Volume 213 — South Western Reporter

<p>1. Insurance <§=>129 — Fire Insurance — Authority of Agents — Binding Memorandum.</p> <p>Local insurance agents Lave authority, upon a request by an insured for further fire insurance, to obligate their principals by entering a binding memorandum for further insurance, where they would have had authority to place such insurance with the principal forthwith.</p> <p>2. Insurance <§=>132 — Fire Insurance — Authority of Agents — Binding Memorandum.</p> <p>Where local fire Insurance agents have agreed to keep certain property insured and have entered a memorandum on their books binding one company, they may, prior to loss, upon the cancellation of the first agreement, bind another company by a subsequent binder entry.</p> <p>3. Insurance <§=>112 — Fire Insurance — Authority of Agents — Ratification.</p> <p>Where a contract is made by fire insurance agents to keep certain property insured, the owner need not subsequently ratify such insurance.</p> <p>4. Insurance <§<=>148 — Fire Insurance — Binder Entries — Construction.</p> <p>A contract of fire insurance executed by the entry of a binder memorandum by local agents must be construed in accordance with- the terms and subject to the conditions of the standard form of policy in use by the insurer at the time.</p> <p>5. Insurance <§=>229(4) — Fire Insurance-Cancellation Notice — Waiver.</p> <p>The five-day cancellation notice in standard fire policy, being for the benefit of the insured, may be waived by him through agent who has contracted- to keep him insured, by accepting notice of cancellation from the company and substituting other insurance before the expiration of the five days.</p>

<p>1. Executors and Administrators <g=>7 — Right oe Vendees oe Heir to Withdraw Estate erom Administration.</p> <p>In view of Rev. St. 1911, arts. 3236, 3263, giving “those interested in an estate” certain rights as to its administration, article 3384, giving only to “any one entitled to a portion” , of an estate “as heir, devisee or legatee” the right, by giving bond as provided in article 3385, to withdraw an estate from administration, does not give such right to the vendee of an heir, devisee, or legatee.</p> <p>2. Constitutional Law @=»70(3) — Judicial Functions — Construction oe Statutes — Hardship.'</p> <p>Where the language of a statute is plain, the courts are not authorized to place on it a forced construction to mitigate a seeming hardship or to supply an apparent omission, thus assuming legislative functions.</p>

<p>1. Executors and Administrators <⅞»111(9) —Attorney's Fees — Adverse Interest.</p> <p>Under Rev. St. 1911, art. 3623, as to allowance to executors and administrators for attorney’s fees, the fact that an administrator’s attorneys represented the administrator individually in the prosecution of his contested claim against the estate, and also in other matters for which fees were not properly chargeable against the estate, does not prevent allowance to the administrator of a reasonable sum as attorney’s fees, based on value of services actually rendered by the attorneys for the benefit of the estate;</p> <p>2. Executors and Administrators <S^>111(9) —Attorney’s Fees — Adverse Interest.</p> <p>An administrator is not entitled to allowance for attorney’s fees in the prosecution of his claim against the estate, nor in his contest for appointment as administrator.</p> <p>3. Executors and Administrators <®=»111(8) —Attorney’s Fees — Resisting Effort to Withdraw Estate from Administration.</p> <p>Where administrator resists an effort to withdraw the estate from administration, the alj lowance of attorney’s fees therefor depends on whether he honestly believed the withdrawal was illegal; and such fees cannot be allowed where the right to withdraw was clear.</p> <p>4. Executors and Administrators ®=»111(8) —Attorney’s Fees — Contesting Suit.</p> <p>The propriety of defending a suit or proceeding against an estate must depend upon the apparent justice of the case; and, where an administrator acts in good faith, he will not necessarily be deprived of attorney’s fees, even though he be mistaken as to the justice of the case.</p>

