Volume 211 — South Western Reporter

<p>Appeal from Grayson County Court; D. B. Steed, Judge.</p> <p>Action between the Fidelity & Deposit Company of Maryland and N. C. Scott. From a judgment in favor of the latter, the former appeals.</p>

<p>Appeal from Wichita County Court; Harvey Harris, Judge.</p> <p>Suit by B. F. Shirley against Alex W. Hope and others. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Henderson County Court; J. A. McDonald, Judge.</p> <p>Action by Jess Miller and another against the Texas & New Orleans Railroad Company and others. Judgment for plaintiffs, and defendants appeal.</p>

Bond, Judge. Action by the Farmers’ Lumber Company against the Blount-Decker Lumber Company. Judgment for plaintiff, and defendant appeals. The appeal is from a proceeding in the trial of right to personal property valued at $833.92, wherein judgment was rendered in favor of the appellee.

<p>1. Contracts <&wkey;13S(2) — Illegality — Executed Contract — Rights of Parties.</p> <p>Though courts will not assist in enforcing illegal contracts, yet where an illegal contract has been executed in whole or in part by the acts of the parties themselves and suit is not brought for the purpose of enforcing the contract itself, the rights and titles thus acquired will be recognized.</p> <p>2. Replevin t&wkey;8(3) — Illegality of Transaction Giving Plaintiff Possession.</p> <p>Although one acquires possession of a chattel through an illegal transaction, he may sue a trespasser, taking possession thereof, to recover such possession.</p> <p>3. Chattel Mortgages <&wkey;249 — Right to Seize Goods.</p> <p>Where the mortgage by its terms confers the power of seizure and sale upon the mortgagee only, such power does not extend to mortgagee’s assignee, and, if he attempts to exercise it, he is a-trespasser.</p> <p>4. Contracts i&wkey;138(l) — Setting up Illegal Contract.</p> <p>The sale of piano to plaintiff for plaintiff’s use in conducting an immoral business being an illegal transaction, defendant, in plaintiff’s suit to recover possession of the piano as having been taken from plaintiff’s possession by force, could not set up that the chattel mortgage on the piano, given by plaintiff to secure notes for the purchase price, gave defendant the power, as assignee of the mortgagee, of seizure and sale.</p>

'Appeal from District Court, Grayson County; M. H. Garnett, Judge. -Suit by Grayson County against J. W. Cooper and others. From a judgment for defendants, plaintiff appeals.

Kennon, Judge. Suit by the Gonzales Water Power Company against the American Surety Company of New York and another. Judgment for plaintiff, and the named defendant appeals.

Suit by Harris Bros, against the Kansas City, Mexican & Orient Railway Company of Texas and another. Judgment in favor of the defendant Kansas City, Mexican & Orient Railway Company of Texas and for the plaintiff against the Galveston, Harrisburg & San Antonio Railway Company, from which the latter appeals.

<p>1. Appeal and Error <®=>1040(13) — Harmless Error — Overruling Demurrer to Answer.</p> <p>In suit against road contractor and I., who assumed to pay contractor’s indebtedness, it was not reversible error to overrule demurrer to I.’s special answer that he was to pay the contractor’s bills by paying out money received, upon estimates made, from the construction company with whom the road contract was made, and that he had paid out more money than he had received on the contractor’s account, where, in response to special issues submitted, the jury found that I. agreed to pay plaintiff’s account out of the balance, if any, of estimates due the contractor, and there was no contention that the evidence showed, any balance, or that, under the findings, any other judgment could have been rendered except the one entered for I.</p> <p>2. Trial <®=»351(5) — Eefusal to Submit Special Issues.</p> <p>Eefusal to submit special issues requested was not error where, while their verbiage was different, their substance was covered by those submitted by the court, and the jury found all the facts essential to sustain the judgment.</p> <p>3. Evidence <§=>518 — Expert Witnesses — Construction of Contract.</p> <p>Where a written agreement was unambiguous, testimony of expert witnesses to explain it was properly excluded.</p>

<p>Appeal from District Court, Grayson County; C. T. Freeman, Judge.</p> <p>Suit by Mrs. Maude Gibson against the- St. Louis, San Francisco & Texas Railway Company. Judgment for plaintiff, and defendant appeals.</p> <p>In alighting from one of appellant’s passenger trains, on which, she had traveled to Marilee, appellee fell and thereby was injured. On the theory that appellant’s brakeman was guilty of negligence (1) in placing a box for her to step on in alighting from the train, and (2) in not properly assisting her in alighting therefrom, which rendered appellant liable to her in damages for the injury she suffered, appellee sued appellant and recovered the judgment for $3,750 from which the appeal is prosecuted.</p> <p>Appellant denied that its brakeman was guilty of negligence as charged, hut insisted, if he was, it was not liable to appellee, because she also was guilty of negligence which caused or contributed to cause the accident, in that (1) she walked down the steps of the car “without properly exercising her faculties,” and (2) “permitted her dress to drag or train behind her as she went down said steps,” and was caused to fall by reason of the fact that another passenger- stepped thereon.</p> <p>The court submitted special issues to the jury, and by a verdict returned February 9, 1918, they made findings as follows: (1) Appellee fell and was thereby injured. (2) The injury was a temporary one. (3) The step box was placed in such a position as to be reasonably safe for her use in alighting from the car. (4) The brakeman was guilty of negligence in placing said step box in the position it was in. (5) His negligence in so placing the step box was a proximate cause of the injury to appellee. (6) It was reasonably necessary for the brakeman to assist appellee in alighting from the train. (7) He did not assist or attempt to assist her. (8) And for that reason was guilty of negligence. (9) Which was a proximate cause of the injury to appellee. (10) In alighting from the train appellee did not look to see the position of the. step box. (11) Her failure to do so was negligence on her part which caused or contributed to cause the injury she sustained. (12) Appellee did' not permit her dress to drag or trail behind her while going down the steps of the ear to alight therefrom. (13) And she was not caused to fall because another passenger stepped on her dress as she moved down the steps of the car. (14) Appellee exercised ordinary care for her own safety in attempting in the manner she did to alight from the train. (15) She was damaged in the sum of $3,750.</p> <p>Because he thought there was a conflict between (1) the findings numbered 3 and 4 above, (2) the findings numbered 3 arid 5, and (3) the findings numbered 11 and 14, the trial court declined to receive the verdict, and directed the jury to further consider the matter of their answers to the issues submitted to them. February 11, 1918, the jury returned another verdict, in which their findings were like those in their first verdict specified above, except that in their, last verdict (1) their third finding, to the contrary of their finding in their first verdict, was that the step box was not placed in such a position as to be reasonably safe for use by the appellee in alighting from the train; (2) their eleventh finding, to the contrary of their finding in their first verdict, was that the failure of appellee to look to see the position of the step box as she alighted from the train was not negligence on her part which caused or contributed to cause the injury to her; and (3) their fourteenth finding, contrary to their finding in their original verdict, was that appellee failed to exercise ordinary care for her own safety in attempting as she did to alight from the train. In their last verdict the jury further found, in reply to questions propounded to them that which they did not answer in their first verdict: (1) That appellee’s failure to exercise ordinary care for her own safety in alighting from the train as she did did not cause or contribute to cause the injury she suffered; and (2) that the injury she sustained was not the result of an accident.</p> <p>Appellant excepted to the action of the court in refusing to receive the first verdic-t, and in overruling its motion to enter judgment thereon in its favor. It complains on this appeal of the action of the court in those respects, and' also of the action of the court in rendering judgment for appellee on the verdict last returned by the jury.</p>

<p>Appeal from District Court, McLennan County; Jno. W. Davis, Special Judge.</p> <p>Suit by Mrs. Annie Coley and husband against the Southern Traction Company. From judgment for plaintiffs, defendant appeals.</p>

<p>Bills and Notes <S=>135 — Attorney’s Fees— Transfer of Notes.</p> <p>Where a chattel 'mortgagee indorsed and transferred the notes secured by the mortgage, it was obligated, as indorser, to pay the face value thereof and no more, and, in a suit against it by the transferee was not liable for attorney’s fees provided for only in the mortgage.</p>

<p>Appeal and Ereor <§=>1037 — Haemless Er-roe — Overruling Motion to Quash Distress Wareant.</p> <p>Where appellant sustained no injury from trial court’s overruling of motion to quash distress warrant, reversible error is not shown.</p>

<p>Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.</p> <p>Action by J. P. Sands against H. G. Fisher, with cross-action by defendant against D. W. Kinney. From judgment for plaintiff, defendant appeals.</p>

B. Thomas, Judge. Action by Mrs. E. G. Martin and others against the Sovereign Camp of the Woodmen of the World, to recover on a benefit certificate. Judgment for plaintiffs, and defendant appeals.

<p>1. Chattel Mortgages <S=>178(2) — Pleading —Issues—Conversion.</p> <p>In an action for conversion against second mortgagee, where a petition fully set out plaintiff’s rights as a mortgagee, and also as a purchaser of the mortgaged chattels, and there was a prayer for both general and special relief, and the petition was not excepted to because it asserted plaintiff’s rights in both respects in same count, plaintiff was entitled to recover either as purchaser or mortgagee.</p> <p>2. Chattel Mortgages <S=>48, 177(1) — Prop - erty Covered — Selection.</p> <p>A chattel mortgage on half of a crop of cotton to be raised on certain land, mortgagor to have cotton ginned and baled, held to contemplate that lien was to cover and apply to one-half of bales of cotton that might be raised, and not an undivided one-half interest in crop, thus giving mortgagee right to elect which bales she should take or sell; and a second mortgagee, who had sequestered and sold the part of the crop before first mortgagee selected her bales, is liable in conversion to the extent of the full value of the part taken.</p> <p>3. Appeal and Error <g=»931(3) — Presumptions — Findings.</p> <p>In an action for conversion, plaintiff claiming both as a mortgagee and as a purchaser, where court submitted case upon special issues, and defendant did not ask to have issue of title by purchase submitted to jury, and there was testimony tending to prove such title, it will be .presumed that court found in plaintiff’s favor upon that issue, under Rev. St. 1895, art. 1331, if necessary to sustain a judgment in favor of plaintiff.</p>

<p>Stipulations <S=>14(4) — Issues Similar to Other Case.</p> <p>Where by filed agreement of counsel the issues and questions involved in a suit are identical with those involved in another suit, and the briefs filed in the latter case are taken as the briefs in the former case, the decision rendered on appeal in the latter case is applicable on appeal in the former case.</p>

<p>Appeal from Jefferson County Court at Law; D. P. Wheat, Judge.</p> <p>Suit by E. W. Arnold and wife against the Beaumont Traction Company.' Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Hardin County; J. Llewellyn, Judge.</p> <p>Action by Walter Parker and others against the Santa-Fé Townsite Company and others. Defendants appeal.</p>

P. Wheat, Judge. Suit by C. L. Cooper and wife against the Beaumont Traction Company for damages for personal injuries. Judgment for plaintiffs, and defendant appeals.

