Volume 209 — South Western Reporter

Action by Will Cooper against Almon Cotton and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals on appeal of the named defendant (160 S. W. 597), and said defendant brings error.

Suit by D. E. Griswold and others against C. C. Comer and others, resulting in judgment for defendants, which was affirmed by the Court of Civil Appeals (161 S. W. 423), and plaintiffs bring error.

<p>Error to Court of Civil Appeals of Third Supreme Judicial District.</p> <p>Action by E. M. Duncan against Charles B. Smith. Judgment for plaintiff was affirmed by the Court of Civil Appeals (167 S. W. 233), and defendant brings error.</p>

Action by the Houston Motor Car Company against the Harlington Land & Water Com-' pany and others. A judgment for plaintii was affirmed by the Court of Civil Appeals (169 S. W. 628), and defendants bring error.

<p>Appeal from District Court, Tom Green County; C. E. Dubois, Judge.</p> <p>Trespass to try title by David L. Clark against Mrs. Bertha Johnson. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Carriers <§=>228(3) — Live Stock — Actions — Evidence—Admissibility.</p> <p>In an action against a carrier for damages to a shipment of cattle, evidence as to the difference in market value of the cattle in the condition in which they arrived, and in “good condition,” held admissible.</p> <p>2. Appeal and Error <®=>231(3) — Evidence-Objections in Lower Court — '“Good.”</p> <p>In an action for damages to shipment of live stock, a question as to the difference in market value of the cattle in the condition when they arrived at destination, and “in good condition,” and without injuries, not objected to because of the quoted words, though objected to as not giving correct measure of damages, did not constitute reversible error; the word “good” being a relative term meaning satisfactory in kind, quality, or degree.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Good.]</p> <p>3. Appeal and Eke os <@=»729—Assignments</p> <p>op Ekboe—Sufficiency.</p> <p>Assignments of error objecting to special issues as being on the weight of evidence, as assuming material facts, and as submitting more than one question in the same issue, were too general.</p>

<p>1. Contracts @=>329 — Breach—Accrual op Cause op Action.</p> <p>Upon breach of contract, injured party’s cause of action at once accrues.</p> <p>2. Landlord and Tenant @=>331(2) — Breach op Rental Contract — Recovery op Propits.</p> <p>Recovery can be had for landlord’s breach of rental contract, in effect making undertaking a joint enterprise, for profits that would have been derived by tenants from crops had contract been continued to end of term.</p> <p>3. CÓNTINUANCE @=>6, 7 —ACTION BY TENANTS — DENIAL.</p> <p>In cross-action by tenants against landlords to recover damages, application for continuance, not statutory, but addressed to discretion of trial court, on ground that continuance would render it certain what crop had been grown or coftld have been grown, and its value, held pi'operly denied.</p> <p>4. Damages @=>62(4) — Landlord and Tenant @=103(3) — Rental Contract — Wrong-pul Rescission — Right op Tenants — Re-plevy Bond.</p> <p>Where landlords repudiated rental contract by suing for and sequestrating land, tenants could accept renunciation, and agree contract should be put to an end, subject to their right to bring action for wrongful rescission, and their failure to make replevy bond and retain property during contract year did not affect their cause of action.</p> <p>5. Damages @=163(2) — Breach op Rental Contract — Sequestration of Land — Negligence in not Replevying — Burden op Proof.</p> <p>In action by tenants against landlords for breach of rental contract, if there was any reason why tenants’ failure to replevy land after sequestration by landlords was negligence on part of tenants burden was on landlords so to allege and show.</p> <p>6. Landlord and Tenant @=>331(6) — Breach op Rental Contract — Evidence.</p> <p>In action by tenants against landlords for breach of rental contract, evidence as to damages held not so vague, uncertain, and conjectural that no verdict for tenants could rightfully be based upon it.</p> <p>7. Landlord and Tenant @=>331(2) — Breach op Rental Contract — Loss op Profits.</p> <p>Where landlords broke rental contract, they were liable for profits, in contemplation of themselves and tenants, lost to tenants by their breach, so far as such profits could properly be proved to form measure of damages.</p> <p>8. Landlord and Tenant @=323, 331(2) — Tenancy Contracts — Status as Business Enterprise,.</p> <p>It is settled law in tenancy contracts upon shares to treat parties as having entered into joint business enterprise, stipulating what shall be advantage of each, and when one deprives other of such advantage he should be required to compensate him for what contract stipulated he should have.</p> <p>9. Damages @=>62(4) — Contracts—Breach— Mitigation.</p> <p>In action for breach of contract against one who wrongfully put an end to agreement, action being brought immediately for compensation and damages, injured party will be entitled to such damages as would have been received from nonperformance at appointed time, subject to abatement by any means he may have for mitigating his loss.</p> <p>10. Landlord and Tenant @=>322 — Renting on Shares — “Subletting.”</p> <p>Where tenant on shares, in prospect of being drafted into the army, arranged with his brother to look after the land in his absence, such arrangement did not constitute a “subletting.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Subletting.]</p> <p>11. Landlord and Tenant @=>331(8) — Tenancy Contract — Action — Directed Yert dict.</p> <p>In action by tenant on shares against landlords for wrongful eviction and breach of eon-tract, plaintiff alleging special damages by eviction as well as exemplary damages, court properly refused to direct verdict against plaintiff because he was a single man within draft age, and had been called to army, which would have interfered with cultivation of crop in any event.</p> <p>12. Landlord and Tenant @=>331(2) — Breach op Tenancy Contract — Damages.</p> <p>For breach of rental contract tenant may recover what he would reasonably have made out of his crop but for breach, but is not lim: ited to such item, and is entitled as well to loss sustained as well as gains prevented, and may recover for damages to his feed by the eviction.</p> <p>13. Landlord and Tenant @=>171(1) — Breach op Contract — Ejection by Landlords — Removal by Tenants.</p> <p>Where landlords sued out writ of sequestration against tenants, mere fact that sheriff did not resort to physical force in ejecting them, but permitted them to effect removal themselves, made it none the less an ejection by the landlords.</p> <p>14. LANDLORD AND TENANT <©=>180(4) — RENTAL Contract — Eviction — Unlawful Sequestration — Exemplary Damages.</p> <p>Ordinarily exemplary damages are not allowed for mere breach of contract, as a tenancy contract, but where landlord wrongfully and willfully or maliciously uses writ of sequestration to obtain possession of rented property, to which he has no lawful right, such damages may be recovered.</p> <p>15. Landlord and Tenant <$=>180(3) — Action for Wrongful Eviction — Evidence.</p> <p>In action by tenants against landlords for damages from unlawful eviction, testimony of wife of tenant that landlords’ cattle would come up to patch of feed about barn, and she would ■drive them off, held, admissible to show animus •of landlords in instituting proceedings against .tenants out of which suit grew.</p> <p>On Motion for Rehearing.</p> <p>'16. Judgment <©=3252(1) — Excess Over Amount Pleaded.</p> <p>Where defendants, by cross-petition, alleged two items of actual damages, one for $1,000, and other for $100, judgment for $1,010, was not erroneous, simply because prayer left out $100 item.</p> <p>17. Evidence <⅜=52— Judicial Knowledge —Application on Appeal.</p> <p>Court of Civil Appeals cannot base reversal of judgment for tenants who, in their landlords’ action of trespass to try title, have recovered for breach of rental contract by eviction, on its judicial knowledge that particular season was dry, and that no crops were made in that part of country.</p>

<p>1. Appeal and Error <§=230 — Review-Waiver op Objections to Charge — Statute.</p> <p>General objection of defendants, when trial court announced it would instruct, verdict for plaintiff, held no objection at all to charge before reading to jury within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, so that objection to instruction cannot be considered.</p> <p>2. Warehousemen <§=34(2) — Pledge of Receipts as Security — Exhaustion of Other Security — Public Weigi-ieb and Sureties.</p> <p>Public weigher and his sureties were not entitled to require bank, which took as collateral security cotton receipts signed by weigher, to foreclose its mortgage upon security other than cotton or receipts before it could recover against weigher and sureties for weigher’s breach of statutory duty in releasing cotton without surrender of receipts.</p> <p>3. Warehousemen <®=34 (2) — Pledge of Receipts — Exhaustion of Other Security-Proceeding Against Weigher and Sureties.</p> <p>Bank which took cotton receipts issued by public weigher, in addition to other security for debt, debtor having left country and other property securing debt having been disposed of or not being discoverable held not required to foreclose upon or exhaust such property before going against public weigher and sureties for breach of statutory duty in releasing cotton without surrender of receipts.</p> <p>4. Warehousemen <§=34(11) — Recourse Against Public Weigher and Sureties— Protection by Judgment.</p> <p>Rev. St. 1911, art. 6332, held without application, in suit by bank against public weigher and sureties for breach of duty in releasing without surrendering of receipts cotton for which he had issued receipts, which were pledged to bank, to require judgment to protect weigher and sureties by subjecting property of depositor of cotton and pledgor of receipts first to execution, etc.</p> <p>5. Warehousemen <⅜^16, 25(5) — Public Weigher — Liability—Delivering Cotton Without Surrender of Receipts.</p> <p>In view of Rev. St. 1911, arts. 583, 584, bank having taken valid assignment of cotton receipts issued by public weigher, and having thereby and by agreement with assignor or pledgor of receipts as security acquired title to cotton, under article 7830, public weigher, on broach of official duty in delivering cotton to assignor or pledgor without requiring surrender of receipts, must respond to bank, in suit in its own name, for its loss.</p> <p>6. Appeal and Error <§= 173(2) — Theory of Case! Below — Failure to Raise Defense in Trial Court.</p> <p>In suit by bank, assignee of cotton receipts issued by public weigher, against weigher and sureties for breach, of duty in releasing cotton without surrender of receipts by assignor, where weigher and sureties did not make, in trial court, defense that there was no indorsement of receipts and no notice to weigher of assignment, it is not available to them on appeal.</p> <p>7. Warehousemen <§=25(5) — 'Liability of Weigher and Sureties.</p> <p>Under stipulation in cotton receipts that cotton would be delivered only on return of receipts, and Rev. St. 1911, art. 7839, requiring public weigher to keep in possession property for which certificates are issued until certificate is surrendered, liability of public weigher and sureties to bank, assignee of cotton certificates issued by weigher, held fixed by delivery of cotton to assignor without return of certificates.</p>