<p>1. Vendor and Purchaser ⅞=»61 — Option-Land Included.</p> <p>Where maker conveyed land to payee in part payment of note, and contemporaneously obtained option to purchase land owned by payee, who prior to such conveyance had no land, the option contract included the land so conveyed.</p> <p>2. Principal and Agent €=171(7) — Contract by. Vendor’s Agent — Ratification.</p> <p>Where contract entered into by vendor’s agent was on its face a contract of the agent, but disclosed that agent was representing the vendor, and that vendor was to receive the benefit therefrom, and vendor with full knowledge of the contract accepted conveyance from purchaser pursuant to the contract, he ratified the contract and made himself liable thereupon.</p> <p>3. Principal and Agent €=>132(1) — Contract with Agent — Liability of Principal.</p> <p>Even when a contract is made in the name of an agent and it appears from the face of the contract that the agent is bound thereby, the liability of the principal is not necessarily excluded if upon a reading of entire contract it .appears that it was the intention of the parties that the principal should also be bound.</p> <p>4. Principal and Agent €=175(2) — Land Contract — Contract with Agent — Ratification.</p> <p>Where son made contract conveying the land belonging to father, grandmother and aunt, the father by ratifying the contract did not become liable for failure to convey the property of the aunt and grandmother.</p> <p>5. Ven dob and. Purchases <§=3351(2) — Breach of Contract — Measure of Damages.</p> <p>Where vendor, having ability to perform contract, puts it.out of his power to do so or fails or refuses to carry out contract, purchaser’s measure of damages is the difference between the contract price of the land and its reasonable market value.</p> <p>6. Vendor and Purchaser <§=3351(8) — Contract with Party Who has No Title-Damages.</p> <p>A purchaser who contracts to purchase land from one who has no title can, in the absence of fraud, recover only the amount paid on the contract, if any, and such special damages not including the loss of his bargain as he may allege and prove.</p> <p>7. Limitation of Actions <§=>180(2) — Pleading — Special Exception,</p> <p>The defense.of limitation may, where the facts appear upon the face of the pleadings, be taken advantage of by special exceptions.</p> <p>8. Pleading <§=>228 — Special Exceptions— Waiver.</p> <p>Plaintiff could not avail himself of defense of limitation to note set up in defendant’s cross-action without having .pleaded limitation in his reply, though he had raised such defense by special exception, where court had not acted upon the exception, and judgment of the court thereon had not been invoked by plaintiff; the exception having been waived.</p>

<p>1. Insurance <@^>124 — Issuance of Duplicate Policy — Effect.</p> <p>The issuance of an exact duplicate of original policy because of mutilation of the original is not the issuance of a new policy, but simply the issuance of a duplicate, and does not affect the rights of the parties.</p> <p>2. Insurance <§=365(1) — Life Insurance-Reinstatement of Policy.</p> <p>Upon reinstatement of life policy, the policy as originally issued became as effective as if no forfeiture had been declared, unless the contract for reinstatement itself was tainted with such fraud as would justify the company in repudiating it.</p> <p>3. Insurance ©=>365(1) — Life Insurance— Reinstatement — Fraud.</p> <p>Insurer, having reinstated lapsed life policy, can defeat liability thereon by asserting and proving that contract by which policy was reinstated was induced by material false representations or warranties.</p> <p>4. Insueance ©=>365(1} — Like Insurance— Reinstatement — Feaud.</p> <p>Contract for reinstatement of life policy is not a new, contract of insurance, but a waiver of the forfeiture, restoring the policy and making it as effective as if no forfeiture had occurred, but reserving the right of the insurer to avoid the effect of reinstatement by showing reinstatement was induced by unfair and fraudulent means.</p> <p>5. Insurance ©=>365(1) — Reinstatement — Misrepresentation — Fraud.</p> <p>Insured’s false statement in application for reinstatement of lapsed policy that he had not applied for insurance in any other company which had not been issued was a material misrepresentation, constituting fraud.</p> <p>6. Insurance ©=>400 — Life Insurance — Reinstatement — Incontestable Clause — Fraud.</p> <p>Insurer can avoid life policy more than a year after issuance thereof upon ground that reinstatement.was procured by fraud, notwithstanding clause making policy incontestable after year from its date; such clause not applying to fraud inducing reinstatement.</p> <p>7. Insurance ©=>365(1) — Life Insurance-Reinstatement — Statute.</p> <p>Insurer can avoid policy issued prior to January 1, 1910, upon ground that reinstatement of policy subsequent to such date was procured by fraudulent statements, notwithstanding Rev. St. 1911, art. 4953, providing that every policy shall contain the entire contract; such statute not applying to policy originally issued prior to such date.</p> <p>8. Insurance ©=>365(1) — Life Insurance-Reinstatement — Fraud.</p> <p>Insurer may avoid life policy where reinstatement was secured by fraudulent representations, though representations were made orally.</p> <p>9. Insurance ©=>219 — Life Insurance — Assignment of Policy — Rights of Assignee.</p> <p>Assignee or beneficiary of insurance policy takes policy subject to all defenses available before assignment, and is in no better position than insured, either before or after events insured against; the policy not being a negotiable instrument. ¡</p> <p>10. Insurance ©=>393 — Fire Insurance — Assignment of Policy — Sale of Property.</p> <p>Where insured sells and conveys property covered by policy to a third party, and with consent of insurer assigns policy, a new contract is entered into by insurer with purchaser which will not be affected by any previous breach on part of vendor.</p> <p>11. Insurance ©=>393 — Reinstatement — Fraud — Estoppel.</p> <p>Insurer, having reinstated lapsed life policy, was not estopped from asserting invalidity of reinstatement because of consent to assignment, where it was ignorant of the deception practiced at time of reinstatement, and immediately on discovery thereof gave notice that it would no longer be bound by the policy.</p>