Error from District Court, Kleberg County; W. B. Hopkins, Judge. Action by Don Payne and others. against the Kingsville Planing Mill & Manufacturing Company and others, in which other parties intervened. Judgment for plaintiffs, and defendants T. Wesley Hook and others bring error.

<p>1. Appeal and Error <®==>1097(1) — Subsequent Appeai>-Law op Case.</p> <p>Upon the second or other appeal, the ruling made upon first appeal will be deemed the law of the case upon all subsequent proceedings.</p> <p>2. Judgment <®m>407(5) — Default Judgment —Equitable Reliep — Defective Service— Failure to Move to Set Aside During Term Time.</p> <p>Default judgment will not he set aside upon ground of insufficient service, in action brought after the term at which it was rendered, where defendant had such notice of the judgment entry that he could have moved to set the judgment aside at the term at which it was rendered.</p>

<p>Appeal from District Court, Taylor County; Joe Burkett, Judge.</p> <p>Action by Henry Pulton, a minor, by next friends, Nettie Black and H. H. Black, against the Western Union Telegraph Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Negligence <&wkey;62(l) — Proximate Cause —Intervening Causes.</p> <p>Where child’s clothing caught fire from a charcoal stove negligently left in the street and the mother burnt her hands in extinguishing the fire, negligence in leaving the stove was the proximate and efficient cause of the mother’s injuries.</p> <p>2. Negligence &wkey;>74 — Contributory Negligence.</p> <p>One who without warning found her child’s life in imminent danger, her clothes being afire by reason of the negligence of a third person, was not guilty of contributory negligence in putting out the fire with her hands.</p>

<p>Error from Wichita County Court; Harvey Harris, Judge.</p> <p>Action by the Wichita Mill & Elevator Company against John H. Brooks. Judgment for plaintiff, and defendant brings error.</p>

• Error from District Court, Kaufman County.; Joel R. Bond, Judge. Suit by Top Andrews and others against Emily Irby and others. From the judgment rendered, defendants bring error.

Application of A. J. Vaughan to probate the will of Mrs. E. A. Vaughan, deceased, opposed by J. H. Malone and others, contestants. From a reversal by the district court of the judgment of the county court admitting the will to probate, applicant appeals.

<p>1. Judgment <&wkey;518 — Collateral Attack —What Constitutes.</p> <p>A suit to set aside a sale of community property by the survivor because of insufficiency of his bond is a collateral attack on the decree of the probate court which cannot be sustained.</p> <p>2. Judgment &wkey;>518 — Collateral Attack —What Constitutes.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3600, authorizing the survivor of a community to sell community property after qualifying for the best interest of the estate without control by the court, a suit to set aside a sale by a survivor because not for the best interest of the community is not a collateral attack on a probate court judgment.</p> <p>3. Husband and Wife <&wkey;273(12) — Community Pboperty — Sale by Survivor.</p> <p>In suit to set aside a sale of community property by the survivor, evidence held sufficient to take to the jury the issues whether the debts for which the sale was made were claims against the community estate, whether the sale was free from coercion, and whether it was with a view to the interest of the parties, so that a directed verdict for defendant was erroneous.</p>

<p>Appeal from Young County Court; W. P. Stinson, Judge.</p> <p>Suit by J. W. & J. R. Bryan against W. T. Griffin. Defendant’s plea of privilege overruled, and defendant appeals.</p>

<p>Appeal from District Court, Grayson County; Silas Hare, Judge.</p> <p>Suit by the Sherman Transfer Company against John C. Daimel. From a judgment in favor of plaintiff, defendant appealst</p>

<p>1. Chattel Mortgages <&wkey;17 — Title of Mortgagor.</p> <p>One cannot convey by chattel mortgage a greater title than he possesses.</p> <p>2. Landlord and Tenant <&wkey;330(l) — Bunting on Shakes — Bights of Landlord — In-TEKEST.IN GROWING CROPS.</p> <p>The owner of land cannot create a valid mortgage on an unplanted or growing crop., which belongs to the tenant, who has. merely agreed to pay him a share of the crops as rents for the use of the land, and where, prior to a division of the crops, the land is sold under a trust deed, the chattel mortgagee has no lieii on any part of the crop.</p>

<p>Appeal from Young County Court; W. P. Stinson, Judge.</p> <p>Suit between W. L. Mahan and Crockett Kyle. From the judgment rendered, the former appeals.</p>

<p>1. Appeal and Eeeoe ©=>742(2) — Beiees —Gkouping oe Assignments oe Eeeoe.</p> <p>Assignments of error, two challenging the court’s ruling on exceptions to defendant’s aver-ments of the contract’s illegality and certain oral undertakings, and one as to the admission of parol evidence in regard to the oral contract, being matters involving different propositions of law, were improperly grouped together and cannot be considered.</p> <p>2. Appeal and Erkoe ©=>742(1) — Statement Under Assignment.</p> <p>An assignment of error, which does not contain a statement after the propositions under it, as required by court rules for tbe preparation of briefs, will not be considered on appeal.</p> <p>3. Evidence ©=>437 — Pakol Evidence Showing Illegality oe Contract.</p> <p>Parol evidence is admissible to show that a contract for the sale of cotton, regular on its face, is in reality a contract to deal in cotton futures, and therefore illegal and unenforceable.</p> <p>4. Gaming ©=>12 — Sales eoe Future Delivery-Action eoe Damages oe Contract —Illegality.</p> <p>Where the intention of the parties in a contract for the sale of cotton was that no actual cotton should ever be delivered by the vendor or received and paid for by tbe vendee, the contract is illegal under Pen. Code 1911, arts. 536, 539, prohibiting dealing in cotton futures.</p>

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Suit by S. A. Gober against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Mortgages <§=>,278, 282(2) — Conveyance-Assumption op Debt.</p> <p>Where land is conveyed in term subject to a mortgage or other lien, the grantee does not by accepting the deed become liable personally for the debt, but where the language indicates that the consideration, or part of it, is the assumption of a debt due on the land, the grantee is personally liable.</p> <p>2. Vendor and Purchaser <§=>265(3) — Conveyance o-f Land — Assumption of Debt— Recitáis of Deed.</p> <p>Recitals.of deed convoying land subject to a vendor’s lien in consideration of a payment of $10, and the transfer of the indebtedness of a third person to the grantee, held not to show an assumption by the grantee of the debt secured by the vendor’s lien.</p>

Bond, Judge. Action by W. F. Yoes. against the Texas & Pacific Railway Company. Judgment for defendant, and plaintiff appeals. The appellant claims that while a passenger in the caboose of one of appellee’s freight trains he was suddenly thrown to the floor of the car, and thereby sustained personal injury through negligent operation of the train. The negligence alleged in the petition is that the engine and cars were backed against the caboose with great force and violence.

<p>1. Carriers <©=>215(2) — Live Stock — Negligence.</p> <p>A railroad was liable for damages, where plaintiff, whose hogs when being driven to the railroad’s pens for shipment, ate a poisonous substance used 'in dipping vats on the land of a third party near the pens, though the railroad had no control, and did not know that the poisonous substance was there.</p> <p>2. Trial <S=>215 — Instructions—Measure of Damages.</p> <p>In action against a carrier for damages to hogs, it was not necessary to give á charge upon the measure of damages, where the cause was submitted upon special issues.</p> <p>3. Appeal and Error <©=>1068(4) — Harmless Error — Instructions.</p> <p>In action against carrier for damages to hogs, where there could not have been any other proper verdict than that returned, it was immaterial that the court erred in its charge upon the measure of damages.</p>

<p>Appeal from Hill County Court; R. T. Burns, Judge.</p> <p>Action by the St. Louis Southwestern Railway Company against White, Jackson & Co. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, Presidio County; Joseph Jones, Judge.</p> <p>Action by Obets & Harris against R. E. Speed. From order dissolving temporary injunction, plaintiffs appeal.</p>

<p>1. Carriers <S=>316(5) — Carriage of Passengers — NegligenceA-Liability.</p> <p>Where a railroad’s bed, equipment, train, etc., are shown to have been under management of road or its servants, and a derailment, injuring a passenger, is such as in ordinary course does not happen if those in charge use proper care, a presumption of negligence arises.</p> <p>2. Evidence ®=>472(1) — Opinion Testimony —Conclusion of Nonexpert.</p> <p>In action against railroad for injuries to passenger in derailment, testimony of plaintiff’s father that, since he (plaintiff) went to California, he had not been able to work in his office, profession, business, or occupation, and had been delicate, was inadmissible, as the conclusion of one not an expert and invaded the province of the jury.</p> <p>3. Appeal and Ebeoe @=^1050(1) — Evidence —Harmless Eeeor.</p> <p>In action for injuries to passenger in derailment, improper admission of testimony of plaintiff’s father that, since plaintiff went to California, he had not been able to perform his work, held harmless, in view of other, evidence to the same effect.</p>