<p>Appeal from Presidio County Court; II. B. Young, Judge.</p> <p>Suit in justice court by J. H. Lock against the Galveston, Harrisburg & San Antonio Railway Company. Upon appeal to the county court, there was judgment for plaintiff, and defendant appeals.</p>

<p>Trial <S=296(4, 5) — Instructions—Cure of Error.</p> <p>An instruction to find for plaintiff if they believed defendant was guilty of negligence in the particular specified, without reference to contributory negligence, of which there was evidence, was not rendered harmless by another instruction to find for defendant if they believed plaintiff was guilty of contributory negligence.</p>

<p>Appeal from District Court, Upshur County; J. R. Warren, Judge.</p> <p>Action by Pink B. Lindsey against the St. Louis Southwestern Railway Company of Texas. Prom a judgment for plaintiff, defendant appeals.</p> <p>Appellee, employed by appellant as a section hand, claimed he was injured as the result of negligence on the part of another of appellant’s employés, in that while they were lifting a motor hand car from the track the other employe suddenly and without warning let the car down so that the weight thereof fell on appellee. On special issues submitted to them, the jury found: (1) That appellee was' injured while removing the car from the track. (2) That an employs of appellant without notice to appellee let down the car so as to throw the weight thereof on appel-lee. (3) That it was negligence on the part of said employe to so let down the car. (4) That the damage to appellee amounted to $500. The trial court having rendered judgment in appellee’s favor on said findings, appellant prosecuted this appeal.</p>

R. Warren, Judge. Action by Earnest Johnson against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, defendant appeals. Appellee brings the suit to recover damages to property, alleging that his residence and contents were destroyed by fire' negligently communicated by one of the appellant’s engines.

<p>Railroads <®=»275(3) — Operation — Duty — Lookout.</p> <p>Trainmen are not bound to maintain a lookout to discover whether the train’s approach frightened a team standing at the side of a box car on a switch track, and so negligence cannot be predicated on their failure to keep a lookout to discover whether teams near the track were frightened.</p>

<p>1. Process ⅞⅜155 — Citation — Defect in Copt — Motion to Quash.</p> <p>There being no defect in original citation to ■defendant, if he wished to take advantage of defect in copy, it should have been done by motion to quash supported by proof, and not by exception.</p> <p>2. Process ©=w49 — Citation — Complying with Statute.</p> <p>Gen. Laws 1917, c. 91, § 6 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30), did not take effect until August, 1917, and citation issued on May 14, 1917, commanding defendants to appear on the second Monday after the first Monday in September, as provided by said section, was void; the term of court in San Patricio ■county fixed by law then in force being on the sixth Monday after the first Monday in September.</p> <p>3. Appearance <®=»19(3) — Questioning Jurisdiction-Jurisdiction oe Person.</p> <p>The court does not acquire jurisdiction over the person of a defendant by his appearance for the purpose alone of questioning the jurisdiction.</p> <p>4. Appeal and Error <®=»1173(5) — Joint Defendants — Reversal as to One.</p> <p>Judgment, being one canceling a lien and note held jointly by defendants, should be reversed as to both, where there was no valid citation or appearance giving jurisdiction of one ■defendant, and assignment that it should be held that the other defendant entered an appearance is immaterial.</p>

<p>Appeal from District Court, Limestone County; A. M. Blackmon, Judge.</p> <p>Action by Jobn J. Beckham against the Munger Oil & Cotton Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from Wood County Court; R. E, Bozeman, Judge.</p> <p>Suit by S. Silber against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Corporations <S=»642(1) — Foreign Corporation — “Transacting Business” in State.</p> <p>Sale and installation of gasoline container and pump by a foreign corporation held a transaction of business within the state by it within Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1314-1321.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Transacting Business.]</p>

<p>Limitation of Actions <©=127(13) — Amendment — New Cause of Action.</p> <p>Where defendant set up counterclaim for breach of contract, and subsequently filed supplemental answer alleging different contract and breach thereof more than four years prior to the filing of such answer, its cause of action on such breach was barred by limitations, though the original answer setting up counterclaim was filed within the four-year period of limitations.</p>

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Suit by Antonio Lopez against tlie Chicago, Rock Island & Pacific Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Master and .Servant @=3330(3) — Employment oe Unlicensed Plumber — Evidence —Sufficiency.</p> <p>In an action for damages by fire caused by negligence of plumber hired by defendant, evidence that such employé was a tinner did not establish that he was an unlicensed plumber who was doing plumbing work unlawfully.</p> <p>2. Negligence @=3136(17) — Setting Fire to Property — Direction oe Verdict.</p> <p>In an action for damages by setting fire to hay through alleged negligence of defendant’s employés, a peremptory instruction was properly given, where there was no evidence that the fire was caused by any negligence traceable to defendant, direct or indirect.</p>

<p>Appeal and Error <s==>654 — Record—Supplying Omissions — Stipulation as Constituting Pleading.</p> <p>A stipulation whereby defendant, in consideration of an extension of time, agreed that judgment might be taken against him, is a pleading in the nature of a confession of judgment (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2007) and not a matter of evidence, which, when certified as being left out of the transcript by mistake, would have to be certified by the trial court.</p>

<p>1. Evidence <&wkey;244(16) — Admission by Railway Claim -Agent — Letters.</p> <p>In action against railroad for loss of cattle, a letter from claim agent of defendant stating that at a certain town on defendant’s line animals were in such bad condition that four of them were removed from the car dead was admissible as an admission by claim agent that four animals died in defendant's possession.</p> <p>2. Pleading <&wkey;ll — Matters of Evidence-Documents.</p> <p>In action against carrier for loss of stock in shipment, it was not necessary that letter from defendant’s claim agent, stating that stock died while in defendant’s possession, be pleaded in order to make it admissible.</p> <p>3. Evidence i&wkey;378(4) — Letters—Authentication.</p> <p>Where practicing attorney testified that he had a great deal of correspondence with claim department of defendant railroad, and in answer to his letters he always received letters from J. M., and signature on letter introduced in evidence was same that was on letters he received, and that he knew that such was his signature, and that he was claim agent of defendant, authentication of signature was sufficient.</p> <p>4. Railroads <&wkey;17 — Authority of Claim Agent.</p> <p>It is within general scope of authority of claim agent of railroad company to refuse or allow a claim against his principal.</p> <p>5. Evidence <&wkey;204-iADMissiON — Letters to Consignee.</p> <p>In action by a shipper against carrier for loss of cattle, letter written by defendant’s claim agent to consignee, admitting that cattle died while in defendant’s possession, was admissible in evidence.</p> <p>6. Carriers &wkey;>228(5) — Loss of Cattle in Transit — Negligence—Proof.</p> <p>Evidence of shipper that animals were strong enough to make trip, and that they died before they reached their destination, and that the car in which they were loaded was improperly bedded, and not a safe car to transport cattle, was sufficient to show carrier’s negligence.</p>

<p>Appeal from District Court, Sherman County; Reese Tatum, Judge.</p> <p>Action by George L. Aycock against Peter Langer, Jr., and others. Judgment for plaintiff:, and defendants appeal.</p>

Error from District Court, I-Iempliill County; W. R. Ewing, Judge. Suit by T. L. Kentz against Alice Kentz for divorce. Decree for plaintiff in part was vacated on his motion and modified so as to award custody of children to plaintiff, and defendant brings error.

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Action by R. R. Longino against A. A. Thompson. Judgment for defendant on a peremptory instruction, and plaintiff appeals.</p>

<p>1. VENUE <&wkey;19 — RETROACTIVE EFFECT OF Statute — Verification of Pleading.</p> <p>Acts 35th Leg. c. 176, amending Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1903, to re- ■ quire plea of privilege to be controverted under oath and notice served on interested parties, being enacted after overruling of such a plea, .and pending appeal, does not apply where, on remand, the court’s attention is again called to the plea; nothing in such procedure statute indicating that its operation should be retroactive.</p> <p>2. Appeal and Ekkob <&wkey;1195(l) — Law of the Case.</p> <p>Holding, on appeal, that plea of privilege was properly overruled, is the law of the case on remand.</p> <p>3. CoNTINiUANCE <§=16 — ABSENCE OF EVIDENCE — DILIGENCE.</p> <p>Because of want of diligence, there was no error in refusing a defendant postponement, on suppression, for various defects, including refusal to answer cross-interrogatories, of deposition of himself, the only witness on issue of payment, the case having at his request been set iate in the term, deposition having been returned shortly before trial, and he in taking the deposition having been attorney for the other defendants.</p>

Error from District Court, I-Iarris county; Henry J. Dannenbaum, Judge. Suit by the County of Harris against ■George Jones and others. To review judgment for plaintiff, defendants bring error.

<p>Apxieal from District Court, Lampiasas County; F. M. Spann, Judge.</p> <p>Suit by the City of Lampasas against W. N. Huling. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, El Paso County ; Ballard Coldwell, Judge.</p> <p>Action by Mrs. O. B. Eads and others against the California Insurance Company. From the judgment rendered, defendant appeals.</p>

<p>Appeal and Error <&wkey;1133 — Sufficiency of Record — Failure to File Brief.</p> <p>Where there was no motion for new trial or assignment of error appearing in the record, and there was no brief filed by either party, and no motion filed in Court of Civil Appeals to dismiss appeal for want of prosecution, the case will he affirmed.</p>

<p>Appeal from District Court, Bowie County.</p> <p>Action by L. A. Durst against J. A. Blud-worth and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. ABATEMENT AND REVIVAL <&wkey;9 — OTHEE Action Pending.</p> <p>Trespass to try title to section 18, by L. against A., depending on whether L. got title to such land by sale thereof under judgment in suit to foreclose lien on section 19, the judgment erroneously naming section 18, is not abated by pendency of suit against L., A., and others to set aside the judgment, and for reformation and foreclosure on the proper land.</p> <p>2. Teial <&wkey;389 — Findings and Conclusions — Excuse fob Omission.</p> <p>It is no excuse, for failure of trial court to prepare and file findings of fact and conclusions of law, as required by Rev. St. 1911, art. 2070, that (appellant asked time to prepare and file statement of facts.</p> <p>3. Appeal and Ebeob <&wkey;1071(l) — Findings and Conclusions — Failuee to Peepabk and File — Effect.</p> <p>For failure of trial court to prepare and file findings of fact and conclusions of law, as re quired by R'ev. St. 1911, art. 2075, preventing assignments of error thereon, there being several affirmative defenses, calling for findings and conclusions, judgment will be reversed.</p> <p>Harper, C. J., dissenting in part.</p>

