable and preventable, except when declared by positive law.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Actionable Negligence.]</p> <p>3. Carriers <§=>302(2) — Injury to Passenger — Use of Open Toilet.</p> <p>Railroad’s failure to furnish train with toilet having bowl or pan at the bottom of stool did not render it liable for injury to passenger’s eye from small hard substance blown through opening in stool, such injury not having been foreseen by railroad as result of the use of open toilets.</p>

Action by W. L. Shelton against the Ste-phenville, North & South Texias Railway Company, resulting in judgment for plaintiff, which was affirmed by the Court of Civil Appeals (163 S. W. 1034), and defendant brings error.

<p>Appeal from District Court, McLennan ^County; R. I. Munroe, Judge.</p> <p>Alva Johnson was convicted of theft, and appeals.</p>

<p>Appeal from District Court, Jefferson County; W. H. Davidson, Judge.</p> <p>Action between L. Fontana and the T. S. Reed Grocery Company and others. From the judgment, Fontana appeals.</p>

B. Blair, Judge. Action by Bonnie & Co. against J. B. Blankenship, resulting in directed verdict for defendant. Prom overruling of their motion for new trial, plaintiffs appeal.

Suit by Richard Kieschniek and wife against Horace -Martin and others. From a •decree for defendants dissolving a temporary injunction, plaintiffs appeal.

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by Alexander Pox against C. W. Cecil and another. Prom ruling overruling plea of privilege of defendant named to be ’sued in the county of his residence, defendant named appeals.</p>

P. Brady, Judge. Action by P. H. Carlin against Piquero & Smith. Judgment for defendant was rendered in the justice’s court, and from a judgment for plaintiff on his appeal to the county court defendant appeals.

<p>1. Coukts <&wkey;121(l) — Jurisdiction—Amount in Controversy.</p> <p>In proceeding in district court of Robertson county under Acts 35th Leg. e. 96, § 14, where the return did not show the value of property levied on, which plaintiff was claiming, but the sheriff made an indorsement upon the replevy bond given by plaintiff, stating that he assessed the value of the property at $222.50, and it was agreed that such was its value, court properly overruled a motion to dismiss, on the ground that the value of the property in controversy was less than $200.</p> <p>2. Execution <&wkey;143 — Levy — Who May Question Validity.</p> <p>Manner of levy on partnership property cannot be questioned by claimant, who is not a party to the partnership.</p> <p>3. Execution <&wkey;143— Manner oe Levy — Waiver.</p> <p>Manner of levy on personal property under execution is waived by a claimant, who executes a claimant’s bond and takes possession.</p> <p>4. Execution <&wkey;143 — Manner oe Levy — Waiver — N otice.</p> <p>-A claimant of property levied on under execution, who executes a bond and takes possession, cannot complain that levy should have been liiade by giving notice, and not by actual seizure.</p> <p>5. Homestead <&wkey;S3 — Leasehold.</p> <p>A mere cropper has no such title to a crop as will support a plea of homestead.</p> <p>C. Judgment <&wkey;25G(2) — Findings — Conformity.</p> <p>Where jury found that personalty sold to a creditor was worth considerably more than debt, and that the creditor was a bona fide creditor, court was not precluded from passing upon issue of constructive fraud, which was not submitted to the jury; court having defined “bona fide” as meaning “real.”</p> <p>7. Fraudulent Conveyances <&wkey;187 — Good Faith — Constructive Fraud.</p> <p>A bona fide sale of personalty in payment of a debt was constructively fraudulent to extent of difference between debt and reasonable value of property, where creditor knew debtor was insolvent and debt was much less than value of property.</p> <p>8. F’raudulent Conveyances <&wkey;269(l) — Pleading — Proof.</p> <p>Under pleading charging that sale was in fraud of creditors, party was properly allowed to show that sale was constructively fraudulent to extent of difference between consideration paid and reasonable value of property, in that purchaser knew vendor was insolvent.</p>

<p>Appeal from District Court, Castro County ; R. C. Joiner, Judge.</p> <p>Suit by D. P. Earnest and others against B. D. Woodlee and others. Judgment for defendants, and plaintiffs appeal.</p>

Umphres, Judge. Action by Herring & Son against R. L. Slaughter and Marcus Snyder, in which the defendant Slaughter crpss-petitioned against the defendant Snyder. From the judgment for plaintiff against the defendant Slaughter, and in favor of such defendant over against the defendant Snyder, the latter appeals.

<p>1. Evidence <§=>126(1) — Res Gesms — Declarations.</p> <p>Statement as to manner in which accident happened, made by deceased about two minutes after the accident, to one coming in response to his shout, held admissible as part of res gestee.</p> <p>2. Master and Servant <§=>278(17) — Negligence — Evidence.</p> <p>Testimony in action for death of employé held to warrant jury in finding negligent starting of machinery by another employs.</p> <p>3. Appeal and Error <§=>1140(1) — Disposition of Cause — Excessive Verdict —Re-mittitur.</p> <p>Under Rev. St. art. 1631, the Court of Civil Appeals, when of opinion that verdict is excessive, must indicate the excess, and allow re-mittitur, and not reverse the case.</p> <p>4. Death <§=>99(5) — Recovery by Parent — Amount.</p> <p>Under evidence as to contributions by deceased 28 years old, to plaintiff, his father, 65 years old, held recovery for his death above $T,-200 was excessive compensation.</p>