<p>1. Corporations <§=>613(1) — Proceedings to Forfeit Charter — Who may Institute.</p> <p>Under quo warranto statute (Rev. St. 1911, art. 6398), a proceeding to forfeit the charter of a corporation can only be instituted by the Attorney General, and the attempt to confer such power on the district or county ,attorney is in violation of Const, art. 4, § 22.</p> <p>2. Venue <§=>28 — Suit Against Trustees of School District.</p> <p>Suit to oust defendants, trustees of a county line school district under control of C. county, in which defendants resided, from exercising or asserting any corporate right, franchise, privilege, or jurisdiction over that portion of the school district taken from a district in G. county, was an attack upon the corporate existence of the district, and the district, through its trustees, had the privilege of being sued in C. county, the situs of the district fixed by Vernon’s Ann. Civ. St. Supp. 1918, arts. 2815a and 2815b.</p> <p>3. Venue <§==>18 — General Rule.</p> <p>A general rule is that no person who is an inhabitant of the state shall be sued out o.f the county in which he has his domicile.</p> <p>4. Venue <§=>18 — General Rule — Exceptions.</p> <p>The general rule that no person who is an inhabitant of the state shall be sued out of the county in which he has his domicile prevails in all cases except cases coming clearly within one of the recognized exceptions.</p> <p>5. Venue <§=>28 — School District — Domicile.</p> <p>Vernon’s Ann. Civ. St. Supp. 1918, art. 2815a, contemplated that the domicile of a school corporation shall be in the county which is given control and management of the public schools in the county line districts.</p> <p>6. Corporations <§=>503(1) — Venue—General Statute.</p> <p>Where there are no express provisions as to venue of civil actions against a certain class of corporations, general statutes relating to venue will govern as to such actions.</p> <p>7. Corporations <§=>503(1) — Venue — Place of Business.</p> <p>'When the Legislature has not given a local habitation to a corporation in establishing it, it should be sued where it has its place of business and where its principal business is transacted.</p> <p>8. Venue <§=>28 — School Corporations — Domicile.</p> <p>In view of the act creating school districts, and declaring that trustees thereof are to be a body politic and corporate in law, the board of trustees is to all intents and purposes the corporation, and where they have their residence or place of business would be the domicile of the corporation. .</p>

<p>Appeal from District Court, Throckmorton County; Jno. B. Thomas, Judge.</p> <p>Suit by Upshur County against G. W. Thomason and others. Judgment for plaintiff, and defendants appeal.</p>

L. Thornton, Judge. Suit by the Gulf Refining Company against J. H. Girvin, begun in the justice court. Defendant’s plea of privilege to be sued in his own county and precinct was denied as having been waived, and was again denied upon appeal to the county court, and defendant appeals.

Appeal ^rom Navarro County Court; B. E. Traylor, Judge. Action by C. E. Elmore against the First State Bank of Purdon and others. Judgment in favor of plaintiff against the Bank and in favor of the Bank against R. L. Reed, and Reed appeals.

<p>Appeal from District Court, Taylor County; Joe Burkett, Judge.</p> <p>Suit by Gilbert MeGuffey against Pierce-Fordyce Oil Association. Judgment for defendant, and plaintiff? appeals.</p>

<p>1. Joint-Stock Companies <®=>23 — Dissolution — Partition.</p> <p>In view of Vernon’s Say les’ Ann. Civ. St 1914, arts. 6101-6111, where joint-stock com pany is dissolved, the court should not delegate to commissioners appointed to partition the company’s property, the power and authority to ascertain, determine, and report on the question whether or not the property is susceptible of partition and what would be a fair and equitable mode of division, but should decide these questions itself before decreeing partition and appointing commissioners.</p> <p>2. Joint-Stock Companies <@=»23 — Dissolution.</p> <p>Where one of the members of a joint-stock association, owning half of its stock, was it hopeless deadlock with the owners of the other half of the stock, making it impossible to proceed with business, held, the association should be dissolved, its affairs wound up, and its property partitioned, although the original agreement provided that the trust should continue 50 years.</p> <p>3. Judgment <§=>744 — Conclusiveness—De-niaXi of Specific Peeformanoe.</p> <p>Where judgment denies specific performance <?f an agreement, the right to such performance is res judicata in a subsequent suit between the same parties.</p>

<p>1. Trial €=380 — Reception op Evidence-Objection to Evidence as a Whole.</p> <p>Where a part of testimony objected to as a whole is admissible for any purpose, it is not error to overrule the objection.</p> <p>2. Appeal and Error <§=>231(3) — Reservation op Grounds por Review — Objections to Evidence.</p> <p>Only objections to evidence made in lower court will be considered on appeal.</p> <p>3. Appeal and Error <§=>219(2) — Review— ■ Findings.</p> <p>Findings of fact not assailed by appellants are conclusive on appellate court.</p> <p>4. Adverse Possession <§=>33 —Evidence,— Notice op Adverse Claim.</p> <p>In an action involving question of whether plaintiff had acquired title by adverse posses sion, testimony that an agent of defendants who claimed to be legal owners of the land, urged witness to persuade plaintiff to compromise, was admissible to show notice to defendants of plaintiff’s adverse claim.</p> <p>5. Evidence @=>594 — Weight oe Evidence-Failure, to Disprove Fact.</p> <p>Where evidence tends to establish a fact which is within the power of and to the interest of opposing party to disprove, if false, his failure to disprove it strengthens the probative force of the evidence.</p> <p>6. Adverse Possession @=>85(2) — Evidence-Admissibility.</p> <p>On the question of whether plaintiff acquired title by adverse possession, plaintiff’s testimony that her brother had told her that agent of defendants, who claimed legal title, had told him to offer to compromise with plaintiff, was admissible to prove her claim to the -land, and that offer of compromise was made by defendants.</p> <p>7. Appeal and Error <®=>&31(1) — Review-Presumptions.</p> <p>Where case is trie(d without a jury, the presumption is that there was testimony to support the judgment rendered.</p>

<p>1. Commerce §=>33 — “Interstate Shipment.”</p> <p>Shipment of grain from St. Joseph, Mo., to Temple, Tex., was an “interstate shipment” as between carrier and shipper, though the bill- of lading indicated it was intrastate.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]</p> <p>2. Carriers <⅞=>59 — Interstate Shipment-Innocent Purchaser op Bill op Lading— Estoppel.</p> <p>Where carload of grain was originally shipped from one state to another, but bill of lading issued by_ carrier and attached to draft drawn on purchaser of carload indicated that shipment was intrastate, carrier is estopped from asserting interstate character of shipment as against purchaser who paid draft without knowledge that carload was originally shipped from another state.</p>

<p>Appeal from District Court, McLennan County; Geo. N. Denton, Judge.</p> <p>Suit by Jose Gonzales aga'inst the Texas Electric Railway. Prom a judgment for plaintiff, defendant -appeals.</p>

Error from District Court, Kaufman County; F. L. Hawkins, Judge. Suit by Mrs. C. C. Douglass against Mrs. L. B. Walker and others, in which defendant named set up title to the premises involved by a cross-action. Judgment against defendant named on her cross-action, and she brings error.

Pierson, Judge. > Action by the Texas Employers’ Insurance Association against Mat Jenkins. Judgment for plaintiff, and defendant appeals. The appellant was in the employ of the Eraser Brick Company, and on September 15, 1916, he received an accidental injury in the course of his employment, which necessitated the amputation of the left foot.

<p>Appeal from District Court, Falls County; W. A. Patrick, Judge.</p> <p>Action between the Texas Lumber & Loan Company and Green Bros., garnishee, and others. From judgment therein, the Texas Lumber & Loan Company appeals.</p>

Action by Joe Strayhorn against the Fire Association of Philadelphia. From judgt ment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirmed (165 S. W. 901), and defendant brings error.

Error from District Court, Kaufman County; Joel A. Bond, Judge. Action by B. M. Burgher & Co. and others ■against O. E. Barry and others. From part of the judgment in favor of one of the defendants on a cross-action, the plaintiffs bring error. The plaintiffs in error sued Joseph Sha-hada and C. C. Fox on certain notes and to foreclose a chattel mortgage on a soda fountain and appliances.

T. Ereeman, Judge. Suit by O. S. Gresham, trustee in bankruptcy of the Sherman Cotton Oil Provision Company, against the Tecumseh Oil & Cotton Company. From judgment for defendant, plaintiff appeals. By a.con tract made August 28,1915, the Tecumseh Oil & Cotton Company sold and delivered three tanks (24,000 gallons) of prime cotton seed oil to the Sherman Cotton Oil Provision Company at 35 cents per gallon f. o. b. cars at Oklahoma common points.

A. Work, Judge. Action by Southland Life Insurance Company against Ross A. Stewart, Durward McDonald, and Dean A. Cone. Judgment tor plaintiff against defendant first named, and from that portion of the judgment discharging the two defendants last-named plaintiff appeals.

<p>Principal and Surety <§=>104(1) — Extension — Discharge oe Surety — Insolvency or Principal.</p> <p>Regardless' of injury or benefit, where principal debtor and one of the sureties make a valid agreement by which time of payment is extended, every other surety who does not consent to such extension is released from liability, although at the time of such agreement and continuously since then, the principal has been insolvent.</p>

<p>Appeal from Baylor County Court; Nat G. Mitchell, Judge.</p> <p>Suit by A. H. Golden and another against the Wichita Valley Railway Company. Prom judgment for plaintiffs, defendant appeals.</p>

A. Nabers, Judge. Suit by W. D. Wilson, secretary and treasurer of the Republic Supply Company, as trustee for the Company, against G. W. Wig-ham. From judgment for plaintiff, defendant appeals.

B. Thomas, Judge. Action by D. C. Cave and another against J. C. Montgomery, Jr., and W. M. Green, with cross-action by Montgomery . against Green and cross-action by Green against Montgomery. Judgment in favor of plaintiffs against Montgomery and Green and in favor of Montgomery against Green, and Green alone appeals.

