Volume 212 — South Western Reporter

<p>Appeal from Harris County Court, at Law; Roy E. Campbell, Judge.</p> <p>Action by Dr. C. C. Green against the Producers’ Oil Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Pledges ®=>30(2) — Authority oe Pledgee —Cashing Check — Recital oe Payments in Full.</p> <p>Where assignment from plaintiff'of balance due plaintiff as subcontractor for materials was held by bank as a mere pledge or collateral to secure payment of certain indebtedness due it by plaintiff, the cashing by the bank of a check for less than the amount claimed by plaintiff, which check had been sent the bank by the contractor and recited that it was in full, when there was a dispute as to whether the contractor should pay liquidated damages for delay, did not constitute an accord and satisfaction.</p> <p>2. Estoppel <§=>58 — Equitable Estoppel-Elements.</p> <p>One of the necessary elements of an equitable estoppel is that the person claiming it must have been induced to alter his position in súeh manner that he will be injured if the estoppel is not declared.</p> <p>3. Estoppel <⅜=>76 — Equitable Estoppel-Altering One’s Position to His Injury.</p> <p>Where bank held assignment of balance due plaintiff as subcontractor for materials as a mere pledge to secure certain indebtedness due it by plaintiff, defendant debtor could not claim that plaintiff was estopped to deny the bank’s authority to accept less than the amount due in full satisfaction of defendant’s liability; defendant having paid only admitted liability and protected his rights under contract.</p>

<p>1. Logs and Logging <®=3(7) — Timber Deeds — Construction.</p> <p>Deeds of conveyance of standing timber, like other contracts, should be construed in such manner as to carry out the real intention of the parties.</p> <p>2. Logs and Logging ⅞=»3(11) — Conveyance oe Standing Timber — Construction.</p> <p>A deed of standing timber which gave the grantee the right to cut and remove the timber within a specified time, and an additional term or so much thereof as might be required, on payment of a specified sum, gave the grantee title only to such timbeV as was cut and removed within the period fixed.</p>

<p>1. Appeal and Error <©=604 — Reservation of Exceptions — Agreements of Attorneys —Sufficiency.</p> <p>An agreement between attorneys of plaintiff and defendant that a bill of exceptions was presented and filed at the trial and could be considered by the Court of Civil Appeals as part of the transcript cannot be considered by the Supreme Court for any purpose when not filed in the trial court, authenticated by the trial judge, nor incorporated in the transcript.</p> <p>2. Appeal and Error <®=274(7) — Reservation of Exceptions — Sufficiency.</p> <p>An exception by defendant in a personal injury action “to the rulings of the court in not submitting to the jury defendant’s special issues Nos. 1 to 12” is insufficient, under Acts 33d Leg. c. 59, amending Rev. St. 1911, art. 2061 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2001), providing that the ruling of the court as to instructions shall be regarded as approved unless excepted to as provided in the act, since it fails to show that the request was made in the time and manner required by the act.</p> <p>3. Appeal and Error <©=273(10) — Exceptions — Sufficiency.</p> <p>Where but one general exception is taken to the action of the court in refusing to give several distinct charges or issues, it is not entitled to consideration on appeal if one or more of such charges or issues should not have been given.</p> <p>4. Carriers <©=320(29), 347(12) — Personal Injury Actions — Boarding and Alighting-Questions for Jury.</p> <p>Where plaintiff, who had assisted his mother and two children to board defendant’s train, was injured while alighting from the train .after it had started, on the conductor’s refusal to stop the train to let him off after being requested to do so and with notice of plaintiff’s object in boarding the train, the issues of negligence and contributory negligence were for the jury.</p>

<p>Error to Court of Civil Appeals of Sev-. enth Supreme Judicial District.</p> <p>Suit by Z. T. Northcutt and wife against H. E. Hume and others. Prom judgment for defendant's, plaintiffs appealed to the Court of Civil Appeals, which affirmed (174 S. W. 974), and plaintiffs bring error.</p>

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>Action by Mrs. N. L. Cook, for herself and minor child, against Pete Urban. A judgment for defendant was reversed by the Court of Civil Appeals (167 S. W. 251), and defendant brings error.</p>

<p>Appeal from Harris County Court; Clark C. Wren, Judge.</p> <p>Suit by O. Armstrong against the Houston Belt & Terminal Railway Company and C. E. McKneely. Judgment for plaintiff, and defendant McKneely appeals.</p>

<p>1. Boundaexes <&wkey;35(3), 36(3, 5) — Field Notes —Ambiguity —Admission oe Otheb Evidence.</p> <p>In suit involving question whether there is a vacancy between two leagues on the west and a survey on the east to which plaintiffs are entitled by an award from the state, heli that, when an attempt was made to locate the boundaries of the leagues on the ground by the field notes in the grant, and an ambiguity appeared, court did not err in admitting original English field notes, maps, plats, and field notes of adjoining grants, and evidence of surveyors as to the true location of the east boundary line of the leagues.</p> <p>2. Boundaeies <&wkey;6 — Tracing Footsteps oe Surveyor — Point of Beginning.</p> <p>Contention that to trace the footsteps of the original or locating surveyor one must begin at the corner at which he began, or the point ascertained to be approximately near said corner, rather than at a well established and known corner of an adjoining 'survey called for by the locating surveyor in fixing the boundaries iv question, is untenable.</p> <p>3. Boundaries <&wkey;3G(3, 5) — Original English Field Notes and Maps — Admissibility.</p> <p>The original English field notes and maps prepared by the surveyor to locate surveys are part of the original title, and may be considered in aid of description contained in the grant, and to supply what is omitted therefrom.</p> <p>4. Boundaries <&wkey;37(3)— Evidence, — Sufficiency.</p> <p>In suit involving question whether there is a vacancy between two leagues on the west and a survey on the east to which plaintiffs are entitled by an award from the state, evidence held to justify court’s finding that the east boundary line of leagues was at the place contended for by appellees claiming adversely to plaintiffs.</p>

Briggs, Judge. Suit by John Zyloni and another against the American Indemnity Company to recover compensation under ' the Workmen’s Compensation Act. From judgment for plaintiffs, defendant appeals.

<p>1.Sales <©=85 (1) — Agreement to Make Security Deposit — Failure.</p> <p>Where the seller of cotton left the contract in the hands of the buyer’s agent, who negotiated it, with the understanding by both parties that it should not become effective as a binding agreement until each party had made deposit of an agreed amount as security, the failure of either party to make the deposit released the other from the obligation of the contract.</p> <p>2. Contracts <©==>42 — Delivery op Contract —Copy to Seller.</p> <p>The validity of a contract for the sale of cotton was not affected by the fact that the seller .did not obtain a copy thereof, and it was not a condition to the buyer’s recovery, as for seller’s breach, that seller have obtained such copy ; the general rule as to delivery of written instruments not requiring that a copy or duplicate of a mutual agreement be delivered to each of the parties to render the agreement effective.</p> <p>3. Sales c©=89 — Bight to Security Deposit — Guaranty.</p> <p>If there was no agreement by the seller of cotton to accept a third person’s guaranty in lieu of a deposit by the buyers, he was not required, to preserve his right to insist on the deposit, to reply to the letter of the buyers’ agent inclosing a purported copy of the contract signed by the third person as guarantor, and the agent could not assume, from the seller’s failure to reply to the letter, that he had accepted the guaranty in lieu of the deposit.</p>

<p>Appeal from District Court, Ft. Bend County; Samuel J. Styles, Judge.</p> <p>Suit by Dfew Bros, against the Sugarland Kailway Company. From judgment for plaintiffs, defendant appeals.</p>

<p>1. Waters and Water Courses <S=>216 — Irrigation Districts — Taxes — Constitutional Limitations.</p> <p>Acts 29th Leg. c. 122, §§ 84, 48, providing for assessments in irrigation districts organized under the act, in addition to bonds that may be issued, cannot be held invalid simply because limitations under Const, art. 3, § 52, as to amount of obligations that district may assume, are not stated in the sections, the constitutional limitations being binding, though not stated.</p> <p>2. Constitutional Law <©=348 — Constbuction of Statute — Favoring Validity.</p> <p>If an act is susceptible of two constructions, one which makes it valid and the other invalid, that construction should be adopted which will sustain validity.</p> <p>3. Constitutional Law <©=348 — Validity of Statute — Legislative Intent — Presumption.</p> <p>It will not be presumed that the Legislature intended to pass an act in violation of the Constitution, and an act will not be so construed when it is susceptible of a different construction.</p> <p>4. Evidence <©=>83(1) — Officers—Violation of Constitutional Provision — Presumption.</p> <p>It will not be presumed that defendants, board of directors of irrigation district in question, will ever attempt to violate any of the provisions of the Constitution limiting the taxing powers of the district in the amount of indebtedness it may incur.</p> <p>5. Waters and Water Courses <©=3281 — Irrigation Districts — Establishment — Statute.</p> <p>Acts 29th Leg. c. 122, §§ 34, 48, providing for assessments in irrigation districts organized under the act in addition to bonds that may be issued, were not intended to authorize additional taxation within the constitutional sense of that term, but to authorize assessments based on property benefits, and are ineffectual in that they do not provide for any hearing for determination of benefits accruing to property upon which assessments are made.</p> <p>6. Statutes <©=>64(5) — Invalidity in Part.</p> <p>The presence in Acts 29th Leg. c. 122, of sections 34, 48, which are inoperative because they do not provide for any hearing for determination of benefits, to property within irrigation districts, does not render the whole act violative of the Constitution, since the main purpose of the act can be given effect without regard to the sections, and must be upheld, the subsequent acts of Legislature (Acts 33d Leg. c. 172, § 95 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5107 — 95]; Acts 35th Leg. c. 87, § 95 [Vernon’s Ann. Civ. St. Supp. 1918, art. 5107 — 95]) having cured the defects.</p> <p>7. Waters and Water Courses <©=3216 — Irrigation Districts — Indebtedness—Constitutional Provisions.</p> <p>The $2,000 indebtedness for organization purposes of irrigation districts authorized by Acts 29th Leg. c. 122, § 50, is to be paid out of assessments which can only be made after being authorized by two-thirds of the voters of the district, and the section, when so construed, is not in violation of Const, art. 3, § 52, as to two-thirds vote being required to lend credit of district.</p> <p>8. Statutes <©=364(4) — Invalidity in Part.</p> <p>Though section 20 of Acts 29th Leg. e. 122, violates Const, art. 16, § 30, in that it fixes the term of office of the board of directors of irrigation districts at four years, the other provisions of the act are not so dependent on, or connected with, provision fixing the terms of office as to render them invalid.</p> <p>9. Waters and Water Courses <©=3216 — Irrigation Districts — Curing Defective Statute.</p> <p>The Legislature having by timely enactment (Acts 33d Leg. c. 172, § 72 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5107 — 72]) remedied the defect in Acts 29th Leg. e. 122, § 20, fixing terms of office of members of board of directors of irrigation districts at four years, contrary to Const, art. 16, § 30, before any of the directors of district in question had served two years, and having in express terms validated districts created under the act of 1905, and the acts of the directors and officers of such districts, no one can complain of section 20.</p> <p>10. Waters and Water Courses <©=>216 — Irrigation Districts — Bonds — Power of Legislature.</p> <p>Const, art. 3, § 52, authorizing the granting of credit by the district for the construction and maintenance of pools, lakes, reservoirs, dams, canals, and waterways for the purpose of irrigation, authorizes an act of the Legislature (Acts 29th Leg. c. 122) permitting irrigation districts to issue bonds for the purpose of constructing irrigation works, and acquiring the necessary property and rights therefor, and for the operation of an irrigation plant.</p> <p>11. Waters and Water Courses <©=>225 — Irrigation District — Legal Existence — Forfeiture.</p> <p>Evidence held to show due diligencé on the part of an irrigation district organized under Acts 29th Leg. c. 122, to carry out the pux-pose of its organization, so that its legal existence had not been forfeited on that account.</p> <p>12. Waters and Water Courses <©=>230(3)— Irrigation Districts — Cancellation of Bonds — Suit—Condition Precedent.</p> <p>A taxpayer cannot maintain a suit to cancel bonds of an irrigation district without alleging and proving that the board of directors of the district has refused to institute such suit.</p> <p>13. Waters and Water Courses <©=>230(4)— Irrigation Districts — Sale of Bonds fob Less Tuan Face Value.</p> <p>Where sale of $40,000 of bonds of irrigation district for 90 per cent, of their face value was properly advertised and conducted, and the purchaser did not know that the statute prohibited sale for less than face value, the 'court did not err in validating the title to purchaser to $36,000 par value of said bonds, and requiring surrender of the $4,000 par value.</p>

<p>Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.</p> <p>Suit by tbe Houston Electric Company against tbe Mayor and City Council of tbe City of Houston. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County ; Charles E. Ashe, Judge.</p> <p>Suit by the Reichardt & Schulte Company against the Houston & Texas Central Railroad Company. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Harris County ; John S. Prince, Judge.</p> <p>Suit by L. A. Murff against John E. Morrison & Co. and others. From judgment for plaintiff, defendants appeal.</p>

<p>1. Trial <@=>252(5) — Instructions—-Want or Evidence to Support.</p> <p>In railroad’s condemnation proceedings the court properly refused a requested charge that the jury should not consider injuries, if any, which the owners sustained in common with the community in general, not peculiar to them, where there was no evidence that the community generally sustained injury.</p> <p>2. Eminent Domain <@=>262(5) — Harmless Error — Instruction.</p> <p>In a railroad’s condemnation proceedings, where the jury found that the land was not increased in value by the taking of the part condemned, failure to require it to state the amount of any increase in the value of the rest of the owners’ land was harmless.</p> <p>3. Evidence <@=>488 — Opinion—Land Values — Qualifications of Witness.</p> <p>In a railroad’s condemnation proceedings, an owner of the land, who had lived in the neighborhood for 31 years, and on his then farm for 25 years, having been deputy tax assessor in the neighborhood for several years, and well informed as to the nature of lands in the vicinity, held qualified to testify as to market value.</p> <p>4. Evidence <@=>474(18) — Opinion of Landowner — Value.</p> <p>In a railroad’s condemnation proceedings, the owner of the land was properly permitted to testify in his own behalf that the fair market value of the land taken prior to its taking was $100 an acre.</p> <p>5. Evidence <@=>142(2) — Value of Land-Sales of Other Land.</p> <p>In a railroad’s condemnation proceedings, the owner of the land was properly permitted to testify to sales of land four or five miles from his own, against objection that there was no showing whether the sales were for cash or credit, or whether there were any improvements on the lands sold, where the owner stated that there were no improvements on one tract sold, except a small box house, etc.</p>