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District.</p> <p>Action by the Panhandle Packing Company against Nannie T. Stringfellow. Judgment for defendant was reversed and rendered for plaintiff by Court of Civil Appeals (180 S. W. 145), and defendant brings error.</p>

<p>Corporations <®=^619—Dissolution—Trus-tees—Secretary and Survivin'g Directors —Statute.</p> <p>Despite Rev. St. 1911, art. 3723, relating to deceased natural persons only, and having no application to dissolved corporations, under article 6630, a clear right is vested in the last secretary of a sold-out railway company and'the sole surviving members of its last board of directors, as trustees of the property of the sold-out company, to maintain an action for its recovery, and, when they assert the validity of an execution sale and their rights as trustees, the sale is not open to challenge by a naked trespasser.</p> <p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>Suit by B. M. Richardson against Q. W. Allison, wherein C. T. Bonner and others intervened, resulting in judgment for plaintiff and the interveners, which was reversed by the Court of Civil Appeals and judgment. rendered for defendant (171 S. W. 1021), and plaintiff and the Interveners bring error. Judgment of the Court of Civil Appeals reversed, and judgment of the trial court affirmed on recommendation of the Commission of Appeals.</p>

<p>Appeal ano Error @==>499.(4) — Objections to Charge — Presentation in Tbial Court— Review.</p> <p>An assignment of error based on objections to the charge will not be considered, where there is no authentic record that objections were presented to trial court before main charge was read to jury, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art, 1971, though it is not necessary to show by formal bill of exceptions that objections were presented before charge was read to jury.</p>

Action by A. M. Smith against Y. K. Wedgworth and wife. Judgment for plaintiff, and defendants appealed to the Court of Civil Appeals, where judgment was affirmed (17t8 S. W. 641), and defendants bring error.

Trespass to try title by S. C. Robertson against L. A. Wright and others. Judgment for defendants in the trial court on a directed verdict, and from a judgment of the Court of Civil Appeals (174 S. W. 627), reversing and remanding, defendants bring error.

H. Biswell against R. L. Glad-ney and others. Judgment for plaintiff for part of relief demanded was affirmed by the Court of. Civil Appeals (182 S.. W. 1168) and plaintiff brings error.

Action by J. E. Dollar against C. R. Mc-Collum and others. Judgment for plaintiff was affirmed by the Court of' Civil Appeals (176 S. W. 876), and defendants bring error.

Trespass to try title by the Houston Oil Company of Texas against R. H.' Griggs and others. Judgment for plaintiff for partial relief was reversed by the Court of Civil Appeals, which rendered' judgment for the relief asked (181 S. W. 833), and the named defendant brings error.