<p>Appeal from District Court, Taylor County; Joe Burkett, Judge.</p> <p>Suit by the First State Bank of Ovalo against J; M. Smallwood and others, in which the defendant Smallwood set up a lien against certain cattle alleged to have been sold to the other defendants by reason of feed, pasturage, water, and care furnished for said cattle. Judgment for plaintiff Bank and in favor of the other defendants against Smallwood on his claim of lien, and defendants appeal.</p>

<p>Appeal from District Court, Taylor County; Joe Burkett, Judge.</p> <p>Action by T. J. Ault against J. F. Cunningham and another. Judgment for plaintiff, and defendants appeal.</p>

Suit by the Eastland County Land & Abstract Comimny and others against Price & Beaird and others. From an order overruling the plea of privilege of Price & Beaird, they appeal.

M. Overshiner, Judge. Action by Jinks McGee & Co. against the Fulwiler Electric Company, originally brought in the justice court,., and upon appeal to the county court there was a judgment for plaintiff, from which the defendant appeals.

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Suit by the City of Austin against the Great Southern Bife Insurance Company. Judgment for defendant, and plaintiff appeals.</p>

Action by C. C. Poe against John Guitar, doing business under the name of the Continental Oil & Cotton Company, and by an amended petition the Georgia Casualty Company was also made a defendant. Judgment for defendants, and plaintiff appeals.

<p>Appeal from District Court, Jim Wells County; J. F. Wullally, Judge.</p> <p>Action by Josefina Garcia de Saenz, substituted as plaintiff instead of Rufino Saenz, her husband, against M. D. Cohn and Ramon Saenz' with cross-action by Ramon Saenz against M.' D. Cohn. Judgment against plaintiff in favor of Ramon Saenz, and in favor -of Cohn on the cross-action, but in favor of plaintiff as against Colin, and Cohn alone appeals.</p>

W. Taylor, Judge. Action by Thomas McBride and others against the United Irrigation Company for mandamus to compel defendant to furnish water for irrigation purposes at a reasonable rate, and for an injunction. Judgment for defendant, and plaintiffs appeal.

<p>Appeal from Hill County Court; R. T. Burns, Judge.</p> <p>Suit by Rodney Bearden against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.</p>

B. Thomas, Judge. Suit' by James P. Stinson against E. B. Sliaw and others, in which defendant Guy R. Holcomb filed a cross-action against bis codefendants. From a -judgment overruling pleas for change of venue, tbe defendant B. B. Shaw appeals.

, Error from District Court, Harris County; Chas. E. Ashe, Judge. Action by Adelina Carl and husband against J. J. Settegast, Jr., and others. Judgment for defendants, and plaintiffs bring er,ror.

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Action by John A. Nevill against the St. Louis Southwestern Railway Company of Texas. Judgment for defendant, and plaintiff appeals.</p>

Suit by W. B. Smith against Annie N. Beaty, in which defendant filed a cross-action against Lula B. Wilson. Judgment for plaintiff in the main action, and for Annie N. Beaty in the cross-action, and Lula B. Wilson appeals.

P. Stinson, Judge. Action by R. P. Douglass against M. M. Wallace, as Sheriff, and others, for actual and exemplary damages for' conversion of cotton taken upon execution against plaintiff’s father. Judgment for defendants, and plaintiff appeals.

<p>1. Continúan oe <&wkey;22 — Absence oe Witness-Deposition.</p> <p>Court did not err in refusing to grant a continuance on account of the absence of a witness, where a deposition was taken, wherein such witness fully stated his version of the matter involved.</p> <p>2. Continuance <&wkey;26(ll) — Absence oe Witness-Diligence. ,</p> <p>In an action against an insurance company, where plaintiff in his petition set forth his version of a certain conversation with an agent of defendant, the court did not err in refusing to grant a continuance on account of the absence of an employé of the insurance company in the office wherein the conversion took place, defendant having taken a deposition of the agent in the office, but having failed to take a deposition of the witness in question, showing lack of diligence.</p> <p>3. Insurance <&wkey;327 — Fire Insurance — Removal oe Goods.</p> <p>Where a fire insurance policy provides that goods are covered only while they remain in the place where they were when insured, in the absence of a statute, no recovery can be had if they are moved elsewhere without the consent of the insurer.</p> <p>4. Insubance <&wkey;327 — Fire Insurance — Conditions — Cause op Loss.</p> <p>If as a matter of fact the removal of insured goods from one town to another did not contribute to bring about the destruction of such goods by fire, the insurer would be liable for loss in the latter town, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4874a, although policy provided that goods were covered only while in place where they were when insured.</p> <p>5. Evidence <&wkey;433(6), 434(8) — Reformation of Instruments <&wkey;2'0 — Contracts <&wkey;245 (2) — Oral Agreements Prior; to Execution.</p> <p>All oral agreements prior to the execution of a written contract are presumed to have been embodied in such contract, but such presumption is not conclusive, and may be rebutted by showing that the agreement, by reason of mutual mistake, fraud, or accident, failed to embody all the terms of the contract actually made, and reformation of such an instrument may bo had where there was a mistake on the part of one of the parties and fraud on the part of the other.</p> <p>6. Principal and Agent <&wkey;148(5) — Apparent Authority.</p> <p>It is immaterial whether or not an agent has actual authority to make a contract, if he has apparent authority so to do, wlu re the actual authority is not made known to the party with whom the contract is made.</p> <p>7. Principal and Agent &wkey;>116(l) — Undisclosed Limitations of Authority.</p> <p>Instructions by the principal to the agent not to make a given contract are immaterial, where the contract is within the apparent scope of the agent’s authority and such restrictions are not known to the -party with whom they are made.</p> <p>8. Principal and Agent <&wkey;147(2) — Authority of Agent — Duty of Third Person to Ascertain Authority.</p> <p>Although one dealing with an agent must ascertain, not only that he is such an agent, but the extent of his authority, he may rely upon such facts as plainly indicate such agency and such authority.</p> <p>9. Insurance <&wkey;>76 — Authority of Agent— Evidence.</p> <p>The fact that a fire insurance agent has the policies of an insurance company signed by its officials, to become effective when countersigned by an agent, is sufficient evidence of agency for such company.</p> <p>10. Insurance &wkey;>78 — Authority of Agent —Scope.</p> <p>In the absence of information that an agent has no authority to write fiz’e insurance except at the place where his office is located, an insured may presume that he does have authority to cover property located elsewhere.</p> <p>11. Insurance &wkey;>143(4) — Reformation of Policy — Mutual Mistake — Fraud.</p> <p>Where one leaving El Paso for Waco, Tex., had goods which he desired covered by fire insurance, and an agent in El Paso issued a policy to him to cover the goods in El Paso, and told him that the policy would cover the goods when moved from El Paso to Waco, which the policy did not in fact do, insured was entitled to recover for loss of the goods by fire in Waco, on the ground of mutual mistake, in that the policy did not express the real contract made, or, on the ground that the same was the result of a mistake on the part of the insured and legal fraud on the part of the agent.</p>

<p>1. Judgment <&wkey;497(2) — Collateral Attack —Recitation as to Service.</p> <p>Under Rev. St. arts. 5205, 7506, a judgment reciting that service was had on “defendant” showed sufficiently that service was had on two defendants for the purpose of a collateral attack ; it appearing that the defendants were throughout the judgment referred to in the singular.</p> <p>2. Execution <&wkey;221 — Sale—Time.</p> <p>A sale of land under an execution made after time for return as 'fixed in the process was void.</p> <p>3. Judgment <&wkey;18(2) — Pleading to’Sustain —Sufficiency.</p> <p>In action by third person to enjoin sale of land under execution, court did not have jurisdiction to order sale of the property in'satisfaction of costs incurred in the injunction suit and of the judgment under which the execution had been rendered, in the absence of pleadings that would authorize the entry of such a judgment.</p> <p>4. Deeds &wkey;U79, 181,182 — Loss or Destruction — Effect.</p> <p>The destruction or loss of a deed or its redelivery to the grantor does not divest legal title in the grantee or revest it in the grantor, unless equity so demands.</p> <p>5. Bills and Notes &wkey;>527(l) — Vendor’s Lien Notes — Payment—Evidence.</p> <p>Where a deed recited that grantee was to assume the payment of vendor’s lien notes, and release filed recited that the grantee had paid such notes, such instruments were prima facie evidence that grantee paid such notes.</p> <p>6. Estoppel <&wkey;74(2) — Lost Instrument.</p> <p>Where a grantee of land reconveyed and his grantor lost the deed and thereafter had the grantee convey the property to a third' person, wlio assumed to pay vendor’s lien notes, the original vendor was estopped from setting up the lost deed in an action by the last grantee to try title; the lost deed having been treated by the parties as never having existed.</p> <p>7. Execution &wkey;>263 — Sales of Land — Title of Purchaser.</p> <p>Purchaser of land at an execution sale could get no better title than the judgment debtor had.</p>

<p>Appeal from District Court, Travis County; M. C. Jeffrey, Judge.</p> <p>Suit by Martin L. Bowdoin and others against the Houston &.Texas Central Railroad Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>Appeal from Clay County Court; E. W. Coleman, Judge.</p> <p>Action by J. J. Hairrill against the Texas Seed & Eloral Company. A plea of privilege was denied, and defendant appeals.</p>

<p>Appeal from District Court, Hale County; R. C. Joiner, Judge.</p> <p>Suit by O. D. Russell against George Thompson and others in trespass to try title. Judgment for plaintiff, and defendants appeal.</p>

C. Joiner, Judge. Action by Frank Marshall and another against T. P. Magness. From a judgment in their favor for less relief than demanded, plaintiffs appeal.