<p>1. Pleading <&wkey;>248(3) — Amendment — New Cause oe Action — Change oe Yenue.</p> <p>Where original petition was amended only to the extent of changes due to a different stage having been reached in the progress of negotiations for exchange of properties, held, that different causes were not stated, and court did not eiT in overruling defendants’ plea asking a transfer of cause to the county to which they had moved between the time of filing of original and amended petitions.</p> <p>2. Appeal and Error <&wkey;843(4) — Review— Matters Not Essential to Disposition oe Case.</p> <p>Since defendants’ plea of privilege cannot be sustained, it is unnecessary to consider whether it was waived.</p> <p>3. Escrows <&wkey;12 — Time When Instrument Takes Eeeect.</p> <p>A deed placed in escrow to be delivered on compliance with specified conditions becomes effective on the fulfillment of the conditions, though there is no actual delivery.</p> <p>4. Escrows &wkey;>13 — Delivery — Relation Back.</p> <p>Where delivery is to a third person in escrow for delivery to grantee upon compliance with specified conditions, a delivery as directed relates back so as to divest the title of the grantor from the first delivery.</p> <p>5. Injunction <&wkey;194 — Extent oe Reuse— Title and Possession oe Land.</p> <p>In suit to restrain defendant from interfering with plaintiff’s use and possession of property received from defendants in exchange for her own, where defendants disputed plaintiff’s title and sought to recover it for themselves, it was not improper for the court to render judgment against defendants for title and possession.</p> <p>6.Injunction <&wkey;194 — Reliei^Restraining Suit at Law.</p> <p>Where defendants threatened to forcibly reenter and take possession of property deeded to plaintiff in exchange - for plaintiff’s property, and rescind trade for sole reason that they were unsatisfied with their bargain, after having lived upon plaintiff’s property for 11 months, it was a proper exercise of the court’s power in suit to restrain such acts to enjoin the institution of further suits by defendants.</p>

<p>1. Appeal and Error <&wkey;1068(3) — Haemless Error — Instructions.</p> <p>Where the evidence was of such a conclusive character' as to make it doubtful whether any other conclusion could reasonably 'have been reached by the jury, it was harmless error for the court in its instructions to place the burden of proof upon the wrong party.</p> <p>2. Chattel Mortgages &wkey;>157(2) — Failure to File — Bona Fide Purchasers — Burden of Proof.</p> <p>Under Vernon's Say les’ Ann. Civ. St. 1914, art. 5655, providing that chattel mortgages shall be void as against subsequent mortgagees or lienholders in good faith unless forthwith deposited and filed in the office of the county clei-k, the burden is upon the subsequent mortgagee or lienholder to show by a preponderance of the evidence that he was a bona fide purchaser or holder for value.</p> <p>3. Chattel Mortgages <&wkey;157(2) — Failure to File — Bona Fide Purchaser — “Consideration.”</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5655, providing that chattel mortgages shall be void as against subsequent mortgagees or lienholders in good faith unless deposited in the office of the county clerk, proof by subsequent mortgagee of the execution of his mortgage together with the fact that a note was taken for a less amount than an old one evidencing the same indebtedness, and that an extension was granted, was not sufficient to show that the subsequent mortgagee was a bona fide mortgagee for value, there being no showing that the extension was not a mere incidental; such an extension not constituting a new consideration (citing Words and Plirases, First and Second Series, Consideration).</p> <p>4. Chattel Mortgages <&wkey;157(2) — Unrecorded Mortgage — Bona Fide Mortgagee —Evidence.</p> <p>In action by a subsequent chattel mortgagee to foreclose a mortgage, where a prior mortgagee intervened, evidence held to warrant a finding that plaintiff was not a bona fide subsequent mortgagee for value, although the mortgage was executed in renewal of an older mortgage, and although the mortgagee advanced the fees or charges for preparing the instrument, and although mortgagor was credited with a balance left over of $1.60.</p>

<p>Appeal from District Court, Dallas County; Kenneth Poree. Judge.</p> <p>Suit by L. A. Stemmons and others against the Dallas Power & Light Company. Judgment for defendant, and plaintiffs appeal. Judgment</p>

<p>1. Insurance <§==>198(4) — Life Insurance— Recovery oe Premium — Fraud.</p> <p>Though agent represented to plaintiff that premium would be $270 and plaintiff did not know that policy provided for an annual premium of over $337, where no concealment or fraud was used when application was made and the policy followed the terms of the application, plaintiff, who could read, but who kept the policy and application for about a year before examining them, cannot recover from the company the amount paid; ho having actually received protection under the policy.</p> <p>2. Insurance <§=^198(4) — Lote Insurance-Fraudulent Representations oe Agent.</p> <p>In such case, the rule is that fraudulent representations of the agent, to be available to insured, must take place at the time of the delivery of the policy, at which time the contract is consummated, and a preliminary representation of insurer’s agent that the premium would be a certain amount, when in fact the premium on the policy as delivered was more, was not fraud.</p> <p>Appeal from Guadalupe County Court; J. B. Williams, Judge.</p> <p>Suit by H. E. Short against the Union Central Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.</p>

<p>1. Appeal and Eeeoe <S=1097 (1) — Subsequent Appeai^-Law oe Case.</p> <p>On subsequent appeal, Court of Civil Appeals will follow law as announced by decision on former appeal, where it has not been reversed or modified by Supreme Court.</p> <p>2. Appeal and Eeeoe <©=>1198 — Retbial — Law oe Case.</p> <p>On retrial, lower court is required to obey orders of appellate court in remanding case.</p>

<p>1. Appeal and Errob <@=3690(6) — Record— Omission oe Evidence — Expert Opinion.</p> <p>In an action on notes given for the price of a piano, testimony of the buyer as to the market value of the instrument will not be held inadmissible on the ground the buyer was not an expert, but that his testimony was mere hearsay; the bill of exceptions failing to rebut the presumption that the buyer qualified himself to testify as an expert.</p> <p>2. Appeal and Error <©=>1050(1) — Harmless Error — Expert Testimony.</p> <p>The improper admission of alleged expert testimony as to value was harmless error, where two other witnesses testified to the same fact of value, one without objection.</p> <p>3. Sales 3=38(4) — Purchase by Written Contract — Want oe Consideration ob Misrepresentation.</p> <p>The right of a buyer to urge want or failure of consideration when sued on promissory notes given for the price, or to urge misrepresentation concerning the character or kind of the goods inducing the purchase, when relied on, is not limited because the transaction took the form, of a written contract.</p>

<p>1. Appeal and Error <©=>707(2) — Record— Judgsíent — Right to Excess on Sale ojp Land.</p> <p>In an action to foreclose vendor’s lien against the vendee and purchasers of part of land, where there was a judgment against the vendee for the amount due on notes sued upon and against the other defendants forelosing the lien, but .providing, in event the land should sell for more than sufficient to satisfy plaintiff’s judgment, for payment of the excess to the “defendants,” it cannot be said on appeal that the direction to pay the excess to the “defendants” was not proper, where there was no pleading between the defendants, and the only allegation as to the ownership of the land was an allegation in plaintiff’s petition that part of the tracts had been sold by the vendee to the other defendant, and where there is no statement of facts with the record.</p> <p>2. Judgment <©=>251 (2) — Conformity to Pleading and Issues — Relief Between Defendants.</p> <p>In a suit to foreclose vendor’s lien against the vendee and others who had purchased part of the land from the vendee, in the absence of any pleading of equities by either defendant, or any pleading or proof as to the amount he was entitled to receive of the excess proceeds of a sale of the lands, the court could not do otherwise than direct that such excess proceeds be paid to the defendants jointly.</p> <p>3. Judgment <©=>21 — Definiteness.</p> <p>In action on notes and to foreclose vendor’s lien against the vendee and others who had purchased part of the land from vendee, a judgment against the vendee for the amount due upon the notes and against all of the defendants foreclosing the lien, the decree foreclosing the lien and ordering the sale of the land directing the officers making the sale, in event the lands should sell for more than sufficient to satisfy the judgment, to pay the excess to the “defendants,” was not indefinite nor uncertain, so as to require that it be reversed or reformed.</p> <p>4. Judgment <©=>736 — Res Judicata — Matters Not in Issue — Rights Between Defendants.</p> <p>In an action on notes and to foreclose a vendor’s lien against the vendee and others who had purchased part of the land from the ven-dee, a judgment against the vendee for the amount due on the notes and against all the defendants foreclosing the lien, directing that any excess proceeds be paid to the “defendants,” in the absence of any pleading or proof as to the amounts each was entitled to receive of the excess proceeds of a sale, will not preclude either of the defendants from having their equities in any such excess proceeds thereafter adjudicated.</p>

<p>1. Carriers @=>228(5) — Carriage of Live ' Stock — Evidence — Sufficiency—Conjecture.</p> <p>In action for delay in delivery of shipment of horses, shippers’ testimony as to death of mare from lockjaw that, “I suppose that this was caused by placing the horses in this hot pen and feeding them on this coarse sedge grass hay,” without evidence as to real cause of mare’s death, was insufficient basis for judgment of damages, since contraction of lockjaw from such source, being contrary to general rule, should have been established by something more than mere supposition.</p> <p>2. Evidence @=13 — Judicial Notice — Lockjaw.</p> <p>It is well known that tetanus, or lockjaw, usually, if not invariably, arises from wounds inflicted under certain peculiar circumstances.</p> <p>3. Appeal and Error @=31177(7) — Disposition — Remand.</p> <p>Where plaintiff was led to believe by trial courts that he had made a perfect case, appellate court in reversing for insufficient evidence will remand case. to give him opportunity to produce legal testimony to sustain ease, if he can do so.</p>

<p>1. Master and Servant <©=>101, 102(2) — Injury to- Servant — Safe Place to Work; and Tools — Duty to Exercise Ordinary Care.</p> <p>Where a servant alleged negligence on the part of the master in furnishing a defective pipe wrench, a charge that it is the duty of an employer to furnish reasonably safe tools, and that a failure to do so is negligence, was erroneous as making such duty absolute.</p> <p>2. Appeal and Error <©=>1064(1) — Harmless Error — Instructions—Undue Prominence.</p> <p>In servant’s action against a master for personal injuries, a charge giving undue prominence to the amount sued for held not cohimen-dable, although not reversible error.</p> <p>3. Master and Servant <§=>291(13) — Injuries to Servant — Instructions — Proximate Cause.</p> <p>In a servant’s action for injuries by the slipping of a defective pipe wrench, causing him to be caught in exposed cogwheels, instructions held erroneous in failing to instruct the jury to find whether the defective wrench or the exposed cogwheels, or both, was the proximate cause of the injuries.</p> <p>4. Appeal and Error <©=>213 — Objections in Lower Court — Submission of Issues.</p> <p>The error of the trial court in failing to submit the issue of proximate cause is one of omission and to be available as reversible error appellant must have presented a special charge curing the omission.</p> <p>5. Trial <©=>191(10) — Instructions—Assuming Facts.</p> <p>In a servant’s action for injuries, a charge assuming decrease in the servant’s earning capacity as a proven fact from statement of a physician that plaintiff would always have' a weak arm was erroneous, since the weakened condition of the' arm need not necessarily decrease plaintiff’s earning capacity.</p> <p>6. Trial <©=>251(8) — Instruction — Assumption of Risk — Failure to Plead.</p> <p>In a servant’s action against a master for personal injury, where the defense of assumed risk was not pleaded, the court was not in error in failing to submit that issue.</p>

O. McKinsey, Judge. Action by Mrs. Marie Barnett and husband against the City of Weatherford and the Water, Light & Ice Company of Weatherford. The City was given a peremptory instruction in its favor, and from a judgment against the other defendant in favor of plaintiffs, it appeals.

B. Minor, Judge. Suit by the Devine Independent School District against Walter H. Koehler and others and the Lion Bonding & Surety Company. From a judgment dismissing the suit, plaintiff appeals.

Proceedings for compensation under the Workmen’s Compensation Act by W. W. ■Davis against the J. W. Thompson Construction Company, the employer, and the United States Fidelity & Guaranty Company, the insurer.

<p>1. Limitation of Actions <®=w28(l), 39(7)— Rescission of Contbact — Actions fob Deceit.</p> <p>An action for the rescission of a contract to purchase corporate stock on the ground of fraud is governed by the four-year statute, hut an action for damages by reason of fraud in the sale of corporate stock is governed by the two-year statute.</p> <p>2. Action <S=>25(2) — Deceit—Rescission.</p> <p>A petition in an action against a corporation by a purchaser of stock on the ground of fraud held one for damages for fraud and deceit, and not one for rescission of a contract.</p> <p>3. Limitation of Actions 100(5) — Fbaud —Accrual of Action.</p> <p>A cause of action for deceit accrues at the time that the defrauded party discovers facts which would put a reasonable man on notice of the fraud.</p> <p>4. Appeal and Eeeob <®=»1039(9) — Haemless Eeeoe — Election as to Cause of Action.</p> <p>Error of the court in calling upon plaintiff to elect as to whether he would prosecute his suit as one for rescission of contract or as one for the recovery of damages for fraud and deceit was harmless, where it appeared the action was barred by limitations.</p> <p>On Motion for Rehearing.</p> <p>5. Pleading <®=U2 — Pbayek—‘ ‘Genekal Relief.”</p> <p>A prayer for “general relief” is just as comprehensive in its scope as the prayer for “such other and further relief, judgments and decrees, legal and equitable, such as he may be entitled to under the facts in this case,” etc.</p> <p>Buck, J., dissenting.</p>

E. D. Roy, Judge. Suit by the City of Ft. Worth for the use and benefit of the Texas Bitulithic Company against Joe S. Wooten, executor and others. From a judgment for plaintiff, the named defendant appeals.

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Suit by Mrs. Myrtle Bird against Geo. B. Bird and another. From the judgment rendered, plaintiff appeals.</p>

Prince, Judge. . Action by T. L. Lundy against H. M. Bar-bee and another, in which named defendant asks that the Texas Moline Plow Company be made a party, and in which D. E. Barbee intervenes. Judgment for plaintiff, and the Texas Plow Company, and defendants and intervener appeal.