<p>1. Exceptions, Bill of @=316 — Evidence— Narrative Form.</p> <p>Bill of exceptions not containing in narrative form, as required by tlie statutes and rules, evidence taken on issue of misconduct of jury in juryroom, is insufficient to present the question on appeal.</p> <p>2. Exceptions, Bill of @=539(2) — -Time foe Filing — Allowance by Court.</p> <p>Bill of exceptions filed after the time allowed by the court in order overruling motion for new trial cannot be considered on appeal.</p> <p>3. Corporations '@=>186 — Sale of Property —Stockholder’s Fraud — Secret .Profits —Agency.</p> <p>' Where a large stockholder undertook to sell all the property of a corporation though another had been duly appointed agent for sale, and fraudulently succeeded in getting corporation to give option to one who was his paid dummy, and then had option assigned to him and sold the property at a large profit over the option, and with the president, also a large stockholder, who had become acquainted with the fraud, fraudulently secured ratification of the sale, they were liable to the suing stockholders as for secret profits of a trustee, regardless of fact whether stockholder was a duly appointed agent or not.</p> <p>4. Principal and Agent <©=569(2) — Secret Profits — Duty to Account.</p> <p>An agent cannot for his own benefit make and retain a secret profit when acting in behalf of his principal, but must account to his principal therefor.</p> <p>5. Corporations <©=>186 — Stockholder Dealing with .Corporation — Fraud.</p> <p>The doctrine that a stockholder may deal with the corporation the same as any stranger has the qualification that the transaction is free from fraud and not unfair to the corporation itself.</p> <p>6. Fraud @=>9 — False Representations —Liability.</p> <p>One who induces another to act to his detriment by reason of his false and fraudulent statements is liable for the damages resulting therefrom.</p> <p>7. Appeal and Error @=31062(5) — Harmless Error — Submission of Special Issues.</p> <p>Submission to jury of an immaterial special issue would not be prejudicial error.</p> <p>8. Appeal and Error @=213 — Objections in Lower Court — Special Issues — Necessity of Bequests.</p> <p>That a special issue did not give jury standard by which they were to be guided in determining the matter of agency is not ground for complaint where no request was made to correct the omission.</p> <p>9. Appeal and Error @=31002 — Review-Conflict in Evidence.</p> <p>With matters of contradictions & the evidence the appellate court has no concern.</p> <p>10. Trial @=5350(2), 352(5) — Special Issues — Weight of Evidence — Question of Law. *</p> <p>In action to recover secret profits made by stockholder in selling property of corporation after getting corporation to give option to his paid dummy, and then taking assignment of option, special-issue as to whether option to dummy was executed on account of deceit held not objectionable as assuming that stockholder was guilty of deceit or as presenting a question of law.</p> <p>11. Appeal and Error @=213 — Objections in Lower Court — Special Issue — Objection — Request.</p> <p>In action to recover secret profits made by stockholder in selling property of corporation after getting corporation to give option to his paid dummy, and then taking assignment of option, objection that special issue as to whether option was executed on account of deceit did not give jury any standard to guide them, is unavailing in absence of request therefor.</p> <p>12. Corporations @=3190 — Sale by Stockholder-Secret Profits — Persons Liable.</p> <p>Where president and stockholder of corporation discovered that another stockholder had fraudulently secured an option for sale of all the property of the corporation to a dummy, and had sold the property after taking an assignment of the option at a large profit, and president entered into fraudulent scheme-'and secured ratification of the sale, judgment in action by stockholders to recover secret profits was properly awarded against president as well as other stockholder, though president received no part of the secret profits.</p> <p>13. Fraud @=326 — Parties Liable — Sharing in Benefits.</p> <p>In an action based on deceit, and where a wrong is consummated through fraud, it is not necessary -to show that a party participating in the fraud was benefited or shared in the profits.</p> <p>14. Judgment @=253(2) — Conformity to Pleading — Prayer—Attorney Fees.</p> <p>In an action by stockholders of corporation against stockholder and president for recovery of secret profits made by them in sale of all the property of corporation, where judgment was based on what was due suing stockholders, no recovery of attorney fees could be had on judgment against defendants, the pleading not asking for them.</p> <p>15. Damages @=371 — Attorney’s Fees.</p> <p>Ordinarily attorney’s fees are not recovera-' ble in suits for actual damages or where not provided by contract.</p>

<p>Appeal from District Court, McLennan County; H. M. Richey, Judge.</p> <p>Action by Emma Hollin against C. E. Schaff, receiver. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Telegbaphs and Telephones @=65(1)— Failure to Deliver Message Promptly— Action for Damages — Pleading.</p> <p>In action for failure to promptly deliver telegram informing plaintiff that sender would sell his interest in a partnership, failure to deliver promptly resulting in the other partner withdrawing his consent, so that plaintiff could not purchase, complaint A eld to state a cause of action.</p> <p>2. Telegraphs and Telephones @=>67(2)— Prompt Delivery of Message — Notice of Damages.</p> <p>Telegram, “If still in notion of selling me interest in business, let me hear from you at once,” and answer, “Will sell my interest, meet me in Longview to-morrow, second,” gave defendant company notice that a business transaction was pending between the parties, and 'that a failure to promptly transmit would probably result in loss to one or the other.</p> <p>3. Telegraphs and Telephones @=66(4)— Failure to Deliver Message — Damages— Proximate Cause.</p> <p>In action for failure to deliver a telegram informing plaintiff that seller would sell his interest in a partnership, evidence held to Show that plaintiff sustained damages as the proximate result of defendant’s negligence.</p> <p>4. Telegraphs and Telephones @=66(4)— Failure to Deliver Message — Damages— Evidence.</p> <p>In action for failure to promptly deliver a telegram informing plaintiff that sender would sell his interest in a partnership, failure to deliver resulting in sale not being consummated, held, there was competent evidence to sustain judgment for damages, based upon the difference between the agreed price and the market value of the business.</p> <p>5. Evidence @=323(1), 471(20) —Hearsay — Opinion Evidence.</p> <p>In action for failure to promptly deliver a telegram informing plaintiff that sender would sell his interest in a partnership, failure to deliver resulting in sale not being consummated, testimony as to reasonable value of business by witnesses who stated that they knew the fair and reasonable market value of the business was not subject to objection that it was incompetent, irrelevant, immaterial, hearsay, and mere opinion.</p>