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by Sam D. Miller against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Trial <§=»194(20) — Instructions—Weight of Evidence.</p> <p>In action for damage to mules in transit, instruction that measure of damage would be reasonable value of mule killed, if killed by negligence of railroad, and, as to mules receiving injury, would be difference in market value at destination immediately before and immediately after injuries, held on weight of evidence as making railroad liable if mules were injured without reference as to whether or not through road’s negligence.</p> <p>2. Cabeieks <S=^229(2) — Livestock—Injuries in Transit — Measuee of Damages.</p> <p>The measure of damage for injury to live stock in transit is the difference between the market value of the animals at the point to which they were shipped, if they had arrived without injury, and such value in the condition in which they did arrive, provided such market value is alleged and proved.</p> <p>3. Trial. <S=>252(1) — Instruction — Basis in Evidence.</p> <p>It is error to submit an issue which finds no basis in the evidence.</p>

<p>Appeal from District Court, Wichita Coun- , ty; Edgar Scurry, Judge.</p> <p>Action by A. Zundelowitz against Ed. Waggoner and another. Judgment for defendants, and plaintiff appeals.</p>

Error from District Court, Taylor County ; Joe Burkett, Judge. Suit by Mattie Thomas, for herself and as next friend of her minor children, against the Abilene Gas & Electric Company. Judgment for plaintiffs, and defendant brings error.

<p>1. Appeal and Error <©=>759 — Assignment of Error — Copying Into Brief — Bule of Court.</p> <p>An assignment of error not copied into the brief, as required by rule 29 for the Courts of Civil Appeals (142 S. W. x), cannot be considered.</p> <p>2. Appear, and Error <©=>301 — Assignment of Error — Failure to Raise in Motion for New Trial. *</p> <p>An assignment of error which was not raised either in the motion for new trial or in any assignments filed in the trial court, but as copied in the brief is merely a quotation from a bill of exceptions shown in the transcript, cannot be considered.</p> <p>3. Appeal and Error <©=>742(1) — Assignments of Error — Abandonment—Absence of Statement.</p> <p>Assignments of error under which no statement is given, as required by rule 29 for the Courts of Civil Appeals (142 S. W. x), will be regarded as abandoned.</p> <p>4. Adverse Possession <S=>60(2) — Permissive Entry and Occupancy.</p> <p>Where entry on land and occupancy thereafter was permissive, at the request' of the representative of the owner, and not adverse, the possession gives rise to no title by virtue of the 10-year statute.</p> <p>5. Adverse Possession <©=>47 — Limitations —Entry as Interrupting Statutory Period.</p> <p>Where the owner of land entered and cut and removed all of the timber, the entry was sufficient to restrict any adverse occupiers to their inclosures, and to stop the running of the 10-year statute of limitations in their favor, since where the true owner is in possession, though only to cut timber, he is in possession of all the land not actually inclosed.</p> <p>6. Appeal and Error <©=>854(5) — Presumption Favoring Court Below — Direction of Verdict.</p> <p>If the verdict and judgment in a suit to recover land are proper, the action of the trial court should be affirmed, though the reason assigned by the trial judge in directing the verdict was insufficient.</p> <p>Walker, J., dissenting, and Hightower, C. J., dissenting in part.</p>

<p>Appeal from District Court, Travis County; George C. Calhoun, Judge.</p> <p>Suit by the State of Texas against the Willys-Overland, Incorporated. From judgment for defendant, plaintiff appeals.</p>

R. Wilhelm,* Judge. Suit by E. Nance and others against James A. Baker, receiver of the International & Great Northern Railway Company, and an--, other. Judgment against named defendant, and he appeals.

<p>Appeal from District Court, Lamar County; A. P. Dohoney, Judge.</p> <p>Action by C. W. Milner against Mary ■ F. Gatlin and another. Judgment for defendants, an¿ plaintiff appeals.</p> <p>Appellant and appellee Mary F. Gatlin were husband and wife prior to May 18, 1911, when they were divorced by a decree of a district court for Dallas county. Lucile, a girl 9 or 10 years old, was a child of the marriage between appellant and said appel-lee. This was a suit by appellant against said appellee and appellee John Gatlin, whom she married after she was divorced from appellant, for the custody of said child. In his petition for the writ of habeas corpus appellant alleged that the decree of said district court of Dallas county awarded to him the exclusive care and custody of the child. He further alleged that said Mary P. Gat-lin afterward kidnapped the child in the state of Georgia, where she (the child) and he then resided, and removed her to Lamar county, Tex., where, he alleged, said Mary E. Gatlin and her husband were harboring and restraining her. In their answer to said petition appellees alleged that on August 20, ■ 1912, the decree of the Dallas county district court, in so far as it awarded the custody of the child to appellant, was by that court “revoked, annulled and held for naught,” and that that court then rendered and entered a decree awarding the care, custody, and control of the child to appellee Mary E. Gatlin. A copy of said decree (of August 20, 1912) was attached to and made a part of said answer. With reference to that decree appellant, in a supplemental petition, alleged as follows:</p> <p>“It is true that there was a so-called amenda-tory judgment entered in cause No. 9265, Milner v. Milner, in August, 1912, but that said judgment was null and void and of no effect, for the reason that at said time and for a long time prior thereto the plaintiff, C. W. Milner, . and his child, Lucile Arza Milner, were actual, . bona fide, and legal residents and inhabitants of the state of Georgia, and had so been since immediately after the entering of the judgment of divorce between the said Milner and his wife, Mary, in 1911, out of which suit judgment was rendered, giving him the custody of said minor, and in no manner denying him the right to move and make his habitation wherever he saw fit, and that immediately after the entering of said judgment he moved to Georgia and made his domicile therein, and that no legal service , was ever had upon him of the motion of the defendant, Mary P. Milner, to reform or modify the said 1911 judgment, and, in fact, the . Sixty-Eighth judicial district court of Dallas • county was without jurisdiction to change or modify such judgment, since it was in perso-nam, and at another term, and when the plaintiff was not a resident of Texas nor of said judicial district. Said motion to reform so showing and praying for service of notice upon him in the following words: ‘The said G. W. Milner upon whom service is desired resides in •Wilner, Pike county, Ga., to which place it is desired that notice issue’ — and said notice was handed .plaintiff by the sheriff of Pike county, Ga., in said Pike county, Ga., and not otherwise nor elsewhere was service had upon the plaintiff.”</p> <p>An exception interposed by appellees to the part of the supplemental petition set out above, on the ground that same was “but an attempt,” quoting, “to collaterally impeach a judgment rendered by a domestic court of general jurisdiction over the subject-matter by pleading matters dehors the record,” was sustained by the trial court ; and, appellant having agreed that if said exception was sustained he “would have no cause of action,” said court rendered judgment denying him the relief he prayed for. The appeal is from that judgment.</p>

<p>Appeal from District Dallas County; E. B. Muse, Judge. ; ,’</p> <p>Suit by P. f\ Martinez against J. B. Logan and another. From judgment for -plaintiff, defendants -appeal.</p>

<p>Appeal from District Court, Aransas County; F. G. Chambliss, Judge.</p> <p>Suit between A. L. Bracht and I. G. Adam-son. Judgment for latter, and former appeals.</p>

<p>1. Trespass to Try Title <S==>6(1) — Evibenoe of Title —Bond fob Title — CONSIDERATION. '</p> <p>In trespass to try tide, bond for title, not reciting any consideration, was not evidence of title, where the payment of valuable consideration was not waived.</p> <p>2. Trespass to Tey Title <§=» 12 — Possession by Predecessor in Title — Prima Eacie Case.</p> <p>Plaintiff in trespass to try title is entitled to recover by proof of possession by predecessor in title, in absence of any proof on part of defendant.</p>

<p>1. Railroads 3=394(6) — Personal Injury Actions — Pleading — Sufficiency of Allegations in Disjunctive.</p> <p>An allegation that, although those in charge of train which frightened plaintiff's team saw, or should have discovered, that team was frightened, the operatives continued to cause the whistle to blow, etc., does not raise the issue of discovered peril, and is demurrable, since to allege that one or the other of two things is true is not to affirm the truth of either.</p> <p>2. Pleading' 3=34(4) — Construction Against Pleader — Allegations in Dis- ' JUNC.TIVE.</p> <p>When two causes of action or defense are pleaded in the disjunctive, one of which is good and the other is not, it amounts to no more than pleading the latter, because a pleading will be construed most strongly against the pleader.</p> <p>3. Railroads 3=360(2) — Personal Injury Actions — Negligence — Heightening Teams — Duty of Train Crew.</p> <p>Blowing whistles and making noise being a necessary result of operating trains, those in charge of them are under no obligation to look for teams, which might become frightened by the noise even though such teams be upon public roads.</p> <p>4. Railroads 3=360(2) — Personal Injury Actions — Frightening Teams — Unusual and Unnecessary Noise.</p> <p>A railroad company is liable for injuries caused by a team on a neighboring road becoming frightened, if such injury is occasioned by unusual and unnecessary noise made by the train.</p> <p>5. Railroads 3=360(2) — Operation — Frightening Teams — Duty of Railroad Company.</p> <p>' Where a frequently traveled road is near a railroad, the company owes the duty not to make any unnecessary and unusual noise of a character calculated to frighten a team, though the company’s employes are unaware of the presence of the team.</p> <p>6. Limitation of Actions 3=127 (5) — Amendments — Personal Injury Action.</p> <p>In an action for personal injuries sustained when plaintiff’s team became frightened by defendant’s train, while traveling on a neighborhood road, an amendment, filed more than two years from the date of the injury, alleging that the road was a public road, did not set up a new cause of action, so as to be barred by the two-year statute of limitations.</p> <p>7.-Evidence 3=119(1) — Personal Injury Actions — Res Gestas.</p> <p>-In an action for personal injuries occasioned by plaintiff’s team becoming frightened by defendant’s train while traveling on a road parallel to the railroad track, evidence that a certain named road' was on the opposite side of the railroad from that on which plaintiff was traveling was admissible as part of the res gestse as to whether the road was much traveled; it appearing that the road on which plaintiff was traveling crossed the track and entered such road near where the injury occurred.</p> <p>8. Evidence 3=471(22) — Conclusion—Personal Injury Actions — Admissibility.</p> <p>In an action for personal injuries sustained when plaintiff’s team was frightened by defendant’s railroad train, while traveling on a public road, an answer that witness did not remember how long the road had been used by the public, “but a long time,” was not inadmissible as a conclusion.</p>