<p>Appeal from District Court, Dallas County; W. IT. Whitehurst, Judge.</p> <p>Suit by Mrs. Myrtle Bird against George H. Bird and another. From the judgment rendered, plaintiff appeals.</p>

<p>Appeal from District Court, Austin County; M. C. Jeffrey, Judge.</p> <p>Suit by R. B. Haynes against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Frauds, Statute of <©==>117 — Land Sale Contract — Insufficiency of Deed Deposited in Escrow.</p> <p>A deed deposited in escrow, reciting full payment of consideration for the sale of land, held not such a memorandum of an oral agreement for the transfer of the land, in consideration of an automobile, cash paid, and deferred payments, as to satisfy the statute of frauds. Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3965.</p> <p>2. Vendor and Purchaser <®=105(1) — Contract— Invalidity— Statute of Frauds— Rescission.</p> <p>Where a contract for sale of land was not enforceable by reason of the statute of frauds, it was terminated and annulled when vendor elected to rescind it and notified purchaser of such rescission, and purchaser’s subsequent offer of payment for the land could not revive it.</p>

<p>1. Action <§=>50t3) — Parties—Misjoinder.</p> <p>The several owners of separate parcels of land composing a large tract cannot maintain a joint suit for the entire large tract, but each must sue for his respective part.</p> <p>2. Trespass to Try Title <§==>12 — Title to Sustain Act — Prior’ Possession.</p> <p>Proof of prior possession is sufficient -to sustain an action of trespass to try title, when defendant is shown to be a mere naked trespasser.</p> <p>3. Property ®=>9 — Ownership — Presumption prom Possession.</p> <p>Possession of land is prima facie proof of ownership.</p> <p>4. Pleading <§=>387 — Issues—Variance.</p> <p>The allegata and probata must correspond.</p>

<p>Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.</p> <p>Suit by W. H. Greenwood and another against S. C. Vauter and wife. From judgment for plaintiffs, defendants appeal.</p>

<p>Appeal from District Court, Palo Pinto County; J. B. Keith, Judge.</p> <p>Trespass to try title by John G. Burkett against J. A. Chestnutt. From judgment for defendant, plaintiff appeals.</p>

<p>Wills <&wkey;535 — Construction — Exclusion from Provisions.</p> <p>A will in which the testator provided that “each heir” should take an undivided interest in certain land, and after some intervening language, which does not establish any rule, states, “Their is one exception to this rule,” and then recites that his afflicted daughter’s husband and grown sons, who had not cared for her, should not have any interest in his land, held not to exclude such' afflicted child from an interest in such land; no other provision being made for her.</p>

<p>TRUSTS <&wkey;356(2) —PROPERTY DELIVERED TO Third Pisrsow — Liability.</p> <p>Where plaintiff advanced funds to enable the borrower to purchase 133 cattle, and in a letter inclosing a .check to defendant the seller gave notice that plaintiff contemplated the purchase of such number of cattle, and defendant applied a portion of money to a debt due from the borrower selling 93 cattle and accepting the borrower’s explanation that he was to give a mortgage on 40 other cattle which he already owned, defendant is liable for sum applied on the debt; the same being a trust fund, and defendant appropriating it with knowledge of its character.</p>

<p>1. Damages &wkey;>208(4) — Inability to Peb-eobm Household Duties — Evidence.</p> <p>In suit by husband and wife for injuries to-the latter due to cover of manhole in street of defendant city tilting, causing her foot and leg to fall into hole, evidence of pecuniary value of wife’s services held to warrant submission, as an element of damages, of loss of ability of wife to perform her household duties.</p> <p>2. Damages <&wkey;186 — Loss of Seevices of-Wife — Evidence.</p> <p>It is not essential to the right of recovery-for wife’s impaired capacity to perform her household duties that the pecuniary value of the same be shown with any mathematical accuracy or in dollars and cents.</p> <p>3. Damages <&wkey;99 — Value of Wife’s Services — How Computed.</p> <p>The wife’s services are not to be computed' as those of a servant, and a verdict based upon the circumstances and conditions of the wife- and guided by the sound judgment of the jury should not be disregarded, unless upon evidence of abuse of such discretion.</p> <p>4. Damages &wkey;?99 — Wife’s Services — Value..</p> <p>Erom a detailed statement of the position of the wife, her family, her ordinary duties and labor, the jury can ascertain the value of her services in the performance of household duties,, as well as any witness.</p> <p>5. Municipal Corporations <&wkey;822(5) — Injury to Pedestrian — Contributory Negligence — Instruction.</p> <p>In suit by husband and wife for injuries to the latter, due to cover of manhole in street of defendant city tilting, causing her foot and leg to fall into hole, instructing that burden oE showing contributory negligence was on defendant, and that in determining the issue the jury should consider all the facts and circumstances in evidence, held not erroneous, though plaintiff’s evidence tended to show such negligence.</p> <p>6. Municipal Corporations <&wkey;819(7) — Injury to Pedestrian — Contributory Negligence-Evidence.</p> <p>In suit by husband and wife for injuries to the latter, due to cover of manhole in street of defendant city tilting, causing her foot and leg to fall into hole, held that jury was justified' in concluding that plaintiff was not negligent,, and was not acting in violation of the spirit of an ordinance forbidding use of street by pedestrians.</p> <p>7. Municipal Corporations <&wkey;819(6) — Defective Manhole — Notice—Evidence.</p> <p>Evidence held sufficient to show that defendant city had notice, or in the exercise of ordinary care should have had notice, of de-feetive condition of manhole into which plaintiff pedestrian fell.</p> <p>■8. Appeal and Error <6=^736 — Assignment— Multifariousness.</p> <p>On appeal from judgment for plaintiffs, assignment of error held multifarious, in that it •complains of four express errors alleged below.</p>

<p>Cakriers @=>158(2) — Express Company — Limitation of Liability.</p> <p>In view of Interstate Commerce Commission Rule 13, §§ (a), (b), and (c), unless a shipper declares a value greater than 50 cents per hundredweight, and pays the excess rate for the higher valuation, the liability of the express company is limited to such lower rate, and that, even though the contract is oral and nothing is said about rates or value, all express charges to be paid at dsstination.</p>

<p>1. Limitation of Actions <&wkey;>127(8) — Statute of Limitations — Amended Petition.</p> <p>Where petition for loss of barges,-filed within two years of the loss, alleged that defendant was in their possession “without hire,” an allegation contradicted by the specific facts recited, another amended petition filed more than two years after the loss, and eliminating the improper allegation that the barges were in defendant’s possession without hire, did not change the cause of action, and was not barred by the two-year statute of limitations.</p> <p>'2. Evidence <&wkey;472(4) — Opinion — Mixed Question of Law and Fact — Reasonable Cabe.</p> <p>In an action for loss of barges, testimony of a witness, who had been in charge of another party’s barge at the time of the flood which caused the loss, that he considered it reasonable care and ordinary prudence on his part to have five men on his barge to protect it from the flood, held inadmissible as opinion involving a mixed question of law and fact.</p> <p>3. Appeal and Ekeob <&wkey;1052(8) — Harmless Ekbob — Evidence.</p> <p>In an action for loss of barges, improper admission of opinion testimony as to what was reasonable care in his own management of-the barge of another party held harmless, where without such testimony the result of the trial would have been the same.</p> <p>4. Appeal and Ebboe <&wkey;1060(2) — Haemless Eebob — Admission of Abandoned Pleadings.</p> <p>In an action for loss of barges tried on the third amended petition, admission in evidence of defendant’s abandoned original and first amended answers, if incompetent and irrelevant as to any issue, held harmless.</p> <p>5. Shipping <&wkey;58(2) — Loss of Barges — Issues, Proof, and Variance.</p> <p>A petition in action for loss of barges at wharf which, after charging several negligent omissions in protecting barge, contained clause “or otherwise protect said barges,” is broad enough to let in proof of any negligent omission causing loss of barges.</p> <p>6. Evidence <&wkey;410 — Parol Evidence Affecting Writing — Absence of Written Contract.</p> <p>In an action for loss of barges while in defendant’s possession, testimony of a plaintiff as to the agreement between the parties held not inadmissible as varying the terms of any written contract; a letter not having been considered by the parties as constituting the contract.</p> <p>7. Shipping <&wkey;54 — Injury to Barges — Liability.</p> <p>Where defendant- took entire possession and control of plaintiff’s barges under contract to use ordinary care to protect the barges, it was defendant’s duty to compel the ownfers of a boat moored to them to cut loose in time of flood and danger if the tying up of the boat endangered the barges.</p>

<p>Appeal from District Court, Orange County ; E. D. Bruce, Special Judge.</p> <p>Action by the State of Texas against R. S. Barber. From a judgment for plaintiff, defendant appeals.</p>

Error from Harris County Court; W. E. Monteith, Judge. Action by the Southern Film Service, Incorporated, against the Xydias Amusement Company, a partnership composed of G. L. Black and others. From a judgment for plaintiff, defendants bring error.

<p>1. Appeal and Error &wkey;>722(l) — Assignments oe Error — Conformity to Motion for New Trial.</p> <p>In cases tried before the court without a jury, the objection is no longer available that .assignments cannot be considered because they are not the same as contained in the motion for new trial and were not filed at the. same time.</p> <p>2. Appeal and Error &wkey;>880(3) — Right- to Complain oe Judgment — Lack oe Support in Evidence.</p> <p>Where there was full proof as to appealing defendants they cannot raise any question as to whether or not the judgment against other parties defendant not appealing rested on any evidence.</p> <p>3. Judgment <&wkey;91 — Decree by Consent — Binding Force.</p> <p>In suit on vendor’s lien notes, the judgment entered by agreement held binding on the appealing defendants, as made in open court and entered of record in full compliance with rule 47 for the district and county courts (142 S. W. xxi), in the absence of objection even to the form of the decree, except in two particulars; one respecting a remedy not available to appellants, the other matter otherwise provided for.</p> <p>4. Courts <&wkey;475(2,3) — Foreclosure op Lien —Pendency of Administration.</p> <p>In suit on vendor’s lien notes, provision of a consent judgment directing sale of the interest of a decedent’s estate through the district court, which had taken jurisdiction of the entire controversy as to all parties having any interest to be affected by the foreclosure' was not void merely because administration of the estate was pending in the probate court.</p> <p>5. Judgment &wkey;>91 — By Consent — Disposition of Rights of Defendant — Failure to Mention by Name.</p> <p>A consent judgment in a suit on vendor’s lien notes, which recited that all defendants had been duly and legally cited, were properly before the court, and that the rights and interests of all were determined, held to have disposed of the rights of a defendant whose name was not specially mentioned.</p> <p>On Motion for Rehearing.</p> <p>6. Appeal and Error <&wkey;1116 — Disposition —Declaration as to Void Character of Judgment^-Reformation.</p> <p>In suit on vendor’s lien notes, where some of the vendors, owning 56 acres of the land among themselves, were under the consent judgment entitled to have their lands free through releases on payment of costs, but the matter was not originally assigned as constituting error, and the incoherent and bulky record does not disclose precisely who the parties were, or what tracts were owned, the Court of Civil Appeals cannot declare the judgment void, or reform it to decree releases to those entitled.</p>

<p>Appeal from District Court, Eastland County; Joe Burkett, Judge.</p> <p>Suit by George D. Key against the Big Sandy Oil & Gas Development Company and others. From an order dissolving temporary writ of injunction, plaintiff appeals.</p>

<p>1. Divorce <&wkey;99 — Pleading — Cruel and .Inhuman Treatment — Allegation on Facts.</p> <p>Cross-action in divorce suit alleging “cruel, harsh, and inhuman treatment,” though in words of statute, does not state cause of action for divorce; it being necessary to state the facts and circumstances constituting the cruel, harsh, and inhuman treatment.</p> <p>2. Divorce <&wkey;88, 124 — Pleading—Proof.</p> <p>Accurate pleading and clear and convincing proof should be demanded before the marriage relation is dissolved.</p>

T. Kanspot, Judge. Action by W. W. Fleming against W. H. Pennington and another. Judgment for plaintiff against both defendants, and that the defendant W. H. Pennington take nothing on his cross-action against defendant W. P. Alexander, and the defendant Pennington appeals.

<p>1. Injunction >@=>118(1) — Petition— Sufficiency — 'Violation on Sunday Laws.</p> <p>In suit by the state to enjoin the operation of a moving picture show on Sunday as in violation of Penal Code, art. 302, a petition failing to allege facts showing that defendant was actually conducting such a show in violation of the statute held insufficient.</p> <p>2. Injunction <@=>102 — Grounds—Violation on Criminal Statutes.</p> <p>An injunction will not issue to restrain the operation of a moving picture show on Sunday, where such operation constitutes a misdemeanor, punishable under Pen. Code 1911, art. 302, and no property rights of complainant are involved.</p>

<p>Appeal and Ebeok <S=»1114 — Disposition of Issues — Statute.</p> <p>Where Court of CivE Appeals on issues presented by pleadings and evidence correctly applied the law favorable to contention of plaintiffs in error, and where there was no further issue to be developed or determined, it should have rendered judgment for plaintiffs in error, in view of Rev. St. 1911, art. 1626, and its judgment reversing cause would be affirmed, and its judgment remanding it would be reversed, and judgment rendered for plaintiffs in error.</p>

<p>1. RailRoads <&wkey;350(13) — Injury at Crossing — Contributory Negligence — Question eor Jury.</p> <p>In an action against a railroad for death of plaintiff’s son while driving an automobile at a crossing, question of the son’s contributory negligence held for the jury.</p> <p>2. Railroads <&wkey;346(5) — Injuries at Crossing-Contributory Negligence — Burden of Proof.</p> <p>In an action against a railroad for death o.. plaintiff’s son struck in an automobile at a crossing, the burden rested on the railroad to establish the son’s contributory negligence ex-cusatory of its own negligence.</p>

<p>1. Trespass to Try Title <§=>41(2) — Common Grantor — Prima Facie Proof.</p> <p>Evidence that defendant in trespass to try title claims under a common grantor is prima facie proof that such grantor had the title at the time he undertook to convey the right which the defendant, claims, and this necessarily involves the assumption that he had acquired the title of all previous owners.</p> <p>2. Trespass to Try Title <@=>38 (2) — Burden op Proof — Common Source op Title.</p> <p>In trespass to try title, where there was evidence that both parties claimed under M., who was not shown to have had any title, as a common source of title, defendant also showing the acquisition by him of the interest of the heirs of a person admitted to have previously had title, burden is on defendant to show that M. 'had not acquired an equitable title from the former owner. .</p> <p>3. Trespass to Try Title <§=>18 — Defenses —Outstanding- Title.</p> <p>While it is not necessary for a defendant in trespass to try title to connect himself with an outstanding title, it is necessary that he establish the validity of such outstanding title.</p> <p>4. Executors and Administrators <§=>145— Administrator’s Deed — Effect.</p> <p>An administrator’s deed to land is but an assertion that the title remained in decedent to the date of his death, and is not evidence of such ownership.</p> <p>5. Deeds <§=>82 — Validity—Recordation.</p> <p>The recordation of a deed is not essential to its validity.</p> <p>6. Trial <@=>53 — Evidence.</p> <p>In trespass to try title, where defendant, relying on a deed, introduced the same in evidence, the recitals in the deed were available to the plaintiff in the establishment of his title, although defendant was also relying on a quitclaim, deed from heirs of a former owner.</p> <p>7. Trespass to Try Title <§=>11 — Common Source.</p> <p>Where one held land for years under a void administrator’s deed, a quitclaim deed from the heirs of one who had owned the property at a time prior to the death of the administrator’s deceased did not constitute the acquisition of a new and independent title, but merely supplemented the title theretofore held and claimed.</p> <p>8. Trespass to Try Title <®=>10 — Sufficiency of Equitable Title to Support Action.</p> <p>The assertion of an equitable title arising out of a contract to convey and payment of the purchase money is sufficient to support an action in trespass to try title.</p> <p>9. Limitation op Actions <§=>39(12) — 'Trespass to Try Title. -</p> <p>The statute of limitations of four years, or any other period, unaccompanied by adverse possession, is without application in trespass to try title.</p>

