Volume 210 — South Western Reporter

<p>1. Taxation <&wkey;573 — Delinquent Tax — Action — Citation—Statute.</p> <p>In a tax suit against a nonresident owner, the requisites of the necessary citation, in October, 1906, were exclusively prescribed by Rev. St. 1911, art. 7698.</p> <p>2. Taxation &wkey;>591 — Action fob Delinquent Taxes — Citation.</p> <p>Writ against nonresident owner in delinquent tax suit running, “To the sheriff or any constable of Harris County, Greeting,” and further reciting, “You are hereby notified that suit has been -brought by the state for the collection of said taxes,” and “You are commanded to appear and defend said suit,” instead of the owner of property himself, was fatally defective as not in compliance with Rev. St. 1911, art, 7698.</p> <p>3. Taxation &wkey;s591 — Action fop. Delinquent Taxes — Citation oe Nonresident— Statutes.</p> <p>That suit for delinquent taxes was against the nonresident owner and his unknown heirs, the petition specifically reciting the suit was brought pursuant to Acts 24th Leg. c. 42, relating to the collection of delinquent taxes, did not bring it within Rev. St. 1911, arts. 1874, 1875, as to service of citation, instead of article 7698.</p> <p>On Motion for Rehearing.</p> <p>4. Appeal and Error &wkey;>602(4) — Statement op Facts — Conclusiveness.</p> <p>Suit to set aside judgment for delinquent taxes being a direct attack on the tax judgment, under the record as presented the Court of Civil Appeals is not at liberty to go behind the statement of facts approved below, and to assume or presume there may have been some other and different citation, foundation of the tax judgment, than the one shown in the record.</p> <p>5. Appeal and Error (&wkey;539 — Agreement in Statement op Facts — Right op Appellee to Dent.'</p> <p>Defendant appellee, in suit to set aside judgment for delinquent taxes, having agreed in statement of facts that proceedings referred to constituted record in tax suit, there being no intimation they were even objected to when offered 'in evidence, is not in position to say they did not in fact comprehend the whole record.</p> <p>6. Taxation <&wkey;832 — Sale por Delinquent Taxes — Setting Aside — Right op Purchaser to Taxes Paid.</p> <p>In action to set aside judgment for delinquent taxes, legal on its face, and to cancel sheriff’s deed, defendant purchaser should have been given judgment for aggregate amount paid out by him as actual taxes on lot since the tax sale, with legal interest from date of judgment below until paid, and a lien to insure payment.</p>

<p>Appeal from District Court,,Delta County; A. P. Dohoney, Judge.</p> <p>Action by A. F. Hamer against the First State Bank of Ben Franklin. Judgment for plaintiff, and defendant appeals.</p>

<p>' Appeal from District Court, Galveston County; Robt. G. Street, Judge.</p> <p>Action by the Prince Line, Limited, of Newcastle, England, against E. D. Steger and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Error from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by Clark Pace agdinst A. S. Moore and others to recover for personal injuries. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Courts &wkey;>122 — Actions for Damages fob Abatement — Jurisdictional Amount.</p> <p>In an action by a property owner against a city for damages for the destruction as a nuisance of stables, allegations that the improvements destroyed were worth $500, and that the rental value of the premises was $15 a month, and praying $500 vindictive damages, did not show that the amount of damages sought was below the jurisdiction of the district court, notwithstanding that the jury found the value of the premises to' be $175, and the reasonable rental value $10 per month.</p> <p>2. Municipal Cobpoeations <&wkey;605, 623(1)— Determination and Abatement — Poweb of City Council.</p> <p>A city council has the power to declare what shall be a nuisance, and to abate the same and to impose fines upon parties who may continue or suffer nuisances to exist.</p> <p>3. Municipal Cobpoeations <&wkey;739 — Abatement of Alleged Nuisance — Action fob Damages.</p> <p>If city council, in the exercise of its powers to abate a nuisance, destroys or authorizes the destruction of buildings which in fact are not a nuisance, the municipality is liable for damages sustained by the owner.</p> <p>4. Municipal Cobpoeations <&wkey;63(l) — De-TEEMINATION BY ClTY COUNCIL — CONCLUSIVENESS.</p> <p>That a city council declares that buildings are a nuisance in fact is not a final determination of the question, but the owner may have it adjudicated in a suit for damages.</p> <p>5. Municipal Cobpoeations <&wkey;023(l) — Nuisances — Abatement — Destroying Building.</p> <p>That the owner of stables permits filth to accumulate therein, so as to constitute a nuisance, does not authorize the municipality to destroy the buildings themselves, such destruction not being necessary to abate the nuisance arising from the filth in view of Vernon's Sayles’ Ann. Civ. St. 1914, arts. 845 and 846, giving the city the power to compel the cleansing of the premises.</p> <p>6. Municipal Cobpoeations <&wkey;623(l) — Abatement of Nuisance — Extent and Necessity.</p> <p>The abatement of a nuisance by a city must be limited by its necessity, and no unnecessary injury to property must be permitted.</p> <p>7. Injunction <&wkey;118(4) — Pleading—Sufficiency.</p> <p>In suits for injunction, the pleadings must specifically and clearly state the grounds for the remedy.</p> <p>8. Injunction <&wkey;>118(l) — Petition—Sufficiency.</p> <p>In a suit to enjoin a city from interfering with reconstruction of stables destroyed as constituting a nuisance, allegation of the petition held not sufficient, because failing to show that the building intended to be erected could properly be built under the city ordinances.</p>

Error from District Court, Lavaca County; M. Kennon, Judge. Action by Antney Cunningham and others against Quincy Cunningham and others. There was a judgment for the former, and the latter bring error.

<p>Error from District Court, Collin County; M. H. Garnett, Judge.</p> <p>Action by the Collin County National Bank against Baker Bros, and others. Judgment for plaintiff,' and the defendants Wichita Valley Railway Company and the Missouri, Kansas & Texas Railway Company of Texas jointly bring error.</p>

<p>1. Appeal and Error &wkey;>544(l) — Bill of Exceptions — Continuance.</p> <p>In absence of a bill of exceptions relating to refusal of continuance, assignment complaining of such refusal must be overruled.</p> <p>2. Master and Servant <®=»256(5) — Pleading — Amendment at Trial.</p> <p>In servant’s action for injuries, there was no error in allowing trial amendment alleging that plaintiff stepped on a piece of carbon, instead of carbide, as originally alleged by plaintiff, and admitting testimony relating to carbon; there being no claim of surprise and no request for a continuance or postponement.</p> <p>3. Appeal and Error <&wkey;1060(4) — Harmless Error — Argument of Counsel.</p> <p>Assignment complaining that respondent’s counsel, during his argument to the jury, read each special issue and stated the answer which he claimed should be returned to each issue from the evidence, held without merit; the jury having failed to return the answers suggested as to two of the three grounds of negligence relied on by respondent.</p> <p>4. Appeal and Error <&wkey;528(l) — Bill of Exceptions — Testimony on Motion for New Trial.</p> <p>Testimony taken under the statute authorizing a new trial for misconduct may be perpetuated as part of the record by means of a bill of exceptions.</p> <p>5. Exceptions, Bill of <&wkey;36(3) — Motion for New Trial — Time of Filing.</p> <p>Acts 32d Leg. c. 119 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2073), granting 30 days from adjournment to file bills of exceptions, and providing for extension of such time, applies to bills of exceptions containing testimony taken on a motion for new trial under the statute relating to misconduct of the jury.</p> <p>6. Exceptions, Bill of <&wkey;42 —Time for Filing — Waiver.</p> <p>Bills of exception, like conclusions of law and fact, not filed in time, cannot become valid parts of the record by any waiver, as by failure to file motion to strike out hill of exceptions within the time prescribed by Court of Appeals rule No. 8 (142 S. W. xi).</p> <p>7. New Trial <&wkey;140(3) — Misconduct of Jury— Consideration of Share of Attorneys in Recovery.</p> <p>Testimony as to misconduct of the jury in considering what portion of recovery in personal injury action would go to plaintiff’s attorneys held sufficient to show that new trial should have been granted.</p>

<p>Appeal from District Court, Pecos County; Jas. Cornell, Judge.</p> <p>Suit by Dill V. Rowles against W. A. Had-den, trustee, and others. Judgment for defendants, and plaintiff appeals.</p>

W. : Walker, Judge. Action by the Lillard Milling Company against the Farmers’ & Merchants’ National Bank of Comanche, Tex., and. others. From the judgment rendered, the named defendant appeals.

<p>1. Pleading @=64(1) — Multifaeiousness— Discretion of Court.</p> <p>Whether or not a petition is multifarious is largely for the discretion of the court.</p> <p>2. Usury @=16 — Nature and Character-Intent.</p> <p>If the amount paid by the borrower to the lender in excess of legal interest was intended as compensation for the use of money loaned, it is usury, regardless of what manner or form or under what pretense cloaked.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Usury.]</p> <p>3. Usury @=119 — Nature of Contract-Questions of Fact.</p> <p>Where a contract is not usurious on its face, whether or pot it is in fact usurious is a question for the jury.</p> <p>On Motion for Rehearing.</p> <p>4. Appeal and Error @=1008(1) — Review-Affirmance.</p> <p>In the absence of material error in the conduct of a case, an appellate court should affirm the judgment of the trial court, if it can do so upon any theory presented by the pleadings and sustained by the evidence.</p> <p>5. Appeal and Error @=1008(1) — Review-Questions of Fact — Findings of Court.</p> <p>The finding of a court trying a case without a jury is entitled to the same weight as the finding of a jury.</p> <p>6. Usury <§=57 — Enforcement of Contracts —Compensation for Obtaining Money.</p> <p>Where one party to a written contract agreed to give $5,000 in stock of a corporation to be organized by him, for services to be rendered by the other party in finding some person who would make him a loan of $17,500, or a part thereof, and, if part, then to advance the remainder, such contract will be enforced as against a claim of usury; no fraud, accident, or mistake being alleged.</p> <p>7. Usury <®=57 — Nature and Elements — Commissions.</p> <p>Where defendants did not loan or advance to the borrower any money but secured other parties to do so, the amount paid them was not for the use or detention of money belonging to them, and was therefore not interest, so as to be usurious.</p> <p>8. Usury @=142(4) — Actions to Recover Penalties — Evidence—Sufficiency.</p> <p>In an action to recover statutory penalties, for extorting usurious interest, under a contract whereby defendants were to obtain $5,000 worth of stock for themselves for providing, or finding others willing to provide, a loan of $17,500, evidence held to support a finding that the contract was not usurious.</p>

<p>1. Municipal Corporations «5=905 — Suit on Warrant — Petition—Sufficiency.</p> <p>In suit on warrants issued by defendant city, plaintiff's petition held insufficient to show a compliance with Const, art. 11, §§ 5, 7, as to making provision for interest and sinking fund when debt is created, or that debt was to be satisfied out of current revenues for the year, or some fund within the immediate control of the city, so that the warrants were valid without compliance with said constitutional requirement.</p> <p>2. Pleading 3=8(6) — Conclusions.</p> <p>In suit on warrants issued by defendant city, allegation in petition that warrants were given in lieu and substitution of other valid warrants was a mere conclusion, insufficient to show that warrants were valid.</p> <p>3. Municipal Corporations <®=898 —Issuance op Warrants — Provision por Payment.</p> <p>. Provision of statutes with relation to issuance of city bonds, which specifically requires the city to provide a fund to pay interest and create a sinking fund, has no application to a case where no bonds were issued, but the debt simply evidenced by city warrants.</p>

E. Spencer, Judge. Suit by John B. Scripture against the Gulf, Colorado & Santa Eé Railway Company and the Pullman Company, in which the defendant Gulf, Colorado & Santa Eé Railway Company pleaded that, if judgment should be recovered against it, it have judgment over against defendant Pullman Company. Judgment for plaintiff against the Railway Company arid for the Pullman Company as to the Railway’s plea over, and the defendant Railway Company appeals.

J. Alexander, Judge. Proceeding by A. Griesenbeck and wife for an award for the death of their son, A. C. Griesenbeck, while an employé of the Bas-trop Water, Eight & Ice Company, before the Industrial Accident Board in which an award was made against the insurer Georgia Casualty Company, which filed an original petition in the district court to cancel and annul the order. Prom a judgment dismissing the suit for want of jurisdiction, plaintiff appeals.

<p>Appeal from Wichita County Court; Harvey Harris, Judge.</p> <p>Action by W. A. Nabors against the Colorado & Southern Railway Company. From a judgment for defendant, plaintiff appeals.</p>

Suit by C. O. Austin, Commissioner of Insurance and Banking, against T. D. Campbell and another. Froru that part of the judgment denying relief against defendant named, plaintiff appeals.