R. Castle, Judge. Suit by the Guaranty State Bank of Tyler against Carl V. Reeves and another. Judgment for plaintiff for partial relief, and plaintiff appeals. To secure his indebtedness to J. L. Collins due June 8, 1918, F. M. Gillenwater on April, 8, 1918, mortgaged an automobile to said Collins. April 13th the mortgage was duly filed for record in Wood county, where the automobile was situated and where Gillenwater resided.

<p>Appeal from District Court, Shelby County; Daniel Walker, Judge.</p> <p>Suit by T. W. Wimberly and wife against the Texas Company and the Producers’ Oil Company. From an adverse judgment, the first-named defendant appeals.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by Martin B. Grace against Jas. A. Baker, receiver of the International <& Great Northern Railway Company, and the Galveston, Houston & Henderson Railway Company. From a judgment for plaintiff against defendant receiver, the latter appeals.</p>

<p>Appeal from District Court, Kaufman County; J. R. Bond, Judge.</p> <p>Suit by B. M. Childress against W. L. Car-wile and others. Judgment for plaintiff canceling certificates against property for city improvements, and in favor of defendant City of Terrell as against the prayer of the defendants W. L. Carwile and .the Trinity Portland Cement Company, and the defendants Carwile and the Cement Company appeal.</p> <p>By article 28, § 2, of the charter granted to it by the act of the Legislature approved March 20, 1911 (Special Laws, pp. 508 to 569), the city of Terrell was authorized to pave its streets, etc.,-and—</p> <p>“provide, by ordinance, for the manner of determining * * * the amounts of benefits to each parcel or abutting property by reason of any such improvements, * * * and of a fair and just proportion, and of the amount of costs of same to be paid by each abutting owner, and the amount of costs so adjudged shall be a personal liability against such owner as well as a tax lien and charge upon his abutting property.”</p> <p>And in article 29 of said charter it was provided that when the city should deem it necessary to pave any of its streets, and should be of the opinion that real • estate “abutting on or in the vicinity of such proposed improvement” would be thereby specially benefited, and should deem it just for the owners of such leal estate to pay the cost or a part of the cost of such paving, it (the city) should so declare by a resolution defining and creating an “improvement district” to include such real estate. The resolution was to direct the city engineer to prepare and submit an estimate of the cost of the paving proposed, and the city tax assessor and collector to report in writing the total assessed value of the real estate within such '“improvement district.” Before the paving should be “finally ordered,” the city, by resolution or otherwise, was to determine how the costs of same should be paid— whether wholly by the owners of such real, estate, or partly by them and partly by the city. Alter so much had been done the city was to give 10 days’ notice to the owners of such real estate by publication in a newspaper, requiring them “to file in writing with the city secretary” any objections they might have—</p> <p>“either to the making of such improvement, or improvements, or to the manner in which the cost of the same is to be paid, or to the manner in which said improvement district is cpnsti-tuted, or any other objections such persons * * * may desire to present.”</p> <p>If the owners of as much as one-half in value of the real estate in the district when so notified, objected, the proposed paving was to be abandoned. At or before the time when a contract for paving was awarded, the city, by resolution or ordinance, was to make provision for payment of the costs thereof. In doing so it was not to assess against any property owner a sum greater than one representing the amount of the increased value of his property by reason of the improvement.</p> <p>At an election held April 1, 1912, the city of Terrell, by a vote of 297 to 81, adopted the act approved May 10,1909 (General Laws, pp. 402 to 406), being chapter 11 of title 22, including articles 1006 to 1017, Vernon’s Statutes, known as the “Street Improvement Statute.” The act by its terms conferred on any city adopting it power to pave its streets, and in doing so to “select the materials and methods” therefor, to contract for the construction thereof, and to provide for the payment of the cost of such construction, either entirely by the city out of any of its funds available for the purpose, or in part out of such funds and in part by assessments against owners of property abutting on such streets. By- other terms of the act the part assessed against the owners of property abutting on a street was not to exceed three-fourths the total cost of paving such street, and the sum assessed against any one owner was not to exceed the actual benefit to him in the enhanced value of his property by reason of the paving. No assessment of any part of the cost of the paving a street was to be assessed against an owner of property abutting tbereon until a “full and fair bearing,' preceded by a reasonable notice thereof,” had first been given to him.