<p>1. Appeal and Error <@=>781(2) — Moot Questions — Injunction Suit.</p> <p>The relief prayed for by plaintiff in an injunction suit against the sale of property by the sheriff cannot be granted, where the sale has taken place subsequently to the rendition of judgment in the trial court, so that the appeal therefrom involves only moot questions, except in so far as the determination of costs is concerned.</p> <p>2. Appeal and Error <@=>781(2) — Determination op Moot Questions — Liability eob Costs.</p> <p>The Supreme Court will not decide moot questions in an injunction suit merely to ascertain who is liable for costs.</p> <p>3. Executobs and Administbatobs <@=>272— Payment op Debts op Decedent — Pkimaby Fund.</p> <p>Personal property is the primary fund for the payment of the debts of a decedent.</p> <p>4. Couets ©=>200½ — Probate Jubisdiction —Determination op Title to Personalty.</p> <p>The county court is without jurisdiction to determine title to the personal property of a decedent on the application of his son to have the administrator deliver the property to him.</p> <p>5. Executors and Administbatobs <@=>72— Conolusiveness op Inventory — Statute.</p> <p>Neither the original nor the corrected inventory of the personalty of a decedent is conclusive for or against the administrator under Rev. St. 1911, arts. 3337-3348.</p> <p>6. Executors and Administrators <@=>325— Sale op Land to Pay Debts — Loss op Personal Estate.</p> <p>If the personal property belonging to the estate of a decedent had been lost by the wrongful act of a former administrator, decedent’s land could nevertheless be sold to pay his debts before exhaustion by the creditors of their remedy against the administrator.</p> <p>7. Executors and Administrators <@=>325— Payment op Debts — Resort to Realty— Exbaustion op Personalty.</p> <p>Under Rev. St. 1911, art. 3235, though the personal estate of a decedent is the primary fund for .the payment of his debts, the personalty need not be exhausted in . the sense that before the administrator can resort to the realty all of the personal assets should be reduced to possession by him.</p> <p>8. Executors and Administrators <@=>358 (1) — Sale op Land to Pay Debts — Power op District Court.</p> <p>The district court, on appeal in proceedings for the sale of land of a decedent to pay debts, has no greater power than the county court had originally.</p> <p>9. Executors and Administrators <@=>334— Sale op Realty por Debt — Devastavit by Administrator.</p> <p>Where the question whether an administrator had committed a devastavit could be determined only by suit, a creditor of the estate was not required to postpone collection of its debt and sale of realty of the estate to satisfy the debt, until litigation over the question of devastavit should be determined by the court of last resort.</p> <p>10. Executors and Administrators <@=>349 (2) — Sale op Property por Debts — Judq- ' ment op County Court — Collateral Attack.</p> <p>The county court, so far as the administration of estates of decedents is concerned, is a co.urt of general jurisdiction, having jurisdiction to sell property for the payment of debts, and its judgment, in such regard, where jurisdiction over an estate is once acquired, is as binding as that of any other court, and not subject to collateral attack.</p> <p>11. Executors and Administrators t®==o72— Inventory — Jurisdiction of County Court.</p> <p>The inventory of a decedent’s estate rfequir-ed by Rev. St. 1911, arts. 3330-3349, to be filed by the administrator, should be at least prima facie a guide for the county court in respect of what prbperty belongs to the estate and comes under the jurisdiction of the court.</p> <p>12. Executors'and Administratobs <®=»70— Elimination of Property from Inventory.</p> <p>Where an administrator, while inventorying the personalty of the estate, apprised the county court that it was claimed by decedent’s son, who applied to have the property turned over to him, an application which the court granted, and the administrator turned the property over, the effect of the order was to eliminate the property from the inventory, at least until some action was taken in a court of competent jurisdiction to recover it.</p> <p>13. Executors and Administrators <@=»72— Application for Sale of Realty to Pay Debts — Attacking Coerectness of Inventory.</p> <p>Where, .when district court entered order denying administrator’s application for sale of realty to pay debts, certain personalty was not in Ms hands as administrator, and was not even a part of his inventory, having been turned over to decedent’s son, who claimed it, pursuant to the order of the county court, and no objection was made to the inventory, which did not refer to the personalty, decedent’s creditor cannot, by way of contest of the application for sale by the administrator, inject the issue of the correctness of the inventory.</p>

<p>1. Executors and Administrators ®=>349(2) —Sale under Order oe Court — Collateral Attack.</p> <p>In a collateral proceeding, no presumption can be indulged against the validity of an order of the probate court directing a sale of lands.</p> <p>2. Executors and Administrators <§=-349(2) —Order eor Sale oe Land to Pay Debts— Establishment oe Claims — Validity oe Order — Collateral Attack.</p> <p>An order of sale of land to pay a claim, made by the county court on an application under Rev. St. 1911, arts. 3489, 3490, is not void and subject to collateral attack because the claim was not then established, where the record shows subsequent establishment, classification, and payment, and therefore its existence.</p> <p>3. Husband and Wiee <§=3276(6) — Community Property — Administration—Sale—Existence oe .Community Debts.</p> <p>Where a wife died prior to her husband and their estates were combined, persons claiming under sale by the executor or administrator of the husband’s estate, in order to establish title to the interest of the heirs of wife, must prove the existence of the community debts at date of the sale.</p> <p>4. Husband and Wife <§=276(6) — Combined Estates — Sale of Lands — Title oe Purchaser.</p> <p>Where plaintiffs proved the existence of community debts established by suit, classified in the estate of deceased husband and one-half thereof paid out of the consolidated estates of the deceased husband and deceased wife, the lands being sold prior to the opening of administration on the wife’s estate and not inventoried as a part thereof, and the proceeds of the sale formed assets of the consolidated estates and entered into the amount distributed to the heirs of both, held, in view of the record, that the sale by the executor of the estate of deceased husband was valid, vesting purchaser with title of both of the estates.</p> <p>5. Judgment <§=>712 — Judgment in Former Suit Between Some of the Parties — Evidence of Title.</p> <p>In an action of trespass to try title, a judgment in another proceeding vesting in one of plaintiffs an undivided interest in the land in controversy, was admissible as a link in plaintiff’s chain of title, notwithstanding defendants were not parties to that suit, and such judgment, in connection with the decree of partition and sale by an executor, held to establish title in plaintiffs.</p> <p>6. Judgment <§=>486(1) — Binding upon Parties — Collateral Attack by Stranger— Prejudice to Claims.</p> <p>While a judgment binds only the parties thereto and those in privity with them, it is not subject to collateral attack by a stranger unless he shows that he has rights, claims, or interests which would be prejudiced or injuriously affected by its enforcement.</p> <p>7. Judgment <§=>501 — Validity—Erroneous View of Law — Collateral Attack.</p> <p>A judgment based upon an erroneous view of the law is not for that reason void and subject to. collateral attack.</p> <p>8. -Estoppel <§=>97 — Theory of Former Suit Between One of the Parties and Another — Estoppel to Assert Contrary Theory.</p> <p>In trespass to try title, defendants not being parties to a suit of plaintiffs against purchaser, plaintiffs are in no manner estopped to assert another and contrary theory, from that upon which they recovered from the purchaser, upon which to base a recovery against defendants.</p> <p>9. Trespass to Try Title <§=>6(2) — Necessity of Title in Plaintiffs — Transfer Pendente Lite — Judgment Inuring to Grantee’s Benefit.</p> <p>While the plaintiffs in trespass to try title must have title at the commencement of the suit, and one without title cannot sue for the use of another, in such action, a conveyance pendente lite by plaintiff does not affect the progress or determination of the suit, and grantee is bound by the judgment rendered, and a judgment for plaintiff inures to grantee’s benefit, and such conveyance does not constitute an outstanding title.</p>

<p>Appeal from Johnson County Court; B. Jay Jackson, Judge.</p> <p>Suit by Emily Hunsucker and others against Sanger Bros, and others.</p>

<p>Error from District Court, Presidio County; Joseph Jones, Judge.</p> <p>Suit by the State against M. T. Liles. From the judgment rendered the State prosecutes a writ of error.</p>

R. Pearman, Judge. Action by Harley R. Hinton against E. C. D’Yarmett and others. General demurrer to plaintiff’s amended petition sustained, and the plaintiff appeals.

Appeal iron District Court, Johnson County; O, L. Lockett, Judge. Suit by the county of Johnson and others-against L. D. Cooper and others. From judgment for plaintiffs, defendant Cooper appeals.

F. Mullally, Judge. Action by J. H. Russell & Son and. others against the Rio Grande & Eagle Pass Railway Company, to which defendant made the International & Great Northern, Railway Company and other connecting carriers parties, and prayed for judgment’ over against them for any sum recovered.

<p>1. Commerce <&wkey;46 — Foreign Corporations —Right to Sue.</p> <p>A foreign corporation has the right without obtaining a permit to do business in the state, to collect a debt incurred in the transaction of interstate commerce, and, having accepted a promissory note of a third person in part payment of such debt, may sue thereon in the state, although the note of the third person, who had dealings with the purchaser of the corporation’s goods, had made the note payable direct to the corporation.</p> <p>2. Appeal and Error <&wkey;846(6) — Findings op Fact — Evidence.</p> <p>Inconsistencies in the evidence, in the absence of findings of fact, must be resolved on appeal so as to support the judgment.</p> <p>3.. Corporations <&wkey;642(6) — Foreign Corporations — Doing Business.in the State.</p> <p>That a foreign corporation reimbursed a purchaser of its goods for rent paid for premises in which the property bought was stored and for money paid for signs advertising the goods, and furnished a truck for the delivery of goods, retaining the ownership, but requiring the purchaser of the goods to pay the expenses of the upkeep, does not conclusively prove that the corporation was transacting business in the state, being only evidence of such fact.</p> <p>4. Corporations <&wkey;672(4) — Foreign Corporations — Pleading—Permit to do Business.</p> <p>- A petition by a foreign corporation, which' contains no allegation that the transaction involved constituted business done in the state, was not subject to a general demurrer because it contained no allegation that plaintiff had a permit to do business in the state.</p>

<p>1. Eminent Domain &wkey;>103 — Damages to Property Not Taken — Additional Fences and Improvements.</p> <p>Where construction of a road necessitated additional fencing and the establishment of an additional watering place to restore abutting land to former usefulness, and value, for grazing purposes, the district court on appeal from award of jury of view erred in finding that there was no evidence of depreciated value of land not taken.</p> <p>2. Eminent Domain <&wkey;203(l) — Damages to Property — Evidence—Cost op Fences.</p> <p>In proceeding to determine the amount of damages due to construction of a road, evidence of the cost of additional fencing, establishing watering places and other items of like nature necessitated by the laying of the road is admissible and entitled to be accorded its proper probative force in determining whether tract of land as a whole has been damaged.</p> <p>3. Eminent Domain &wkey;>145(4) — Damages Due to Establishment op Road — Oppset op Benefit.</p> <p>In proceeding to determine the amount of damages to land due to construction of a road by appellee county, increased and better road facilities could be taken into consideration as offsetting damages to land not taken.</p> <p>4. Appeal and Error <&wkey;994(3) — Province op Court Trying Case — Credibility op Witnesses.</p> <p>The credibility of witnesses and the weight to be given to their testimony was to be judged by the court who was trying the case without a jury.</p> <p>•5. Eminent Domain &wkey;>205 — Weight op Evidence — Benefit and Injury prom Highway.</p> <p>In proceeding to determine the amount of damages due to construction of a road, failure ■of court to recognize evidence of value to tract as a whole, and evidence of decrease in value due to road, as of any probative force upon issue of damage to land not actually appropriated, was reversible error.</p> <p>6. Eminent Domain <&wkey;>238(4) — Appeal prom Award op Jury — Appeal Bond.</p> <p>The road in question being laid out under Rev. St. arts. 6863, 6864, appeal to district ■court from award of jury of view is governed by article 6866, which does not require bond to be filed in ten days after approval of award by •commissioners’ court, and not by article 6882.</p> <p>Appeal from District Court, Glasscock ■County; Chas. Gibbs, Judge.</p> <p>Controversy between Lucy Currie, executrix, and others and Glasscock County. From the judgment rendered on appeal to the district court, the former appeal. Reversed and remanded.</p>

<p>Appeal from District Court, Glasscock County ; Chas. Gibbs, Judge.</p> <p>Controversy between W. E. Chaney and Glass-cock County. From the judgment rendered, the former appeals.</p>

<p>1. Trial <&wkey;352(5) — Special Issue — Assumption as to Pacts.</p> <p>In action to enjoin enforcement of Railroad Commission’s order requiring railroad to construct depot building at certain point, where special issue was whether railroad had designated depot grounds at such point, requested addition to issue that designation once made could not afterwards be changed by railroad was properly refused, since it would have been regarded as an intimation by court of abandonment, and since issue could not have been answered in negative upon ground of abandonment.</p> <p>2. Railroads &wkey;>58 — "Station”—Designation.</p> <p>Under the statutes a place may become a “station” either by designation by the railroad, or by designation by statute, or by being established as a siding or stopping place to receive and discharge passengers and freight.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, Pirst and Second Series, Station.]</p> <p>3. Trial <&wkey;352(4) — Special Issue — Evidence.</p> <p>In action to enjoin enforcement of Railroad Commission’s order requiring construction of depot building at certain place, where there was no evidence tending to show creation of station at such place otherwise than by designation of depot grounds, court properly refused to s.ubmit issue of whether railroad established a siding or stopping place at such place or nearby stations.</p> <p>4. Railroads <&wkey;9(2) — Order to Construct Depot Building — Reasonableness — Amount to be Expended.</p> <p>In action to enjoin enforcement of Railroad Commission’s order requiring construction of depot building at certain place, the only question as to the unjustness and unreasonableness of the order, in view of Rev. St. 1911, art. 0693, is whether sum required to he expended is reasonable.</p> <p>5. Railroads &wkey;j58 — Depots—Spur Tracks— Statutes.</p> <p>Rev. St. 1911, art. 6552, if construed so as to require railroads to construct sidings and spur tracks at stations, requires construction thereof only where necessary for accommodations for transportation of passengers and freight.</p> <p>6. Railroads &wkey;>9(2) — Depot Building — Order to Construct — Reasonableness.</p> <p>The reasonableness and justness of Railroad Commission’s order requiring construction of depot building and sidings and spur tracks, whether made pursuant to Rev. St. 1911, art. 6552, or article 6715, depends upon the facts of the particular case.</p> <p>7. Railroads <&wkey;9(2) — Order Requiring Construction oe Depot Building — Sidings — Reasonableness of Order.</p> <p>In action to enjoin enforcement of Railroad Commission’s order requiring construction of depot building, spur tracks, and sidings, special issue as to reasonableness of order was properly | applied to both building and sidings, since it will not be assumed that sidings and spur tracks are indispensable to all stations.</p> <p>8. Railroads <&wkey;9(2) — Construction of Depot Building — Sidings—Reasonableness op Order — Evidence.</p> <p>Evidence held to support verdict finding Railroad Commission’s order directing construction of depot building, sidings, and spur tracks at expense of from $250 to $500 to be unfair and unreasonable to railroad.</p> <p>9. Railroads <&wkey;>9(2) — Depot Building — Reasonableness of Order to Construct.</p> <p>In passing upon reasonableness of Railroad Commission’s order requiring construction of depot building at certain place, court will contrast expense of complying with order with inconvenience and hardships imposed on the public by reason of absence of facilities ordered.</p> <p>10. Railroads <&wkey;9(2) — Depot Building — Sidings — Order to Construct — Reasonableness — Evidence.</p> <p>Evidence as to extent of shipment made by persons living in certain vicinity is admissible upon question of reasonableness of Railroad Commission’s order that depot building and spur tracks and sidings be constructed at such point.</p> <p>11. Trial <&wkey;85 — Evidence — General Objection.</p> <p>There is ho error in overruling general objection to evidence a portion of which is admissible.</p> <p>12. Railroads <&wkey;9(2) — Depot Building — Sidings — Reasonableness of Order to Construct — Evidence.</p> <p>In action involving reasonableness of Railroad Commission’s order requiring construction of depot building, sidings, and spur tracks at certain place, evidence as to gross shipments to and from station 3½ miles distant therefrom during past four years, though remote, is of aid to jury on issue of reasonableness, tending to show increase of business in that section.</p> <p>13. Appeal and Error <&wkey;1050(l) — Review-Harmless Error.</p> <p>In action involving reasonableness of order requiring construction of depot building and sidings at certain place, admission of evidence of population and growth of nearby town was not reversible error, where other testimony had been introduced without objection comparing the two places.</p>

<p>Appeal from Parker County Court; B. A. Swofford, Judge.</p> <p>Suit by W. M. Brown against George T. McClintic. From a judgment for plaintiff, defendant appeals.</p>

Masterson, Judge. Suit by C. W. Harrell against G. J. Parker, the Motorcar Indemnity Exchange, and the Houston Electric Company. Plaintiff dismissed his cahse against defendant last named, and from a judgment in his favor against the other defendants, they appeal.