Suit by Charles O. Austin, Commissioner of Insurance and Banking, against R. M. Kelly and another. Erom that part of the judgment denying recovery against defendant named, plaintiff appeals.

Suit by Charles O. Austin, Commissioner of Insurance and Banking against T. E. Huffman and J. N. Campbell. From that part of the judgment denying recovery against defendant last named, plaintiff appeals. Reversed and rendered.

<p>1. Time <S=>9(1) — Computation — Excluding First Day.</p> <p>An order of the Director General of Railroads dated April 9, 1918, became effective from the first moment of that date and covers all transactions of that date to which it is applicable.</p> <p>2. Railroads <S=>5 ½, New, vol. 6A Key-No. Series — Actions Against — Government Control.</p> <p>Orders Nos. 18 and 18a of the Director General of Railroads dated April 9 and 18, 1918, in so far as they require all suits against carriers under federal control to be brought in county or district where plaintiff resides or resided at the time of the accrual of the cause or in the county or district where the cause arose, is inconsistent with and contrary to Act. Cong. March 21, 1918, § 10 (U. S. Comp. St. 1918, § 3115%j), providing “actions at law or suits in equity may he brought by and against such carriers and judgments rendered as now provided by law.”</p> <p>3. Railroads <©=>5½, New, vol. 6A Key-No. Series — Actions for Injury — Abatement-Orders of the Director General.</p> <p>The General Order No. 26 of the Director General of Railroads under federal control, May 23, 1918, ordering that actions and suits included under General Order No. 18 should abate during federal control, is inconsistent with and contrary to Act Cong. March 21, 1918, § 10 (U. S. Comp. St. 1918, § 3115%j), providing that actions at law or suits in equity may be brought by or against such carriers and judgments rendered as now provided by law.</p> <p>4. Appeal and Error <©=>1043(7) — Harmless Error — Continuance — Absence of Witnesses.</p> <p>The overruling of a motion for continuance on ground of absence of witnesses presents no reversible error, where the witnesses were present at the trial and testified.</p> <p>5. Master and Servant <©=>288(1) — Injuries to Servant — Assumption of Risk-Question for Jury.</p> <p>In an action by a switchman engaged in interstate commerce against a railroad company for personal injuries, evidence held sufficient to go to the jury on the issue of assumed risk.</p> <p>6. Master and Servant <©=>240(3) — Injuries to Servant — Contributory Negligence.</p> <p>Where plaintiff, suing for injuries received while working as defendant’s switchman, attempted to board the engine at the designated place on the footboard for another switchman, who had assumed plaintiff’s station thereon, and was thrown and injured by the other’s attempt to assume his proper station, held, that plaintiff was in the exercise of due care.</p> <p>7. Trial <©=>253(4) — Instructions—Ignoring Issues.</p> <p>In an action by a switchman to recover from railroad company for personal injuries, requested charges which ignored the issue of negligence of a fellow dVitehman held properly excluded.</p> <p>8. Appeal and Error <§=231(9) — Objection —Sufficiency.</p> <p>An objection urged in the court below, that “because paragraph 6 of said charge upon the subject of assumed risk is erroneous,” is too general for consideration upon appeal.</p> <p>9. Damages <⅞=»132(3) — Excessive Damages— Broken Back.</p> <p>Where plaintiff’s back was broken and be has suffered and still suffers groat pain, bis earning capacity bas been greatly impaired, and be is deformed and crippled for tbe balance of bis life, a verdict for $22,500 is not excessive.</p>

<p>1. Appeal and Error <§=>1064(4) — Harmless Error — Instructions.</p> <p>An instruction defining “ordinary care” as meaning exercise of that degree of care and prudence under given circumstances which a person of reasonable or ordinary “care” would exercise under same or similar circumstances, though not happily worded, held harmless.</p> <p>2. Appeal and Error <g=>1068(2) — Harmless Error — Instructions.</p> <p>An instruction improperly defining “care” held not reversible error, where judgment was sustained by findings on other issues.</p> <p>3. Municipal Corporations <§=>705(4) — Collisions with Pedestrians — Automobiles— Ordinances.</p> <p>Violation of city ordinance prohibiting an automobilist from passing a standing street car constituted negligence per se.</p> <p>4. Appeal and Error <§=>1064(4) — Harmless Error — Instructions.</p> <p>Error in definition of “ordinary care” cannot constitute error of a prejudicial nature, unless charge necessarily entered into and confused jury in considering issue of contributory negligence.</p> <p>5. Municipal Corporations <§=>705(10) — Collisions with Pedestrians — Contributory Negligence.</p> <p>One stepping from a sidewalk to board a street car is not required to anticipate that an automobile would approach and attempt to pass the entrance into the street car in violation of a city ordinance.</p> <p>6. Municipal Corporations <§=>705(10)— Collisions with Pedestrians — Contributory Negligence.</p> <p>A pedestrian who left curb to enter street car was not negligent in turning from street car back in direction of curb, being terrorized" by wrongful act of automobilist in passing a standing street car in violation of a city ordinance.</p> <p>7. Death <§=>99(5) — Damages—Amount.</p> <p>In action by a woman 55 years of age for death of daughter earning $50 per month, a verdict of $8,000 cannot be said to be excessive where plaintiff depended upon daughter for support, and daughter was in all respects an admirable character of exemplary habits and constantly increasing in efficiency as a stenographer.</p> <p>8. Evidence <§=>383(11) — Line Expectancy— Conclusiveness.</p> <p>The jury is not bound by general averages in life insurance tables in determining life expectancy.</p> <p>9. Death <§=>88 — Damages—Elements.</p> <p>In action for death of daughter, jury in fixing damages may consider fact that in time , of sickness of plaintiff deceased would,, if alive, attend and care for her with tenderness.</p> <p>10. Death <§=67 — Damages—Evidence.</p> <p>In action for death, court properly permitted proof that efficiency of deceased as a stenographer was increasing, and would probably increase in future, so that her earning capacity would be greater than at time of her death.</p> <p>11. Evidence <§=>18 — Judicial Notice — High Cost of Living.</p> <p>In considering a question of excessiveness of verdict for personal injuries, court may take judicial knowledge of fact that wages have increased, and that purchasing value of a dollar has been decreased many times.</p>

Proceeding in the nature of a quo warranto by the State, on the relation of L. W. Ains-worth, petitioner, against H. B. Griffith, seeking to oust respondent from the office of county judge of Upton county and to install relator in said office. From a judgment granting a temporary injunction, the respondent appeals.

<p>Appeal from, District Court, Dallas Comity; E. B. Muse, Judge.</p> <p>Suit by Wade B. Leonard against R. J. Torrance and another. Judgment for defendants, and plaintiff appeals.</p>

Terrell, Judge. Suit by H. S. Lattimore, trustee, against W. K. Dunn and others; J. C. Ingram and others intervening. From an adverse judgment, the named intervener appeals.

<p>1. Landlord and Tenant @=5106, 195(1)— Leases — Repairs.</p> <p>A tenant, who leased a building for two years for a specific sum payable in monthly installments, may vacate and refuse to thereafter pay rent, where lessor has failed to keep building in repair and tenantable as agreed.</p> <p>2. Common Law @=17 — Evidence — Decisions of Courts.</p> <p>Decisions of English courts are not conclusive proof of what common law of England really is, although entitled to great weight, and decisions of different states of Union which have adopted common law of England may be looked to, to determine what common law is.</p> <p>3. Landlord and Tenant @=152(3) — Lease —Duty to Repair.</p> <p>A lease of a building, providing that lessor “shall have reasonable time to repair the same,” when notified of leaks, KeU to contemplate that it was duty of lessor to make such repairs upon receiving such notice.</p> <p>4. Landlord and Tenant @=150(1) —Repairs — Duty of Landlord.</p> <p>To exempt landlord from damages to tenant resulting from defects in roof, and at same time hold tenant liable for full contract price, which he agreed to pay upon understanding that building was tenantable, would he unreasonable and obviously unjust to tenant, and such construction of lease should not be favored.</p> <p>5. Landlord and Tenant @=150(1) — Repairs.</p> <p>If landlord was obligated to repair roof of building, such obligation was not discharged by unsuccessful efforts to remedy defects, under plea that such efforts constituted reasonable diligence to accomplish purpose.</p> <p>6. Landlord and Tenant @=231(2) — Repairs — Notice to- Landlord — Evidence.</p> <p>In action against tenant under lease for rent, tenant having vacated because of defects in roof, it was proper to admit in evidence written notices of defects in roof; sent to landlord after execution of lease, while tenant was holding under prior lease.</p> <p>7. Trial @=352(4) — Special Issues — Evidence — Action for Rent.</p> <p>In action under lease for rent, tenant having vacated by reason of leaks in roof, court properly refused to submit to jury question whether leak was caused by downspouts being stopped' by refuse thrown on roof by persons in adjoining building, where no proof was offered to show that it was impracticable to avoid such stopping of downspouts by use of some character of screen upon roof.</p> <p>8. Trial <§=»352(4) — Special Issues — Evidence — Action eor Rent.</p> <p>In action under lease for rent, tenant having vacated by reason of plaintiffs failure or inability to stop leaks in roof, court properly refused to submit issue whether or not holes made by sign braces erected by tenant caused roof to leak, where evidence that plaintiff had stopped all leaks caused by braces was uneontroverted.</p> <p>9. Trial <§==>351(2) — Special Issues — Erroneous Requests.</p> <p>A requested special issue embracing question not applicable to evidence is" properly refused as a whole.</p>

<p>Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.</p> <p>Action by W. L. Blisard against J. S. Prince. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trial <S=>349(2) — Submission of Cause on Special Issue — Statutes.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a, providing for submission of cause on special issues when requested, is mandatory, and failure to so submit is excusable only in cases that cannot be determined upon submission of special issues.</p> <p>2. Trial <©=3351(2) — Submission upon Special Issues — Refusal.</p> <p>In an action for breach of contract to purchase com, plaintiff’s request for peremptory instruction and for special issues which may not have been raised by evidence in the judgment of the court did not Telieve the trial court of the duty to submit the case upon special issues, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a.</p> <p>S. Trial <⅞=3349(2) — Submission of Special Issues^Waiver.</p> <p>Rev. St. art. 1985, providing that upon appeal or writ of error an issue not submitted or requested shall he deemed as found hy the court in such manner as to support the judgment, did not relieve the court' from the duty to comply with Rev. St. art. 1970, providing that in all civil cases the judge shall, unless expressly waived by the parties, deliver written charges, or submit special issues, where the latter were requested in due time.</p>

<p>Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.</p> <p>Action by Keller J. Bell. and| another against Norman W. -Self. From judgment for defendant, plaintiffs appeal.</p>

Suit by Ben F. Harless against Maude White, alias Maude Nelson, wherein writ of sequestration was sued out; defendant re-plevying the property and giving replevy bond with the General Bonding & Casualty Insurance Company, as surety, plaintiff making such company a party defendant. From judgment for plaintiff, the insurance company appeals.

<p>1. Carriers <S=»228(5) — Dive Stock Shipment — Delay—Sufficiency op Evidence.</p> <p>Evidence that it took railroad more than 40 hours to transport shipment 221 miles, and that there were two delays of 8 hours each, held sufficient, in the absence of explanation on part of railroad justifying delays, to warrant finding that delay was unreasonable.</p> <p>2. Carriers <S=j228(5) — Live Stock Shipment —Unreasonable Delay — Explanation op Delay.</p> <p>Where there is evidence of unusual delay in transmission of shipment of stock, railroad’s failure to explain delay is of itself clothed with probative force on the question of whether delay was unreasonable.</p> <p>3. Evidence <S^>TT — Judicial Notice — Time Consumed in Travel.</p> <p>A court is authorized to take judicial cognizance of the length of time consumed in travel by the present modes of conveyance between two designated places; such facts being facts of general knowledge.</p> <p>4. Evidence <§=c66 — Presumptions—Length of Time Consumed in Travel.</p> <p>Jurors will be presumed to have knowledge of the length of time consumed in travel between two designated places; such facts being facts of general knowledge.</p> <p>5. Carriers <®=>230(8) — Unreasonable Delay-Action for Damages — Instructions.</p> <p>Evidence held to warrant instruction on issue of whether railroad company exercised ordinary care to avoid unusual and unreasonable delay in live stock shipment.</p> <p>6. Appeal and Error <gs^>10G4(4) — Review-Harmless Error — Submission op Issue.</p> <p>In shipper’s action for delay in transmission of live stock shipment, instruction on issue whether carrier held shipment í‘for a great 1 length of time” was not prejudicial, though some other expression than that quoted could have been more appropriately used, where there was undisputed evidence of delay.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Suit by V. O. Rosser against Marcus C. Devi and others. From the judgment rendered, plaintiff appeals.</p>

<p>Appeal from Comanche County Court; J. H. McMillan, Judge.</p> <p>Action by the Best & Russell Cigar Company against the William Reese Company and others. From judgment for defendants, plaintiff appeals.</p>

Suit by T. W. Owen and another, composing the firm of Owen & Wilson, against the Republic Oil & Gas Company. Judgment for plaintiffs, and defendant appeals.