</p> <p>In a resolution adopted October 21, 1913, the city of Terrell declared it “to be a public necessity” to pave the street within its limits known as “Griffith avenue.” In said resolution the city further declared that the paving should be according to the plans and specifications of the city engineer, directed said city engineer to prepare a preliminary estimate of the cost of the paving, and directed the city secretary to “make the proper publication” of the resolution. It appears that the resolution was duly published as directed, but it does not appear from the record that the engineer, complied with the instruction to him to prepare an estimate of the cost of the paving. October 28, 1913, a resolution establishing the grade for Griffith avenue was adopted. On the same day a resolution was adopted designating 30 feet as the width of the part of the street to be paved; and on the same day another resolution was adopted providing for the paving of the street “according to the plans and specifications to be furnished therefor by the city engineer,” specifying the material to be used, and further providing that the city should pay one-fourth the cost of such paving, and that owners of property abutting on the street should pay the remaining of such cost. “The proportion of said costs payable by the owners of said abutting property,” it was recited,</p> <p>“shall be assessed against the owners and against their said property in accordance with the terms of the general laws of the state of Texas, and in accordance with what is known as the front-foot plan or rule, as the frontage of the property of each owner is to the whole frontage of property on the street named to be paved, provided that if the application of this rule would, in the opinion of the city commissioners, in particular cases be unjust or inequitable, it will be the duty of the city commissioners to assess and apportion said costs in such proportion as it may deem just and equitable, having in view the special benefits in enhanced value to be received by such owners of said property, so as to produce a substantial equality of benefits by, and burdens imposed upon, each owner.”</p> <p>It was provided in tbe resolution that no assessment should be made against any such owner until after notice had been given to him as provided by the general laws of the state, and that no assessment against any such owner should- be for a sum in excess of the benefits to his property in the enhanced value thereof due to the paving. But “no publication in any newspaper,’! it is recited in the statement of facts,</p> <p>“was made of any notice of hearing to be given property owners on said street, either under the above resolution, or under any of the original proceedings with reference to said paving, or the amount of the assessment to be made against abutting property owners.”</p> <p>November 18, 1913, the city advertised for bids for the paving, and afterward a bid submitted by the Bert Hahn Construction Company was accepted. Thereupon the city and said. construction company entered into a contract whereby the construction company undertook to pave said street on terms and according to specifications agreed on and set out in the contract. July 14, 1914, the bond made by the construction company to secure a performance by it of its undertaking was presented to the city. August 18, 1914, the city secretary was instructed to write to owners of property abutting on Griffith avenue who were opposed to the paving in front of their property, and ask them to co-operate with owners who wanted the street paved, so as to avoid delay in the paving operations. November 3, 1914, appellee Childress advised the city he would not pay anything on account of the paving. August 3,1915, the paving of the street having been completed, it was accepted by the. city as a compliance with the undertaking of said construction company.</p> <p>Shortly thereafter, to' wit, on August 23, 1915, this suit was commenced. Appellee Childress was the plaintiff, and Bert Hahn, alleged to be the sole owner of the Bert Hahn Construction Company, W. L. Carwile, alleged to be the owner by assignment from said construction company of an interest in the contract for the paving of said street, and the city of Terrell, were the defendants. The relief appellee Childress sought was an injunction restraining said city from issuing certificates against him or his property for any part of the cost of said paving, and from — ■</p> <p>“passing any resolution or order of -any kind or character affecting the title to plaintiff’s property (alleged to be homestead), or in any way creating any liability against this plaintiff for any portion of the cost of paving Griffith avenue.”</p> <p>Pending said suit, to wit, on September 14, 1915, the city adopted a resolution directing that assignable certificates for amounts specified, respectively assessed against owners of real estate abutting on said street, among which was the sum of $403.65 assessed against appellee Childress, be issued to said construction company; and accordingly, on September 17, 1915, a certificate covering said $403.65 assessed against said appellee was issued to said construction company. Said certificate was transferred by said construction company to said Car-wile and the Trinity Portland Cement dom-pany. Afterward, to remove a question made as to the validity of the proceedings resulting in the issuance of said certificate, based on the failure of the city to duly notify ap-pellee Childress of such' proceedings and give him an opportunity to be heard with reference thereto, said Carwile and said cement company—</p> <p>“endeavored to get the city commission to hold such correction proceedings and pass such correction ordinances and resolutions as were necessary in order to constitute a compliance with the provisions and requirements of the general paving law.”