<p>1. Use and Occupation ⅞=>8 — Pleading — Petition.</p> <p>A petition, alleging that defendants, without plaintiff’s knowledge or consent, entered upon plaintiff’s land, which was inclosed with defendants’ land in large pasture, used and occupied it, and shared profits arising therefrom, and prevented plaintiff from renting the same, held not demurrable for failing to state that defendants were in exclusive possession thereof.</p> <p>2. Pleading &wkey;>34(3) — General Demurrer— Intendments.</p> <p>Every intendment must be resolved in favor of a pleading assailed by general demurrer.</p> <p>3. Use and Occupation <&wkey;l — ¡Rents.</p> <p>That plaintiff’s land was inclosed with that of defendants’ merely secured tlie right to each party to pasture cattle upon the land in proportion to the number of acres in the inclosure owned by him, but defendants could not lease plaintiff’s land to others for grazing and appropriate the rent money.</p> <p>4. Use and Occupation <®=?1 — Lease — Exclusive Use.</p> <p>Where plaintiff’s land was fenced in with that of defendants’, defendants’ leasing of all the land for'-pasture without plaintiff’s knowledge was an exclusive and special use of the land, and plaintiff can recover the rent money collected for use of his land.</p> <p>5. Venue <&wkey;22(3) — Oodeeendants.</p> <p>Where all the defendants residing within the county obtained a favorable judgment on plea of limitation, the court’s jurisdiction was not destroyed as to remaining defendants, where the first defendants were not fraudulently impleaded, for plaintiff was not bound to anticipate the interposing of the plea.</p>

P. Stinson, Judge. Action by R. G. Hallam against W. Duck-worth, in which the defendant impleaded the Gulf, Texas & Western Railway Company. From a judgment for plaintiff, for less relief than demanded, plaintiff appeals; and from a judgment for .defendant against the Railway Company, the Railway Company appeals.

<p>Appeal from District Court, Liberty County; L. B. Hightower, Sr., Judge.</p> <p>Suit by Paul Scholz and another against the Trinity Valley & Northern Railway Company and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Injunction <&wkey;108 — Condition Peece-dent— Oontract-4Removal oe Geavel.</p> <p>The removal-by defendant of the surface dirt preparatory to removal of gravel, under a con-' tract whereby plaintiff gave defendant exclusive right, for a certain period, to remove gravel, and defendant agreed to perform all labor necessary for its removal, and to pay plaintiff for gravel removed, even if not making the contract irrevocable, at least gave defendant. some equities in the premises, so that plaintiff, making no •offer of compensation for such work, may not have injunction against removal of gravel, on •the theory of the contract being terminable as unilateral and without consideration.</p> <p>2. Contracts <&wkey;217 — Removal of Gravel-Option to Continue — Notice.</p> <p>Contract whereby plaintiff gave defendant right to remove gravel for three years, providing that if at expiration thereof, plaintiff should fail to give defendant 30 days’ written notice prior to expiration, defendant should at his option have right to continue it on same terms for another such period, does not require any notice of .election to continue, other than that imported from continued exercise of the privilege.</p>

<p>Appeal from District Court, Garza County ; W. R. Spencer, Judge.</p> <p>Suit by Mrs; Lillie Wilkes against the Bankers’ Health & Accident Association. Verdict and judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Red River County; H. H. Denton, Judge.</p> <p>Action by J. T. Tucker against George McCullough. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Donley County Court; J. H. O’Neal, Judge.</p> <p>Suit by.D. C. Moore against C. D. Akers. From judgment for plaintiff, defendant appeals.</p>

<p>1. Brokers <§=353 — Realty Broker — Procurement of Sale — Burden to Allege and Prove.</p> <p>Realty broker, suing for commission earned in selling land, was required to allege, and prove ■affirmatively, to establish his case, that he was procuring cause of sale.</p> <p>2. Brokers <§=88(3) — Realty Broker — Procurement of Sale — Question for Jury.</p> <p>In realty broker’s action for commission for having procured sale, whether plaintiff was procuring cause of sale held for jury.</p> <p>3. Brokers <§=82(2) — Realty Broker — Answer — Exception.</p> <p>In realty broker’s action for commission for having procured sale, defendant’s answer, facts not showing affirmatively plaintiff procured sale as made, but negativing it was so procured, alleging specifically facts in connection with charge of double agency, which constituted defense, held not subject to exception on ground it did not negative plaintiff was procuring cause -of sale.</p> <p>4. Brokers <§=56(3) — Realty Broker — Right to Commission — Sale by Owner.</p> <p>If broker, employed to sell land, finds pur-‘ ■chaser, and purchaser is induced to apply to owner through broker, owner is liable on contract with broker, when he effects sale satisfactory to himself.</p> <p>5. Brokers <§=67(2) — Realty Broker — Action for Both Parties — Commission.</p> <p>Realty broker cannot act for buyer and seller, and recover commission from both, and cannot recover from either unless he acted with full knowledge and consent of both, even though his principal, the seller, was not in fact injured, or he intended no wrong, or the other party, the buyer, acted in good faith.</p> <p>6. Brokers <§=67(1) — Realty Broker — Action for Both Parties — Right to Compensation.</p> <p>Where realty broker brought together his principal, with land for sale, and another person, for whom he was acting to effect exchange, in which event he would have received commission from both without either having knowledge of double agency, law will not give effect to illegal act by awarding him commission against principal with land for sale, simply because other principal- did not exchange lands, but sold them, and bought lands of first principal.</p> <p>7. Brokers <§=46 — Realty Broker — Right ■of Owner to Sell.</p> <p>Ordinarily an owner of land may sell, even though he has listed it with a broker.</p> <p>8. Brokers <®=67(1) — Realty Broker — Right to Commission — Action for Both Parties.</p> <p>Owner of land, whose broker to sell was acting for third person with land to exchange, in order to receive commission from each, was not required to treat third person, who bought land after selling his own, as purchaser produced by broker, but could treat broker as agent of third person, not entitled to commission from him.</p> <p>9. Trial <§=194(11) — Instruction on Weight of Evidence.</p> <p>In broker’s action for commission, instruction that if plaintiff had contract with defendant to sell land, and no contract of exchange, and if third person was procured as one who would trade for defendant’s land, and was introduced for that purpose, jury should find for defendant, held properly refused as on weight of evidence.</p>

Action by the Provident Sand & Gravel Company against Alf A. Edwards and another, in which A. R. .Roberts filed a plea of intervention against defendants, and also made Hugh B. Shick and others parties defendant. From the decree rendered, inter-vener and defendants appeal.

Proceedings by Mary Arrietta to enjoin Josephine Crosby and others from issuing and executing a writ of possession out of the county court. From an order granting a temporary writ of injunction, the defendants appeal.

<p>Error from District Court, Jasper County; W. R. Blacksbear, Judge.</p> <p>Suit for divorce by L. Sparkman against Lizzie Sparkman. To review decree granting divorce, defendant brings error.</p>

<p>1. Contracts <§=>323(1) — 'Questions for Jury*</p> <p>In an action for a balance due under a contract whereby plaintiff agreed to cut and bale hay grown on defendant’s farm, held that defendant’s peremptory instruction was properly refused.</p> <p>2. Appeal and Error <§=>715(1) — Review-Record.</p> <p>The appellate court can only consider evidence incorporated into the statement of facts, in determining the facts of the case, and cannot consider an account book which by agreement of the parties was sent to the court for its consideration.</p> <p>3. Trial <§=>169 — Peremptory Instructions-—Giving of.</p> <p>Where, under the evidence, plaintiff was entitled to some recovery, a general peremptory instruction denying any recovery was properly refused, even though plaintiff was not entitled to recover as to all of the amounts claimed.</p> <p>4. Appeal and Error <§=>209(1) — Review-Questions Presented.</p> <p>Where plaintiff sought to recover a balance due for cutting and baling hay under a contract whereby defendant was to pay $3 per ton for the fi,rst cutting and more for the second, held that where no special charge that, independent of plaintiff’s right to recover for the balance due on the first cutting, he could not recover the amount claimed on the second cutting was requested, and there was no assignment of error presenting that matter, the question of the sufficiency of the evidence to authorize a recovery for the second cutting was not presented.</p> <p>5. Contracts <§=>28(3) — Evidence as to Making of Contract.</p> <p>In an action for the balance due on a contract for the cutting and baling of hay, evidence held insufficient to show that the second cutting of hay was cut and baled under a contract with one other than defendant.</p> <p>6. Trial <§=>296(9) — Instructions—Weight of Evidence.</p> <p>In an action for a balance due for the- cutting of hay, a charge stating that plaintiff sue.d defendant for the sum of $181.65, the balance due upon a sworn account for cutting and baling hay, held, in view of the rest of the charge, not erroneous as on the weight of the evidence.</p> <p>7. Work and Labor <§=>24(1) — Actions—Reasonable Value.</p> <p>Where plaintiff, who sued to recover a balance due on a contract for the cutting of hay, set up claims for loading the hay, etc., but no contract was shown as to the amount to be paid for such service, recovery cannot 'be allowed without proof of the reasonable value of the service.</p> <p>8. Contracts <§=>322(2) — Actions—Evidence.</p> <p>In an action for a balance due under contract for the cutting and baling of hay which-provided a stipulated price per ton, evidence that plaintiff arrived at the weight of the hay by weighing several bales different times a day, and averaging the weight, is admissible to show the weight.</p> <p>9. Appeal and Error <S=»882(8) — Right to Allege Error.</p> <p>Where the testimony objected to was first given on direct examination of a witness by one of defendant’s attorneys, defendant cannot complain.</p> <p>10. Appeal and Error <S=s1050(1) — Review— Harmless Error.</p> <p>The admission of evidence is harmless where other evidence of the same character was received without objection.</p>

M. Spann, Judge. Suit by D. M. West and others against E. E. Lanham and others. Prom a judgment for plaintiffs, the named defendant and certain other defendants appeal.