Error from District Court, San Augustine County; W. R. Blackshear, judge. Actions by the Houston Oil Company of Texas against L. N. Jordan and others and against John W. Robbins and others, consolidated. Prom adverse judgments, Robbins and others and the Houston Oil Company bring error.

<p>Appeal from District Court, Haskell County; Jno. B. Thomas, Judge.</p> <p>Action by R. E. Sherrill and others, as executors of last will of W. A. Black, deceased, against J. W. Meadors. Finding for plaintiffs, and defendant appeals.</p>

<p>1. Appeal and Eeeoe <@=»65 — Amount in Controversy — Court op Civil Appeals.</p> <p>Where in justice court defendant itemized the two amounts sued for as $90 and an unpaid balance of $15.60 for extra work, but stated the total amount due as .$98.64, and defendant in his cross-action asked for judgment for $180 and costs, the amount in controversy brings the case within the jurisdiction of the Court of Civil Appeals.</p> <p>2. Appeal and Eeeoe <§=»65 — Jurisdiction-Amount in Controversy — Justice op the ' Peace.</p> <p>The question of jurisdiction of Court of Civil Appeals in case originating in justice court is fixed by the amount involved in the justice ■court.</p> <p>3. Army and Navy <§=>24 — Employment op Enlisted Men — Compensation Paid.</p> <p>Where defendant solicited the services as chief night operator of plaintiff, then employed by the United States as censor at the office of defendant, with full knowledge of the law and facts and orders of the military authorities, and the work was actually performed, defendant cannot recover the amount paid for such services, it not appearing that the services conflicted with the federal statute, forbidding enlisted men from engaging in any pursuit in civil life for hire when the same shall interfere with customary employment.</p>

Suit by J. C. Oakley and. another against Lloyd Bowman and others. From judgment for plaintiffs, defendants Bowman and another appeal.

<p>Appeal from Hood County Court; W. L. Dean, Judge.</p> <p>Action by C. B. Jones against the Ft. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Waller County; J. D. Harvey, Judge.</p> <p>Action by the Citizens’ State Bank of Hempstead ¡against ' ¡the Southern Surety Company and A. G. Tompkins. From a judgment for plaintiff, the Surety Company appeals.</p>

<p>Appeal from County Court, Taylor County; E. M. Overshiner, Judge.</p> <p>Action by Walter H. Lockhart against the Independent Order of Puritans. From a judgment for plaintiff, defendant appeals.</p>

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>Suit by F. F. Shows against the City of Dallas. Judgment for defendant reversed by Court of Civil Appeals (172 S. W. 1137), and defendant brings error.</p>

<p>Error to Court of Civil Appeals of First Supreme Judicial District.</p> <p>Action by Kate Bock against the Fellman Dry Goods Company. From a judgment of the Court of Civil Appeals (173 S. W. 582), affirming a judgment for defendant, plaintiff brings error.</p>

<p>Error to Court of Civil Appeals of.Third Supreme Judicial District.</p> <p>Action by W. B. Walker & Sons against Thomas J. Freeman,' receiver of the International & Great Northern Railway Company, and another. Plaintiffs recovered in both the justice and county courts, and upon appeal to the Court of Civil Appeals the judgment was affirmed in part and reversed and rendered in part (175 S. W. 1133), and the defendants bring error.</p>

Suit by H. B. Stevens and others against the Galveston, Harrisburg & San Antonio Railway Company, in which W. W. Mills and others intervened. Judgment for defendant against plaintiffs and interveners. Affirmed as to plaintiffs and reformed and affirmed as to interveners by Court of Civil Appeals (1G9 S. W. 644), and plaintiffs bring error.

Action by W. B. Walker & Sons against Thomas J. Freeman, receiver of the International & Great Northern Railway Company and others. Judgment for plaintiffs in the justice and county courts, which was affirmed in part and reversed and rendered in part upon appeal to the Court of Civil Appeals (175 S. W. 456), and the defendants bring error.

<p>Error to Court of Civil Appeals of First Supreme Judicial District.</p> <p>Suit by J. W. Moose against the Missouri, Kansas & Texas Railway Company of Texas. Judgment for defendant was affirmed by</p> <p>Court of Civil Appeals (179 S. W. 75), and plaintiff brings error.</p>

Supreme Judicial District. Action by Mahala Taylor and others against the W. C. Belcher Land Mortgage Company. Judgment for plaintiffs was affirmed by Court of Civil Appeals (173 S. W. 278), and defendant brings error.

Suit by J. B. Blakeney against John Kelly. From judgment for plaintiff, defendant appealed to the Court of Appeals, which affirmed (172 S. W. 770), and defendant brings error.

Suit by J. L. Barton against Mrs. Eddie C. Cox and another. From an order of the Court of Civil Appeals (176 S. W. 793), reversing a judgment of the trial court for defendants and rendering judgment for plaintiff, defendant named brings error.

<p>Error to Court of Civil Appeals of Eighth Supreme Judicial District.</p> <p>Action by George C. Walker against R. W. Wilmore. Judgment for defendant was affirmed by the Court of Civil Appeals (174 S. W. 921), and plaintiff brings error.</p>

<p>Error to Court of Civil Appeals of Seventh. Supreme Judicial District.</p> <p>Action by W. W. Taylor against Frank A. White. Judgment for defendant affirmed by Court of Civil Appeals (156 S. W. 349), and plaintiff brings error. Affirmed.</p>

County; John M. Green, Special Judge. Action by W. H. Broughton, in behalf of himself and as next friend for Ms son, against the St. Louis, Brownsville & Mexico Railway Company. From the judgment rendered, the Company appeals.

<p>1. Customs and Usages &wkey;>10 — Rental Contract — Crops and Amount op Rents.</p> <p>In the absence of specific agreement with respect to the kind of crops that would be planted upon rented land, and the amount of rentals to be paid, the usual custom of the country determines such questions.</p> <p>2. Landlord and Tenant <&wkey;18(3) — Lease by Buyer — Assent—Evidence.</p> <p>Although there was no evidence of specific agreement relating to kind of crops and amount of rental, evidence held sufficient to sustain finding of contract, where the buyer of land inquired of the tenant what rentals he had been paying to the seller for the previous year, and, ’ on receiving the desired information, immediately told the tenant he might have the farm for another year, thus implying his assent to the rental on the same terms.</p> <p>3. Appeal and Error <&wkey;931(3) — Presumption of Necessary Finding — Statute.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1985, the Court of Civil Appeals will presume a finding of the trial judge necessary to sustain the judgment.</p> <p>4. Evidence <&wkey;317(4) — Hearsay —Rental Contract.</p> <p>In trespass to try title by the buyer of land against a tenant of the seller, since the tenant’s claim of right of possession was predicated in part on his prior rental contract with the seller, of which the buyer had notice before he purchased, testimony to prove the fact was admissible over the buyer’s objection that he was not present when the contract was made, so that the testimony was hearsay as to him.</p> <p>5. Landlord and Tenant &wkey;>180(4) — Wrongful Ouster — Measure of Damages.-</p> <p>In trespass to try title by buyer of land to recover it from seller’s tenant, latter, on his cross-action for wrongful ouster, was entitled to recover as damages reasonable market value of his part of the crops which it was reasonably probable he would have raised during the year, less expense of raising and harvesting them, and such sums as he and the dependent members of'his family could have earned by engaging in other business.</p> <p>6. Landlord and Tenant <&wkey;>180(3) — Wrongful Ouster — Damages — Possibility of Growing Crops — Sufficiency of Evidence.</p> <p>In trespass to try title by buyer of land against seller’s tenant, latter bringing cross-action for wrongful ouster, evidence that tenant, besides himself and wife, had one son and daughter, both of age, all working on the farm, also two teams and farm implements, held to warrant a finding he. could have grown a crop on the farm with practically no outlay of money.</p>

<p>Error from Burnet County Court; J. R. Smith, Judge.</p> <p>Suit by Knight Stith against E. L. Witt & Sons. To review judgment by default for plaintiff, defendants bring error.</p>

<p>Contracts €=10(1) — Unilateral Contract —Pabt Performance.</p> <p>S., under whom appellees claimed, having accepted from appellants numerous payments of money under the contract, and appellees having incurred at least some expense in pursuance of the contract, the contract is not unilateral in the sense that it is not binding upon appellees.</p>

<p>Appeal from Harris County Court; W. E. Monteith, Judge.</p> <p>Suit by A. C. Van Velzer against A. B. Stryker. From the judgment, defendant appeals.</p>

Lewellyn, Judge. Action by W. H. Davenport against Sheridan Williams and Russ Daniel and another. Judgment for plaintiff against the named defendants, and they appeal.

<p>1. Libel and Slander @=>85 — Libel—Pleading.</p> <p>A libel suit being based on language or its equivalent, a complaint should put the court in possession of the libelous matter published, so as to enable court to determine whether words are actionable, and that defendant may be advised concerning exact charges he will be called upon to meet.</p> <p>2. Libel and Slander @=>85 — Libel—Plead-IN G — SUFFICIENCY.</p> <p>Allegation in complaint that defendant published and delivered to plaintiff’s employer a statement in writing .wherein defendant alleged and stated that she “had an assignment of wages 'and power of attorney on him, the plaintiff, to the extent of $12, providing for an attorney’s fee of $10 additional,” sufficiently disclosed a libel under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5595; the fule as to pleading being satisfied with any allegation that discloses the very language used, whether purporting to be quoted from the writing or not.</p> <p>3. Master and Servant <@=>341 — Interference with Relation by Third Person— Procuring Servant’s Discharge.</p> <p>Where one knowingly induces a master to break his contract with his servant, the servant has a right of action against the one so causing the breach for any damages resulting.</p> <p>4. Master and Servant <@=>341 — Interference with Relation by Third Person-Damages to Servant by Procurement op Discharge.</p> <p>The fact that an employé’s contract is from month to month does not preclude recovery of damages from one who wrongfully procured his discharge.</p> <p>5. Libel and Slander <@=>10(6) — Libel—Notice to Employer.</p> <p>It is not libelous for one who is the owner of the assignment of another’s wages to give notice of that fact to the master, but, if at the time notice is given the debt which the assignment secures had been paid, and it is maliciously claimed that it has not, the one giving notice is liable for such damages as proximately result from the unlawful act.</p> <p>6. Libel and Slander @=>81 — Pleading — Materiality.</p> <p>In an action against one who Had caused the discharge of plaintiff from his employment ' by falsely and maliciously giving notice to the employer that she had an assignment of plaintiff’s wages, allegations that defendant was engaged in conducting- a usury business in the name of the M. Co., of which defendant was sole owner, but which defendant, in order to avoid the law and its penalties, falsely claimed was owned by a nonresident, were proper and material where defendant was sought to be held liable for acts done by the loan company as her agent.</p> <p>7. Libel and Slander @=>88 — Libel—Pleading — Damages.</p> <p>In an action for damages on account of discharge occasioned by defendant falsely and maliciously sending written notice to plaintiff’s employer that defendant had an assignment of plaintiff’s wages, allegations that defendant was engaged in making short-time wage loans upon which she collected in violation of law from 20 to 30 per cent, interest per month and was assisted in that respect by various agents for whose acts she was responsible, and that one of her means for extorting usurious interest was to notify employers, particularly the employer of plaintiff, that she had an assignment of the wages of the employe, were proper and material as tending to show the degree and deliberateness of the act; the-petition containing a prayer for exemplary damages.</p> <p>8. Libel and Slander @=>88 — Pleading — Damages.</p> <p>In an action for damages in that plaintiff was discharged from his employment by reason of a notice sent by defendant to his employer falsely claiming he was indebted to defendant, allegations that as a result of such discharge he was exposed to public hatred, contempt, and ridicule, and his reputation for honesty and integrity impaired, and he was for many years prevented from securing other employment, which was of special value to him at that time because of his wife’s illness, and that as a result of such libelous statement to his employer and his subsequent discharge and the bringing into question his reputation for honesty and integrity' and the fact that he would be confronted with and forced to disclose such facts when seeking employment in the future, he suffered much chagrin, humiliation, distress of mind, mental pain, and agony, were a sufficient basis for the recovery of damages.</p> <p>9. Libel and Slander @=>88, 116 — Libel— “General Damages.”</p> <p>In the law of libel, general damages are those which naturally, proximately and necessarily result from publishing the libel, and are recoverable under a general averment; the elements of such damages being injury to character, or reputation, feelings, mental .suffering and anguish, and other like wrongs or injuries incapable of money valuation.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, General Damages.]</p> <p>10. Damages @=>87(1)— “Exemplary Damages.”</p> <p>“Exemplary damages” are awarded as matter of sound public policy in punishment of the guilty one for malicious acts, and not as compensation.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Exemplary Damages.]</p> <p>11. Damages @=>91(1) — Exemplary Damages —“Malicious.”</p> <p>In the law relating to exemplary damages, any unlawful act done willfully and purposely to the injury of another is in a legal sense, as against that person, “malicious.”</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Malicious.]</p> <p>12. Libel and Slandeb <s=5 — Libel — Implied Malice.</p> <p>In cases founded on libelous publication, the jury may infer the existence of malice from absence of probable cause for making the publication, or from evidence of express malice.</p> <p>13. Libel and Slandeb <§=>120(2) — Libel--Exemplaet Damages — Malice.</p> <p>An employé who- was discharged from his employment by reason of defendant falsely and maliciously notifying the employer that the em-ployé owed her a debt and that she had an assignment of his wages was properly allowed exemplary damages.</p> <p>14. Judgment- <§=>744 — Mattebs Deteemined . —Payment op Debt Befobe Notice of Assignment.</p> <p>In an action by an employé discharged from his employment by reason of a false and malicious notice by defendant to his employer that plaintiff owed defendant a debt and that she had an assignment of plaintiff’s wages, a judgment, in a prior action by the plaintiff against the employer and defendant for his wages and to cancel the assignment of wages, adjudging that the debt had been paid before notice of the assignment- to the employer was given, was admissible in evidence to prove such fact.</p> <p>15. Judgment <§=744 — Res Judicata — Issues Deteemined — Payment of Debt. .</p> <p>A judgment in an action by plaintiff against a railroad and defendant to recover wages and to cancel an assignment of the wages to the individual defendant, adjudging that the debt to defendant had been paid prior to notice to the ’railroad of the assignment of the wages, was res judicata in an action by plaintiff against defendant for damages on account of his discharge from employment, occasioned by defendant falsely and maliciously notifying the railroad that plaintiff owed defendant a debt1, and that defendant had an assignment of plaintiff’s wages.</p> <p>16. Judgment <©=713(1) — Natube of — “Res Judicata.”</p> <p>Res judicata is but the assertion in a pending suit that some legal or equitable issue there presented has been decided by some other court of competent jurisdiction and is as a consequence a bar to again litigate.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Res Ad-judicata.]</p> <p>17. Judgment <©=540 — Res Judicata — Identity of Pabties and Causes.</p> <p>In order for a second suit upon the same cause of action to be barred under the doctrine of res judicata, there must be identity in the thing sued for in the cause of action, in the persons and parties, and in the quality in the' persons for or against whom the claim is made,</p> <p>IS. Judgment <©=584, 634 — Res Judicata— Same and Different Causes of Action.</p> <p>There is a difference between the effect of a judgment as a bar against the prosecution of a second suit on the same claim or demand and its effect as a bar in another action between the same parties upon a different claim or demand ; as in the former case the judgment constitutes an absolute bar to a subsequent action,while in an action between the same parties upon a different claim or demand the judgment in the former action operates only as an estop-pel as to those matters in.issue or points controverted upon the determination of which the finding or verdict was rendered.</p> <p>19. Judgment <©=486(1) — Collateral Attack.</p> <p>A void judgment may be collaterally attacked.</p> <p>20. Judgment <§=>576(1) — Erroneous Judgments — Res Judicata.</p> <p>An erroneous judgment is not void, and, unless appealed from, remains in force, and any error or irregularity therein does not lessen its effect as a bar to further suits upon the same cause of action.</p> <p>21. Judgment <§=>501 — Collateral Attack— Eerors.</p> <p>Where a court of general jurisdiction, in the exercise of its ordinary judicial function, renders a judgment in a cause in which it has jurisdiction over the person of the defendant and the subject-matter of the controversy, such judgment is never void, no matter how erroneous it may appear to be from the face of the record or otherwise.</p> <p>22. Judgment <§=>731 — Mattes Adjudicated —Presumption.</p> <p>Where the pleadings upon which trial was had put in issue plaintiff’s right to recover upon two causes of action, and judgment awarded him a recovery upon one and was silent as to the other, such judgment is prima facie an adjudication that he was not entitled to recover upon such other cause of action.</p> <p>23. Judgment <§=>741 — Conclusiveness—Inferences.</p> <p>In action to recover usurious interest paid and exacted and to cancel an assignment of wages on the ground that the debt had been paid, a judgment only canceling the assignment was prima facie an adjudication that plaintiff was not entitled to recover the alleged usurious interest.</p> <p>24. Judgment <©=>725(6) — Res Judicata — Matters Necessarily Decided.</p> <p>In an action against plaintiff’s employer and defendant for wages and cancellation of an assignment of wages to defendant, it being alleged that the debt to defendant was paid prior to notice to -the employer of the assignment, a judgment for plaintiff for wages and a cancellation of the assignment necessarily included a finding that the debt had been paid to defendant and the assignment canceled prior to the date notice was given the employer, and the judgment was admissible in another action by plaintiff against the defendant to show such fact.</p> <p>25. Principal and Agent <§=>163(1) — '“Ratification.”</p> <p>“Ratification” is the election by one to accept an act or contract previously done or entered into in his behalf by another who had at the time no authority to do the act or make the contract in his behalf.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, First and Second Series, Ratification.]</p> <p>26. Principal and Agent ©=169(2) — Ratiei-cation.</p> <p>Where one sued his employer for wages, and employer set up defense that wages had been assigned to defendant, and defendant, who was also sued for alleged usurious interest and to cancel the assignment, appeared and filed the assignment, she thereby ratified the unauthorized act of another in giving notice of such assignment to the employer, and was bound thereby in an action by plaintiff for damages for discharge from employment by reason of such notice of assignment.</p> <p>27. Principal and Agent ©=175(1) — Ratification — Effect.</p> <p>Where one ratifies the unauthorized act of another in his behalf, the legal consequences of the act follow as a matter of course.</p> <p>28. Evidence ©=3121(2) — Res Gestae.</p> <p>In an action by an employé for damages for discharge occasioned by defendant 'falsely and maliciously notifying the employer that plaintiff owed her a debt, and that she had an assignment of his wages, plaintiff could testify that the employer’s agents notified him at the time of his discharge that he was discharged because a loan company had given notice that it held an assignment of his wages, being a part of the res gestae incidental to and explanatory of plaintiff’s claim that the railroad company discharged him because of the giving of the false notice.</p> <p>29. Evidence ©=118 — Res Gestíe.</p> <p>The tendency of the courts is to extend rather than narrow the scope of the rule admitting otherwise hearsay matter as res geste.</p> <p>30. Appeal and Error ©=1060(1) — Harmless Error — Misconduct op Counsel.</p> <p>Impertinent remarks of counsel will not be held reversible error, although it prejudices the jury and increases the verdict, where no complaint was made as to the size of the verdict, and liability was established by other testimony.</p> <p>31. Trial ©=352(1) — Special Issues — Invading Province of Jury.</p> <p>The submission of a special issue inquiring of the jury whether one G. filed notice with plaintiff’s employer claiming that defendant had an assignment of plaintiff’s wages was not erroneous as depriving defendant' of the right to have the jury decide whether C. was the authorized agent of defendant, as it did not prevent defendant from requesting the court to submit the question of O.’s agency.</p> <p>32. Appeal and Error ©=1062(1) — Harmless Error — Submission of Issues.</p> <p>In an action for damages based on wrongful acts of defendant’s alleged agent, submission of issue which deprived defendant of the right to have the jury decide whether such other person was the authorized agent of defendant was harmless and immaterial, where it was established that defendant ratified and adopted such third person’s wrongful act.</p> <p>33. Trial ©=352(5) — Special Issue — Embracing More Than One Proposition.</p> <p>Financial injury and mental suffering are both elements of actual damages, the first being classified as special and the second as general damages, and hence a special issue inquiring of the jury whether plaintiff sustained “any financial injury or mental suffering” was not erroneous on ground that financial injury and mental suffering were distinct elements of damages and should have been separately submitted.</p> <p>34. Libel ajnd Slander ©=4, 5 —Libel — “BIalice in Law” — “Malice in Fact.”</p> <p>In actions for libel, there are two kinds of malice, “malice in law”, and “malice in fact,” or “express malice,” malice in law arising in cases where the words uttered are presumed in law to be malicious.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, Malice in Fact; Malice in Law.]</p> <p>35. Libel and Slander ©=4t — Libel—Express Malice.</p> <p>Where words uttered are not actionable per se or presumptively libelous, it becomes necessary to prove express malice or that the alleged libelous matter was published in reckless ■ disregard of plaintiff’s rights and in a spirit of indifference concerning the injury, which it might inflict.</p>