<p>Appeal from District Court, Baylor County; J. H. Milam, Judge. ••</p> <p>Suit by W. M. Stovall against I. E. Martin and another. From judgment for defendants, plaintiff appeals.</p>

Suit by Minnie Scharff against Pete Arnold and wife, wherein Max K. Mayer intervened. From a judgment for the inter-vener, defendants appeal.

<p>1. Municipal Cobpobations <&wkey;567(l) — Stbeet Improvement — Action 'on Certificates — Petition .</p> <p>Petition, -in action ..on paving and curbing certificates issued by city,, alleging it adopted a special charter pursuant to Acts 33d Leg. e. 147' (Vernon’s Sayles’ Ann: Civ. St. 1914, arts. 1096a to 1096-i), that the street in front of defendant’s property'-was paved and curbed, and the certificates issued therefor, all in compli-¡mee with the powers given in the act and charter, held not subject to demurrer or exceptions.</p> <p>2. Municipal Corporations <&wkey;568(3) — Street Improvements — Action on CertifiCATES — PROOE OE OWNERSHIP.</p> <p>There was prima facie proof of plaintiff’s ownership, claimed in his petition, of the certificate for curbing, issued by the city to another, sued on; it having at the trial been in his possession and introduced in evidence without objection.</p> <p>3. Evidence <&wkey;31 — Judicial Notice — City Charter.</p> <p>By provision of Acts 33d Leg. c. 147, § 3 (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1096c), when a city has adopted a charter as authorized therein and it has been recorded as therein provided, no proofs are required thereof, but judicial notice must be taken of it.</p> <p>4. Appeal and Error <&wkey;907(5) — Presumption — Documents.</p> <p>Though there be no copy of a city’s charter in the statement of facts, it will be presumed the trial judge had a copy before him from which he quoted the provisions shown in his findings of fact.</p> <p>5. Appeal and Error <&wkey;907(5)— Presumption — Documents.</p> <p>Correctness of finding of trial judge as to contents of a city’s charter will be presumed, in the absence of a showing by copy of the charter, or otherwise, of error in the finding.</p> <p>6. Constitutional Law <&wkey;290(4) — Municipal Corporations <&wkey;407(l) — Due Process of Law — Street Improvement — Assessments.</p> <p>Provisions of city charter, which vests a board with judicial functions to determine assessments for street improvements, that objection thereto, unless filed with the board before hearing is closed, shall be deemed waived, and that one failing within 10 days after closing of the hearing to institute suit to contest validity of the assessment shall be barred from contesting in any other proceeding, do not in case of one given notice deprive him of property without due process, in contravention of Const. U. S. Amends. 5, 14.</p> <p>7. Municipal Corporations &wkey;484(l) — Street Improvements — Certificates—Evidence of Indebtedness.</p> <p>Certificates issued by a city for street improvements are prima facie evidence of the amount of indebtedness due by a property owner.</p>

Clark, Judge. . Action by Margaret Whitesides and another against N. Wood and others. From an order and decree refusing to grant temporary writ of injunction, .plaintiffs appeal. On motion to dismiss- appeal.

Bond, Judge. Suit by W. C. Whittle against Lancaster and Wight, receivers of the Texas & Pacific Railway Company. Judgment for plaintiff, and defendants appeal. Appellee’s suit was against appellants as the receivers of the Texas & Pacific Railway Company for damages he claimed he suffered because of injury to certain horses shipped by him over said company’s line of railway from Et. Worth to Grand Saline.

Action by H. D. Thomas and others against C. C. Barthold and others. To review, judgment awarding plaintiffs partial relief, they brought error, defendants cross-assigning errors. The Court of Civil Appeals affirmed the judgment (171 S. W. 1071), and both parties bring error.

<p>1. Telegraphs and Telephones <®=48 — Errors in Addressee’s Name — Negligence op Employé — Agency por Sender.</p> <p>Error of telegraph company’s employs in writing addressee’s name was not chargeable to the company, where he wrote telegram at sender’s request, since in writing telegram he was. acting as agent of sender and not of the company.</p> <p>2. Telegraphs and Telephones <®=»66(4)— , Negligence op Telegraph Company — Sufficiency op Evidence.</p> <p>Evidence held to sustain verdict finding telegraph company negligent in failure to deliver message announcing death of addressee’s brother in time to permit-addressee to attend funeral, notwithstanding error in statement of addressee’s name.</p>

Suit by F. J. Smalley against Gus Vogt. There was a judgment of the Court of Civil Appeals (166 S. W. 1), reversing a judgment in favor of defendant, and defendant brings error.

Action by W. C. Morgan against the Missouri, Kansas & Texas Railway Company. There was a judgment by the Court of Civil Appeals (163 S. W. 992), affirming a judgment in favor of the plaintiff, and the defendant brings error.

<p>Error to Court of Civil Appeals of Eourth Supreme Judicial District.</p> <p>Action by Nicolas Aguinaga against the Medina Valley Irrigation Company.- Judgment for defendant was affirmed by Court of Civil Appeals (168 S. W. 78), and plaintiff brings error.</p>

Action by P. A. Johnston against the Western Union Telegraph Company. A judgment sustaining a general demurrer to the petition was reversed by the Court of Civil Appeals (167 S. W. 272), and defendant brings error.

<p>1. Master and Servant <&wkey;153(l) — Duty to Warn Minor Servant.</p> <p>It is duty of master to warn and instruct minor servant as to dangers incident to service which are known to master, or could be known by reasonable care, and which the servant, because of immature judgment and want of experience, cannot reasonably be expected to know and appreciate.</p> <p>2. Master and Servant <&wkey;154(l) — Assumption op Risk-Duty to Warn and Instruct.</p> <p>A minor servant, of capacity to appreciate the danger, or who has acquired the knowledge otherwise than by instruction from master, need not be warned or instrueteG, but mere fact servant knows that employment is dangerous does not relieve master of further instruction as to extent of danger and means of avoiding it.</p> <p>3. Master and Servant &wkey;>190(20) — Injuries to Minor Servant —Nondelegable Duty to Instruct.</p> <p>Religious hospital corporation operating a laundry was liable for injury to minor servant resulting from failure of forewoman on request to instruct her as to way to stop mangle before extricating clothes clogging it, and thus to avoid danger; hospital’s duty to instruct and warn being nondelegable.</p> <p>4. Master and Servant @=288(11) — Injury to Minor Servant — Assumption oe Risk-Knowledge of Danger —Question for Jury.</p> <p>In action against religious hospital corporation operating laundry for injuries to minor servant operating mangle, whether servant understood danger of her hand being drawn between rollers in effort to release entangled garments, so that she assumed the risk, held for the jury.</p> <p>5. Charities <&wkey;45(2) — Liability to Injured Servant.</p> <p>„ A religious corporation organized to operate a hospital is liable for injuries to a servant through its negligence, though money received by it was expended in maintaining institution for poor, to pay off a mortgage, and to support its mother institution in another state.</p>

<p>Error to Court of Civil Appeals of Séventh. Supreme Judicial District.</p> <p>Suit by the First National Bank of Amarillo against J. W. Rush, in which W. H. Fuqua intervened. There was a judgment of the Court of Civil Appeals reversing a judgment in, favor of plaintiff (160 S. W. 319, 609) and plaintiff and' intervener bring error.</p>

<p>1. INSURANCE <&wkey;403 — “Peril op the Sea.”</p> <p>Generally, any loss or injury is occasioned by a peril of the sea which has for its proximate cause the forthitous action of the sea, operating either singly or in conjunction with other elements or causes, or is peculiar to transportation by vessels supported by the sea or its buoyancy.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Perils of the Sea.]</p> <p>2. Insurance <&wkey;403 — “Peril op the Sea.”</p> <p>Loss or damage occasioned by natural deterioration or decay, or by ordinary wear and tear of the vessel, are not within the term “perils of the sea.”</p> <p>3. Insurance <&wkey;415 — Unseaworthiness.</p> <p>Any loss proximately caused by unseaworthiness of the vessel at the time of leaving port is not a loss by peril of the sea.</p> <p>4. Insurance <&wkey;403 — “Peril op the Sea.”</p> <p>' Where the loss or damage is from causes independent of the sea or its action, or is not peculiar to navigation, it is not by a peril of the se'a; in other words, the peril must be one “of the sea,” and not merely one occurring “on the sea.”-</p> <p>5. Insurance <&wkey;413 — Marine Insurance-Proximate Cause op Loss.</p> <p>The co-operation of other causes will not prevent the loss or damage from being one by perils of the sea.</p> <p>6. Insurance <&wkey;416 — Negligence op Owner or Agent.</p> <p>A loss or damage is not prevented from being one by perils of the sea by the co-operation of such other causes as acts or omissions of the owner or his agent amounting to negligence, but not amounting to fraud or design.</p> <p>7. Insurance <&wkey;416 — Marine Insurance-Negligence op Owner or Agent.</p> <p>The protection of marine insurance embraces, in the absence of a contrary stipulation, losses arising from negligence of the owner or his agent, if contributed to by a peril insured against.</p> <p>8.Insurance <&wkey;416 — Marine Insurance-Negligence of Crew.</p> <p>Where a vessel listed and sank while in harbor because a watchman neglected to close a sea cock opened to take in water for use in boilers, the accident was one of the perils of the sea, and a marine insurance company was liable under its policy for the expense of raising and repairing the vessel.</p>

<p>1. Dismissal and Nonsuit <9=79 — Order of Dismissal — Sufficiency.</p> <p>Although inference might be drawn from preliminary recitals in an order of dismissal that court intended to dismiss suit as to all parties, yet order would not effect a dismissal as to defendants whose names were omitted in decree of dismissal proper; names of other defendants being given.</p> <p>2. Appeal and Error <9=376 — Bond—Necessary Payees.</p> <p>Where plaintiff dismissed a motion to set aside an order of dismissal, as against certain defendants who had not been served with notice, such dismissal was in legal effect k dismissal of plaintiff’s original suit ¿gainst such defendants, and it was not necessary to make them payees in a writ of error bond in order to have reviewed an order refusing to reinstate as to the other defendant.</p> <p>8. Appeal and Error <S=s376 — Bond—Necessary Parties — Effect of Dismissal.#</p> <p>Defendants, as to whom an action was not dismissed on pláintiff’s default, need not be named as payees in a writ of error bond in order to have reviewed an order refusing to set aside the order of dismissal as to other defendants.</p> <p>4. Appearance <®=o8(3) — Voluntary Appearance-Filing Answer to Cross-Action.</p> <p>A defendant, who appeared by an attorney and filed an answer to a cross-action, thereby made an appearance for all purposes, and it was not necessary for plaintiff to serve him with citation as a predicate for a recovery against him, although petition was not served upon him.</p> <p>5. Dismissal and Nonsuit <S=>81(7) — Order —Motion to Vacate — Time.</p> <p>A motion to vacate an order of dismissal for want of prosecution is in the nature of a bill in equity, and such a motion may be granted at a succeeding term of court, if plaintiff shows that he was not negligent and has a meritorious suit.</p> <p>6. Dismissal and Nonsuit <g=»81(l) — Order —Setting -Aside — Grounds.</p> <p>Where plaintiff’s attorney was diligent in preparation of his case for trial and had a meritorious cause of action, but did not appear when case was called because mistaken as to time when term of court convened, trial court erred in refusing to set aside an order of dismissal, in absence of a finding that attorney was negligent in mistaking time of convening of court. ■</p>

<p>Appeal from' Potter County Court; T. W. McBride, Judge.</p> <p>Suit by the Cain Auto Company and others against S. F. Bowser & Co. From judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from McLennan County Court; James P. Alexander, Judge.</p> <p>Suit by C. B. -Foscue and others against Asa Jenkins and the Provident National Bank of Waco, as garnishee. From judgment in favor of the garnishee, plaintiffs appeal.</p>

<p>Appeal from District Court, Erath Comity; J. B. Keith, Judge.</p> <p>Action by O. C. Bryant, for himself and on behalf of his minor child, against the Ft. Worth & Rio Grande Railway Company. From judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Action by Slaughter & Moorehead against J. T. Baker and wife. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Judgment ©=>951(1) — Res Adjudicata — Burden op Proof — Matter Determined.</p> <p>Where a verdict was general and fails to show upon which count in complaint recovery was awarded, burden is upon one in a subse-. quent suit to show by evidence that recovery was upon count on which he bases a plea of res adjudidata.</p> <p>2. Judgment ©=>622(2) — Res Adjudicata — Matter Proper for Set-Off.</p> <p>It was not necessary for an assured, in an action by insurer, to assert his right to a rebate, and he could subsequently sue therefor, where the only issue in the first suit was the amount of the premium.</p>