<p>1. Appeal and Error <®=»846(6) — Failure to Make Findings — Filing Statement oe Facts.</p> <p>Where statement of facts has been filed containing all the testimony introduced on the trial, court on appeal may determine the issues Of the case from such statement, notwithstanding lower court’s failure to file findings and conclusions.</p> <p>2. Appeal and Error <§=31075 — Failure to File Findings and Conclusions — Waiver by Appellant.</p> <p>Case will not be reversed because of court's failure to file findings and conclusions upon appellant’s request, where appellant filed statements of facts containing all the testimony, and in his brief concedes that the testimony is practically undisputed, and expresses the belief that the appellate court can act upon the statement of facts and determine the issues from such statement.</p> <p>3. Brokers <©==>82(1) — Action for Commissions — Sufficiency of Petition.</p> <p>In a broker’s action for commission for procuring a buyer for real estate, petition alleging exclusive right by broker to sell property until certain date, and sale by owner, subsequent to such date, to purchaser procured by broker, but failing to allege that purchaser was procured by broker within the period during which he had exclusive right to sell, failed to state cause of action.</p> <p>4. Brokers <&=>56(3) — Commission for Real Estate Sale — Procuring Cause.</p> <p>Where broker was given exclusive contract to sell property until certain date, and during such time tried to make sale with certain buyer, but failed and abandoned efforts, owner was not liable for commission upon sale to such buyer effected after the broker’s exclusive contract had expired, broker not having been the procuring cause of the sale.</p> <p>On Rehearing.</p> <p>5. Brokers <S=>86(4) — Procuring Cause — Sufficiency of Evidence.</p> <p>In real estate broker’s action for commission upon sale to buyer by owner, evidence held to support court’s conclusion that broker’s negotiations and efforts to sell to such buyer were unsuccessful, and that broker had abandoned such efforts.</p>

R. Price, Judge. Action by Nicholas Abraham against the Atchison, Topeka & Santa Fé Railway Company. Judgment for A. S. Thurmond and another, who intervened, having purchased from plaintiff after suit was begun, and defendant appeals.

<p>Appeal from Maverick County Court; E. H. Schmidt, Judge.</p> <p>Suit by the Lyman Drug Company against the International Dry Goods Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Young County; Wm. N. Bonner, Judge.</p> <p>Action by the Hart Cotton Machine Company against the Graham Gin Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Master and Servant <g=>302(3) — Tort of . Servant — Liability of Master.</p> <p>If defendant railway’s guard, who had authority to detain persons going into and out of yards inclosing shop grounds of defendant railway, wrongfully detained and shot plaintiff, defendant’s employé, defendant would be liable, although the particular act and detention was unauthorized.</p>

A. Ward, Judge. Trespass to try title by B. H. Preston and others against J. H. Morrow and others. Judgment for plaintiffs, and defendants appeal.

<p>Partnership <⅞^>328(3) — Accounting — Evidence — -Sueficiency.</p> <p>In a suit to settle partnership transactions in feeding and fattening hogs, the partners to share equally in the expenses and profits, an agreed statement of facts held not sufficient to show that any profits had been made.</p>

Suit by Henry C. 'Gammage against the Gamer Company. Judgment for the plaintiff was reversed by the Court of Civil Appeals and judgment rendered for defendant (162 S. W. 980), and plaintiff brings error.

Proceeding hy H. Klapproth against Mrs. Delia Hooper and the Texas Moline Plow Company, to foreclose a deed of trust. There was a judgment in favor of plaintiff, which was affirmed by the Court of Civil Appeals <164 S. W. 399), and the last-named defendant brings error.

<p>1. Trial <§=314(1) — Conduct of Court — Coercion of Jury.</p> <p>In personal injury suit, in which testimony was sharply conflicting on material issue, keeping the jurors together from Thursday noon until Friday afternoon, after they had informed the court that they were unable to agree and asked to be discharged, and urging them to agree to avoid additional expense to the county, etc., requires reversal of the judgment.</p> <p>2. Trial <§=>314(1) — Conduct of Court — Coercion of Jury.</p> <p>While the trial judge is allowed considerable discretion in matters of keeping the jury together, he has no authority to insist upon an agreement in order to avoid additional expense to the county or personal inconvenience to juroi’s.</p>

Action by Lurena Williams and others against the Coca-Cola Company. There was a judgment for plaintiffs, which was affirmed by the Court of Civil Appeals (164 S. W. 1032), and the defendant brings error.

Action by the Walker Grain Company and others against the Ft. Worth Grain & Elevator Company, to enjoin the collection of a judgment. Temporary writ of injunction was made perpetual, and from a judgment-of the Court of Civil Appeals, 168 S. W. 470, reversing the judgment of the District Court and entering a judgment dissolving the injunction, plaintiffs bring error.

Action by Sam Graham against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals, and from a judgment of af-firmance by the Court of Civil Appeals (16S S. W. 55), the defendant brings error.

<p>Municipal Corporations @=>642(1) —• Violation on? Obbinance — Corporation Cotjbt —Appeal to County Court.</p> <p>In view of Const, art. 5, §§ 1, 22, and Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 903, 904, 921, and Code Cr. Proc. 1911, arts. 101, 894, 897, an appeal may be taken to county court from corporation court, upon conviction of violation of a city ordinance, not constituting an offense defined by the Penal Code.</p>

<p>Criminal Law <®=>1131(4) — -Appeal — Dismissal-Incomplete Record.</p> <p>Where the record on appeal from conviction of forgery is before the Court of Criminal Appeals without any judgment or sentence, statement of facts, or notice of appeal, the •appeal must be dismissed.</p>

<p>Indictment and Information <@=110(1)— Want of Necessaby Allegations — Statu-toby Statement.</p> <p>In adultery prosecution, indictment containing no allegation that the habitual carnal intercourse was “without living together” held fatally defective; such words being statutory statement and requirement.</p>

<p>Appeal from District Court, Smith County ; J. R. Warren, Judge.</p> <p>Wise Henton was convicted of bigamy, and appeals.</p>

<p>Appeal from El Paso County Court at Law; W. P. Brady, Judge.</p> <p>Action by Florence Connor against the First Texas Prudential Insurance Company. Judgment for plaintiff, and defendant- appeals.</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by Clarence W. Butts against the Galveston, Harrisburg & San Antonio Rail'way Company. Judgment for plaintiff, and defendant appeals.</p>

W. Taylor, Judge. Suit by the J. C. Engleman Land Company ■and others against the Donna Irrigation District No. 1 and others. Petition for appointment of a receiver and restraining orders denied, and petitioners appeal.

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by Mary H. Tanton against Nathan W. Tanton, for divorce. Decree for plaintiff, and defendant appeals.</p>

<p>1. Insurance <©=>389 (2) — Eire Policies— Waiver op Conditions.</p> <p>Conditions of forfeiture, because insured was not the unconditional owner, are waived where agents of insurer knew, at time of issuance of policy, that insured was not the unconditional owner.</p> <p>2. Insurance <©=143(7) — Eire Policies — Description.</p> <p>If by mutual mistake or fraud property was omitted from the policy, the insured, to recover, must set up facts which would authorize reformation of the policy and seek recovery as if it were reformed.</p> <p>3. Insurance <©=163(5) — Fire Policies — Description.</p> <p>Eire policies, describing goods as a stock consisting of display woolens and clothing, do not include clothing belonging to customers of the insured, a tailor, which was in his hands for repairing or pressing.</p> <p>4. Insurance <©=648(2) — Eire Policy — Action — Evidence.</p> <p>In an action on a fire policy, which insured claimed covered clothing of customers in his possession for cleaning and pressing, where insured's predecessor, to whom the original policy, of which the one involved was a renewal, was issued, testified he told the agents he wanted the policy to cover such clothing, the agents may testify that insured’s predecessor was told such clothing could not be insured.</p> <p>5. Insurance @=648(2) — Eire Policy — Action — Evidence.</p> <p>Statements by agents who wrote a fire policy, made after loss, as to their opinion of the meaning of the description, are not admissible, unless they be an expression of the understanding of the terms of the policy had at .the ■time of issuance.</p> <p>6. Evidence @=>244(13) — Fire Policy — Action.</p> <p>The statements of an agent, construing a fire policy after loss, are not admissible against the insurer to show the property included.</p>

Error from District Court, El Paso County; P. B. Price, Judge. Action by Mrs. L. H. Woodbury and husband against the Galveston, I-Iarrisburg & San Antonio Bailway Company. Plaintiffs had judgment for less than claimed,' and bring error.

<p>Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.</p> <p>Suit by J. Thomas Hall against S. B. Hay-ter. From a judgment for defendant, plaintiff appeals.</p>

B. Hopkins, Judge. Suit by the American National Insurance Company and another against the Valley Reservoir & Canal Company and others. Motion by J. R. Alamia and others, defendants, to substitute receivers. Granted, and plaintiffs appeal.

<p>Appeal and Error <@=>230 — Peremptory Instruction-Waiver op Objection.</p> <p>All error in giving peremptory instruction for appellee, as well as refusing peremptory instruction for appellant, is waived by appellant’s failure to object in the trial court to such charge or such refusal before the charge is read to the jury, as required by Rev. St. 1911, arts. 1971, 2061, as amended by Acts 33d Leg. c. 59 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1971, 2061),</p>

<p>1. Schools üíb School Districts ©=81(2)— Municipal Contracts — Liability of Sureties.</p> <p>Acts 34th Leg. c. 143, § 2 (Vernon's Ann. Civ. St. Supp, 1918, art. 5623a), does not relate to bonds given in accordance with requirements of Acts 33d Leg. c. 99 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts, 6394f-6394j), and sureties upon bond of contractor constructing school building for school district were discharged, where school district failed to retain 20 per cent, of contract price for 30 days, as required by building contract.</p> <p>2. Statutes <@=>181(1) — Construction — Intent.</p> <p>Although it is plain duty of courts in construing statutes to give effect to intent of lawmaking power and seek for that intent in every legitimate way, there is no room for construction when intention of Legislature is so apparent from face of statute that there can be no question as to its meaning.</p>

<p>Limitation of Actions @=>118(2) — Suspension of Period — Filins of Petition.</p> <p>Filing a petition with instructions not to issue citation thereon until further instructed, or until some future time, does not suspend the running of the statute of limitations.</p>

<p>Appeal from Frio County Court; S. T. Dowe, Judge.</p> <p>Action by Ferguson Bros, against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Nacogdoches County Court; J. F. Perritte, Judge.</p> <p>Suit by G. M. Hall & Son against S. E. Trevathan and others. From judgment for plaintiffs, the named defendant appeals.</p>