IT. Davidson, Judge. Suit by C. R. Garner & Co. against the Beaumont Cotton Oil Mill Company, in which defendant filed a cross-action against plaintiff. From the judgment rendered, plaintiff appeals.

<p>Appeal from District Court, Anderson County; John S. Prince, Judge.</p> <p>Action by John H. Elliott against the State of Texas. Erom a v judgment for plaintiff, defendant appeals.</p>

<p>1. Trial &wkey;>351(5) — Instructions — Issues Covered in General Charge.</p> <p>Refusal to give certain issues to the jury in a special charge is not error, where such issues were sufficiently given in the general charge.</p> <p>2. Railroads &wkey;>9(2) — Stations — Suit to Enjoin Railroad Commission — Burden of Proof.</p> <p>Under Rev. St. art. 6654, subd. 12, and article 6693, the burden rests upon a railroad company, assailing an order of the Railroad Commission requiring it to maintain a depot at a certain station, to show the unreasonableness of the exercise of the power vested in commission by statute.</p> <p>3. Railroads <&wkey;225 — Operation—Accommodations and Facilities at Stations.</p> <p>Rev. St. art. 6589, requiring every railroad to erect at every station established by it for the reception and delivery of freight suitable buildings to protect such freight, is mandatory, and to secure compliance therewith it is the duty of the Railroad Commission to order a railioad company which maintains only a shed at a town containing several stores, mills, etc., to erect a depot there, sufficient to handle the freight and passenger traffic.</p> <p>4. Railroads &wkey;>226 — Stations — Enforcement of Orders of Railroad Commission —Expense to Railroad.</p> <p>A railroad company cannot evade the statutory duty imposed upon it to erect and maintain suitable depots at each of its stations and entirely ignore public convenience and accommodation, because of increased expense to the company.</p> <p>5. Railroads <©=>226 — Powers of Railroad Commission — Agents at Stations.</p> <p>The duty imposed upon a .railroad by Rev. St. § 6693, to provide and maintain adequate depots at every station for accommodation of passengers and to keep them well lighted and warmed carries with it by necessary implication the furnishing of agents at such stations, and the Railroad Commission has.power to secure compliance therewith.</p> <p>6. Railroads ©=>226 — Regulation — Provisions of Mandatory Statute — Reasonableness of Order.</p> <p>An order of the Railroad Commission to compel compliance with a mandatory statute requiring the erection of suitable depot buildings at stations is not subject to a test of reasonableness; the only question of reasonableness possible being as to the kind of buildings required to -be built.</p>

<p>1. Mastee and Servant <&wkey;305 — Liability: for Servant’s Tort-Deviation.</p> <p>If a servant’s deviation from his instructions amounts to an entire abandonment of the service, the master is not liable for injuries by the servant during such deviation; but if the-deviation is a mere incident to a duty of the service, and after termination of it authorized service is resumed, the master is liable.</p> <p>2. Master and Servant &wkey;>302(6) — Liability for Tort of Servant — Deviation.</p> <p>Where local manager of company started on trip to post office in company’s automobile with another employé to mail report to company, a duty of his employment, and, after making a stop on the other employé’s personal business, started to go on, and negligently injured a pedestrian, the company was liable, though, after mailing the report, he intended to journey on to his home, and though the use of the automobile was after business hours.</p>

<p>1. Appeal and Ekbor <&wkey;927(7) — Review-Evidence on Which Verdict Was Directed.</p> <p>In determining the correctness- of peremptory instruction for defendant, the Court of Civil Appeals must give plaintiff’s evidence its strongest probative effect.</p> <p>2. Brokers <&wkey;55(l), 56(1) — Realty Broker —Right op Owner to Sell.</p> <p>Where owner of land did not give a broker exclusive right to sell, at any time before the broker procured and presented a purchaser ready, able, and willing to buy on the owner’s terms, the owner had a right to sell the land himself or through another agent.</p> <p>3. Brokers <&wkey;56(l) — Realty Broker — Right op Owner to Sell.</p> <p>Where realty broker without exclusive right to sell, on bringing a prospective purchaser to the owner, learned that the owner had agreed to sell through another agent to an unknown party for a certain cash payment down, and had agreed to wait until the evening for the cash, but promised to sell to the broker’s client if such cash payment was not made, the owner, despite his promise, had a right when the other party returned without the cash to accept a written contract and sell to them.</p>

<p>Appeal from Jones County Court; J. F. Lindsey, Judge.</p> <p>Suit by F. I. Walker and others against W. J. Alexander. From a judgment sustaining defendant’s plea of privilege, plaintiffs appeal.</p>

T. Sluder, Judge. Application by the-State of Texas, on the relation of A. T. Rumsey, for writ of habeas corpus against W. F. Jackson and wife. Writ denied, and relator appeals.

<p>Appeal from District Court, Cooke County; C. F. Spencer, Judge.</p> <p>Suit by J. W. Campbell against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p>

Proceeding by Mrs. Eannie Marshall, for herself and as guardian of the person and estate of Flora Peers, a person of unsound mind, against Mrs. Belle Campbell, to contest the will of Electa Ann Peers. From an adverse judgment in the county court, defendant appealed to the district court, and from a judgment there for defendant, plaintiffs appeal.

<p>Appeal from District Court, Dallas County; Kenneth Force, Judge.</p> <p>Trespass to try title by Ross M. Scott against A. M. Clark. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Mines and Minerals <&wkey;48 — Oil—“Mineral.”</p> <p>Oil produced from wells is a “mineral” substance.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Mineral.]</p> <p>2. Injunction <&wkey;>163(2) — Temporary Injunction — Dissolution — Dispute as to Rights — Drilling Ore Wells.</p> <p>In a suit by the lessee of an oil and gas lease to restrain the purchaser of a part of the land omitted from the lease by mutual mistake from drilling an oil well, it was not an abuse of discretion to dissolve a temporary injunction, where litigation as to the title of the omitted land was pending on conflicting evidence ; and irreparable injury might result to defendant by wells drilled on adjacent land by petitioner.</p> <p>3. Injunction <&wkey;137(4) — Temporary Injunction — Drilling Oil Wells — Propriety of Remedy — Doubt as to Rights.</p> <p>In a suit by the lessee of an oil and gas lease against the purchaser of a part of the land omitted by mutual mistake from the lease, to restrain him from drilling for oil, a temporary writ of injunction was not appropriate, it appearing that the rival claimants- were acting in good faith, that their ultimate rights were uncertain, and that the interest of the public at large, arising from an early development of the region for oil, was at stake.</p>

<p>Appeál from District Court, Nolan County; W. W. Beall, Judge.</p> <p>Action by the State Bank of Sweetwater against the Sweetwater Ice & Cold Storage Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal and Error <©=>1003 — New Trial <©=>72 — Review—Setting Aside Verdict.</p> <p>Verdict, to authorize trial or appellate court to set it aside, must be against the preponderance of the evidence to a degree showing that manifest injustice has been done, at least it mus’t be affirmatively wrong.</p> <p>2. Public Lands <©=>173(18) — Title as Purchaser oe School Lands — Sufficiency oe Evidence!</p> <p>Evidence in trespass to try title held sufficient to sustain findings that defendant purchaser did not actually settle free school land within 90 days after its award to him, as required, and did not reside thereon continuously for three years after actual settlement.</p> <p>3. New Trial <©=>105 — Newly Discovered Impeaching Evidence.</p> <p>Newly discovered evidence, when its object is to impeach the credit of the witness, is not a ground for grant of new trial.</p> <p>4. New Trial <©=>99 — Newly Discovered Evidence — Discretion oé Court.</p> <p>The grant or refusal of new trial on the ground of newly discovered evidence is largely in the discretion of the trial judge.</p> <p>5. Public Lands <©=>173(19) — Action to Recover Eormer School Lands — Remarks in Overruling Motion for New Trial-Ground of Ruling.</p> <p>In trespass to try title to .recover land, originally public free school lands, from the purchaser thereof and his lessee, remarks of the trial court in overruling motion for new trial, and the ground on which he based his ruling, the ground being that the purchaser did not settle on the land for a home, but settled on it as employé of his subsequent lessee, held not reversible error.</p> <p>6; Appeal and Error <©=>719(1) — Review— Error Unassigned.</p> <p>The Court of Civil Appeals cannot take cognizance of an error not properly assigned, unless it be an error of law apparent on the face of the record, or a fundamental error.</p> <p>On Rehearing.</p> <p>7. Appeal and Error <©=>173(2) — Issues in Lower Court — Free School Lands — Forfeiture.</p> <p>In trespass to try title to public free school lands by the purchaser on forfeiture thereof against the original applicant to purchase and his lessee, defendant appellants held unable, for the first time in the Court of Civil Appeals, to question the sufficiency of the procedure of the land commissioner in making forfeiture.</p> <p>8. Public Lands <©=>173(21) — Free School Lands — Successive Purchasers — Forfeiture-Limitation Statute.</p> <p>The fact of forfeiture of public free school lands by an applicant to purchase is material to the right of the purchaser on forfeiture to prosecute trespass to try title to recover the lands from the original purchaser and his lessee only as relieving him from being barred within a year by Rev. St. 1911, arts. 5458, 5459.</p> <p>9. Appeal and Error <©=>230 — Error in.Instructions — Waiver by Failure to Object.</p> <p>Under Acts 33d Leg. e. 59, in trespass to try title to recover former free school lands from the original purchaser and his lessee, if definitions in the charge of “actual settler” and “continuous residence” were erroneous, the error was waived by defendants’ failure to object at proper time.</p>