<p>Error from Travis County Court; D. J. Pickle, Judge.</p> <p>Action by the Magnolia Petroleum Company against the Texas Auto Supply Company and another. There was a judgment for plaintiff, an'dl defendants bring error.</p>

<p>1. Injunction <§=>114(3) — Defendants—Live Stock Inspector— Sanitary Commission as Necessary Paety.</p> <p>In suit to enjoin live stock inspectors acting without warrant of law in requiring the dipping of cattle to eradicate ticks, the live stock sanitary commission, under whom the inspectors acted, was not a necessary party to the suit.</p> <p>2. Injunction <§=>114(2) — Joinder of Plaintiffs — Injunction Suit Against Cattle Inspectors.</p> <p>In suit to enjoin live stock inspectors from requiring the dipping of cattle to eradicate fever ticks, several cattle owners had the right to join with each other in asking the relief sought, not seeking to recover a money judgment for injury alleged to have been inflicted.</p> <p>3. Injunction <§=>114(3) — Joinder o-f Parties Defendant — Injunction Suit Against Inspectors.</p> <p>In suit by cattle owners to enjoin live stock inspectors from requiring the dipping of cattle to eradicate fever ticks without statutory warrant, the several live stock inspectors were properly joined as defendants; the suit not being to recover damages, but to enjoin threatened acts.</p> <p>4. Injunction <§=>118(1) — Pleading—Petition to Enjoin Cattle Dipping.</p> <p>Petition against live stock inspectors to enjoin them from requiring dipping of cattle of several owners without statutory warrant, also plea of intervention filed by other cattle owners, which adopted the allegations of the petition, held sufficiently specific as to nature of acts sought to be prevented, the persons threatening the acts, and the injury or damage which would result.</p> <p>5. Injunction <§=>118(4) — Petition—Irreparable Injury — Suit to Enjoin Dipping of Cattle.</p> <p>Petition of cattle owners to enjoin live stock inspectors from requiring the dipping of cattle to eradicate fever ticks without statutory warrant held not subject to special exception as not alleging facts showing’ that plaintiffs would suffer irreparable injury, alleging that plaintiffs’ stock would be seriously crippled ana bruised, while as to milch cows there would be a total or at least a partial loss of milk and butter.</p> <p>6. Animals <§=29 — Tick Eradication — County Electon — Curative Act.</p> <p>In view of Const, art. 16, § 23, the Legislature had authority to validate, by Act May 12, 1917 (Acts 35th Leg. [1st Called Sess.] c. 4 [Vernon’s Ann. Civ. St. Supp. 1918, arts. ■7314r, 7314s]), an election of April 3, 1917, whereby Dallas county determined, under Acts 33d Leg. c. 169 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 7314r-7314e), that the county should take up the Work of tick eradication, though chapter 169 before the election was held was repealed by Acts 35th Leg. e. 60 (Vernon’s Ann: Civ. St. Supp. 1918, arts. 7314r-7314q).</p> <p>7. Injunction <§=>74 —Live Stock Inspectors — Tick Eradication.</p> <p>Live stock inspectors though empowered by statute to take up the work of tick eradication may be enjoined at the suit of cattle owners from dipping sound cattle in liquids, chemicals, and poisons not conforming to that prescribed for treatment of splenetic fever or the eradication of feve,r carrying ticks.</p> <p>8. InjuncíSon4<§=128 — Suit Against Live Stock Ií®féíOoRS — Evidence.</p> <p>In suitrot&ijoin live stock inspectors from dipping plaintiffs’ cattle for tick eradication without statutory warrant or improperly as without inspection and in injurious chemicals, evidence held sufficient to raise the issue that the mixture in which the inspectors threatened to dip the cattle was not properly proportioned or mixed and was not the official dip.</p> <p>9. Animals <§=>29 — Eradication of Ticks from Cattle — Inspection.</p> <p>To authorize official live stock inspectors to proceed with dipping of cattle under tick eradication laws, it is not necessary that each animal be inspected and some condition found to exist authorizing work of tick eradication, but before the Live Stock Commission or its agents or inspectors are authorized to require dipping or to dip the cattle themselves, some investigation must be made disclosing existence of disease or presence of tick.</p> <p>10. Injunction <§=192 — Injunction Against Officials — Prior Resignation.</p> <p>In suit to enjoin live stock inspectors acting under the Live Stock Commission from dipping cattle for tick eradication without statutory warrant, the court erred in rendering judgment perpetuating injunction and taxing costs against a defendant, who had resigned before institution of suit and another who resigned before trial.</p>

R. Davis, Judge. Condemnation proceedings by the City of San Antonio against Mrs. B. R. Fike and others. From a judgment rendered on appeal from the award of commissioners, the city appeals.

County; H. M. Richey, Special Judge. Suit by the Wilson Bros. Mercantile Company against W. M. Puckett. From judgment for plaintiff, defendant dppeals. The suit was by appellee against appellant for damages for breach of a contract as follows: “State of Texas, County of McLennan. This contract made and entered into this April 18, 1916, by and between Wilson Bros. Merc.

<p>Appeal from District Court, Jones County; Jno. B. Thomas, Judge.</p> <p>Action by the Citizens’ National Bank of Stamford against J. H. Stevenson. Judgment for defendant, and plaintiff appeals.</p>

<p>1. Chattel Mortgages <§=^197(1) — Unrecorded Mortgages — Construction oe Statute —“Creditor.”</p> <p>A “creditor,” within Rev. St. 1895, art. 3328, making unrecorded chattel mortgage void as against mortgagor’s “creditors,” is one who has acquired rights by an attachment or other process of law, and not merely a general creditor who has acquired no interest in the property.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Creditor.]</p> <p>2. Chattel Mortgages 197(1) — Priority oe Liens — Unregistered Chattel Mortgage.</p> <p>Where judgment creditor caused execution to issue and be levied upon automobile in possession of judgment debtor, his lien attached at time of levy and was superior to lien of unregistered chattel mortgage on automobile of which he had no notice at such time, notwithstanding notice at time of execution sale.</p>

<p>Error from McLennan County Court; Jas. P. Alexander, Judge.</p> <p>Action by E. K. Talley against the United Mutual Eire Insurance Company. Prom a judgment for plaintiff, defendant brings error.</p>

<p>1. CARRIERS <©=>343 — INJURIES TO PASSENGER — Pleading — Negativing Contributory Negligence.</p> <p>Petition, in action for personal injuries, averring that plaintiff stepped partly on the track to signal defendant’s interurban car to stop, and, upon receiving what she understood was the usual response that it would stop, was struck and injured while getting away from the track by the car passing by at a great speed, does not show on its face that plaintiff was guilty of contributory negligence.</p> <p>2. Trial <©=>260(8) — Requested Instruction —Covered by Charge.</p> <p>It is not error to refuse to give a requested instruction as to contributory negligence, which is sufficiently covered by the court’s general charge.</p> <p>3. Trial <©=>252(9) — Instructions—Conformity to Evidence.</p> <p>In action for injuries sustained by being struck by defendant’s interurban car, while plaintiff was endeavoring to signal it to stop, a requested instruction, that plaintiff could- not recover if she knew that the car was a special car and did not make local stops, was properly refused, where there was no evidence that plaintiff had such knowledge.</p> <p>4. Trial <©=>194(17) — Instructions—Comment on Weight op Testimony.</p> <p>It was not error to refuse a special charge, which violated the statute prohibiting judges from commenting on the weight of the testimony, in that it stated that it is negligence for a passenger, intending to board a car, to get too close to the track on its approach.</p> <p>5. Carriers <©=>344 — Burden op Proop — Contributory Negligence.</p> <p>In action for injuries by being struck by an interurban car, while plaintiff, an intending passenger, was endeavoring to stop it, the burden of proof was upon defendant on the issue of contributory negligence.</p>

<p>Appeal from District Court, Gregg County ; Daniel Walker, Judge.</p> <p>Crouse Brown was convicted of burglary, and appeals.</p>

<p>1. Damages <§=>200 (1) — Personal Injury Action— Exhibition of Person.</p> <p>In personal injury action, where plaintiff, in testifying to injuries,' indicated location of pain with his hands, but did not remove any of his clothing or exhibit any portion of his person, court properly refused to require plaintiff to be examined by defendant’s physicians.</p> <p>2. Carriers <§=>347(3) — Passengers — Action for Injuries — -Jury Question.</p> <p>Whether prospective passenger, standing at place where street car had stopped for a number of years for purpose of taking on and letting off passengers, was negligent in assuming that ear would stop, and stepping on track to avoid fast approaching automobile, was for the jury.</p>

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Suit for injunction by J. N. Edens and others against Road District No. 1, of Navarro County and others. Judgment denying injunction, and plaintiffs appeal.</p>

<p>Appeal from District Court, Bee County; F. G. Chambliss, Judge.</p> <p>Suit by E. P. Cayo and others against C. E. Williamson and others. From an adverse judgment, defendants appeal.</p>

Action by -Mrs. Minnie Carroll, adminis-tratrix of O. C. Carroll, deceased, against J. L. Lancaster and Pearl Wight, receivers of the Texas & Pacific Railway Company. From judgment for plaintiff, defendants appeal. In May, 1917, appellants, as receivers of the Texas & Pacific Railway Company, were common carriers engaged in interstate commerce. O. C. Carroll was employed by them in such commerce as a locomotive engineer.