<p>1. Homestead @=>214 — Head of Family — Evidence.</p> <p>Evidence held sufficient to sustain finding that judgment debtor with two granddaughters constituted a family within meaning of Constitution, although parents of granddaughters were living.</p> <p>2. Judgment <&=777 — Liens—Vendob’s Lien Notes.</p> <p>A judgment creditor )ias no lien upon vendor’s lien notes held by judgment debtor from sale of land after rendition of judgment, and cannot invoke equitable powers of court and through instrumentality of an injunction and receivership subject them to payment of judgment.</p>

<p>1. Breach or Marriage Promise <&wkey;23— Contract — Sufficiency of Evidence.</p> <p>In action for breach of marriage contract, evidence helé sufficient to sustain finding that contract had been entered into.</p> <p>2. Appeal and Error <&wkey;994(2) — Findings op Fact — Review.</p> <p>In case involving credibility of witness who appeared before jury and furnished opportunity for all legal methods of testing truth of her statements, issue of credibility must be left to judgment of jury, and their finding cannot be disturbed on appeal.</p> <p>3. Breach of Marriage Promise <&wkey;27— Damages — Social Condition of Parties.</p> <p>In action for breach of marriage promise, jury in estimating damages had right to take into consideration, not only pecuniary profits, but social and domestic advantages which plaintiff might reasonably expect from marriage with defendant.</p> <p>4. Beeach of Marriage Promise <&wkey;35— Damages — Instructions.</p> <p>An instruction as to measure of damages in action for breach of marriage promise held not erroneous as allowing recovery of double damages.</p> <p>5. Breach of Marriage Promise <®=»28— Damages — Seduction.</p> <p>While a seduced female cannot recover damages for that act alone, it is proper to consider seduction when accomplished under promise of marriage thereafter broken, in action for damages for breach of marriage promise.</p> <p>6. Breach of. Marriage Promise &wkey;>35— Damages — Instructions.</p> <p>In action for breach of marriage promise, plaintiff has right to have attention of jury specifically directed to fact that they might consider seduction' and anguish it alone may have added in estimating her damages.</p> <p>7. Appeal and Error <&wkey;930(2) — Presumption — Misleading Instruction.</p> <p>In determining whether or not instructions are misleading, jurors are presumed to be not only men of ordinary intelligence, but men endowed with common instinct of fairness, which enables them, when not otherwise restrained, to determine issue of fact according to accepted rules of right.</p> <p>8. Breach of Marriage Promise <&wkey;35— Damages — Instructions.</p> <p>In action for breach of marriage promise, jury could not have been misled into allowing double damages, although court, after having embraced in one paragraph all elements which jury should consider in estimating damages, gave a second paragraph, calling attention to fact that jury could consider seduction, not before mentioned.</p> <p>9. Breach of Marriage Promise <&wkey;31— Damages — Amount.</p> <p>In action for breach of marriage promise against a man worth $35,000, who under promise of marriage had seduced plaintiff and was the father of her child, a verdict of $9,000 was not excessive.</p> <p>10. Appeal and Error <&wkey;930(2) — Presumptions — Yerdict—Instructions.</p> <p>Although when jury has been misdirected it will be presumed that directions have been obeyed and erroneous verdict rendered, there is no presumption that they have blundered simply because they had the opportunity to do so under the instructions.</p> <p>11. Trial <&wkey;191(3) — Instructions—Assumption as to Facts.</p> <p>In action for breach of marriage promise, an instruction held not erroneous as assuming that defendant had made and broken a contract.</p> <p>12. Trial <&wkey;351(2) — Special Issues — Request.</p> <p>In action for breach of marriage promise, in absence of request to have jury pass upon issue, court had right to find that, if there was a breach of contract, plaintiff had sustained injuries for which she might claim compensation.</p> <p>13. Trial <&wkey;351(2) — Special Issues — Request.</p> <p>In action for broach of marriage promise, objection that a charge assumed that plaintiff had sustained injuries, made at time charge was submitted to attorneys for examination, was not equivalent to request that issue be submitted to jury, under Rev. St. 1911, art. 1985.</p> <p>14. Appeal and Error <&wkey; 1056(1) — Harmless Error — Exclusion of Evidence.</p> <p>A judgment will not be reversed on account of exclusion of evidence, simply cumulative of .other testimony equally as explicit, coming from the same parties, corroborated in some respects by others, and which would not have caused jury to make a different finding.</p>

<p>1. Trial <®=>203(1) — Correct Instruction— Refusal. "</p> <p>Defendant’s requested charge to the effect that, if plaintiff’s driving his automobile at a greater than the lawful rate of speed was the proximate cause of the collision with defendant’s street car at crossing, plaintiff could not recover, embodied a correct .proposition of law, and, being applicable to an issue not affirmatively presented by the main charge, should have been given. * s - - i</p> <p>2. Street Railroads ⅞=98(2) — Collision at Crossing — Contributory Negligence. r</p> <p>The effect of Pen. Code 1911, art. 815, is to make it negligence per se to drive an automobile at a greater speed than 18 miles an hour, and, if plaintiff’s violation of such statute was the direct and proximate cause of the collision with defendant’s interurban car at a street crossing, plaintiff was guilty of contributory negligence. ) i £ 1 ’</p> <p>3. Trial ®==>203(3) — Affirmative Presentation of Defense. ‘</p> <p>In action for damages from collision between plaintiff’s automobile and defendant’s interurban car at a crossing, failure of court to affirmatively present defense of contributory negligence based on alleged voluntary intoxication of plaintiff, would be a substantial denial of right if defendant had requested a correct charge. ' ’ ^ . 1 t</p> <p>4. Trial ⅞==>253(4) — Instructions — Negligence and Contributory Negligence. .</p> <p>Defendant’s right to have the full effect of its pleas of contributory negligence should be safeguarded in connection with each issue of alleged negligence submitted by the court. E i £</p> <p>5. Street Railroads <S=>112(3) — Crossing Accident — Contributory Negligence — Burden of Proof. i -</p> <p>In action for damages growing out of a collision between plaintiff’s automobile and defendant’s interurban car at a street crossing, held,, that burden was upon defendant to prove contributory negligence. - ’</p> <p>6. Appeal and Error ⅞=>994(2), 1002 — Finding Based on Conflicting Evidence — Review. ■</p> <p>It is the province of the jury to pass upon the credibility of the witnesses and the weight to be given conflicting testimony, and the court on appeal is not, although it might not have reached the same conclusion had question been submitted to it, authorized to substitute its judgment for that of the jury. J t ; i 3</p>

Suit by L. J. Everett against A. R. Rousseau. From a judgment for plaintiff, defendant appeals. The suit is by the appellee against the appellant upon a promissory note and to foreclose collateral security.

<p>Appeal from District Court, Bexar County; J. T. Sluder, Juáge.</p> <p>Suit by Jordan Camphell against 6. & H. Htigelstein. Erom judgment for plaintiff, defendant's appeal.</p>

<p>1. Deeds <@=155 — Construction — Conditions Subsequent.</p> <p>Conditions subsequent are not favored in law.</p> <p>2. Deeds <©=155 — Conditions Subsequent —Noncompliance.</p> <p>Recovery may be had upon noncompliance with conditions subsequent, where right to such recovery is clearly reserved in the deed or appears from necessary intendment.</p> <p>3. Vendor and Purchaser '<©=257 — Execu-tory Contract — Reservation of Vendor’s Lien.</p> <p>Where deed expressly retains the vendor’s lien to secure the purchase money or the unpaid part thereof, the contract is executory, and the vendor retains the superior title upon which he may recover upon purchaser’s failure to pay.</p> <p>'4. Vendor and Purchaser <®=58 — Conditions — Noncompliance — Covenant to Build — Release oe Lien.</p> <p>Where grantee as part of purchase price agreed to build, and simultaneously with execution of deed grantor agreed to furnish release of lien to land upon grantee’s demand, such release was a condition precedent to grantee’s covenant to build, and upon failure to furnish release grantor was not entitled to land notwithstanding grantee’s failure to build.</p> <p>5. Appeal and Error <©=854(1) — Affirmance of Judgment — Grounds.</p> <p>Judgment will be sustained if correct for any reason, regardless of ground upon which trial court based judgment.</p> <p>6. Vendor and Purchaser <®=78 — Time Essence of Contract.</p> <p>Where deed provided that grantee should .begin construction within certain period, time was not of the essence of the contract to build, where written agreement was executed simultaneously with deed, wherein grantor agreed to furnish grantee release to lien on land, and it was mutually understood that grantee would be required to borrow money on land in order to build; the furnishing of release being a condition precedent to grantee’s covenant to build.</p>

<p>1. Appeal and Error '©==>500(1) — Matters Reviewable — Exceptions.</p> <p>Assignments of error based upon alleged action of court in overruling certain exceptions •cannot be considered, whore transcript contains no order showing that court ever considered or ruled upon exceptions.</p> <p>2. Estoppel ©=>118 — Permitting Mortgage oe Cattle — Evidence.</p> <p>In action to foreclose mortgage on cattle, •evidence held to sustain finding that a third person to whom cattle belonged had done nothing which would lead an ordinarily prudent person to believe that they belonged to mortgagor, and that mortgagor had a right to mortgage them.</p> <p>3. Bailment ©=21— Apparent Title oe Bailee.</p> <p>Mere possession by bailee of property is not sufficient to create any right in favor of third person who takes mortgage upon them.</p>

T. Sluder, Judge. Suit by M. Besteiro and others against the City of San Antonio and others. From an order granting a temporary injunction, defendants appeal.