<p>Appeal from District: Court, Stephens County; Joe Burkett, .Judge.</p> <p>Suit by M. F. Ham and wife against G. J. Thomason. Prom a judgment for plaintiffs, defendant appeals.</p>

<p>Appeal from District Court, El Paso County; Ballard Cold well, Judge.</p> <p>Sequestration proceedings by the Consolidated Garage Company against E. H. Nichols, in which Ray Chambers filed a claimant’s oath and bond. From a Judgment for plaintiff, the claimant appeals.</p>

<p>Appeal from District Court, Pecos County; Jas. Cornell, Judge.</p> <p>Application by Joseph G. Knight and others to the State Board of Water Engineers, opposed by James W. Oldham and others. From the decision of the board, Oldham and others appealed to the district court, which tried the case de novo, and from decree that the board was without authority to act, and dismissing the cause, applicants appeal.</p>

<p>1. Divorce <©==>168 — Validity of Decree— Collateral Attack.</p> <p>In personal injury action where defendant filed no plea challenging plaintiff’s right to prosecute the action without joinder of her former husband, a merely collateral attack upon the divorce decree, without showing what testimony was offered in the divorce suit to show plaintiff’s residence, will not support an assignment that the evidence shows that the divorce decree is null and void, especially since in any event recovery for wife’s injuries is made her separate property by Vernon’s Ann. Civ. St. Supp. 1918, art. 4621a.</p> <p>2. Master and Servant <©=>276(2) — Injury to Servant — Evidence—Cause of Injury.</p> <p>In an action by a servant against a master for injuries caused by an explosion, evidence held sufficient to support the jury’s finding that the explosion caused plaintiff’s injury.</p> <p>3. Master and Servant <©=>330(3) — Injury to Servant — Negligence of Bmploy& — Liability of Master.</p> <p>In an action by a servant for injury from explosion, evidence held sufficient to show that the employé whose negligence caused the explosion was acting within the scope of his employment.</p> <p>4. Trial <©=>129 — Misconduct of Counsel.</p> <p>In servant’s action for injuries, argument of plaintiff’s counsel that there had been Irregular things done in connection with case as shown by the record, which the speaker would not be guilty of, for the whole of defendant’s plant, was justified by defendant’s witness’ testimony on cross-examination in regard to a statement required of her by the master after the accident in which she testified her answers were suggested, though in part contradicted by her other testimony.</p> <p>5. Master and Servant <©=>269 — Injury to Servant — Explosion.</p> <p>In an action by a servant for injury from explosion, the testimony of another servant, tending to support defendant’s theory that plaintiff received no shock, for the reason that witness did not, although closer to the explosion, was erroneously excluded.</p> <p>6. Appeal and Error <©=>1058(3) — Exclusion of Evidence — Harmless Error.</p> <p>Erroneous exclusion of testimony of witness that he felt no shock from an explosion is harmless, where eleven other witnesses testified to same effect.</p> <p>On Rehearing.</p> <p>7. Master and Servant <©=>278(14) — Knowledge of Manager — Evidence.</p> <p>In an action for injuries from the explosion of a tumbler while being used to dry clothes cleaned with gasoline, evidence held to sustain a finding that the manager of the defendant’s laundry who was present daily knew of such use of the tumbler that exploded, notwithstanding the contrary testimony of two of defendant’s servants.</p>

<p>1. Limitation of Actions <©=>28(1) — Two Teaks’ Statute — Fraud.</p> <p>An action for fraud and deceit is subject to the bar of limitations of two years under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5687, subdiv. 4.</p> <p>2. Limitation of Actions <©=>197(2) — Fraud —Concealment—Sufficiency of Evidence.</p> <p>Evidence held sufficient to sustain plaintiff’s plea that defendant concealed fraud in sale of machines until within two years of suit brought, by further misrepresentations and that plaintiff was not negligent in being misled by such representations.</p> <p>3. Limitation of Actions 104(1) — Statute of Limitations — Fraud — Concealment.</p> <p>Cause of action for fraud of buyer of peanut threshers was not barred by the two-year statute of limitations, Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5687, subdiv. 4, where falsity of original representations of seller’s agent was concealed by further misrepresentations, whoso falsity was not discovered until within two years of suit brought.</p> <p>4. Fraud <©=>59(3) — Damages.</p> <p>Measure of damages recoverable by buyer of peanut threshers from seller for fraud and deceit was difference between the amount paid and the value received.</p> <p>5. Fraud <©=>35 — Rights of Buyer — Waiver of Guaranties.</p> <p>Right of buyer to recover damages for fraud and misrepresentations was not waived because, before purchased machines were shipped to buyer, seller notified it that shipments would not be made unless buyer would waive all guaranties, condition to which buyer agreed and accepted machines.</p> <p>6. Fraud <©=>35^Rights of Buyer — Retention of Property.</p> <p>Buyer of machines did not waive its right to recover damages for fraud from seller by electing to retain machines after discovery of fraud and to claim damages, evidence showing that in so retaining machines buyer had no intention to waive its claim for damages.</p> <p>7. Appeal and Error <§=>742(1) — Proposition Not Germane to Assignment.</p> <p>A proposition not germane to the assignment of error does not merit consideration.</p> <p>8. Fraud <§=>35 — Waiver by Renewal of Notes.</p> <p>Buyer of machines under misrepresentations did not waive its right to recover damages for fraud from seller by its renewal of purchase-money notes after discovering fact that machines had been misrepresented by seller’s agents; buyer having had no intention of waiving its claim for damages.</p> <p>9. Interest <©=>39(4) — Excessive Allowance —Time of Payments.</p> <p>In buyer’s suit against seller for fraud, where considerable portion of sum paid by buyer for repairs was expended during summer of 1915, and some installments of price were paid ás late as, 1916, trial court improperly allowed buyer interest from January 1, 1915, on all sums paid seller on price, and also on all sums paid out for repairs.</p> <p>10. Judgment <©=>314 — Jurisdiction to Correct — Expiration of Term — Amount Awarded.</p> <p>After adjournment of term during which judgment was rendered, trial judge lost all jurisdiction to correct error in allowing excessive interest.</p> <p>On Rehearing.</p> <p>11. Fraud <©=>20 — Reliance on Representations — Negligence.</p> <p>Where peanut threshers were sold under misrepresentations, and, after machines in hands' of buyer’s customers did not work satisfactorily, seller’s agent told buyer that it was on account of wet season, rank vines, and inexperienced operators, seller cannot insist, when sued for damages from the original fraud, that buyer was guilty of negligence in being deceived by subsequent fraudulent representations.</p> <p>12. Appeal and E!rror <§=>1033(8) — Favorable Error.</p> <p>If trial court gave seller of machines, sued by buyer for damages from fraud, credit for what buyer received from farmers who bought machines from it, seller cannot complain; it having profited to that extent.</p> <p>13. Appeal and Error <©=>932(1) — Presumptions Favoring Court Below — Buyer’s Action for Damages.</p> <p>On seller’s appeal, in buyer’s action for damages for fraud, Court of Civil Appeals must presume that seller was given credit for land, which buyer received in part payment for one of the machines, at the agreed value of the land, and that the same was its market value.</p> <p>14. Costs <©=>234 — Appeal — Reduction of Judgment.</p> <p>Where amount of recovery by plaintiff.ap-pellee in trial court has been reduced by judgment in Court of Civil Appeals, costs of appeal will be taxed against appellee.</p>

<p>Appeal from District Court, Williamson County; Ireland Graves, Judge.</p> <p>Suit by John A. Kennedy against A. B. Kennedy and others. From an adverse judgment, the named defendant appeals.</p>

<p>1. Certiorari <&wkey;62 — Consolidation or Writs.</p> <p>The district court did not err in consolidating writs of certiorari to review orders of the eounty court appointing an administrator to collect inheritance tax, approving the contract between the administrator and the attorney for the estate, ordering sale of a small part of the land belonging to the estate to pay the attorney’s retaining fee, etc.</p> <p>2. Appeal and Error <&wkey;761 — Briefs—Citation op Authorities — Rule of Court.</p> <p>The' statement of the brief that authorities will be found “in argument under separate cover” is not in compliance with Rules of the Courts of Civil Appeals, No. 36 (142 S. W. xiii), requiring the authorities to be annexed to each proposition with its statement and at the end of it a reference simply to the authorities re- > lied on, if any, in support of it, giving the order in which they should be cited.</p> <p>3. Appeal and E'rror <&wkey;742(3) — Assignment of Error — Statement — Rules of Court.</p> <p>Statement of assignment of error that the court erred in refusing to give a decision “upon the several demurrers set out in the several answers of defendants, filed in each of said causes,” giving the numbers, “and in ruling that all such demurrers had been waived,” is not in compliance with the rules of the Courts of Civil Appeals, being merely a reference to the record and other parts of the brief.</p> <p>4. Appeal and Error <&wkey;742(2) — Assignments on Different Subjects — Grouping —Absence of Propositions or Statements.</p> <p>Assignments of error which are grouped, though they are on different subjects, none being followed by a proposition or a statement, will not be considered.</p> <p>5. Appeal and Error <&wkey;742(l) — Assignments of ’ Error — Statement — Insufficiency.</p> <p>Statement, supporting assignment of error, which vaguely referred to other parts of the voluminous brief and the record, did not comply with the rules of the Courts of Civil Appeals as to such statements.</p> <p>6. Appeal and Error <&wkey;>742(6) — Assignments of Error — Absence of Statement.</p> <p>Assignments of error complaining that some undisclosed paragraph, from a given number to a given number, inclusive, found in a motion for the court to file conclusions of fact, had been ignored by the court, none of them being followed by a statement, cannot be considered.</p> <p>7. Taxation <&wkey;859(l) — Inheritance Taxes —Appointment of Administrator — Statutes — Constitutionality.</p> <p>Rev. St. arts. 7487-7502, providing for the collection of inheritance taxes, and appointment of an administrator for that purpose and to act generally, if no application for letters tes* tamentary or of administration shall be made, are constitutional.</p> <p>8. Executors and Administrators <&wkey;22(l) —Appointment to Collect Tax and for All Purposes.</p> <p>Under Rev. St. arts. 7487-7502, providing for collection of inheritance taxes, the county judge has authority to appoint a permanent administrator of the estate of a decedent, who has authority to administer the estate, and, among other things, to collect the inheritance tax, and not merely . a special administrator.</p> <p>9. Executors and Administrators <&wkey;97— Administrator to Collect Inheritance Tax — Contract with Attorney — Invalidity.</p> <p>Despite Rev. St. arts. 7487-7502, providing for collection of inheritance taxes and appointment of administrator for that purpose, and articles 3623, 3624, as to allowance of reasonable attorneys’ fees to executors and administrators, county judge held unauthorized to approve contract between administrator to collect inheritance tax on estate of decedent in another state, and an attorney, which contract was fraudulent and unconscionable as calling for such payments to attorney by way of retainer and for services as would exploit estate for his benefit.</p> <p>10. Wills ■<&wkey;245 — Probate — Compliance with Statute.</p> <p>Where the requirements of Rev. St. art. 3276, in relation to application for probate of a foreign will, were met, the will was entitled to probate, and the county judge had no power or authority to deny it. /</p> <p>11. Wills <&wkey;>245 — Probate—Right to Contest — Creditor—“Person Interested.”</p> <p>No one is entitled to contest probate of will of a resident of .another state under Rev. St. art. 7875, except a “person interested” therein, that is, one who either absolutely or contingently is entitled to share in the estate, so that a creditor of testator is not included.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Person Interested.]</p> <p>12. EXECUTORS AND ADMINISTRATORS <&wkey;324, 367 — Administrator’s Sale of Land — 'Void Character — Statutes.</p> <p>Sale of decedent’s land by administrator appointed to collect inheritance taxes pursuant to Rev. St. arts. 7487-7502, though approved by county judge, proceeds having been largely used to pay an attorney for the estate employed by contract void as unconscionable and in exploitation of the estate, held void; no attention having been paid to article 7494, requiring previous ascertainment of amount of tax, and the sale having been sought improperly under articles 3489, 3490.</p> <p>13. Executors and Administrators <&wkey;518: (4) — Foreign Decedent — Right of Execu-’ tors — Statute.</p> <p>A party in Texas could not, unknown to executors under the will of an Iowa decedent, have the will of such decedent probated, and afterwards prohibit the executors from administering the estate in Texas because more than 20 days elapsed after the probate before they sought to qualify under Rev. St. art. 3278.</p>