</p> <p>Such action by the city was opposed by ap-pellee Childress; but after long delay, to wit, on October 23, 1917, the city did act in the matter. On that day it adopted a resolution which, after reciting that it had directed the paving of said Griffith avenue; that specifications covering the paving had been made by its engineer; that advertisement for bids for the work had been made; that a bid made by the Bert Hahn Construction Company had been accepted; that the city engineer had prepared and filed a report showing the “cost payable by the owners of real estate abutting on said street,” the “cost of such improvement by front foot of abutting property,” the names of owners of such property, and “the total cost of such improvement to each parcel of property”; and that said report was considered by the city commission and duly approved — declared that—</p> <p>“the city commission has finally determined to assess a part of the costs of said improvement against the owners and their property.”</p> <p>Provision was then made in the resolution for notice to, and a hearing of,</p> <p>“all persons interested in said matter as to said assessments, and as to the amount to be assessed against each owner and his property, and as to the benefits to said property from said improvements, or any other thing in connection therewith.”</p> <p>It was provided that after hearing such owners the city should by an ordinance assess against them—</p> <p>“such sums as shall be determined to be just and equitable, and that said assessment will be made in accordance with the front-foot plan or rule as the frontage of the owner is to the whole frontage to be improved, provided that if the said rule or plan shall be determined in any case to be inequitable, then the commission will adopt such rule of apportionment as shall be just and equitable, having in view the benefits to each owner, and the burdens to be imposed upon them, provided no assessment shall be made against any owner or his property in excess of the benefits to said property in the enhanced value thereof by means of such improvement.”</p> <p>It was recited in the resolution that its purpose was—</p> <p>“to correct any mistake or irregularity which may exist in the’ proceedings heretofore had with reference to the foregoing improvement or the assessment of the cost thereof against abutting property and its owner, and to reassess against any abutting property and its owner the cost or part of the cost of said improvement according to law, and not in excess of the benefits in enhanced value of such property from such improvements.”</p> <p>After the time named in the resolution for a hearing of property owners concerned, of which due notice was given, on, to wit, November 6, 1917, the city adopted an ordinance whereby assessments were made against owners of real estate abutting on said Griffith avenue. Among the assessments was one for $403.65 against appellee Childress. The ordinance provided for the issuance of assignable certificates for the amounts of the assessments, and on November 26, 1917, a certificate covering the assessment made against appellee Childress was accordingly issued.</p> <p>The trial was had on an amended petition filed by appellee November 16,1917, after the adoption of the ordinance making the “final assessment” against him, and before the issuance of the “assignable certificate” covering such assessment. ■ Having alleged in his said amended petition that the proceedings resulting in the issuance September 17, 1915, of the certificate covering the assessment against him, together with said certificate, were void because of failure on the part of the city, in particulars specified, to comply with the requirements of its charter, and having further alleged that the proceedings had by the city subsequent to the issuance of said certificate and before November 26, 1917, when the new certificate was issued, were void for reasons specified, appellee Chil-dress prayed that said certificate issued September 17, 1915, be canceled, and that—</p> <p>“all orders, resolutions, ordinances, or certificates heretofore passed or issued by the city of Terrell be annulled, and that this plaintiff have a writ of injunction restraining the city of Terrell and its managing officers from hereafter issuing any certificate against the property of this plaintiff by reason of the paving of Griffith avenue.”</p> <p>Bert Hahn did not answer the suit. In their answer Carwile and the Trinity Portland Cement Company, the latter having become a party defendant, asserted the validity of the certificate issued November 20, 1917, and, alleging that appellee Childress had made default in the payment of said certificate according to its terms, prayed judgment against him for the amount thereof, together with interest and attorney’s fees as stipulated for therein; and further prayed, if for any reason it should be determined that they were not entitled to a recovery against appellee, that they have judgment against the city for the amount, principal, interest, and attorney’s fees, of said certificate. The city answered, asserting, as said Carwile and the cement company had, the validity of said certificate issued November 26, 1917, but denied liability to them in any event on account thereof or on account of said paving.</p> <p>The trial was before the court without a jury, and resulted in a judgment in favor of appellee Childress against all the other parties, canceling the certificate issued September 17, 1915, as appellee had prayed for, and also canceling the certificate issued November 26, 1917, which he did not specifically, pray for, and in favor of the city of Terrell as against the prayer of Carwile and the cement company for relief against it. The appeal against the judgment is by Carwile and the cement company so far as it is in favor of appellee Childress and the city against them, and by the city of Terrell so far as said judgment is in favor of appellee Chil-dress against it</p>