<p>1. Appeal and Error <&wkey;736 — Assignments op Ebror.</p> <p>An assignment of error embracing more than one ruling of the trial court cannot be considered.</p> <p>2. Appeal and Eeeoe <&wkey;725(2) — Assignments op Eeeoe — Specifying Objections.</p> <p>Assignment of error complaining of overruling of motion to strike out an amended answer was deficient in failing to show what change was made in the pleading.</p> <p>3. Pleading <&wkey;420(l) — Amendment—Time— Waiver op Objections.</p> <p>Agreement, after amendment had been permitted, that the court should render final judgment on the pleadings and evidence before the court, waived an objection relating to the time of filing the amended pleading.</p> <p>4. Trade-Marks and Trade-Names <&wkey;l— Use of Business Name.</p> <p>Words, such" as “Union Painless Dentists,” may become so associated with the business or avocation of certain persons in a certain locality, as to lose their primary meaning and come to signify the business carried on by such persons and constitute a trade-name.</p> <p>5. Trade-Marks and Trade-Names &wkey;>21— Use op Business Name.</p> <p>That the same name may have been used in other cities by other persons will not deprive users of protection against its use in the city in which it has been used exclusively by them until it has come to stand for their business.</p> <p>6. Trade-Marks and Trade-Names <&wkey;>93(3) —Evidence.</p> <p>Evidence held to support finding that the words “United Painless Dentists,” in view of circumstances surrounding their use, were so similar to the words “Union Painless Dentists” as to mislead the public and to make the use thereof constitute unfair competition.</p> <p>7. Trade-Marks and Teade-Names <&wkey;>87— Ownership op Name — Transfer.</p> <p>That partners in the dental business under a trade-name permitted a corporation organized by them to use such name in the business of dealing in and manufacturing dental supplies, which constituted no competition with their practice of dentistry, did not prevent them from asserting their right to the use of such name in conducting the dentistry business, as against persons infringing thereon in conducting the dentistry business.</p> <p>8.Corporations <&wkey;372 — Charter — Sur-plusage.</p> <p>Provisions in a charter purporting to authorize a corporation to engage in a business in which corporations are not authorized to engage can be treated as surplusage.</p>

<p>1. Pleading <§=>214(1) — Demurrer — Admission.</p> <p>In considering ruling sustaining demurrer to answer, Court of Civil Appeals must assume truth of every fact alleged.</p> <p>2. Pleading <§=204(5) — Pleading Good in Part.</p> <p>In suit to recover rental value of premises, held by defendant, who' was in possession under agreement with plaintiff’s grantor, answer alleging facts of defendant’s possession and plaintiff’s notice of agreement between defendant and plaintiff’s grantor, etc., held not subject to general demurrer; facts barring suit for rents prior to certain date.</p> <p>3. Frauds, Statute oe <§=>150(2) — Agreement Not to be Pereormed in Year — Possession oe Land.</p> <p>In suit by vendee to recover possession from one claiming under agreement with vendor, an answer which did not affirmatively call for possession for longer than one year, nor allege that agreement could not be performed and possession concluded within one year, held, on demurrer, not within the statute of frauds.</p> <p>4. Pleading ⅞=3228 — Demurrer.</p> <p>1 To sustain general demurrer to answer is a final judgment of the court on all the issues raised, and is just as effective as a judgment on the full hearing.</p> <p>5. Pleading <&^>223 — Demurrer — Relief from Making Proof.</p> <p>Where general demurrer to answer was sustained, defendant was left without answer, and plaintiff relieved of the burden of making proof of any matter pleaded.</p> <p>6. Judgment <®==>106(7) — Judgment by Default-Absence of Answer.</p> <p>Plaintiff, in absence of answer, general demurrer having been sustained to that filed, was ■entitled to judgment by default.</p>

<p>Appeal from District Court, Ochiltree County; W. R. Ewing, Judge.</p> <p>Action by Pauline Slavin and another against Edwin A. Greever and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from Jefferson County Court; D. P. 'Wheat, Judge.</p> <p>Suit by W. D. Gordon against P. H. Wiess. From judgment for plaintiff, defendant appeals.</p>

Calhoun, Judge. Suit for injunction by the State of Texas against John Ford. From decree for the State, defendant appeals, and the State moves for injunction against him. Motion granted, and defendant enjoined as prayed until further order.

<p>Appeal and Error @==>753(2) — Appeal erom Adverse Decree — Record.</p> <p>Where no assignments of error are brought up in the record, there is nothing upon which to base a brief; and, where the record fails to show that motion for new trial was filed, judgment will be affirmed.</p>

<p>Appeal from Titus County Court; C. E. Bryson, Special Judge.</p> <p>Action by A. S. Mitchell against H. A. Jansen. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Bexar County; W. S. Anderson, Judge.</p> <p>Suit for divorce by Charles C. Smith against Lena Lucius Smith. From a decree granting the divorce, defendant appeals.</p>

<p>Appeal from Coleman County Court; W. Marcus Weatherred, Judge.</p> <p>Action by the First State Bank & Trust Company of Santa Anna against O'. D. Mann & Sons and others. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Railroads <2=350(13) — Death at Crossing — Negligence—Question eor Jury.</p> <p>In action for death at railroad crossing of ■ one driving automohile, issue of negligence on part of deceased held of fact for the jury under the evidence.</p> <p>2. Railroads <§=>350(32) — Death at Crossing — Obscuration oe Crossing — Question eor Jury.</p> <p>In action for death at railroad crossing of one driving automobile, whether or not crossing was obscured either wholly or partially held a question of fact for the jury, under the evidence, so that on such proposition the court was not authorized to take the issue of proximate cause from the jury.</p> <p>.3. Trial <§=>234(2) — Instruction—Contributory Negligence — Grouping Facts.</p> <p>Where defendant railroad pleaded contributory negligence on the part of decedent killed at a crossing while driving an automobile, under the plea, on request, the trial court should have grouped the facts, if any, constituting contributory negligence, and have submitted them to the jury.</p> <p>4. Railroads <§=>351(16) — Death at Crossing — Instruction.</p> <p>In action against railroad for death at crossing of one driving automobile, court should have instructed on railroad’s request that if decedent approached crossing without looking or listening, and if, by so doing, he would have seen or heard train in time, and if a man of ordinary prudence would have looked or listened, jury should find decedent was guilty of contributory negligence proximately causing his death.</p> <p>5. Trial <§=>253(4) — Instructions—Ignoring Issues.</p> <p>In action against railroad for death at crossing of one driving automobile, giving of defendant’s requested special charge op contributory negligence as proximate cause of injury, which ignored issue of discovered peril and inability to exercise ordinary care because of terror, was not erroneous, where such issues were not pleaded in answer to plea of contributory negligence.</p> <p>6. Railroads <§=>351(15) — Death at Grossing-Instruction.</p> <p>In action against railroad for death at crossing of one driving automobile, court should have submitted issue of negligence in approaching an obscured crossing at more than six miles an hour, in language of Acts 35th Leg. e. 207, § 17 (Vernon’s Ann. Pen. Code Supp. 1918, art. 8201).</p> <p>7. Railroads <§=>328(5) — Injury at Crossing — Statute—“Obscured.”</p> <p>View of railroad crossing is “obscured,” within meaning of Acts 35th Leg. c. 207, § 17 (Vernon’s Ann. Pen. Code Supp. 1918, art. 820J), requiring o.ne approaching such a crossing in a motor vehicle to proceed at not more than six miles an hour, etc., when one approaching is ncft able to see train at sufficient distance to enable him to take necessary steps for his safety.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Obscure.]</p> <p>8. Trial <§=>232(5) — Instructions—Definition oe Statutory Expression.</p> <p>In action against railroad for death at crossing of one driving automobile, on plaintiff’s request, court should have defined “crossing,” and “view of the crossing,” as used in Acts 35th Leg. c. 207, § 17 (Vernon’s Ann. Pen. Code Supp. 1918, art. 8207), prohibiting approach in motor vehicle to obscured crossing at more than six miles an hour, so that jury could have applied facts.</p> <p>9. Railroads <§=>335(5) — Death at Crossing —Contributory Negligence — Proximate Cause.</p> <p>If one is guilty of negligence in attempting to cross a railroad, and is killed by an approaching train, the negligence is the proximate cause of the death.</p> <p>10. Railroads <⅜=>351(20) — Death at Crossing — Instruction— Contributory Negligence and Proximate Cause.</p> <p>In action against railroad for death at crossing of one driving automobile, special charge on contributory negligence and proximate cause requested by defendant held properly refused, facts grouped therein not necessarily being proximate cause of accident.</p> <p>11. Railroads <®=o351(7) — Death at Crossing — Negligence — Failure to Station Flagman.</p> <p>In action against railroad for death at crossing of one driving automobile, where it was customary to run trains at from 15 to 35 miles an hour at such crossing, which was one of the most used streets, refusal to defendant of charge that jury could not find negligence because of failure to have flagman at crossing was not error.</p> <p>On Motions for Rehearing and Additional Findings of Fact.</p> <p>12. Trial <⅞=>347 — Provision for Special Verdicts — Intent op Legislature.</p> <p>It was not the purpose of the Legislature, in providing for special verdicts, to deprive litigants of any substantial and valuable right necessary for the protection of their interests, as the same existed before the passage of the act.</p>

<p>1. Partnership &wkey;>55 — Proof of Relation.</p> <p>In action to foreclose vendor’s lien notes, evidence held insufficient to sustain finding that plaintiff was a partner with land company.</p> <p>2. Corporations &wkey;>379 — Partnership with Individual.</p> <p>No valid partnership agreement can be made between a corporation and án individual, and it is immaterial that individual is owner of most of stock of corporation.</p> <p>3. Judgment <&wkey;256(l) — Findings of Fact —Verdict.</p> <p>Whatever may be state of evidence, a judge cannot base a judgment upon a finding of fact contrary to verdict of jury upon the issue.</p> <p>4. Vendor and Purchaser <&wkey;267 — Vendor’s Lien — Discharge.</p> <p>Where a vendor of land agreed to release any part of land sold by vendee upon payment of $25 per acre on land to be released, vendee could not, after making a general payment on notes without asking that such payment be applied to release of some designated tract, thereafter claim that it should be so applied.</p> <p>5.Vendor and Purchaser <&wkey;267 — Vendor’s Lien — Discharge.</p> <p>Where vendor agreed to discharge his lien upon any designated tract of land upon payment of $25 per acre out of proceeds of such particular tract, equity would protect purchaser from vendee of particular tract of land who had furnished money paid to vendor against any lien of vendor, if said payment amounted to $25 per acre, but a purchaser who had not paid as much as $25 per acre had no right to demand that previous payments made by land company on notes in excess of $25 per acre for other lands sold should be applied to discharge of lien on his land.</p>

<p>Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.</p> <p>Action by J. B. Ford against B. O. Sims, Jr. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Chambers County; L. Llewellyn, Judge.</p> <p>Suit by A. B. Lawrence and another against J. B. Gordon and others. From judgment dissolving temporary injunction, plaintiffs appeal.</p>

Clark, Judge. Action in Justice Court by H. C. Pierce and another, trading as partners under the name of Pierce-Fordyce Oil Association, against John A. Poole, Sr. The cause was taken to the county court by certiorari, and from the judgment rendered there against defendant and the sureties on his certiorari bond defendant appeals.

Error from Lavaca County Court; P. H. Green, Judge. Action in justice court by T. A. Hill and others against Frank Pavelka and others. There was judgment for plaintiffs in justice’s court, and defendants applied to the county court for a writ of certiorari, which was granted. Judgment for defendants, and plaintiffs bring error.