<p>Appeal from Taylor County Court; ■ E. M. Overshiner, Judge. '</p> <p>Action by Chester H. Lathrop against the Merchants’ Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Taylor County Court; E. M. Overshiner, Judge.</p> <p>Actions by Charles Motz, Jr., and Marshall Bernard Hants, against the Merchants’ Life Insurance; Company. Prom judgments for plaintiffs, defendant appeals.</p>

<p>1. Fraudulent Conveyances <&wkey;159(l) — Subsequent Creditors — Knowledge of Grantee.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3967, a conveyance made with intent to defraud subsequent creditors may be held void, where grantee had knowledge at time of conveyance of fraudulent purpose of grantor.</p> <p>2. Fraudulent Conveyances <&wkey;298(4) — Subsequent Creditors — Proof of Fraud.</p> <p>While.insolvency of a grantor at time of a conveyance or by reasons thereof is not in itself sufficient to render void said conveyance as to subsequent creditors, and while the creation of debts thereafter by the grantor is not sufficient to establish the fraudulent intent with which the conveyance was made, yet such facts and circumstances connected with entire transaction may constitute proof sufficient to show an intent to defraud subsequent creditors.</p> <p>3. Fraudulent Conveyances i&wkey;298(4), 301 (4) — Subsequent Creditors — Evidence.</p> <p>In action involving a conveyance of a farm and personal property, evidence held sufficient to justify finding that conveyance was executed by husband to wife with intent to defraud future creditors, and that such-intent was shared by grantee, who had knowledge at time indebtedness was created that husband was purchasing goods on credit, and that he was insolvent.</p> <p>4. Evidence <®=»230(4) — Declarations of Grantor.</p> <p>Statements of grantor in absence of grantee that a conveyance of land and personalty was intended as a will was not admissible • in an action involving the rights of creditors.</p> <p>5. Appeal and Error &wkey;>1050(2) — Harmless Error — Admission1 of Evidence.</p> <p>In an action involving question whether conveyance was in fraud of creditors, admission in evidence of a declaration of grantor that conveyance was intended to take place of a will was harmless; character of instrument, so far as its recitals were concerned, not being in issue.</p> <p>6. Fraudulent Conveyances <©=286(4) — Evidence'— Subsequent Conduct of Parties.</p> <p>In action involving question whether a conveyance from husband to wife was made to de-. fraud subsequent creditors, evidence that prior to year of conveyance grantor.was a close buyer, but that during said year he was a liberal buyer,. was admissible both against husband and wife,, who.received benefit of such purchases and in some instances bought articles herself.</p> <p>7. Injunction <§=199 — Relief to1 Defendant-Statutory Penalty.</p> <p>In injunction suit, where such issue was not submitted to jury nor requested by either party, though defendant in its. answer asked for penalty provided under Vcmon’s Sayles’ Ann. Civ.’ St. ]19l4(, art. 4667, held that court erred in allowing defendants 10 per cent, damages in way of statutory penalty.-</p>

<p>Costs <&wkey;254(5) — Appeal—Narrative Transcription on Testimony — Stenographer's Notes — Statute.</p> <p>Under Acts 32d Leg. c. 119, §§ 5, 6 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1924, 2070), amending Rev. St. 1911, arts. 1924, 2070, requiring official stenographer to transcribe testimony in question and answer form, so that request therefor is not necessary, and requiring him to make out a narrative form of the statement of facts when requested by appellant, for which he shall be paid by appellant, and the amount not taxed as costs, where narrative form of testimony was transcribed by stenographer, on request of appellant, his fee is not taxable as cost of appeal.</p>

<p>Appeal from District Court, McLennan County; Geo. N. Denton, Judge.</p> <p>Action by the National Equitable Society and others against James P. Alexander. Prom a judgment against him, George W. Barcus, receiver of the corporation, appealed.</p>

<p>Appeal from District Court, Jefferson County; E. A. McDowell, Judge.</p> <p>Action by T. O. Riley against L. G. Stump. Prom judgment for plaintiff, defendant appeals.</p>

<p>1. Damages <&wkey;112 — Destruction of Grass by Pire or Water.</p> <p>Measure of damages for grass and herbage destroyed by fire or water is the market value of the grass when destroyed, or, if without market value, its value in view of the use to which it was to be applied.</p> <p>2. Damages <&wkey;174(3) — Destruction of Pasturage-Evidence.</p> <p>In absence of any evidence in plaintiff’s suit tending to show there was any market value of grass, testimony as to what it may have been worth to plaintiff, or his wife, was properly admitted.</p> <p>3. Damages <&wkey;112 — Special Damages to Pasturage — Loss o-f Owner.</p> <p>Where railroad, after running line through plaintiff’s lands, by neglecting and refusing to close openings on right of way by fence and cattle guards, gradually destroyed value of grass and herbage as pasturage by failing to protect it from stock of others, case was one of special damages, to be measured by loss to plaintiff rather than market value of grass.</p> <p>4. Appeal and Error <&wkey;1004(3) — Cure of Error — Excessive Verdict — Remittitur.</p> <p>In action against railroad for destruction of pasturage by failing to fence right of way and, thus admitting stock of others to plaintiff’s pasturage, any error in excessive verdict for $1,200, evidence justifying verdict for at least $750', was cured by remittitur of $450.</p> <p>5. Damages <&wkey;>228 — Excessive Verdict — Authority to Require Remittitur.</p> <p>Where jury rendered excessive verdict, the trial court had authority to require remittitur to reduce verdict to a proper amount.</p> <p>6. Judgment <&wkey;194, 233 — Disposition of All Parties and Issues.</p> <p>A judgment was not erroneous because not disposing of one who was a party plaintiff in the original petition, and because not disposing of part of suit to cancel deed to defendant, where such party plaintiff was eliminated by amended petition, and prayer for cancellation of deed was made in case there was no recovery of damages, which were awarded.</p>

<p>Appeal from District Court, El Paso County; W. D. Howe, Judge.</p> <p>Suit by H. E. Bowden and wife against Alverta Waggoner and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>Apeal from District Court, Calhoun County; John M. Green, Judge.</p> <p>Suit by A. L. Jones against McKamey Bros. From a judgment for plaintiff, defendants appeal.</p>

Thomas, Judge. Suit for partition by Maria Louisa Farri-as and others against Juan Delgado. Judgment for plaintiffs. From orders at a subsequent term of court, setting aside the judgment and dismissing the suit, plaintiffs appeal.

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Suit by W. E. Hartt against the Yturria Cattle Company and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Lampasas County; F. M. Spann, Judge. '</p> <p>Action by J. E. Odiorne against J. C. Ramsey, who brought cross-action against F. F. Edwards. From an adverse judgment, defendant appeals.</p>

<p>1. Constitutional Law <§=»33 — Self-Executing Provision of Constitution — Lien for Repairs, etc.</p> <p>Const, art. 16, § 37, providing mechanics shall have a lien on buildings and articles made or repaired by them, for the value of labor done or material furnished, and that the Legislature shall provide for speedy and efficient enforcement thereof, is self-executing in the creation of the lien.</p> <p>2. Common Law <@=»12 — Application—Statutes— Constitution.</p> <p>. Where the statutes and the Constitution are merely declaratory of common principles and do not define the civil rights and remedies in any given case, the common law of England, so far' as not inconsistent with the Constitution and laws of the state, is applicable, as provided by Rev. St. art. 5492.</p> <p>3. Bailment <S=>18(2) — Lien of Bailee — Charges for Repairs.</p> <p>An artisan who repairs an automobile has a lien at common law, for his charges, independent of statute.</p> <p>4. Chattel Mortgages <©=»138(1) — Artisan’s Liens — Priorities.</p> <p>Where an automobile was mortgaged to a bank, as security for notes, extending over a considerable period of time, the mortgagor retaining possession and right to use and care for the machine at his expense, one furnishing necessary repairs had an artisan’s common-law lien, superior to a recorded chattel mortgage; Rev.. St. arts. 5665-5667, providing for mechanic’s liens, being but declaratory of the common law, 'fixing no priority as to other liens, as is done in the case of liens on buildings and improvements on land, by Rev. St. arts. 5628, 5629.</p> <p>5. Chattel Mortgages <S=»138(1) — Priorities —Construction of Liens — Laws.</p> <p>Rev. St. § 5671, providing that .nothing therein shall impair or affect the rights as to liens created by special contract, nor impair or affect other liens not referred to in the title relating to liens, means that priorities of liens existing independent of the statute shall be preserved, and therefore cannot be considered as making a chattel mortgage lien superior to a mechanic’s lien, since both liens exist independent of such statute.</p>

<p>Appeal' from District Court, Archer County; Wm. N. Bonner, Judge.</p> <p>Suit by George B. Hamilton against the Campbell Banking Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Justices oe the Peace <®=>72 — Venue — Plea oe Privilege — Waives.</p> <p>Where case was pending in justice’s court for several months, and five continuances were had, and no plea of privilege was ever called to attention of justice and ruling procured with respect thereto, the plea was waived.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Suit by Helen Gilroy and husband against R. E. Rowley and another. From judgment for defendants, plaintiffs appeal.</p>

Supreme Judicial District. Suit by the First National Bank of New Boston against L. C. Clark and another. There was a judgment of the Court of Civil Appeals (172 S. W. 747), reversing a judgment in favor of defendants, and the named defendant brings error.

<p>. Error to Court of Civil Appeals of Second Supreme Judicial District.</p> <p>Suits by J. L. Walker against the Hartford Fire Insurance Company and against the Equitable Fire & Marine Insurance Company, respectively. From a judgment of the Court of Civil Appeals (153 S. W. 398), affirming a judgment of the trial court in favor of the plaintiff, the defendants bring error.</p>

Action by J. L. Walker against the National Union Fire Insurance Company. Judgment for plaintiff, and defendant brought error to the Court of Civil Appeals, which reversed the judgment of the district court and rendered judgment for defendant, and the plaintiff brings error.

<p>1. Carriers <§=>236(1) — Duty to Receive Mentally Incompetent Passenger.</p> <p>A carrier is not required to accept as a passenger one without an attendant who is mentally incapable of caring for himself. ,</p> <p>2. Carriers <S=>281 — Mentally Incompetent Passenger — Duty Toward.</p> <p>Where passenger without attendant is mentally incapable of taking -care of himself, carrier with knowledge thereof is required to exercise such care; in- addition- to that given -the ordinary passenger as may be reasonably necessary for his safety, considering the conduct and disposition of mind manifested by the passenger.</p> <p>3. Carriers <§=>281 — Mentally Incompetent Passenger — Duty Toward.</p> <p>Where passenger’s mental disability is not observable, and carrier has no knowledge thereof, no added duty of caring for such passenger irf imposed upon carrier.</p> <p>4. Carriers <§=>281 — Incompetent Passenger-Notice to Trainmen.</p> <p>Where the only information possessed by trainmen of passenger’s abnormal mental condition was that he was laboring under a delusion that some one wanted to kill or rob him, and passenger was otherwise apparently sane, there being nothing in his manner to indicate that he was dangerous to other passengers or that he was likely to injure himself, trainmen could not anticipate that he would leave train while it was in motion or that he would thereafter voluntarily injure himself.</p> <p>5. Negligence <§=>59 — “Actionable Negligence.”</p> <p>To constitute “actionable negligence,” the injury must be a natural 'and probable consequence of ’ the negligence complained of, and must be such that it should have been foreseen in the light of attending circumstances.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Actionable Negligence.]</p> <p>.6. 'Carriers <S=>247(1)— Passenger or Trespasser.</p> <p>Where passenger jumped off train during afternoon of one day and was killed by train during following day while on track, he was not a passenger at the time of his injury, but merely a trespasser.</p> <p>7. Carriers <§=>283(2) — Incompetent Passenger-Duty ,oe Employés — Scope op Employ- ' MENT.</p> <p>Negligence of railroad for failure to care for mentally incompetent passenger could not be predicated upon failure of station agent, telegraph operator, and section hands, who had knowledge of such condition, to protect passenger from injury or report his condition to the company, the knowledge of such employés not being imputable to company, inasmuch as it was not their duty to make such report to the company.</p> <p>8. Principal and Agent <§=>178(1) — Imputed Knowledge — Scope op Authority.</p> <p>The knowledge of an agent, to be imputed to principal, must affect some matter .within the scope of the agent’s authority.</p>

Suit by Ellen Craigen and others against R. S. Jackson for the recovery of land alleged to £e community property of plaintiffs’, mother and stepfather.