<p>1. Mandamus &wkey;>151(2) — Compelling Restoration on Railkoad Track — Necessary Parties.</p> <p>Where a railroad, with permission of the authorities, the Railroad Commission and the Attorney General, abandoned a portion of its track, and sold its right of way- to a company, which sold to residents of the city, who built thereon, a company aggrieved by the abandonment cannot secure mandamus to compel replacement without making the city and present holders of the title to the abandoned right of way parties to the suit.</p> <p>2. Railroads <&wkey;57 — Abandonment of Right of Way — Ratification by Legislature.</p> <p>. The Legislature, by Acts 35th Leg. (4th Called Sess.) c. 27, § 4, could ratify effectually an abandonment and relocation by a railroad of a portion of its main line tracks.</p>

<p>Error from Eastland County Court; Cyrus B. Frost, Judge.</p> <p>Application by S. F. Hendricks for writ of garnishment against the Citizens’ National Bank, of Cisco, in which J. W. Tripplett intervened. From an adverse judgment, the in-tervener brings error.</p>

<p>Cokteacts <&wkey;189 — Construction—Agreement to Assume Debts — Matters Included — Torts.</p> <p>Whore a debtor executed a bill of sale to his creditor, who thereupon agreed to assume and settle all debts, the debtor is not entitled to reimbursement from such creditor of a sum paid by the debtor as damages for fraud; payment of damages for his torts not being contemplated by the agreement.</p>

<p>1. Master and Servant @=>259(2) — Injuries, to Servant — Pleading.</p> <p>In an action by a servant against an employer amenable to the provisions of the Employers’ Liability Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz),'but who has not qualified, allegation that “the defendant, its agents and servants, negligently,” etc., “turned the switch,” is sufficient upon general demurrer under article 5246h, subd. 4, although a special exception pointing out that no particular servant was named, and that there was no allegation that the person or employé was acting within the scope of his employment, would be sustained.</p> <p>2. Master and Servant @=>168(3) — Injuries to Servant — Negligence.</p> <p>In an action by a servant for personal injuries against an employer amenable to the provisions of Employers’ Liability Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246b-5246zzzz), but not having qualified, recovery could be had, under article 5246h, subd. 4, for negligence of the employer in hiring an inexperienced and incompetent employé.</p> <p>3. Master and Servant @=>173 — Injuries to Servant — Incompetent Servants.</p> <p>In an action by a servant for injuries against an employer amenable to the provisions of the Employers’ Liability Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), but not having qualified, it is necessary, in order to recover on the ground of negligence of the employer in hiring inexperienced and incompetent servants, to allege and prove that the employer knew of the inexperience and incompetency of the servant, or should have known it.</p> <p>4. Master and Servant @=>271(1) — Evidence — Competency op Fellow Servant.</p> <p>In an action by an injured servant based on negligence of the master in hiring inexperienced and incompetent trapper boy, testimony that witness had not seen him trap- before and testimony of the boy that he had not trapped before is proper and admissible.</p> <p>5. Master .and Servant @=>271(3) — Evidence — Competency of Fellow Servant-Notice. ⅞</p> <p>In an action by an injured servant based on negligence in hiring an inexperienced and incompetent servant, declaration made by plaintiff to one occupying the position of vice principal regarding such servant that “he would get somebody killed by putting that boy on the trap” was admissible to show that employer had notice of the incompetency.</p> <p>6. Master and Servant @=>264(7) — Pleading and Proof — Incompetency of Fellow Servant.</p> <p>In an action by a seryant for personal injuries, it was error to admit evidence of incompetency of another who caused the injury, in the absence of an allegation that the employer knew of such incompetency.</p> <p>7. Master and Servant @=>258(15) — Injuries to Servant — Pleading.</p> <p>In an action by a servant for injuries, an allegation “that it was the duty of defendant to properly light said mine, and that it failed to perform said duty, that, if it had been properly lighted, plaintiff might have discovered tha.t the switch was turned wrong, and might have avoided injury,” was not subject to general demurrer.</p> <p>8. Appeal and Error @^=1.082(1) — Harmless Error — Submission of Issues.</p> <p>Submission of ground of negligence, not supported by sufficient evidence, was harmless, where the jury found against such ground of negligence.</p> <p>9. Evidence @=>535 — Opinion Evidence-Poorly Lighted Mine.</p> <p>In an action by mine employé for personal injuries, based on ground that mine was not properly lighted, testimony of witness that the mine was “poorly lighted” at that poin.t of accident should not he admitted, unless the witness qualifies as an expert.</p> <p>10. Witnesses <$=352— Impeachment — Evidence.</p> <p>It was improper to allow a witness for plaintiff to testify that a witness for defendant in a personal injury suit told him that a doctor had said that his (defendant’s) witness’ testimony was worth $1,500; such testimony having no tendency to impeach the witness, nor prove any fact pertinent to the issue.</p> <p>11. Trial <⅝=>251(8) — Instruction—Applicability to Issues.</p> <p>In servant’s action for injuries occasioned by the improper turning of a switch by another servant, in submitting the question of negligence as to turning a switch the charge should be confined to such single servant, and a charge, “Was defendant, through,' its em-ployés or agents, guilty of ‘negligence’ * * * in turning .the switch in wrong manner, if it or they did so, and in failing to notify plaintiff as to how said switch was turned?” was improper.</p> <p>12. Trial <$=3191(11) — Instructions — Assumption as to Facts.</p> <p>In servant’s action for injuries, a charge: “What damage, If any, has plaintiff sustained by reason of the injuries alleged by him? In answering state the amount, if any, in figures, in dollars, or in dollars and cents, just as you find” —was improper, in that it assumed the liability of the defendant.</p> <p>13. Trial <$=3191 (11) — Instructions — Assumption.</p> <p>In servant’s action for injuries, a charge that as a-guide in answering special issue jury should assess plaintiff’s damages, if any they find he has sustained, at such sum, etc., held improper as assuming negligence.</p> <p>14. Master and Servant <$=204(1) — Injuries to Servant — Assumption of Risk-Employers’ Liability Act.</p> <p>In an action against an employer amenable to the provisions of the Employers’ Liability Act (Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz), but not having qualified, assumption of risk is not a defense.</p> <p>15. Master and Servant <$=227(1) — Injuries to Servant — Contributory Negligence — Intoxic atio n .</p> <p>In an action by a servant for injuries, ordinarily intoxication is simply a fact for the jury to consider in connection with all the facts and attendant circumstances in determining whether an act done by him while under such influence was negligence.</p>

<p>Appeal from District Court, Wise County; F. O. McKinsey, Judge.</p> <p>Suit by .Oran Speer against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Evidence 3=5441(9) — Parol Evidence —Varying Written Contract — Sale of Stock.</p> <p>In suit to recover money paid for stock in an oil company upon the ground that at the time the subscription contract, which was in writing, was entered into, the individual defendants orally agreed to return to ' plaintiff said money in the event oil was not developed, held that, aside from the allegations of fraud, evidence of the oral contract alleged was in violation of the rule that parol testimony cannot be received to vary, add to, or subtract from a valid written instrument.</p> <p>2. Evidence 3=429 — Parol Evidence — To Add to Written Contract — Exception to General Rule.</p> <p>Where plaintiff at time of execution of written instruments knew that oral contract was not embodied in the writing, he would, to bring himself within the exception to general rule that parol testimony cannot be received to vary valid written instrument, be required to allege and prove that omission was due to accident, mistake, or fraud of defendants; a mere charge that omission was fraudulent being insufficient.</p> <p>3. Fraud 3=541, 60 — Presumption — Pleading.</p> <p>Fraud is never presumed, but must always be proven, and the facts and circumstances relied on must be set out, so that in construing a petition it may be determined whether the facts and circumstances alleged amount to fraud.</p> <p>4. Fraud 3=12 — Actionable Fraud — Existing Fact or Promise.</p> <p>The general rule is that a false representation, in order to authorize relief on that ground, must he of an existing fact, and not a promise of something to be done in the future.</p> <p>6. Corporations 3=80(11) — Subscription to Stock — Recovery of Price Paid — Fraud — Promise—Burden of Proof.</p> <p>To hold that oral agreement wlmrcby defendants agreed to return to plaintiff money paid for stock in an oil company in case oil was not developed operated as a fraud, plaintiff must prove that defendants at the time they made the agreement did not intend to fulfill it, but to deceive plaintiff and induce him to advance the moneys which he seeks to recover.</p> <p>6. Corporations 3=80(12) — Subscription to Stock — Fraudulent Representations —Pleading.</p> <p>In action to recover money paid for stock in oil company, general allegations with reference to fraudulent representations as to existence of oil under the land held not to sustain judgment in plaintiff’s favor.</p> <p>7. Corporations 3=80(4) — Subscription to Stock — Statements Made Subsequent to Transaction.</p> <p>Where a subscriber seeks to recover money paid for stock on the ground of fraudulent representation as to existence of oil under com-' pany’s land, that defendants represented that other oil companies were seeking to purchase their property was immaterial if made long after plaintiff had advanced the sums of money he seeks to recover.</p> <p>8. Corporations 3=80(1) — Subscription to Stock — Fraud — Spiritualistic Revelation.</p> <p>In an action to recover money paid for stock in oil company on the ground of fraudulent representation as to existence of oil under the land, held that the representations of the defendants to the effect that spirits had revealed through a medium the existence of oil in valuable quantities beneath the land in question must, under the circumstances of the case, be regarded as insufficient to form a basis for relief asked by plaintiff.</p>

<p>Error from District Court, Stephens County; Thos. D. Blanton, Judge.</p> <p>Application by E. Y. Jennings to probate the will of his deceased wife, Modena Y. Jennings. G. C. Jennings and others contest the probate on the ground of mental incapacity and undue influence. There was judgment refusing probate in the county court, and a like judgment on appeal to the district court, and proponent brings error.</p>

<p>Appeal from District Court, Freestone County; A. M. Blackmon, Judge.</p> <p>Action by A. D. Stamps against E. V. Big-ham. Judgment for plaintiff and defendant appeals.</p>

H. Davidson, Judge. Suit by Clara J. Harlan against Houston Ice & Brewing Company and others, wherein the plaintiff’s husband was made a party plaintiff by -defendants. Judgment for plaintiffs, and defendants appeal.

Error from District Court, Liberty County; L. B. Hightower, Sr., Judge. Suit by S. M. Stovall and others against A. E. Haynie and others. Judgment for plaintiffs, and defendants bring error.

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Action by J. H. Cawthon against the City of Houston. From judgment sustaining general demurrer to plaintiff’s petition, plaintiff appeals.</p>

<p>1. Boundaeies t&wkey;37(l) — Surveys — Conflicts — Evidence.</p> <p>Evidence held to support finding that there was no conflict between two surveys.</p> <p>2. Boundabies <&wkey;6 — 1Conflicting Calls— Courses and Distances.</p> <p>If surveyor in locating survey was under belief that the northwest corner and west line were 136 varas west from where they were in fact located upon the' ground, and located section in question under such mistaken belief, resulting in a conflict in the calls the calls for course and distance from the undisputed, northwest corner and west line should be adopted.</p> <p>3. Corporations &wkey;>672(7) — Permit to do Business in State — Necessity.</p> <p>There being no allegation in plaintiff’s petition or in defendant’s answer and no evidence to the effect that plaintiff, a foreign corporation, is transacting business or has established a general or special office in the state, it was not necessary for plaintiff to prove that it had obtained a permit to do business in the state pursuant to Rev. St. 1895, arts. 745, 746.</p>

<p>Error from District Court, McLennan County; II. M. Richey, Special Judge.</p> <p>Action by S. M. Griswold against Merchants’ Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

B. Muse, Judge. Action by F. E. Anderson and others, composing the firm of Anderson, Clayton & Co., against the Gulf, Colorado & Santa Fé Railway Company. From a judgment for plaintiffs, defendant appeals.

<p>Appeal from District Court, Bexar County; S. G. Tayloe, Judge.</p> <p>•Suit by John F. Miudge and others against A. A. Hughes and others. Judgment of dismissal, and plaintiffs appeal.</p>

Suit by J. G. Christmas and others against R. A. Hodges and others, hrom an order granting a temporary writ of injunction defendants appeal.

<p>1. Trial <§=>252(1) — Instructions—-Lack of Evidence.</p> <p>It is error for the trial court to submit to the jury an issue which is not supported by competent evidence.</p> <p>2. Street Railroads ⅞=>118(1) — Instructions — -Issues.</p> <p>In an action by one injured while riding in an automobile which, collided with a street car, an instruction submitting negligence of defendant held, within the pleadings.</p> <p>3. Appeal and Error <§=>759— Briefs — Assignments of Error.</p> <p>In order to entitle a party to the benefit of a ground of error contained in a motion for new trial, it must be correctly copied as an assignment in the brief; that is, the assignment must be at least substantially the same as the grounds shown in the record.</p> <p>4. Appeal and Error <§=>754(2) — Matters Reviewable — Waiver of Objections.</p> <p>One who asked a special instruction on contributory negligence, which would cure the omission of such issue from a paragraph of the charge, but did not assign error for the failure to give it, error of the court in omitting such issue from the charge, was waived.</p> <p>5. Damages ®=»185(1) — Personal Injuries— Sufficiency of Evidence.</p> <p>In an action for personal injuries, evidence held to show damages.</p> <p>6. Negligence <s=>121(2) — Presumptions.</p> <p>Negligence will not be presumed from the mere fact of accident or injury.</p> <p>7. Negligence <§=>122(1) — Contributory Negligence — Presumptions.</p> <p>Contributory negligence will not be presumed from- the mere fact of accident or injury.</p> <p>8. Negligence <®=138(2) — Instructions — • Res Ipsa Loquitur.</p> <p>Unless the evidence shows a case without proof tending to show negligence, it is not error to refuse to charge that negligence cannot be presumed from the mere'fact of accident or injury, but is a fact that must be proven as any other fact in issue.</p> <p>9. Trial <§=>260(1) — Instructions.</p> <p>It was not error to refuse requested instruction covered by a given instruction.</p> <p>10. Appeal and Error <§=>231(9) — Matters Reviewable — Objections.</p> <p>Complaint cannot be made that a charge submitted the issue of negligence generally, and did not specifically submit the acts of negligence pleaded for the first time on motion for new trial, where it was not objected to on that particular ground on the trial.</p> <p>11. STREET Railroads <S=»114(10) — Collision —Sufficiency of Evidence — Speed.</p> <p>In an action by one injured while riding in an automobile which collided with a street car, evidence held to sustain a finding that the street car was operated at a dangerous rate of speed.</p> <p>12. Street Railroads <fc»117(11) — Collision —Question por Jury.</p> <p>In an action by one injured while riding in an automobile which collided with a street car, whether the motorman saw the automobile in á position of danger in time to have slowed down and avoided the injury held for the jury.</p> <p>On Rehearing.</p> <p>13. Appeal and Error ©=3722(1) — Matters Review able — Assignments op Error.</p> <p>An assignment, complaining of a charge in “that it makes the defendant liable for the injury alleged to have been sustained by the plaintiff without reference to any negligence on the part of plaintiff that could attribute (contribute) to what was the true and proximate result (cause) of plaintiff’s injuries,” the words in parentheses, not being in the ground of error contained in the motion for new trial, will be considered; the changes not being material.</p> <p>14. Trial ©=>252(7) — Instructions — Evidence op Contributory Negligence.</p> <p>Instructions in a negligence case need not refer to contributory negligence, where there is no evidence raising the issue.</p> <p>15. Negligence ©=>93(1) — Imputed Negligence.</p> <p>Negligence of a driver of an automobile will not be imputed to one riding as a passenger.</p>