<p>1. Sales @=130(4) — Damages on Rescission. Where buyer’s right to rescind for misrepresentations is established, the court should not only declare the contract void ab initio, but also to award the buyer judgment for all money paid on the contract, a cancellation of all unpaid liability, and all special or consequential damages or expense incurred by reason of the misrepresentation.</p> <p>2. Trial @=>368 — Submission on Agreed Statement oe Facts — Conflicting Facts.</p> <p>Where a case is submitted to court upon an agreed statement and facts prepared under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1949, and facts stated are in conflict, the court is authorized to resolve the contract according to the dictates of his judicial conscience.</p> <p>3. Sales @=^38(1) — Misrepresentations—Rescission of Sale — Liability of Buyer.</p> <p>One buying automobile upon misrepresentation that it would give satisfaction in the jitney service, who was able to use car only 13 out of 21 days following purchase, was entitled to a rescission.</p> <p>4. Appeal and Error @=>931(3) — Presumptions — Finding—Issues Not Passed Upon.</p> <p>The rule that every issue, whether submitted or not, necessary to support judgment, should be deemed to have been found by the court in such manner as to support a judgment is inapplicable to an issue in support of which there is no evidence.</p>

<p>1. Judgment <S=>17(8) — Pbocess to Suppokt— Recowvention — “Suit.”</p> <p>Where plaintiff’s action against defendant for breach of contract was, on the latter’s plea of privilege, transferred to the county of defendant’s residence, held that, where no citation on defendant’s subsequently filed plea of reconvention was served on plaintiff, a judgment cannot be rendered for defendant against plaintiff who failed to appear when the case was called for trial in the county to which it was transferred, for a plea in reconvention or a cross-bill is a suit within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1885, declaring that no judgment shall in any case be rendered against any defendant unless upon service of process, etc.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Suit.]</p> <p>2. Process <&=»4 — Necessity—Reconvention.</p> <p>While plaintiff in an action for breach of contract is charged with notice of any pleading filed by defendant in answer to his claim, plaintiff is not required to anticipate and take notice of any claim which defendant may assert against him by plea in reconvention.</p>

Error from District Court, Fayette County; Frank S. Roberts, Judge. Trespass to try title by Peter Fajkus against Yineeneije Andrle and others. Judgment for plaintiff, and defendants bring error.

<p>1. Appeal and Error <&wkey;1039(2) — Harmless Eeeoe — Pleading—Conclusions.</p> <p>It is no ground for reversal that the petition contains conclusions of law from facts pleaded therein, if the facts were sufficient to constitute a cause of action, and the conclusions were deducible from such facts.</p> <p>2. Appeal and Eeeoe &wkey;>263(l) — Instructions to Juey — Effect of Failure to Except.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art, 2061, the ruling of the court in giving, refusing, or qualifying instructions will be regarded as approved, unless excepted to in the manner provided by law.</p>

<p>Appeal from District Court, Brooks County ; J. T. Canales, Special Judge.</p> <p>Suit by Charles Premont, independent executor of the estate of Claudio Solis, de-eeased, against Ed. C. Uasater. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Wichita County Court; Harvey Harris, Judge.</p> <p>Action by Nellie Smith Russell against the Knights and Ladies of Security. From judgment for plaintiff, defendant appeals.</p>

<p>1. Continuance <&wkey;26(6) — Absent Witness —Diligence.</p> <p>Court properly refused continuance on ground of absence of witness, where trial was held almost three years after original petition was filed, and witness was not subpoenaed until two days before trial, and no explanation/was given for delay.</p> <p>2. Continuance <&wkey;17 — Time to Secure Copy op Statute^Diligence.</p> <p>Court properly refused to continue trial to permit defendant to obtain a copy of the statutes of another state to be used in the defense of the action, where trial was held almost three years after filing of original petition, defendant having had three years in which to obtain a ■copy of the statute.</p> <p>3. CARRIERS <&wkey;134 — Damage to Shipment-Sufficiency of Evidence.</p> <p>Evidence held to sustain verdict that carload -of rice became wet and was damaged during transportation.</p>

<p>1. GARNISHMENT <&wkey;97 — OBJECTIONS TO WRIT —Right to Urge.</p> <p>Where an action was commenced and writ of garnishment issued, the principal defendant, who did not file a replevy bond, cannot, under Arernon’s Sayles’ Ann. Civ. St. 1914, art. 279, raise objections to the writ which might have been urged by the defendant in garnishment.</p> <p>2. Garnishment <&wkey;193 — Motion to Quash —Grounds.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 274, and in view of article 280, held that a writ of garnishment should not be quashed where it otherwise conformed to the statute, because the name of tlie plaintiff appeared in an interrogatory as to how much the garnishee was indebted, instead of the name of defendant.</p> <p>3. GARNISHMENT <&wkey;>97 — WRIT—AMENDMENT.</p> <p>Where a writ of garnishment, through a clerical error, contained the name of plaintiff instead of defendant in an interrogatory as to how much the garnishee was indebted, etc., held that plaintiff should be allowed to correct the error by amendment, though of course the amendment would not relate back to the date of service of the writ, and only funds belonging to the defendant which the garnishee had in his possession at the date of amendment would be impounded.</p>

<p>Divoece <S=>207 — Property — Appointment op Receiver-Discretion op Court.</p> <p>In action for divorce and for settlement of property rights, the appointment of a receiver of a portion of the property involved rests largely within the discretion of the trial court.</p>

<p>Husband and Wife <&wkey;152 — Separate Estate op Wipe — Right to Contract.</p> <p>Under Rev. St. 1911, arts. 4621, 4622, 4624, as amended by Acts 33d Leg. c. 32 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624), relating to married women and their separate estates, held that where a married woman agreed to pay a real estate broker a commission for effecting a sale of her separate estate, and the land was sold to a purchaser secured by the broker, the husband joining in the conveyance, the broker might recover, though the husband did not authorize his wife to enter into the contract originally.</p>

<p>Appeal from District Court, Jefferson County; E. A. McDowell, Judge.</p> <p>Action by W. P. H. McEaddin against R. M. White and others. From an order granting temporary injunction, defendants appeal.</p>

Kennon, Judge. Certiorari by 'Richard Lee and others to review order approving and confirming administrator’s sale, and order appointing Theo. W. Jahns, administrator, opposed by Gran vil Benzes and others. Exceptions sustained to that portion of petition relating to the confirmation of sale, and after the trial as to the remaining matters there was judgment against petitioners, and they appeal.

T. Sluder, Judge. Suit by Jesusa Quintana Giraud and husband against Emilia Quintana and others for partition. From decree for plaintiffs, the named defendant appeals.

P. Dohoney, Judge. Action by S. A. Steed and wife against the Gulf, Colorado & Santa Fé Railway Compa-' ny. Judgment for plaintiffs, and defendant appeals. On the afternoon of April 25, 1916, appel-lee Mrs. Steed, then a passenger on one of appellant’s trains, while walking from the front end to the rear end of the ear she was in, fell to the floor thereof, and thereby, was injured.

<p>Rills and Notes <©=3496(3) — Burden of Proof.</p> <p>Where plaintiff in suit on note is payee, that the note is indorsed by him in blank does not make it necessary that plaintiff allege and prove ownership of note; such indorsement not raising a presumption against title of holder.</p>

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Suit by the Mistrot-Calahan Company against the Missouri, Kansas & Texas Railway Company of Texas and another. Judgment for defendants, and plaintiff appeals.</p>

<p>1. Appeal and Error 1011(1) — Review— Conflicting Evidence — Province op Coijbt.</p> <p>It is for the trial court to resolve a conflict in the evidence; the province of the Court of Civil Appeals being limited to a determination of legal sufficiency of the evidence to support the findings.</p> <p>2. Homestead <®=»96 — Enforcement op Vendor’s Lien.</p> <p>Purchasers could not defeat foreclosure of vendor’s lien on ground that land was a homestead because of having lived on land prior to execution of vendors’ lien notes, where, prior to the execution of such notes, the purchasers had, by a conveyance made in good faith and fully consummated, conveyed land to vendors, notwithstanding Const, art. 16, § 50.</p> <p>3. Homestead <S=»94 — Foreclosure oe Vendor’s Lien — Acquisition op Homestead Bights Against Moetgagee.</p> <p>Makers of vendors’ lien notes could not defeat foreclosure of lien by claiming land as homestead, where makers had joined mother in executing mortgage on land to vendors at time when the property was mother’s exclusively, and where mortgage was unpaid at time of conveyance of land to vendors and reconveyance to makers.</p> <p>4. Homestead <§=oll8(4) — Deeds—Signature op Wipe.</p> <p>Where mortgagee canceled mortgage in consideration of conveyance to him of land, and thereafter reconveyed land to mortgagors, and accepted vendors’ lien notes to secure purchase money, the fact that wife of one of the mortgagors did not acknowledge deed until after re-conveyance did not, in the absence of fraud, affect its validity, even though it conveyed the homestead.</p> <p>5. Appeal and Eeeob <S=>518(4) — Record— Tbansoeipt — Original Petition.</p> <p>In view of Court of Civil Appeals rules 14, 84 (142 S. W. xviii, xxiii), where case was tried and judgment rendered on amended petition, the original petition was improperly included in the transcript.</p> <p>6. Appeal and Error <®=H95 — Presentation oe Error — Discrepancies in Pleading.</p> <p>Discrepancies between original and amended petitions will not be considered as fundamental error on appeal, where attention of trial court was not called thereto by defendants in their second amended original answer.</p> <p>7. Pleading <@^>250 — Petition—Amendment —Different Cause of Action.</p> <p>In vendor’s action against purchaser, there was no fundamental repugnance nor irremedial inconsistency between original petition, praying, in the alternative, for foreclosure of lien and for judgment against defendants on the notes, and amended petition seeking foreclosure of lien and a judgment for the debt.</p>

<p>Master and Servant <&wkey;286(22) — Safe Place to Work — Questions for Jury.</p> <p>Whether a master operating a large shop was guilty of negligence in not covering a ditch dug for installation of a sewer at a dark place in shop near a forge, giving forth a glare which tended to bind one approaching, held for jury.</p>

District Court, Brazoria County; Samuel J. Styles, Judge. Suit by Lottie R. de St. Aubin, guardian of the persons and estates of Annie Lee Cox, and others,' against J. C. McNeill, Sr., and others, executors and trustees. Prom a judgment for plaintiffs, defendants appeal.