<p>Appeal from District Court, Johnson County; O. L. Lockett, Judge.</p> <p>Suit by S. T. Hester against the Beaumont Cotton Oil Mill Company and another. From judgment overruling plea of privilege, defendants appeal.</p>

<p>1. Appeal and Eeeoe <5=759 — Bbiefs—Con-secutive Numbeeing, op Assignments— Rule op Couet.</p> <p>Under Rules for the Courts of Civil Appeals, No. 29 (142 S. W. xii), a brief wherein the assignments were numbered from 1 to 10, consecutively, omitting 4 and 5, was improper as not numbering all the assignments consecutively.</p> <p>2. Appeal and Eeeoe <©=742(2) — Assignment op Eeeoe — Multipabious Ghabacteb —Peopositions Not- Geemane — Lack op Suppoet by Adequate Statement.</p> <p>Assignment of'error, divided into six separate paragraphs, each separately numbered, except the first, and each paragraph within itself being a separate assignment, which is followed by no statement whatever, except “See testimony V., S. F. 3 et seq., testimony R., S. F. 50 et seq., testimony H., S. F. 30 et seq.,” is improper as multifarious, having propositions under each paragraph not germane to the assignment, and as not supported by adequate statements, and should not be considered, in view of the Rules for the Courts of Civil Appeals, Nos. 25, 26, and 30 (142 S. W. xii, xiii).</p> <p>3. Appeal and Eeeoe @=766 — Impeopee BEIEPING — CONSIDEEATION OP BEIEP.</p> <p>Where appellee is deprived of no valuable right by omission of appellant in briefing, the Court of Civil Appeals would not be disposed to disregard his brief, but under its rules on appeal appellant has the laboring oar, and it is the duty of his counsel on his professional hon- or to state all the facts in the record supporting his assignments, and when he fails he deprives appellee of a valuable right, and the brief will not be considered.</p> <p>4. Appeal and Eeeoe <©=757(1) — Absence op Statement and Supplemental Beiep — Acceptance op Statements in Adveese Pae■ty’s Beiep.</p> <p>Where appellants make no statement, and do not file a supplemental brief contesting the statements made by .appellees, the Court of Civil Appeals will take such statements' as correctly reflecting the fhcts of the record.</p> <p>5. Landlord and Tenant <S=79(2) — Sublease as Assignment — Responsibility of Sublessors.</p> <p>Where a lessee in turn leased the premises for the same length of time, there was an assignment of his lease, and the sublessees became responsible to the lessor to the same extent as if the contract of lease had been made directly to them.</p> <p>:6. Landlord and Tenant <§=>246(4) — Landlord’s Lien — Cattle of Sublessees — Statute.</p> <p>Under Rev. St. 1911, art. 5664, the lessor of pasture lands held a lien on the cattle of sublessees of such lands for the rent due from the lessee.</p> <p>7. Landlord and Tenant <§=»75(3) — Sublease-Binding Force on Lessor.</p> <p>Where it was understood between the lessor and lessee of pasture lands that the lessee was to sublet or assign to other parties, the lessor, though not having the particular subles-sees in mind, is bound by the lessee’s assignment or sublease; the relation of landlord and tenant existing between him and the sublessees.</p> <p>8. Evidence <§=>441(4) — Parol Evidence-Sublease or Assignment.</p> <p>In suit by lessor and lessee against subles-sees, the latter cannot defend on the ground of a parol statement made before the sublease or assignment was executed.</p> <p>9. Evidence <§=>441(4) — Parol Evidence-Sublease.</p> <p>In suit by the lessor and the sublessor of pasture lands, proof that the sublessor falsely represented to his lessees that he owned 20,000. acres of land over which their cattle could graze, thereby inducing the sublessees to lease, would have been inadmissible as varying the terms of the writing by a parol contemporaneous agreement to furnish lands not specified.</p> <p>10. Appeal and Error <§=>719(6) — Fundamental Error — Misrepresentations as Defense — Direction oe Verdict.</p> <p>In suit by lessor and sublessor of pasture lands, direction of verdict for plaintiffs held not erroneous in so far as concerned the allegation of defendants that the sublessor took them around the leased premises, and pointed out certain lands as being include^, which in fact were not included, where such lands are not described or their value stated; allegation not being sufficiently specific for Court of Civil Appeals to determine under a proposition of fundamental error whether or not the court hád erred in so directing verdict.</p> <p>11. Appeal and Error <§=»719(6) — Fundamental Error — Breach as Defense — Direction of Verdict.</p> <p>In suit by lessor and sublessor of pasture lands, direction of verdict for plaintiffs, in view of testimony of a defendant, held not patently erroneous on an assignment of fundamental error in relation to the sublessees’ plea that their cattle did not do well on the lands described in the sublease, and that the sublessor refused to furnish other lands as he had agreed to do.</p>

B. Minor, Judge. Suit by Charles W. Green against Nellie Hesse and another, in which by plea A. G. Morriss was made a party. From judgment for Nellie Hesse against said Morriss, the latter appeals.

<p>1. Insurance <©=>679 — Assumption of Liabilities by Another Company.</p> <p>A contract of one company assuming the liabilities of another company does not constitute an issuance of a new policy upon the life of one dead at the date of such contract, nor an extension of the period of limitation which had begun to run.</p> <p>2. Insurance <§=>177 — Premiums — Default After Injury. ■</p> <p>A beneficiary can recover upon an accident policy for injury occurring during the period ■for which a premium was paid, though death from the injury took place after such period.</p> <p>3. Limitation of Actions <©=>24(1) — Insur- .. ance <§=>558(4), 623(1) — Proof of Claim-Failure to Furnish Blanks — Waiver— - Statute of Limitations.</p> <p>Where the beneficiary in an accident- policy wrote to the insurer within 90 days after death of insured, as provided by the policy, to furnish blanks required for proof, but insurer failed to furnish same, such failure constitutes a waiver of insurer’s right to such proof, and of the contractual period of limitation stated in the policy in pursuance of Vernon's Say les’ Ann. Civ. St. 1914, art. 4742, and hence the statutory period of four years applied.</p> <p>4. Limitation of Actions -<§=>199(1) — Insurance Policy — “Reasonable Time.”</p> <p>Unless the facts are clear, the question as to what is a “reasonable time” after refusal of insurer to furnish blanks for proof of loss under an accident policy, during which time limitations would not run against action by insured, is a mixed question of law and fact to be submitted to the jury under proper instructions; “reasonable time” being such promptitude as the situation of the parties and the circumstances allow (citing Words and Phrases, vol. 4, p. 186).</p> <p>5. Insurance <©=>668(14) — Question for Jury — Notice and Proof.</p> <p>Whether the beneficiary in an accident policy notified the insurer of the death of insured and. requested blanks required by the policy for proof of claim, and received no reply and no blanks were sent, held a question of fact for the jury.</p> <p>6. Insurance <©=>146(3), 623(1) — Action on Policy — Limitation Provisions — Construction.</p> <p>The provision in an insurance policy for shortening the period of limitation, being one for the benefit of the insurer, may be waived, and will be construed strictly against the insurer and liberally in favor of the beneficiary.</p>

<p>Appeal from District Court,' 'Freestone County; A. M. Blackmon, Judge.</p> <p>Action by R. F. Chandler and wife against .John Riley and others. Judgment of dismissal, and plaintiffs appeal.</p>

<p>1. Injunction <S=»143(2) — Ex Parte Hearing — Pleading.</p> <p>To be entitled to an injunction upon an ex parte hearing, and without notice, the plaintiff must show by proper allegations a right in himself to do the act which he seeks to perpetuate, and must negative every possible hypothesis upon which defendant might lawfully do the act which he seeks to enjoin, and plaintiff must show immediate and pressing necessity which prevents a hearing.</p> <p>2. Injunction <®=»143(2) — Ex Parte Hearing — Removal oe Dam.</p> <p>Petition of pasture land owner to restrain removal of dam, erected to impound water for his cattle in dry season, held insufficient to entitle him to injunction upon an ex parte hearing, not showing, except by inference, that his land abutted upon the bayou, or that defendant was not the owner of the land or entitled to the water.</p>

<p>Appeal from Medina County Court; R. J. Noonan, Judge.</p> <p>Suit by H. L. Raley against Bowman & I Blatz. From judgment for plaintiff, defend-i ant appeals.</p>

<p>1. Municipal Corporations ©=>757(1) — Maintenance op Streets — Duty op City.</p> <p>It is the duty of a city to see that its streets be made and maintained in a reasonably safe condition for use by the public.</p> <p>2. Municipal Corporations ©=>821(3) — Use op Streets — Action por Negligence — Jury Question.</p> <p>In action against city for negligence in maintenance of street, whether acts constitute negligence is a jury question, where there is no statutory law making such acts negligence.</p> <p>3. Municipal Corporations ©=>821(13) — Maintenance op Streets — Court Rule.</p> <p>Whether city was negligent in failing to provide a railing or barrier along a street adjacent to a deep ravine was a question for the jury in the absence of statute making such failure negligence.</p> <p>4. Death ©=>11 — Actions por — Common Law.</p> <p>Under the common law, damages were not recoverable for death; the right of action having died with deceased.</p> <p>5. Death ©=>33 — Right op Action — “Person” or “Corporation.”</p> <p>A municipal corporation is not a “person or corporation” within A'ernon’s Sayles’ Ann. Civ. St. 1914, art. 4694, giving action for death “caused by the wrongful act * * * of. another person or corporation.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Corporation ; Person.]</p>

<p>Appeal from Falls County Court; F. S. Heffner, Judge.</p> <p>Suit by the City of Rosebud against Tom Vitek. From judgment for defendant, plaintiff appeals.</p>

B. Muse, Judge. Suit by Mary A. Sharpe against Edward T. Harrison to set aside a judgment and all proceedings thereunder in a tax suit. Decree for plaintiff, and defendant appeals.

<p>1. Sales <S=23(3) — Order—Acceptance.</p> <p>Where buyer’s order for shoes given to seller’s salesman was received by the seller, the seller was bound thereby, where no notice was given the buyer that the order would not be filled.</p> <p>2. Sales <§=23(3) — Order — Acceptance —Repudiation.</p> <p>For a seller to effectively repudiate a buyer’s order for goods given to the seller’s salesman and received by the seller, the seller must repudiate the order in a reasonable time.</p> <p>On Motion for Rehearing.</p> <p>3. Pleading <$=376 — Burden op Proof —Admissions—General Denial.</p> <p>Where defendant pleaded a general denial, any admissions thereafter pleaded in the answer would not lift the burden from plaintiff of proving his case against the general denial.</p> <p>4. Appeal and Error <$=215 (1) — Objec- • tions Below — Instructions.</p> <p>On appeal, objections to a charge not embodying fundamental error cannot be considered, where error in the charge was not called to the notice of the court below by any objection.</p>

<p>1. Trespass to Try Title <®=s>38(2) — Action —Evidence—Burden op Proof — Superior Title.</p> <p>In trespass to try title, where the parties agreed as to a common source, it was incumbent upon plaintiff to show superior title from such source.</p> <p>2. Judgment @=»533 — Construction—Title to Land.</p> <p>In trespass to try title, a judgment in a former case between other parties held a mere recital, and not an adjudication of title to the land in question.</p> <p>3. Trespass to Try Title @=»41(2) — Evidence-Burden op Proop.</p> <p>In trespass to try title, evidence held not to show that plaintiff had discharged the burden of showing title from the agreed common source superior to that of defendants.</p>

<p>1. Appeal and Error <©=>1004(1) — Damages —Mental Suffering.</p> <p>There is no fixed rule for measuring damages to be allowed for mental suffering, and, jury being exclusive judges of facts, it must clearly appear that amount awarded is excessive before an appellate court will be authorized to disturb a verdict.</p> <p>2. Telegraphs and Telephones <®=>71 — Damages — Mental Suffering — Amount.</p> <p>In an action against a telegraph company for damages by reason of delay in a message whereby plaintiff was prevented from attending the funeral of her father, a verdict of $1,627 held not excessive.</p>

G. Tayloe, Judge. Action by Asher Richardson against the Bermuda Land & Live Stock Company. On plaintiff’s death, the action was continued in the name of Mary I. Richardson and another, his executors. Judgment for defendant, and plaintiffs appeal.

Error from District Court, Hill County; Horton B. Porter, Judge. Action by P. J. Jones against the Texas Electric Railway. Judgment for defendant, a new trial was denied, and plaintiff brings error.