<p>1. Venue <s=>32 (2) — Privilege oe Defendant — -Waiver.</p> <p>Mere entry of rule for costs by trial court, with proviso that it was without prejudice to defendant’s rights with reference to his plea of privilege, was not a waiver of plea of privilege under Acts 35th Leg. c. 176, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903).</p> <p>2. Pleading <§=110 — Plea of Privilege of Defendant — Absence of Contest.</p> <p>Where no affidavit controverting defendant’s plea of privilege under Acts 35th Leg. c. 176, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), was filed, trial court should have promptly granted change of venue; plea being prima facie proof of statements made.</p> <p>On Motion for Rehearing.</p> <p>3. Pleading <§=>104(2) — Privilege of Defendant — Plea—Necessity for Denial.</p> <p>Under Acts 35th Leg. e. 176, § 1 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), in suit to foreclose on boiler common-law lien for rent, defendant’s plea of privilege held tantamount to complete and detailed denial under oath of facts in plaintiff’s petition giving him right to sue in county of suit, so that, after filing of such plea, plaintiff was required,' to raise issue of his right to sue in county of suit, to file controverting plea or affidavit, even though repeating jurisdictional facts alleged in petition.</p>

<p>1. Appeal and Eeeoe <§=>991— Foeeion Statutes — Meaning—Question op Fact.</p> <p>Where statutes of a foreign country have been introduced in evidence, and lawyers of long practice in such country have testified as to meaning of sections shown, question of existence of, and abstract meaning of, laws becomes a question of fact to be determined by trial court.</p> <p>2. Appeal and Eeeoe <⅞=>930(3) — Issues Not Submitted to Juey — Pkesumptions.</p> <p>Where there was evidence in the record which would support a finding by the trial court that the laws of Mexico were substantially, if not in fact and in effect, the same as the laws in Texas, and the issue was not submitted to the jury, in upholding action of court in taking jurisdiction presumption must be indulged, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, that the court so found in line with such evidence.</p> <p>3. Appeal and Eeeoe <§=>757(3) — Beiep— Set-ting Out Evidence.</p> <p>An instruction as to damages which limited jury in its award to damages accruing only up-to time of trial cannot be held erroneous, where appellant does not state in his brief that there-was any evidence that all the damages had not accrued at time of trial.</p> <p>4. Appeal and Eieeoe <§=>1033(4) — Harmless-Eeeoe — Insteuctions.</p> <p>In an action for damages, that trial court did not submit the question of future damages, when in fact it might have done so under the evidence, cannot > be complained of by defendant, being more favorable than defendant was entitled to.</p> <p>5. Appeal and Error <§=>1033(5) — Harmless Error — Instructions.</p> <p>In an action for damages from a tort committed in Mexico, defendant cannot complain of an instruction as to contributory negligence on the ground that such defense had no existence in the law of Mexico, the charge being more favorable than defendant was entitled to.</p> <p>6. Courts <⅞=9 — Jurisdiction — Causes op Action Arising in Foreign Country.</p> <p>That only one action can be brought in Texas for a tort, and that subsequent actions can be brought in Mexico for damages accruing after trial, does not prevent a Texas court from assuming jurisdiction of action for tort committed in Mexico, and giving judgment for damages accruing before trial.</p> <p>7. Courts <§=>9 — Jurisdiction—Torts Committed in Foreign Country.</p> <p>Under pleadings and evidence in action for damages for tort committed in Mexico, held that it was not necessary to invoke provisions of Acts 35th Leg. c. 156, bestowing jurisdiction upon courts of Texas in cases involving torts committed in foreign countries, to justify court in taking jurisdiction.</p>

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Suit by T. E. Bressie against the Atchison, Topeka & Santa PS Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Carriers <®=>177(3) — Interstate Shipments — Diability op Initial Carrier.</p> <p>While under Interstate Commerce Act, § 20, as amended by Hepburn Act, § 7 (U. S. Comp. St. § 8604a), the initial carrier is liable for injuries caused by negligence of the connecting carrier, while it held the property as such, the initial carrier is not liable for the connecting carrier’s negligence as a warehouseman.</p> <p>2. Carriers <©=>177(3) — Refusal of Shipment-Notice to Consignor.</p> <p>Where a consignee refuses to accept a shipment, duty to notify the shipper rests on the carrier as such, and so, where a connecting carrier negligently delayed to notify a shipper of refusal to accept an interstate shipment, and it spoiled in the meantime, the initial carrier is liable.</p>

<p>1. Appeal and Eebob <§==>1001(1) — Review— Yeedict.</p> <p>The verdict cannot be disturbed on appeal, there having been testimony sufficient to support it.</p> <p>2. Banes and Banking <§=>117 — Failuee of Considebation — Loan foe Investment.</p> <p>There is no failure of consideration for note executed by defendant to plaintiff bank for money loaned, with which to buy stock, however valueless the stock, though the money was paid out therefor by plaintiff’s cashier; he in such transaction being defendant’s accredited agent.</p>

<p>1. Judgment <§=>788(1) — Lien—Unrecorded Deed.</p> <p>Purchaser of land, sold on alias execution under judgment recovered by vendors against vendee and assigned, abstract of judgment being legally issued and filed for record, held not in position of one who finds record title in judgment debtor, and fixes lien on his property which would be effective, though debtor may have conveyed to another by unrecorded deed, being in position of claiming lion on property not shown by record to be debtor’s.</p> <p>2. Execution <§=>264—Property Passing-Title of Judgment Debtor.</p> <p>Only the right, title, and interest of the judgment debtor is sold to the purchaser on execution.</p>

<p>Specific. Pebfobmance <&wkey;89 — Conduct of Plaintiff — Abandonment of Contract — Assebtion of Outstanding Title.</p> <p>Where a purchaser of land brought suit for specific performance of Ms contract, but, before any action was taken in such suit, except filing of petition and issue of citation, acquired from heirs of third person an outstanding title and sued seller in trespass to try title to recover the land, but lost the suit, he was not entitled to thereafter prosecute the suit for specific performance; the bringing of the action in trespass to try title having been a 'repudiation of the contract.</p>