<p>1. Appeal and Error ©=>759 — Assignments op Error — Necessity.</p> <p>Where there are no assignments carried into the brief presenting the exclusion of evidence as error, it cannot be considered.</p> <p>2. Appeal and Error ©=742(1) — Assignments op Error — Propositions.</p> <p>Under rule 30 of the Court of Civil Appeals (142 S. W. xiii), an assignment, submitted as a proposition, that “the court erred fn overruling plaintiffs’ motion to withdraw their announcement of ready for trial and continue this cause, as shown by plaintiffs’ bill of exceptions,” etc., to which there was no proposition subjoined, cannot be considered, not being in itself a- proposition.</p> <p>3. Continuance ©=>23 — Obtaining Evidence-Discretion.</p> <p>In suit involving title to land it was not abuse of discretion to refuse continuance to enable plaintiffs to obtain evidence that by lapse of time a corporation, alleged formerly to have owned the land, had become dissolved, and' itS property thereby vested in those claiming under its only stockholders, where there was, up to that point in the trial, no evidence that plaintiffs were in fact the sole stockholders of the company.</p> <p>4. Trespass to Try Title ⅞=>18 — Defenses —Title in Third Person.</p> <p>It is not a defense in trespass to try title that the land has been sold under execution against one of the cotenants thereof, whore defendant does not connect himself with the outstanding title thereby created.</p> <p>5. Appeal and Error ©=>673(2) — Execution —Sale—Collateral Attack.</p> <p>On appeal in trespass to try title, objection as to validity of execution sale of the property relied on by appellee, could not be considered where matters alleged as affecting its validity did not appear from the record.</p>

T. Sluder, Judge. Suit by T. D. Cobbs and Z. D. Bonner, as receivers of the Federal Bank & Trust Company, on behalf of the bank, against Thomas if. Brady and others, to recover on a note, and, the plaintiff Z. D. Bonner having resigned as receiver, T. D. Cobbs, continuing receiver, prosecuted the case, and the defendant Deutsch filed a cross-action against T. D. Cobbs for alleged misrepresentation in procuring the note and Howell, a depositor, intervened.

<p>Error from District Court, Bexar County; 5. G. Tayloe, Judge.</p> <p>Suit by Herman F. Schmidt against the Alamo ' Automobile Company. To review judgment for plaintiff, defendant brings error.</p>

<p>Appeal from District Court, Grimes County; E. A. Berry, Judge.</p> <p>Suit by Minor G. Wood against Tom Green and Moses Smiler. From judgment for plaintiff, defendant Green appeals.</p>

<p>1. Trial <S=>273 —. Error in Charge — Waiver.</p> <p>Error in charge is waived by appellant, when he fails to properly and timely object and except to the charge before it is given to the jury.</p> <p>2. Trial <®=>253(4) — Instructions — Omission of Issues.</p> <p>In action for injuries from being run over by defendant’s automobile, a charge on plaintiff’s contributory negligence held not affirmatively erroneous, as requiring finding of contributory negligence as a condition precedent to finding for defendant, and thus taking from the jury’s consideration the defense that the accident was unavoidable, because plaintiff fell in front of the car, and that defendant could not anticipate plaintiff’s crossing at an unusual place in the street and plaintiff’s falling after he started to cross.</p>

<p>Appeal from District Court, Galveston County; H. Clay Buggs, Judge.</p> <p>Application by H. Blankfield for administration on the estate of Sam Molnar, deceased. Application granted, and the Galveston, Harrisburg- & San Antonio Railway Company appeals.</p>

<p>1. Judgment <§=248 — Conformity to Pleadings and Evidence.</p> <p>The finding by a jury of a fact not alleged and not supported by any evidence, though submitted by the court, is a nullity, and can form no basis or support for a judgment.</p> <p>2. Insueance <&wkey;548 — Fike Insurance — Examination of Insured.</p> <p>Where fire policy provided for examination of insured under oath by insurer’s representá-tive, and insured, upon being notified by insurer to appear for examination at office of insurer’s agent, only a few city blocks distant from her residence, failed to appear and submit to examination, as required by policy, insured could not recover upon policy.</p>

<p>1. Taxation <§==>276 — Place of Taxation-Casualty Insurance Company — “Health Insurance Company” — “Accident Insurance Company.”</p> <p>The mere fact that a casualty insurance company incorporated under Acts 32d Leg. c. 117 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4942a-4942z), was authorized by its charter to write health and accident insurance, did not make it a health or accident insurance company, within the meaning of Acts 31st Leg. c. 108, or make applicable to it any of the provisions of such act.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Accident Insurance Company.]</p> <p>2. Taxation <§=>276 — Place of Taxation— Casualty Insurance.</p> <p>Acts 31st Leg. c. 108, providing for the incorporation of life, health, and accident insurance companies, and the deposit of securities by such companies with the state treasurer, and attempting to fix the situs for taxation purposes of the property of such companies, does not apply to casualty companies. •</p> <p>3. Taxation <s=>253 — Securities of Insurance Companies — Home Office as Situs-Constitutionality of Statute.</p> <p>Acts 31st Leg. e. 108, §§ 1, 38, providing that for the purpose of taxation the situs of all personal property belonging to life, health, and accident insurance companies shall be the home office of the owning company, is violative of Const, art 8, § 11, so far as concerns securities which are not actually at the home office of the company, hut have been deposited as required with the state treasurer at Austin in another county.</p> <p>4. Municipal Corporations <®=^971(3) — Back Assessment by City— Charter.</p> <p>Undei; Charter of City of Austin, art. 12, § 2, subd. 24, as amended March 24, 1909 (Sp. Laws 1909, c. 90), the city had legal authority to make, in 1917, a back assessment of securities of a casualty insurance company for the years 1914, 1915, 1916.</p> <p>5.. Statutes <§=»181(2) — Construction — Intent-Effect.</p> <p>"When two constructions may be given a statute, one of which would lead to absurdities and defeat the legislative intent, while the other would clarify its meaning, purposes, and intent, and make the statute enforceable, such reasonable construction must be given it.</p>

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Suit by the city of Austin against the Texas Fidelity & Bonding Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Deeds <&wkey;31 — Persons Bound.</p> <p>One who signs a deed, but does not appear on the face thereof to be a party thereto, or whose name is not recited in the premises thereof, is not bound thereby.</p> <p>2. Liens <&wkey;3 — Creation—Execution—Parties.</p> <p>Instruments creating liens on real estate of whatever character are conveyances thereof, and hence one who signs such an instrument, but does not appear on the face thereof to be a party thereto, or whose name is not recited in the premises thereof, is not bound thereby.</p> <p>3. Liens <&wkey;3 — Creation—Parties to Instrument.</p> <p>An instrument, creating a lien in favor of street paving contractor, purporting in its premises to be from “M. and his wife,” was binding on wife, where she signed and acknowledged that she was the wife of M., the person described, named, and referred to in the premises.</p> <p>4. Evidence <&wkey;31S(l) — Hearsay—City Directory.</p> <p>A city directory was inadmissible to prove that a certain person was the agent of another; the contents thereof being but the declaration of an ynknown person.</p> <p>5. Acknowledgment <&wkey;62(2) — Disqualification op Notary — Financial Interest— Sufficiency of Evidence.</p> <p>Evidence held insufficient to show that a notary was financially interested in a transaction so as to be disqualified to take an acknowledgment.</p> <p>6. Acknowledgment <&wkey;20(l) — Disqualification of Notary.</p> <p>The act of taking and certifying acknowledgments cannot be performed by a notary public financially or beneficially interested in the transaction.</p> <p>7. Trial <&wkey;136(l) — Questions of Fact.</p> <p>Whether a notary who takes an acknowledgment to an instrument is financially or beneficially interested in the transaction is ordinarily an issue of fact.</p> <p>8. Acknowledgment <&wkey;20(l) — Disqualification of Notary.</p> <p>The fact that a paving company paid the fees of a notary who was taking and certifying acknowledgments to statutory mechanics’ liens on abutting property did not alone disqualify him.</p> <p>9. Homestead <&wkey;97 — Liens — Street Improvements.</p> <p>Under Const, art. 16, § 50, as to creation of lions on homestead, a lien declared by a city under an ordinance against a homestead to secure payment for material and labor furnished by a paving company, was- a nullity, as a lien against homestead may be created only in the manner directed by the Constitution.</p> <p>10. Mortgages <&wkey;151(3) — Priority—Statutory Lien. -</p> <p>A lien, voluntarily created by an instrument executed by a husband and wife against homestead property in favor of a paving contractor, is subordinate to a prior mortgage.</p> <p>11. Homestead <&wkey;97 — Liens — Improvements — Attorney’s Fees.</p> <p>A lien created by instrument executed by a husband and wife against a homestead, in favor of a paving contractor is not security for a 10 per cent, attorney’s fee provided for therein, although such fees are enforceable as a personal liability.</p>