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge;</p> <p>Suit by C. R. Conner against Schnell & Weaver. Judgment for defendants, and the plaintiff appeals.</p>

<p>Appeal from District Court, Dallas County ; Kenneth Foree, Judge.</p> <p>Action by Mrs. M. P. Choice against the City of Hollas and A. E. Firmin and wife, with cross-bill by defendant Firmin and wife. General- and special exceptions urged by defendant City to plaintiff’s petition and to the cross-bill sustained, and plaintiff and Firmin and wife appeal.</p>

<p>1. Evidence <©=>543(4) — Expert Testimony-Competency oe Witness — Damage to Automobile Truck.</p> <p>Dealer in particular make of automobile truck at certain place, who was familiar with their market value at such place upon day of damage t® a truck of that particular make, and who had examined truck minutely after accident to ascertain extent of damage, was competent to testify.</p> <p>2. Evidence <®=543(4) — Expert' Witness-Competency — Market ■ Value.</p> <p>A dealer in personal property at any given place is generally accepted as an expert witness upon its market value.*</p> <p>3. Evidence <©=>66 — Presumption — Knowledge — Market Value.</p> <p>Dealer, having authority to sell particular truck in certain city, will be presumed to be well informed as to the market value of the truck in such city, and in city in which he himself purchases the trucks.</p> <p>4. Evidence <⅜=543(4), 572 — Expert—Damage to Truck — Weight.</p> <p>In action for damage to automobile truck, that dealer, who had authority to sell such trucks at place in which accident took place, and who testified to being familiar with the market value of such trucks at such place, had actually sold only one truck of that kind at such place, did not affect the admissibility of his evidence, but merely its weight.</p>

<p>Appeal from District Court, Chambers County; J. Llewellyn,# Judge.</p> <p>Suit by Ollie Barber against the Old River Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Comanche County Court; J. H. McMillan, Judge.</p> <p>Action by S. T. Wilhite against the Ft. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, McLennan County; Geo. N. Denton, Judge.</p> <p>Suit by S. A. Cavitt against S. Amsler, for specific performance. Decree for plaintiff, and defendant brings error.</p>

Action by D. C. Walker and another against A. J. Van Cleave, B. P. Walling, and another. Prom judgments for plaintiff, the named defendants appeal.

Trespass to try title by R. J. Randolph against C. W. Lewis. From a judgment of the Court of Civil Appeals (163 S. W. 647), affirming a judgment in favor of defendant, plaintiff brings error.

<p>1. Adverse Possession <&wkey;98 — Inclosure— Claim Limited to Tract Inclosed.</p> <p>Where a party’s improvements were all on a certain survey, and there was no visible evidence of his claim to the land in controversy in another survey, except an encroachment by fencing a small portion thereof, there was no such possession of the land as gave notice of any claim except as to that inclosed.</p> <p>2. Appeal and Error <&wkey;1178(6) — Remanding Case por Further Evidence.</p> <p>As the burden is on one claiming land by adverse possession for the period of limitation by fencing to identify the particular land to which he was entitled under plea of limitation, he cannot complain that on appeal the cause was remanded to afford him an opportunity to supply the defect by evidence without grant of new trial.</p> <p>3. Appeal and Error <&wkey;714(l) — Facts Outside of Record — Consideration.</p> <p>Alleged facts outside of the record may not be considered upon appeal.</p>

<p>Criminal Law &wkey;»1090(8) — Absence of Statement of Facts and Bills of Exception — Review.</p> <p>Record being before court on appeal without a statement of facts or bills of exception, the only ground of motion for new trial, namely, want of sufficient evidence, cannot be considered, and judgment will be affirmed.</p>

<p>Appeal from District Court, Newton County ; W. T. Davis, Judge.</p> <p>Suit by Emanuel Brown and others against W. H. Stark and others. From judgment for plaintiffs, defendants appeal.</p>

<p>1. Trial <&wkey;351(2) — Special Issues — Eero-' neous Requests.</p> <p>Under Rev. Civ. St. art. 1985, requests for special issues need not embody correct propositions of law on the issue to constitute such a request as will require the court to submit the issue. ,</p> <p>2. Trial <&wkey;351(2) — Special Issue —Province op Jury — Duty op Court to Declare the Law. .</p> <p>In an action to recover land, the objection to the submission of an issue on the statute of limitations that it would include land not subject thereto would not justify refusal to submit the issue, since the jury were to find the facts and the court to declare the law thereon.</p> <p>3. AnvERS® Possession &wkey;>115(l) — Suppi-ciency to Require Submission op Special Issue op Limitation.</p> <p>In trespass to try title evidence held sufficient to require submission to the jury of the special issue as to defendant’s ownership of the land.from continued privity of possession under claim of right, under the ten-year statute of limitations.</p> <p>4. Adverse Possession <&wkey;43(7) — Privity op Title — Sale — Foreclosure op Vendor’s Lien.</p> <p>Where a vendor conveyed, retaining a lien to secure purchase-money notes, and by action in court rescinded the conveyance for nonpayment of -lien notes, later obtaining quitclaim deeds from the purchasers, such “transactions made no break in the privity of vendor’s title.</p> <p>5. Boundaries <&wkey;37(3) — Evidence—Surveys —Location op Monument — Findings.</p> <p>In an action to recover land, evidence held sufficient to support the finding of the jury as to the location of a monument from which surveys were run and by running courses and distances from corner so established that the strips of land in question belonged to three certain sections as contended by plaintiff.</p> <p>6. Boundaries <&wkey;3(5) — Surveys—Calls por Courses and Distances — Unmarked Lines.</p> <p>Calls for adjoining surveys should not be rejected because the distance gave out from this selected corner before reaching the adjoining survey called for, but such call should have its proper weight and according to evidence made at the time and found on the ground, and it is not an invariable rule that course and distance will prevail over a call for unmarked lines.</p>

<p>Appeal from District Court, Clay County; Wm. M. Bonner, Judge. ■</p> <p>Action by W. B. Worsham & Co. against Henrietta Oil & Gas Company and another. Judgment for plaintiffs, and the named defendant appeals.</p>

<p>Appeal from District Court, Travis County ; George Calhoun, Judge.</p> <p>Suit by the City of Austin against the Millers’ Mutual Eire Insurance Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Wichita County; Wm. M. Bonner, Judge.</p> <p>Action by Charles F. Scott against A. J. Schultz. Judgment for plaintiff and defendant appeals.</p>

<p>1. Sales <$=>58 — Conditional Contracts— Manufacture and Shipment of Goods.</p> <p>A contract whereby defendant was to make 200 bales of cotton linters, mill run, being seller’s make, at 3⅛ cents per pound, f. o. b. cars, and to ship them to plaintiff in car lots “as fast as made,” was not a contract conditional on-the making of the linters; the phrase “as fast as made” relating only to the shipment, and not being a condition precedent to the duty to ship.</p> <p>2. Sales <$=172 — Breach—Excuse.</p> <p>Where a contract for the manufacture of cotton linters did not mention the question of power in running defendant’s mill, the failure of a power company to furnish power to defendant, whereby defendant was prevented from manufacturing the linters, did not excuse a breach of the contract, it being possible for defendant to have procured power elsewhere.</p> <p>3. Contbacts <©=>309(1) — Beeach—Impossi-bility of Performance.</p> <p>One may by an absolute contract bind himself to perform contracts which subsequently become impossible or to pay damages for nonperformance, and such construction is to be put on an unqualified undertaking where the event which causes the impossibility was or might have been anticipated and guarded against in the contract, or where the impossibility arose from the act or default of the promisor.</p> <p>4. Contracts <$=>309(1) — Breach—Impossibility of Performance.</p> <p>Where the event which prevents the performance of a contract is of such a character that it cannot reasonably be supposed to have been in contemplation of the contracting parties, they will not be bound by general words which, though large enough to conclude, were not used with reference to the possibility of the particular contingency which afterwards happened.</p> <p>5. Appeal and Error <§=>931(6) — Review— Admission of Evidence.</p> <p>Where the trial is by a court without a jury, and there are no findings of fact in the record, it will be presumed on appeal in support of the judgment that the court did not consider improper testimony although admitted.</p>

<p>1. Husband and Wife <@=>119 (3) — Husband’s Conveyance to Wife — Community Property.</p> <p>Though husband did not know full legal effect of a deed conveying a lot to his wife as her separate property, but where it was partly intended by him to hide his interest in property from creditors, its different effect, though not contemplated, was not a mistake of fact of either party or the attorney preparing the conveyance.</p> <p>2. Equity <@=>7 — Mistake of Law — Relief.</p> <p>A mistake of law is no ground for relief, as ignorance is not mistake, and equity will not grant relief upon the mere supposition that the party was ignorant of the legal effect of his act or of his omission to act.</p> <p>3. Contracts <@=>93(1) — “Mistake of Fact.”</p> <p>A mistake of fact is an unconscious ignorance or forgetfulness of the existence or nonexistence of a fact, past or present, material to the contract.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Mistake of Fact.]</p> <p>4. Husband and Wife <@==>119(3) — Husband’s Deed to Wife — Wife’s Separate Property or Trust. *</p> <p>Before a trust, either implied or expressed, can be impressed upon a clause in a conveyance of a lot caused to be executed by a husband to his wife making it her separate property, it must first be shown that such provision was inserted either through fraud, accident, or mistake.</p> <p>5. Husband and Wife <@=>119(3) — Deed to Wife — Separate Property or Trust — Estoppel.</p> <p>Where a husband, with knowledge of the terms of a conveyance, caused it to be executed to his wife, making the lot conveyed her separate property, and it was delivered to her with his consent and his knowledge that title to lot was'in her, and where there was no understanding between them as to any trust, he was estop-ped to ingraft an unimplied trust on the deed or title.</p> <p>6. Husband and Wife <@=>235(4) — Deed to Wife — Separate Property — Mistake.</p> <p>Where jury did not find any mistake in drafting a conveyance of a lot to a wife as her separate property, and found that husband did not intend to make it her separate property, and did not know that deed as drawn would have that effect, but that it was delivered with his knowledge that title to lot was in her name, and that he intended to put title in her to protect it from his creditors, there was no finding that separate property clause was inserted by mistake.</p> <p>On Motion for Rehearing.</p> <p>7. Husband and Wife <@=>119(3) — Deed t.o Wife — Separate Property.</p> <p>_ If a husband causes a deed for property paid for with community funds to be made to the wife for her separate use and causes the deed to so recite, it will vest the title in wife as her separate estate.</p> <p>8. Husband and Wife <@=>235(4) — Contradictory Findings — Judgment.</p> <p>■JVhere husband claimed that a lot conveyed to his wife as .her separate property was community property, the jury’s findings that he did not intend to make it her separate property, and did not know that deed had that effect, but intended to put title in her to protect it from claims of his creditors, were contradictory, and would not support a judgment for husband.</p> <p>9. Fraudulent Conveyances <@=>172(2) — Husband and Wife — Estoppel.</p> <p>Where a husband had creditors when he caused a conveyance of a lot to be made to his wife as her separate property, in order to hide his property, it was fraudulent, and he could not be heard to say that he did not intend to put title in her.</p> <p>10. Homestead <@=>31, 32 — Intention — Occupancy.</p> <p>It takes more than a mere intention to constitute a homestead, and while actual occupancy of the land is not, under all circumstances, indispensable, there must be something more than mere intention where there has been no actual occupancy as a homestead, such as an existing bona fide intention to dedicate it as a homestead, evidenced by some unmistakable acts showing an intention to carry out such design.</p> <p>11. Trusts <@=>361 — Action—Setting Aside Deed.</p> <p>If land conveyed to a wife by a deed reciting it to' be her separate property was held in trust for husband, a suit could be maintained by him, it not being necessary to set aside or correct deed before suing for the interest claimed.</p>