<p>1. Railboads <®=4276(2)— Negligence — Licensee — Duty oe Cabe.</p> <p>A lumber company owes a licensee on its log train no duty with respect to the condition of its track, cars, or other instrumentalities; its sole duty being to exercise ordinary care in the operation of the train.</p> <p>2. Railboads <⅜=276(2) — Negligence — Licensee — Duty oe Cabe.</p> <p>Where a logging company permitting a licensee to ride on its logging train creates a new danger after he is on the train, by making up its train in a manner not before used by it, it must assume with reference to such new hazard the responsibility of exercising due care to protect him from injury resulting by reason thereof.</p> <p>3. Railboads <§=>282(16) — Injuey to Licensee — Findings.</p> <p>A finding that defendant’s logging train, on which plaintiff was permitted to ride, was negligently operated, considering the condition of track, the manner of coupling, and the speed, helé to warrant judgment in plaintiff’s favor, though the jury had answered that the speed of the train was not excessive.</p>

<p>1. Trial @=>240 — Instruction—Argumentative Character.</p> <p>A requested instruction, containing a correct proposition of law, but also containing matters strongly argumentative, and being a very partisan presentation of the issue, was properly refused.</p> <p>2. Fraud @=>20 — Misrepresentations — Independent Investigation.</p> <p>If the purchasers of a thrashing machine signed the contract on information which they, or either of them, gained by an independent investigation, judgment should have been rendered for the seller in the purchasers’ action for damages on account of misrepresentation.</p> <p>3. Contracts @=>94(5) — Misrepresentations —Avoidance or Contract.</p> <p>To avoid a contract for fraud or misrepresentation, it is not necessary that the fraud should have been the sole cause of making the contract, but sufficient if the fraudulent representation was relied on to the extent that it was a material factor in inducing the making of the contract.</p> <p>4. Damages @=>159(4) — Action for Misrepresentations — Testimony of Loss of Profits.</p> <p>In an action by the purchasers of a thrasher for damages from misrepresentations inducing the purchase, testimony as to loss of profits held admissible in view of the allegations of the petition, against which general demurrer alone was filed.</p> <p>5. Damages @=>159(8) — Fraud — Testimony Unsupported by Pleading — Expenses Incurred.</p> <p>In the purchasers’ action for damages for misrepresentations inducing the sale of a thrasher, testimony as to the value of items of expense alleged to have been paid by the purchasers held inadmissible in the absence of allegation that the amount paid was the reasonable value.</p> <p>On Motion for Rehearing.</p> <p>6. Fraud @=>52 — Action for Fraud — Evidence.</p> <p>In an action by the purchasers for misrepresentations inducing a sale to them of a thrasher, testimony of a purchaser that, immediately after rejecting the thrasher, he signed a written order for another containing the same stipulations, which he read and understood, held properly excluded in the trial court’s discretion, as being a collateral matter.</p> <p>7. Evidence @=>208(6), 222(1) — Admission — Abandoned Pleading.</p> <p>An admission made by a party against his interest is admissible in evidence whether made in court or out, and whether by the pleading on which he goes to trial or an abandoned pleading.</p> <p>8. Evidence @=>208(6) — Admission — Abandoned Pleading.</p> <p>In the purchasers’ action for damages from misrepresentations inducing the sale of a thrasher, the original answer of the purchasers in the seller’s suit to recover on the notes given it, held not admissible as tending tq show the purchasers were not entitled to recover for certain items. '</p> <p>9. Evidence @=>208(1) — Admission—Pleading — Inconsistent Defenses.</p> <p>An admission or statement made under one allegation in a pleading is not admissible in evidence as an admission where inconsistent defenses are pleaded.</p>

<p>Appeal from District Court, McLennan County; H. M. Richey, Judge.</p> <p>Action by Elmer Barnett against the Prussian National Insurance Company. Judgment for plaintiff, and he appeals, on ground that recovery is insufficient.</p>

<p>1. Railroads <§=>260 — Persons Injured on Track used by Others.</p> <p>A servant employed upon a train making trips over another company’s road is entitled to presume that such company performed its duty to keep the track in a safe condition, and is entitled to damages for injuries received by reason of its failure in such respect.</p> <p>2. Railroads <§=>136 — Contracts.</p> <p>Railroad companies may make contracts in their private character for the use of road, as distinguished from their public character of common carrier.</p> <p>3. Railroads <®=>275(2) — “Licensee” — Person on Motor Car Operated over Track.</p> <p>Where a railroad gave a lumber company written permission to use its tracks, receiving no consideration therefor, lumber company not being a common carrier, a servant of the lumber company, while riding on one of the lum-' ber company’s motorcars, was a mere licensee (quoting Words and Phrases, First and Second Series, Licensee).</p> <p>4. Railroads <§=>275(1)'— Injuries to Licensee on Motorcar Operated over Track.</p> <p>A railroad company owes to a mere licensee, riding on a motorcar operated over its track, no affirmative duty in regard to fencing its right of way so as to keep stock off of the track, or the condition of the track, the licensee assuming all the risks incident to the operation of the car.</p>

<p>1. Appeal and Eeeob <S=>1052(8) — Haemless Eeeob — Admission op Evidence.</p> <p>.Any error in admitting abstract of records destroyed by fire is harmless where, if admitted, there was not sufficient evidence to authorize a recovery by plaintiff who offered them.</p> <p>2. Boundabies @=>33 — Establishment — Biteden op Peoop.</p> <p>In action to establish boundary line, plaintiff has the burden of showing not only title, but that boundary line was where he claimed it to be on the ground.</p>

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Suit by the State against the Gulf, Colorado & Santa Fé Railway Company. From temporary injunction granted, defendant appeals.</p>

Action by T. F. Flattery and wife against J. W, Miller and others. From an order of the Court of Civil Appeals, reversing judgment for plaintiffs (171 S. W. 253), they bring error.

<p>Insurance @=>646(6) — Accident Policy — Exceptions — Burden op Proof.</p> <p>In suit on accident policy containing exception clauses, such as a clause providing that the policy shall not cover accidents resulting from trying to enter a moving conveyance using steam as motive power, plaintiff has the burden of establishing that the accident on which suit is based does not fall within the exceptions; the' exception clauses being construed as taking something out of the general portion of the contract so that the promise is to perform only what remains after the part excepted is taken away.</p>

Action in trespass to try title and for partition by Maria Ramirez and others against Ed C. Lasater and others. Judgment for defendants was affirmed by the Court of Civil Appeals as to two of the plaintiffs and reversed as to the third (174 S. W. 706), and defendants bring error.

Action by the West Texas Bank. & Trust Company, executor, against A. L. Matlock and others, trustees, in which Walter Brown and others intervened. Judgment for defendants was affirmed by the Court of Civil Appeals (172 S. W. 162), and plaintiff brings error.

Suit by W. O’Brien for a restraining .order against Henry Hicks and G. W. Barcus. From an order of the district court granting a temporary restraining order, Barcus appealed to the Court of Civil Appeals (171 S. W. 492), which reversed the order, and plaintiff appeals.

Suit by C. E. Gough against Mrs. R. E. Jones. Judgment for plaintiff was reversed and rendered by the Court of Civil Appeals (175 S. W. 1107), and plaintiff brings error.

Suit by Harry Traylor against Frank Allen and others. From judgment for plaintiff, defendant Allen appealed to the Court of Civil Appeals, which affirmed (174 S. W. 923), and Allen brings error.

Action by M. C. H. Park, trustee in bankruptcy, against B. T. Rich and others. Judgment for plaintiff was reversed and remanded by Court of Civil Appeals (177 S. W. 184), and plaintiff brings error.

Action by the Methodist Episcopal Church, South, of Paducah, Tex., and others against E. L. Walsh and the Texas Fidelity Bonding Company. Judgment for plaintiffs affirmed by Court of Civil Appeals (173 S. W. 241) as to defendant Walsh, and reversed and rendered as to defendant surety company, and defendant Walsh brings error.

Error from District Court, Marion County; J. A. Ward, Judge. Habeas corpus proceedings by J. T. Jackson to recover from. Mrs. L. A. Dunn the custody of his minor child. Prom a judgment for plaintiff, defendant ■ brings error.

M. Richey, Judge. Suit by John F. Rowe against C. J. Guder-ian and others, as partners doing business under the firm name of the Dixie Motor Sales Company. Before trial suit was dismissed as to the defendant L. P. Bain. Judgment for the defendants, and plaintiff appeals.

<p>1. Continuance <&wkey;>20(5) — Absence op One op Dependant’s Counsel — Discretion.</p> <p>Where an action for breach of contract was filed March 22, 1917, and was called for trial July 23d following, when a postponement was obtained until August 23d, at which time continuance because of the absence of one of defendant’s attorneys was refused, the trial court did not abuse its discretion where there was nothing to indicate that defendant was deprived of any defense or that it was not ably and fully represented.</p> <p>2. Appeal and Error <&wkey;1054(l) — Review— Introduction op Evidence.</p> <p>Where the case is tried to the court, and there is sufficient evidence not objected to to sustain his findings upon all the material facts to support the judgment, the case will not be reversed because of objections to the introduction of testimony.</p>

<p>1. Frauds, Statute op <&wkey;158(2) — Parol Transper op Property — Evidence.</p> <p>In action to recover interest in land, in which plaintiff relied on agreement between stepmother and his father that property, title of which was in mother, would become common property of both, evidence held, insufficient to sustain such parol transfer of property.</p> <p>2. Trusts <&wkey;3.73 — Agreement to Hold Land por Another — Question por Jury.</p> <p>In action to recover interest in land in which plaintiff relied on agreement of half-brother made on transfer of title to him by his mother that plaintiff would receive his share, evidence held sufficient to raise an issue for the jury.</p>

<p>1. Railroads <&wkey;282(13) — Injuries from Escaping Steam — Instruction — Contributory Negligence.</p> <p>In action for injury to plaintiff by escaping steam from passing engine' when he drove his team between depot platform and track for purpose of unloading lumber, an instruction on contributory negligence, making it the duty of plaintiff to exercise ordinary care, held to sufficiently cover the issue as raised by the evidence.</p> <p>2. Railroads >&wkey;282(13) — Injury prom Escaping Steam — Instructions — Proximate Cause.</p> <p>In action for injury to plaintiff by escaping steam from passing engine when he drove his team between depot platform and track for purpose of unloading lumber, an instruction on proximate cause held not misleading.</p> <p>3. Jury <&wkey;97(4) — Challenge fob Cause — Grounds.</p> <p>In a personal injury suit that juror was engaged in preparing for injured persons their suits against railroads was not ground for challenge for cause when he stated that he had no interest in instant case and could decide case' impartially, record not showing that. he was interested in any suit against defendant.</p> <p>4. Railroads <&wkey;'282(5) — Injuries from Escaping Steam — Sufficiency of Evidence.</p> <p>In action for injury to plaintiff by escaping steam from passing engine when he drove his team between depot platform and track for purpose of unloading lumber, conflicting evidence held sufficient to support verdict for plaintiff.</p>

<p>1. Railroads <&wkey;348(l) — Collision at Crossing — Evidence.</p> <p>In an action for death of driver of automobile truck struck by a train at a crossing, evidence held sufficient to sustain jury finding of negligence proximately causing the injury.</p> <p>2. Railroads <&wkey;348(6) — Collision at Crossing — Contributors Negligence — Evidence.</p> <p>In an action for death of driver of automobile truck struck by a train at a crossing, evidence held insufficient to show that driver was guilty of contributory negligence.</p> <p>Willson, C. J., dissenting.</p>

<p>Appeal from District Court, McLennan County; H. M. Richey, Special Judge.</p> <p>Action between John Szanto and the First State Bank of Mt. Calm. From a judgment for the latter, the former appeals.</p>

<p>Appeal from District Court, Eastland County ; Joe Burkett, Judge.</p> <p>Suit by Ellis Cooper against H. R. Hinman and wife. Prom judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Fannin County ; Ben H. Denton, Judge.</p> <p>Partition suit by J. A. Eason and others against J. T. Eason and wife. From a judgment allowing partition, defendants appeal.</p>

<p>Appeal from Harris County Court; W. E. Monteith, Judge.</p> <p>Suit by A. Berger against Wall & Stabe Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Contracts <&wkey;>28(2) — Agreement fob Rebate — Evidence—Relevancy.</p> <p>In an action by owner of building against cement company to recover an alleged agreed rebate, the owner’s testimony as to his preference for a steel building over a concrete one, and the effort of cement company to induce him to change to concrete, and of his being so induced by confidential rebate agreement held relevant to the issue as to the amount of agreed rebate.</p> <p>2. Appeal and Eebob <&wkey;1170(7) — Harmless Error — Evidence—Irrelevant and Immaterial — Injury.</p> <p>In an action on an alleged agreement for a rebate on a sale of cement, admission of evidence as to plaintiff, owner, being induced by the defendant cement company to contract for a concrete instead of a steel building, the rebate agreement being an inducement for using concrete, if immaterial and irrelevant testimony, was harmless, because not resulting in injury. Court Rule 62A (149 S. W. x).</p> <p>3. Costs <&wkey;262 — Appeal — Suggestion of Delay — Consideration of Entire Record.</p> <p>An appellee’s suggestion that the appeal was taken for delay opens the entire record for consideration.</p>

<p>Appeal from Grayson County Court; Dayton B. Steed, Judge.</p> <p>Action by Frank Teich against I. E. Provence, in which Mrs. E. N. McAuley was brought in as garnishee, and plaintiff filed contest to answer of garnishee. From judgment for garnishee plaintiff appeals.</p>

<p>Venue ⅜=>8 — Actions foe Injury by Automobile — * ‘Trespass. ’ ’</p> <p>Under Rev. St. 1911, art. 1830, subd. 9, providing that where the foundation of a suit “is some crime or offense or trespass” for which a civil action lies it may be brought in the county where committed or where defendant is domiciled, suit may be brought in the county where a person is run over and killed by an automobile, negligently driven by the owner’s agent acting within the scope of his authority, “trespass” being “some wrongful act committed, and not merely a tort resulting from the negligent omission to perform a duty.”</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Trespass.]</p>

Action by Kraft & Madero against the Southern Pacific Company, the Rio Grande, El Paso & Santa Fé Railroad Company, and the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiffs against all the defendants, and the two last-named defendants separately appeal, while the defendant first named brings error.

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Suit by the Temple Hill Development Company ■ against Erie A. Lindholm and wife. Decree for defendants, and plaintiff appeals.</p>

<p>1. ALTERATION OP INSTRUMENTS <©=>9 — BILLS and Notes <@=>378 — Innocent Purchasers —Material Alteration — Detachment of Annexed Contract.</p> <p>Where a contract, attached to a note as part thereof, provides that the note is not to become a binding obligation until the contract is performed, the detachment of the contract from the note before performance is a material alteration, invalidating the note in hands of an innocent purchaser.</p> <p>2. Bills and Notes <§=>382 — Rights op Innocent Purchasers — Stolen Notes.</p> <p>Note stolen from the maker before delivery without any negligence' on his part cannot be enforced by a subsequent innocent holder.</p>

Error from District Court, Jones County; John B. Thomas, Judge. Suit by R. D. Smith, as next friend of Sarah J. Moore, an incompetent, revived, on the death of the incompetent, in the name of Mrs. T. E. Smith, as administratrix, against Mrs. R. D. Moore and others. Judgment for defendants, and plaintiff administratrix brings error.