<p>1. Bills and Notes <&wkey;496(l) — Indorsement —Presumptions—Time.</p> <p>Where notes were made payable to the order of the maker and indorsed by him and transferred, it will be presumed that they were indorsed and transferred at the time of their execution.</p> <p>2. Mortgages <&wkey;235 — Transfer of Notes.</p> <p>Since a mortgage is only security for a debt and follows it into the hands of any transferee of the note evidencing the debt, a mortgage became valid as soon as notes made payable to maker were indorsed and transferred by him.</p> <p>3. Appeal and Error &wkey;>1071(5) — Harmless Error — Findings of Fact.</p> <p>Findings of court as to immaterial matters having no bearing upon any of the issues are harmless.</p> <p>4. Mortgages <&wkey;345 — Power of Sale — Limitations of Actions.</p> <p>Where notes secured by a deed of trust matured January 1, 1913, the authority of the trustee to transfer the property under the deed of trust expired absolutely on January 1, 1917, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5693, although such statute, as amended, did not go into effect until November 17, 1913.</p> <p>5. Subrogation <&wkey;14(3) — Mortgage Foreclosure Sale.</p> <p>A purchaser of land from a trustee under a deed of trust at a sale, void by reason of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5693, was entitled under the doctrine of subrogation to the debt and the right to sue on the notes, if they were not barred by the provisions of articles 5694, 5695.</p> <p>6. Limitation of Actions <&wkey;175 — Waiver.</p> <p>Limitations being purely a personal defense, a defendant may waive it.</p> <p>7. Limitation of Actions <&wkey;125 — Commencement of Action — Substitution of Paeties.</p> <p>Where action was brought in name of one having no interest in subject-matter and -no authority to file same in his name, and the court allowed real party in- interest to file an amended petition and plea of intervention wherein same cause of action was set up, the filing of the first petition in the name of the party having no interest being a mistake on the part of attorneys, there was no new cause of action as far as limitations was concerned.</p> <p>8. Bills and Notes &wkey;>443(3) — Action on Notes — Indorsements.</p> <p>Where a note is indorsed by the payee in blank, any holder has prima facie the right to institute a suit and recover in his own name.</p>

<p>1.Sequestration <&wkey;21 — False Grounds— ' Actual Damages.</p> <p>If grounds upon which writ of sequestration was secured were false or untrue, defendant is entitled to recover his actual damages, regardless of whether plaintiffs sincerely believed in the truth thereof.</p> <p>2. Malicious Prosecution <&wkey;68 — Exemplary Damages — Malice—Want op Probable Cause.</p> <p>If plaintiffs, in securing wrif of sequestration upon false grounds, acted maliciously and without probable cause for believing truth thereof, they are liable, in addition to actual damages, for vindictive- or exemplary damages by way of punishment for their wrongful and oppressive use of court’s process.</p> <p>3. Trial <&wkey;260(l) — Requested Instructions.</p> <p>Court did not err in refusing to give requested special charges, where charge given covered same subject-matter more favorably to party who had made request therefor.</p> <p>4. Malicious Prosecution &wkey;358(3) — Wrongful Sequestration — Evidence—Judgment in Original Proceeding.</p> <p>In action for damages for wrongful sequestration, the pleadings and judgments rendered in original action are admissible in evidence; the result of such action being basis of action for damages, and proof of its outcome being necessary to proof of damages suffered thereby.</p> <p>5. Trial <&wkey;-194(14) — Instructions—Weight of Evidence.</p> <p>In action for securing writ of sequestration without probable cause, requested instruction that original proceedings were not conclusive of issues on trial, but that jury should determine damages without regard to result of such proceedings, was properly refused, being on weight of evidence, and discrediting undisputed fact as to outcome of such proceedings as shown by pleadings and judgment.</p> <p>6. Malicious Prosecution <§=»67 — Wrongful Sequestration — Damages.</p> <p>Where plaintiff secured issuance of writ of sequestration upon false grounds and without probable cause, defendant is entitled to recover as exemplary damages attorney’s fees, expenses, and loss of time resulting from the original action.^</p> <p>7. Judges <&wkey;45 — Disqualification — Relation to “Party.”</p> <p>A surety on an appeal bond is a “party” to an action within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1736, disqualifying county judge from sitting in a proceeding where either party is related to him by consanguinity within third degree.</p> <p>[Ed. Note. — F.or other definitions, see Words and Phrases, First and Second Series, Party.]</p> <p>8. Appeal and Error <&wkey;497(l) — Bill of Exceptions — Disqualification of Judge.</p> <p>Bill of exceptions reciting that judgment is void because judge was a cousin of surety on appeal bond and was therefore disqualified, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1736, was insufficient to present matter, where it failed to show that relationship was within third degree of consanguinity.</p> <p>'9. Judgment <&wkey;9 — Disqualification of Judge — Effect.</p> <p>In action for damages for wrongful sequestration, judgment in original proceeding will not be held void on ground of disqualification of county judge because of relationship with sure-, ty on appeal bond.</p> <p>10. Malicious Prosecution <&wkey;G7 — Wrongful Sequestration — Conve'rsion—Damag-es eob Detention.</p> <p>Where plaintiff wrongfully sequesters property and converts it pending suit, defendant is entitled as damages not only to value of property but, where that is insufficient, to compensation for detention.</p> <p>11. Malicious Prosecution <&wkey;42 — Wrongful Sequestration — Liability of Surety.</p> <p>Ordinarily surety on sequestration and re-plevin bonds are not liable in case of wrongful sequestration for exemplary damages, but, where the malicious acts are instigated by him or where he acts jointly in the conversion of the property, he is responsible for exemplary damages in same degree as plaintiff.</p>

<p>Error from Dallas County Court; W. L. Thornton, Judge.</p> <p>Action by the Dalton Adding Machine Company against the F. L. Shaw Company. From a judgment for plaintiff, defendant brings error.</p>

<p>Error from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Action by I. D. Thompson against R. B, George. Judgment for plaintiff, and defendant brings 'error.</p>

<p>1. Limitation of Actions <©⅛»46(1) — Four-Year Statute — Suit Against Sureties off Selling Agent.</p> <p>Where an agent contracted to sell books for his principal, reporting by the fifth of each month, and all books which formed basis of account, on which principal’s suit against sureties on agent’s bond was based were disposed of by the agent before March 1, 1910, to the knowledge of the principal, Ms suit against the sureties, filed April 22, 1914, was barred by the four-year statute of limitations.</p> <p>2. Limitation of Actions <s==>110 — Statute of Limitations — Tolling by Bankruptcy or Conduct.</p> <p>Where an agent to sell books, who had given a bond with sureties, became insolvent and went into bankruptcy, and his sureties tried to get the principal’s claim against the agent allowed and paid out of the estate, but did nothing that legally excused or misled the principal from bringing suit against them on the agent’s bond at any time after the date when the cause of action matured, the proceedings in bankruptcy and the acts of the sureties did not toll the four-year statute of limitations.</p>

<p>1., Principal and Agent <§=>159(1) — Breach —Act op Agent.</p> <p>Failure of agent to carry out terms of contract to buy cattle was a breach thereof, although principal had no knowledge that agent refused to accept and pay for cattle.</p> <p>2. Sales <§=3172 — Breach—Possibility of Pekfobhance.</p> <p>The rights of an innocent seller in a contract of sale of cattle were not affected by fact that, after breach thereof by the opposite party, he disabled himself from performing by selling the cattle to another person.</p> <p>3. Sales <§=>92, 196^Contract of Sale — Rescission.</p> <p>A telegram from seller in a contract of sale of cattle and buyer’s reply thereto held neither a rescission of the contract nor a waiver by the seller of its breach.</p> <p>4. Sales <§=>196 — Beeach—Waivee.</p> <p>Seller’s efforts to assist buyer in a purchase of cattle by making' terms less onerous should not be counted as a waiver of buyer’s breach.</p> <p>5. Sales <§=>195 — Contracts of Sale — Breach.</p> <p>The failure of an agent to notify one who contracted to purchase cattle that he would not advance money and pay for cattle and accept them as agreed with the purchaser cannot be charged to seller so as to prevent seller from recovering for breach.</p> <p>6. Judgment <§=>256(1) — Findings—Actual Damage — Penalty.</p> <p>In action on a note deposited by defendant in a bank, to be forfeited if he should fail to accept certain cattle, a judgment for plaintiff was sustained where, in reply to defendant’s answer that the note represented a penalty, plaintiff alleged and proved, and the court found, that actual damages resulting from defendant’s refusal to take cattle were in excess of amount of the note, although court found that note represented a pen'alty, and not liquidated damages.</p>

<p>Appeal from Stephens County Court; Jesse R. Smith, • Judge.</p> <p>Suit by George Tullos against the Texas & Pacific Coal Company, in which the Farmers’ & Merchants’ State Bank of Ranger intervened. From an adverse judgment, the intervener appeals.</p>

Action by H. C. Harding and others against Sidney Webb and others. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (159 S. W. 1029), and defendants bring error.

<p>Error to Court of Civil Appeals of Eighth Supreme Judicial District.</p> <p>Action by Ynocenta Bustillos against the Southwestern Portland Cement Company. Judgment for plaintiff was reversed by the Court of Civil Appeals (169 S. W. 638), and plaintiff brings error.</p>

Suit by J. P. Kearby against L. B. Cox and others. Decree for complainant, and certain defendants appeal, and from a judgment of the Court of Civil Appeals, Ft. Worth. (175 S. W. 731), reversing and rendering, plaintiff brings error.

<p>Error from Comanche County Court; J. H. McMillan, Judge.</p> <p>Action by the First State Bank of Comanche against' A. O. Brannan and others. Judgment against defendant" named, and he brings error.</p>

<p>Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.</p> <p>Habeas corpus by Arthur Jetty to obtain bail. From judgment remanding him to custody, relator appeals.</p>

’ Appeal from District Court, Grayson County; C. T. Freeman, Judge. Suit by the Howe Grain & Mercantile Company against the A. B. Crouch Grain Company, the Gulf, Colorado & Santa Fé Railroad Company, and the City National Bank of Temple. Judgment for plaintiff against first-named defendant, but for other defendants. Prom that portion of judgment denying it recovery against other defendants, plaintiff appeals.

E. McDowell, Judge. Suit by Mrs. A. P. Dinkins, for herself and as next friend for her two minor children, Jack Dinkins and Emma Marie Dinkins, against the American Indemnity Company, to recover compensation under Employers’ Liability and Workmen’s Compensation Daw. Judgment for plaintiffs, and defendant appeals.

' Appeal from District Court, Harris County; Chas. E. Ashe, Judge. Suit by the Houston Hot Well Improvement Company against Emma K. Newton, J. S. Purdy, and another, in which defendant J. S. Purdy filed cross-action against defendant Mrs. Einma K. Newton. Erom judgment for plaintiff and for defendant Purdy, defendant Emma K. Newton appeals.