<p>1. Teial <§=83(1) — Reception oar Evidence —Hypothetical Question — Objection.</p> <p>An objection to a hypothetical question put to an expert witness that it was “a hypothetical question in which all the facts are not before the witness” held too general and indefinite to be sustained, especially where, when the attorney asking the question asked for the facts omitted, none were given, and the same hypothetical questions were asked and like answers returned by other expert witnesses without objection.</p> <p>2. Depositions <§=109 — Mode oe Making— Objections.</p> <p>Objections to interrogatories because they were prefaced by a synopsis of the allegations of the petition and because they were leading were objections going to the form and manner of taking, and therefore could not be considered where they were not made in writing and taken as required by Rev. St. 1911, art. 3676, and called to the attention of the court, but were made in open court during the trial.</p> <p>3. Cabbiees <®=416— Sleeping Cab Company —INJUBY EBOM ÜNIIBATED CAB — EVIDENCEt-Admissibility.</p> <p>In action against sleeping car company for injury from being transported in an insufficiently heated ear, testimony of the defendant’s assistant superintendent as to the duty of the defendant’s porter to build a fire in the sleeper was properly admitted.</p> <p>4. Appeal and Ebbob <§=1050(1) — Admitting Testimony — Similae Testimony Received Without Objection.</p> <p>Appellant cannot complain of the admission of improper testimony where other witnesses testified to the same fact without objection.</p> <p>5. Oabbie.es <3=411 — Sleeping Cab Company —Injuey to Passengeb^-Deeenses.</p> <p>Where sleeping car passenger was aroused by sleeping car employe and compelled to leave the car in which he was sleeping and directed to another car not heated, in which he was refused a berth, and compelled to sit in clothing which had become wet by exposure to rain during the transfer, the sleeping car company was liable therefor, and could not defend by showing that the railway company had told it to make the transfer.</p> <p>6. Cabbieks <§=416 — Injuey to Passengee— Submitting Liability oe Joint Tobt-Fea-soes to Juey.</p> <p>In passenger’s action for injuries against sleeping car and railroad companies, the sleeping car company could not complain that the liability of the railway company was not submitted to the jury, so far as the judgment rendered against it in favor of the passenger was concerned ; both it and the railway company being joint tort-feasors.</p> <p>7. CONTBIBUTION <§=5 — JOINT TOBT-FEASOES.</p> <p>Although railway company ordered that passengers in a sleeping car be transferred to another car, if the sleeping car company compelled a passenger, in making the transfer, to walk through rain and mud, and refused to heat the second coach and to give a berth therein to the passenger, it had no right to demand contribution from the railroad for the passenger’s damages from injuries so received; it being the active and direct agent concerned therein.</p> <p>8. CONTBIBUTION <§=5 — JOINT TOBT-FEASOES.</p> <p>The doctrine of contribution is never applicable to one who was concerned in committing the tort.</p> <p>9. Cabbiees <§=411 — Sleeping Cab Company —Responsibility fob Acts oe Pobtbe.</p> <p>Where sleeping ear company gave orders requiring cel-tain action on the part of its porter, it was liable for such action, although in performing it the porter failed to act with ordinary prudence.</p> <p>10. Cabbiees <§=411 — Sleeping Cab Company — Negligence in Tbansfeeeing Passen-gebS.</p> <p>The duty arising from the relation of carrier and passenger between a sleeping car company and its passenger to use proper care in transferring the passenger from one sleeper to another is not affected by'the fact that the company does not ■ control the trains to which its coaches are attached.</p> <p>11. Appeal and Ebbob <§=742(5) — Assignment of Ebbob — Statement.</p> <p>In action by sleeping car passenger for injuries from being carried in an unheated car, an assignment of error of the company complaining of refusal of instruction that the comfort of passengers who were asleep could not be sacrificed in the interest of those awake by putting on the heat could not be sustained, where, in the statement following the assignment, appellant failed to point out how any such sacrifice would have resulted.</p> <p>12. Negligence <®=2 — Rules oe Coepoba-tions.</p> <p>Rules of corporations cannot justify negli* gence.</p> <p>13. Trial <§=>233(1) — Instructions—Submit-' ting Two Issues.</p> <p>In action by sleeping car passenger for injuries from being refused a berth in a sleeper to which he was transferred, a charge submitting the issue as to whether a berth was requested by him and refused by the defendant sleeping car company was not objectionable as submitting two issues.</p> <p>14. Trial <§=>261 — Instructions Requested En Masse.</p> <p>Where defendant asked the submission in bulk of 23 issues, on different matters, they were properly refused, when at least a portion thereof had been embodied in the charge of the court, as the court, under such circumstances, was under no obligation to attempt to pass upon the correctness of such a mass of issues.</p> <p>15. Trial <§=>232(2) — Instructions—General Charge.</p> <p>A requested general charge requiring a general verdict in a case submitted on special issues is properly refused.</p> <p>Í6. Negligence <§=>61(1) — “Proximate Cause” — Concurring Causes.</p> <p>It is not essential that a cause should act alone in order to constitute it the “proximate cause”; but, if it concurs with another cause in producing the injury, it will be a proximate cause, and one or both of the instruments setting the cause in motion'will be liable.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]</p> <p>17. Carriers <§=>411 — Sleeping Oar Company — Injury to Passenger — Proximate Cause.</p> <p>Notwithstanding the concurrent negligence of another, if a sleeping car company’s negligence in causing the transfer of its passenger to another sleeper and in failing to heat the second sleeper or refusing a berth therein produced a condition from which the passenger’s tuberculosis developed, the causal connection between such acts and the tuberculosis was unbroken, and the company was liable.</p> <p>18. Damages <§=>132(1) — Excessiveness.</p> <p>Where sleeping car company compelled its passenger to transfer from one coach to another, exposing him to rain and cold, and then failed to heat the second coach, and denied him a berth therein, from which acts he contracted tuberculosis and was without hope of recovery, a verdict for $30,000 was not excessive, where-he was only 46 years old and was incapacitated from work and had been earning $4,000 a year.</p>

<p>Appeal from District Court, Hardin County; J. Llewellyn, Judge.</p> <p>Suit by B. L. Aycock against the Reliance Oil Company and another. From judgment for defendants, plaintiff appeals.</p>

<p>Appeal from Hardin County Court; W. S. Parker, Judge.</p> <p>Suit by B. U. Aycock against the Paraffine Oil Company and another. From judgment for defendants, plaintiff appeals.</p>

<p>1. Trial <§=3169 — Direction or Verdict — Defect in Parties Plaintiff.</p> <p>It was no ground for peremptory instruction to return verdict for defendant that claim sued on in name of firm belonged to members jointly that one was dead, having left an estate, a widow, and two minor children, and that no administration had been had, while neither his heirs nor legal representatives were made parties plaintiff.</p> <p>2. Carriers <§=229(1) — Carriage of Live Stock — Injuries in Transit — Elements of Damage.</p> <p>In action against carrier for damages to mules in transit, cost of feed and care after injury, and price afterwards received for them at a point other than destination, had no proper place in applying the true measure of damages.</p> <p>3. Carriers @=228(1) — Carriage of Live Stock — Damages—Showing of Value After Injuries.</p> <p>In action against carrier for damages to mules in transit, there having been intrinsic value of the mules at destination after injuries, it should have been shown what the value was before damages could have been legally awarded.</p> <p>4. Carriers @=205 — Carriage of Live Stock — Liability for Injuries — Propensities of Animals.</p> <p>A carrier is not an insurer in the transportation of live stock, and is liable only for injuries caused by its negligence, not being legally responsible for injuries resulting from the natural vice or the nature and propensities of the animals carried.</p> <p>5. Carriers <3=>228(5) — Carriage of Live Stock — Injuries — Sufficiency of Evidence.</p> <p>In action against carrier for injuries to mules in transit, evidence, though it did not show the injuries were due to the propensities of the animals, etc., held insufficient to sustain verdict for plaintiffs.</p> <p>6. Carriers @=»230(9) — Carriage of Live Stock — Action for Injuries — Instruction.</p> <p>In action against carrier for injuries to mules in transit, instruction that common carrier is not an insurer of live stock received by it for transportation, but responsible only if careless and negligent, etc., held improper, on account of the use of the word “careless.”</p> <p>7. Carriers <§=»228(5) — Carriage of Live Stock — Negligence—Burden of Proof.</p> <p>In action against carrier for injuries to mules in transit, plaintiffs were not required to prove negligence to the satisfaction of the jury, but only by a preponderance of the evidence.</p> <p>8. Carriers <S==j230(9) — Carriage of Live Stock — Action for Injuries — Instruction.</p> <p>In action against carrier for injuries to mules in transit, carrier was entitled to charge that a common carrier is not an insurer of live stock received for transportation, but liable only for injuries caused by its own negligence.</p> <p>9. Carriers <S=»229(2) — Carriage of Live, Stock — Injuries in Transit — Measure of Damages.</p> <p>Measure of damages for injuries to mules by negligence of carrier in transit is difference between their market value at destination, if transported without negligence, and their real and intrinsic value at destination in the condition in which they were delivered; the evidence being there was no market value for injured stock at destination, but that mules had an intrinsic value.</p> <p>10. Carriers <®=»-230(9) — Carriage of Live Stock — Action for Injuries — Instruction.</p> <p>In action against carrier for injuries to mules in transit, instruction presenting issue of carrier’s negligence in not preventing injury to mules caused by proper vice or propensities of animals held unsupported by evidence.</p>

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Action by Fred L. Edwards against Metropolitan Casualty Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from McLennan County Court", Geo. N. Denton, Judge.</p> <p>Suit by Annie Wallace and others against the American National Insurance Company and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Compromise and Settlement <5=>24r-DE-mands Included — “Accounts.”</p> <p>Plaintiff’s receipt, reciting that the amount “settles all accounts” between plaintiff and defendant “up to date,” did not,.as a matter of law, settle a claim based on defendant’s check to plaintiff, dated prior to the receipt, and by agreement not to be presented by plaintiff until a certain date, which in fact was after the date of the receipt; for in ordinary parlance a check would not be included in the word “accounts.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Account.]</p> <p>2. Compromise and Settlement <§=>23(3)— Evidence.</p> <p>Evidence held to sustain finding that defendant failed to establish that settlement pleaded covered plaintiff’s claim on defendant’s check.</p> <p>On Motion for Rehearing.</p> <p>3. Compromise and Settlement ⅞=»23(1)— Evidence — Burden oe Prooe.</p> <p>Defendant had burden of proving his plea of compromise and settlement of the claim evidenced by his check sued on by plaintiff.</p>

<p>1. Evidence <@=>488 — Opinion Evidence —Market Value — Actuad Value.</p> <p>In suit against railway for damages by fire to grass and land, where no market value is shown, the opinion of witnesses, qualified as practical and experienced men,' as to its actual value, is admissible.</p> <p>2. Evidence <@=>142(1) — Value — Otees Sales.</p> <p>Value is not fixed at the place whore buyers and sellers meet, hut is established or shown by sales, public or private, in the ordinary course of business.</p> <p>3. Evidence <@=>113(1) — Value — “Market Value.”</p> <p>Supply and demand, the use and benefit, the quantity and quality, what buyers are willing to give and sellers to take, all enter into “market value.”</p> <p>[Ed. Note — For otter definitions, see Words and Phrases, First and Second Series, Market Value.]</p> <p>4. Evidence <®=50Í(7) — Opinions — Value op Grass.</p> <p>In suit against railway for damages by fire to grass and land, one who shows that he has been dealing with grass pastures and land and observed the price paid and the sales for years may be able to give an opinion as to market value of grass at the time of the injury, although no sales are shown at or about that time.</p> <p>5. Evidence <S=501(7), 568(4) — Market Value — Foundation.</p> <p>It is a sufficient predicate for the admission of opinion evidence as to market value that the witness is willing to testify that he knows it; and cross-examination showing insufficient knowledge goes only to the weight of the testimony or the credibility of the witness.</p> <p>6. Evidence ⅞=»498⅛ — Opinion Evidence —Discretion.</p> <p>The admission of opinion evidence as to market value of an article is largely discretionary.</p> <p>7. Evidence <S=>508(4) — Opinion Evidence —Value—Credibility.</p> <p>The credibility of opinion evidence as to market value of an article is for the jury.</p>

W. Coleman, Judge. Suit by J. P. Boatenhamer against Pittman & Harrison Company and another, in which the named defendant filed cross-action against James C. Hunt. Prom judgment for plaintiff against the named defendant, said defendant appeals.

<p>Appeal from District Court, Dimmit County; J. F. Mullally, Judge.</p> <p>Suit by J. O. McCreless against Lee Howell. From judgment for defendant, plaintiff appeals.</p>

Suit by H. M. Houston, as purchaser, under a judgment against the Farmers’ & Gin-ners’ Cotton Oil Company, Incorporated, and another, jointly, against H. H. Shear and others, as grantees and assignees of such judgment debtors, to redeem certain properties claimed to have been purchased at execution sale. .From a judgment denying the right of redemption and the cancellation of several sheriff’s deeds under which he claims title, plaintiff, H. M. Houston, appears.

<p>1. Appeal and Error <§=>1067 — Partnership <§=329 — Trial <§=203(1) — Instruction — Defense — Grouping Facts.</p> <p>In an action for partnership accounting, it was material and prejudicial error to refuse to give defendant’s requested special charge that profits were to be determined only upon business transacted before the purchase of plaintiff’s interest by another, such purchase being clearly indicated by the evidence.</p> <p>2. Witnesses <§ — >228 — Manner of Testifying.</p> <p>' It is improper practice to permit a witness to testify by stating that, if another witness swore to a certain state of facts, such other’s statement was not the truth; but each witness should testify to his own version of the facts.</p>

Pierson, Judge. Action by L. M. Payne against the South-; western Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals.

<p>Cabeiebs <g=s94(3) — Convebsion of Goods— Elements Neoessaey fob Recoveby.</p> <p>In an action against a railway for conversion of cotton, a judgment for plaintiff cannot stand, where there is no proof that the cotton was ever delivered to the railroad, or any evidence concerning the quality or weight of the cotton.</p>

J. Gates, Judge. Action by the Brenard Manufacturing. Company against L. T. Barnett. Judgment for plaintiff for part of the demand, and it appeals. Appellant was in the advertising business at Iowa City, Iowa. Appellee was in the drug business at, Quinlan, Tex.