<p>1. Appeal and Error <&wkey;548(5) — Assignments oe Error — Exclusion of Evidence —Bills of Exception.</p> <p>Assignments of error, complaining of exclusion of evidence to require consideration by the Court of Civil Appeals, must be supported by bills of exception to the action of the trial court.</p> <p>2. Appeal and Error &wkey;655(2) — Bills of \Exception Filed Late — Striking.</p> <p>"Bills of exception, filed long after the time granted for filing, -cannot be considered by the Court of Civil Appeals, and will be stricken out.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Suit by H. L. Trammell against San Antonio Life Insurance Company. Prom a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Freestone County Court; G. W. Fryer, Judge.</p> <p>Suit by Ernest Alexander against Cornelius Perkins and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Judges <§=>22(12) — County Judges — Pees.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3881, declaring that the maximum amount of fees of all kinds that may be retained by a county judge shall not exceed $2,000 per an-num, etc., includes all commissions allowed by law for the performance of official duty, and so includes the commissions paid the judge for making a sale of drainage bonds.</p> <p>2. Judges <§==>22(12) — County Judges — Fees.</p> <p>Where a county judge has retained fees up to the maximum allowed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3881, he cannot retain commissions for making a sale of drainage bonds on the ground that the commissions were paid out of the funds of the drainage district, and not the county; it being permissible for the legislature to require payment by the drainage district of sucli commissions to aid the county.</p> <p>3. Judges <§=>22(12) — County Judges — Fees.</p> <p>Where a county judge has retained fees up to the maximum allowed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3881, he cannot retain commissions for making a sale of drainage bonds on the ground that be would, if not allowed to retain such commissions, be required to perform extra duties imposed by the drainage act without compensation.</p> <p>4. Statutes <§=>102(4) — Special Legislation —Validity.</p> <p>The act creating the county court at law of Harris county (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1811-50), and providing that the county judge shall receive for the ex officio ’duties of his office not less than $1,500 a year, and the Harris county road act likewise providing extra compensation for the county judge, held, local special laws, regulating the affairs of the county and invalid under Const, art. 3, § 56, as to a matter which could be regulated by a general law.</p> <p>5. Judges <®=>22(2)->Compensation — Statute —Repeal.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3S93, enacted after the act to create the county court at law of Harris county, and declaring that the commissioners’ court is debarred from allowing compensation to county officials when the compensation and excess fees which they are allowed to retain shall reach the maximum provided for, repealed the provision of the act creating the county court, which allowed the commissioners to fix ex officio compensation for the county judge.</p> <p>6. Statutes <§=>141(1) — Amendment—Reee®ence.</p> <p>Acts 33d Leg. c. 121 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3893), amending Rev. St. 1911, art. 3893, held valid, reference being sufficient, though Const, art. 3, § 36, requires the law as amended to be set out at length, the ■amendhient, though changing the law, not amounting to a substitute.</p> <p>7. Judges <§=>22(12) — County Judge — Compensation.</p> <p>The per diem allowed county judges by Rev. St. 1911, art. 3870, is properly regarded as compensation or salary for ex officio services, and the county judge, having received the maximum compensation allowed him under the maximum fee bill, is not, under article 3893, as amended by Acts 33d Leg. c. 121 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3893), entitled to retain such per diem as additional compensation.</p>

<p>Appeal from District Court, Grayson County ; C. T. Freeman, Judge.</p> <p>Action by the Trinity Portland Cement Company against J. H. Fennell and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>Suit by J. W. Reveire against the National Equitable Society. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Reeves County ; Chas. Gibbs, Judge.</p> <p>Suit by A B. Carothers and another against G. B. Finley and another. Verdict for defendants, judgment accordingly, and plaintiffs appeal, and defendants cross-assigned error.</p>

<p>Appeal from District Court, Jefferson County; W. H. Davidson, Judge.</p> <p>Suit by City of Port Arthur against the Magnolia Petroleum Company. Judgment for plaintiff, and defendant appeals.</p>

A. Patrick, Judge. Action by the Texas Lumber & Loan Company against F. A. Schuler, wherein plaintiff had judgment, and sued out writ of garnishment against the First National Bank of Rosebud, Mrs. Allie Schuler and F. A. Schuler intervening and claiming the bank deposit garnished. From judgment for Mrs. Schuler against plaintiff, plaintiff appeals.

<p>1. Limitation of Actions <®=>56(1) — Accrual os Right of Action — Covenants.</p> <p>A right of action by M., an intermediate ■covenantee, against S., his covenantor, for breach of covenant in a warranty deed, does not accrue so as to set in motion the statute of limitations, until he has paid the amount of a. judgment recovered against him by G., a subsequent covenantee, though M. was made a party in a suit to toy title by G. against adverse claimants, but was dismissed, as a party thereto before judgment was rendered. ,</p> <p>2. Covenants <§=o110 — Accrual of Right of Action.</p> <p>An intermediate owner of land has no right ■ of action for the breach of the covenants of a warranty deed; until he has been made to respond to the claims of his covenants.</p> <p>3. Limitation of Actions <§==>56(1) — Failure to Being in Party.</p> <p>Where M., an intermediate covenantee, was made a party in a suit by G., a subsequent covenantee, to try title against adverse claimants, in which suit M. was afterwards dismissed as a party before judgment, M. was not bound to bring into that action S., his own cove-nantor, and such failure did not set the statute of limitations running as to an action later brought by M. against S. for breach of covenant in the warranty deed.</p>

<p>1. Commerce <®=8(6) — Federal Employers’ Liability Act — Applicability.</p> <p>Where plaintiff was injured while employed by a railroad company on work connected with interstate commerce, the federal Employers’ Liability Act (ü. S. Comp. St. §§ 8657-8665) governs, and the defense of assumption of risk is available.</p> <p>2. Master and Servant <§=>288(2) — Injuries to Servant — Assumption op Risk — Jury Question.</p> <p>In an action by the engineer of a wrecker used to move derailed cars, for injuries received when the cables broke, the question whether he assumed the risk of injury from defective cables and from the fact that no outriggers were used before attempting to move a derailed box car, held, under the evidence, for the jury.</p> <p>3. Master and Servant <§=>222(2) — Injuries to Servant — Assumption op Risk.</p> <p>In determining whether an engineer of a railroad wrecker, who was injured while complying with commands of his foreman, assumed the risk of injury because outriggers were not set out, the question is not whether the engineer used ordinary care in ascertaining whether outriggers were set out, but whether he had actual knowledge of the necessity for using them, or whether the omission was so plainly observable that he would be presumed to have known of it.</p> <p>4. Appeal and Error <§=>1170(9) — Review— Harmless Error.</p> <p>In an action by the engineer of a railroad wrecker injured when cables broke while he was working under a foreman, a charge on assumption of risk, though erroneous, in allowing the jury to consider certain promises to repair, held harmless, under rule 62a (149 S. W. x), in view of the circumstances and the fact that the foreman knew of the defects, and was in a position to judge of the weight of the car to be lifted.</p>

<p>Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.</p> <p>Suit by the State of Texas against Houston & Texas Central Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Limitation of Actions <§=127(3) — Cancellation of Insteuments.</p> <p>Where'an original petition was for false and fraudulent representations which constituted plaintiff’s right to cancel note and recover money paid, and the allegations of the amended petition were in effect the same amplified, there was no new cause of action, and the amendment relates back to filing original petition so far as the statute of limitation is concerned.</p> <p>2. Contracts <@=94(1) — Validity—Fkaud.</p> <p>Where a contract is induced by material fraudulent representations, it is void.</p> <p>3. Principal and Agent <@=156 — Apparent Authority — Fraudulent Representations.</p> <p>Where agents acting within the apparent scope ¶ of their authority in selling corporate stock made a sale by means of false and fraudulent representations, the principal was liable therefor, whether authorizing such acts or not.</p> <p>4. Evidence <§=434(8) — Contracts — Variance by Parol — Fraud.</p> <p>The rule that parol evidence is inadmissible to vary the terms of a written contract does not prevent the use of extrinsic evidence to attack its validity by showing fraud in its inception, notwithstanding the written contract provides that “no conditions, representations, or agreements other than these” contained therein could be considered.</p>

<p>Appeal from District Court, Orange County; A. E. Davis, Judge.</p> <p>Suit by the Houston Oil Company of Texas against Pearl Bunn. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Dallas County; E. B. Muse, Judge.</p> <p>■Action by Edward James and others against the Bankers’ Trust Company. Judgment for</p> <p>plaintiffs, and defendant appeals.</p>

O. Woodward, Judge. Action by Heineken & Vogelsang and others against J. J. Yerby, in which Sorrels & Co. were permitted to intervene. From judgment for interveners, defendants appeal.

<p>1. Master and Servant <©=358—Workmen’s Compensation Act—Applicability.</p> <p>In view of the Amendment of 1917 (Vernon’s Ann. Civ. St Supp. 1918, arts. 5246—1 to 5246—91), held that where an employer, which became a subscriber under the Workmen’s Compensation Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), failed to give the written notice to employés provided for by section 19, pt. 3, the statute was not binding on an injured employé who had no notice that the employer had adopted the act.</p> <p>2. Master and Servant <©=>286(7, 8)—Inju-ries to Servant—Care.</p> <p>A master cannot, as a matter of law, be said to be exercising ordinary care merely because he . uses methods and appliances customarily employed by others in the same character of work, nor yet to be without such care solely because he fails to adopt the latest and most approved devices known, but the question in such cases is for the jury.</p> <p>3. Appeal and Error <©=>1050(1)—Harmless Error—Admission op Evidence.</p> <p>A party cannot complain of the admission of evidence where other evidence of the Same character was elicited without objections.</p> <p>4. Master and Servant <©=>278(16)—Inju-ries to Servant—Evidence.</p> <p>In an action by an employé of an oil company who was hurt by a falling pulley, evidence held to warrant a finding that the master was negligent in failing to examine the pulley, etc.</p> <p>5. Damages ®=>134(1) — Personal Injuries— Measure oe Damages.</p> <p>An award of $10,000 in favor of a strong healthy man 31 years old, earning $90 a month, who was injured so severely that he was unable to work at all for a period of nine months, and thereafter able to do only light work, his right shoulder and arm being permanently impaired, AeZri! not so excessive as to warrant the verdict being set aside.</p> <p>Pleasants, O. J., dissenting.</p>