<p>Error from Milam County Court; W. G. Gillis, Judge.</p> <p>' Action by the American Surety Company against J. T. Thach. Judgment for defendant, and plaintiff brings error.</p>

Marcus Weatherred, Judge. Action by M. C. McKinney against W. A. •Robson in the justice court, in which S. W. Elmore was also made a party defendant. Judgment for defendants, and upon appeal to the county court plaintiff recovered judgment against the defendant W. A. Robson for $80, and the defendant Robson recovered against the defendant S. W. Elmore for the same amount, and the defendant Robson appeals.

T. Sluder, Judge. Petition for divorce by Donald D. Henderson against Lillie Henderson. Decree upon default, jury being waived and upon defendant’s motion or petition after the term had expired, an order was entered, setting aside decree, to which order plaintiff excepted and appeals.

<p>1. Deeds <§=>70(1) — Cancellation—Promise to Execute Will — Disregard of Promise.</p> <p>Daughter’s deed to mother made upon, mother’s promise to make will devising her estate to daughter will not be canceled upon mother’s refusal to make such will, unless mother made the promise with the design and intention of disregarding it.</p> <p>2. Deeds <3=145 — Grantee’s Promise — Condition-Covenant.</p> <p>Grantee’s promise to grantor inducing execution of deed will be construed a covenant instead of a condition in case of doubt.</p> <p>S. Deeds <§=>145 — Promise to Execute Will.</p> <p>Mother’s promise to make- will giving estate to daughter inducing daughter to execute deed to mother was a covenant, and not a condition.</p> <p>4. Trusts <§=>43(3) — Express Trust — Absolute Deed — Parol Testimony.</p> <p>An express trust may be ingrafted on a deed conveying the absolute title by parol testimony.</p> <p>5. Trusts <§=>35(3) — Ingrafting Trust on Deed — Allegation of Fraud — Grantee’s Refusal to Fulfill Promise.</p> <p>Where a mother induced her daughter to execute deed by promise to make will devising estate to daughter, equity will ingraft a trust on the deed upon mother’s refusal to fulfill promise, without an allegation of fraud.</p> <p>6. Wills <®=58(1) — Promise to Make Will-Enforcement Against Estate.</p> <p>Mother’s promise to make will devising estate to daughter as inducement to execution of daughter’s deed to mother is enforceable against mother’s estate.</p> <p>7. Trusts <S=w362 — Action to Ingraft Parol Trust upon Absolute Deed — Defense.</p> <p>In a daughter’s action to ingraft trust upon her deed to her mother .upon the mother’s refusal to make 'will devising estate to daughter pursuant to her promise to so do, made as inducement to execution of deed, it is no defense that such promise can be enforced against mother’s estate upon her death, since mother may dispose of property before her death.</p>

<p>Appeal from District Court, Webb County; J. F. Mullally, Judge.</p> <p>Suit by the City of Laredo against T. A. Bunn. Judgment for plaintiff, and defendant appeals.</p>

A. Patrick, Judge. Trespass to try title by Lon A. Speer against Mrs. C. F. Hansen, in which defendant filed cross-action against plaintiff. From the judgment rendered, plaintiff appeals.

<p>Appeal from District Court, Frio County; C. C. Thomas, Judge.</p> <p>Suit by the City of Pearsall against Y. T. Crawford and wife. Judgment for defendants, and plaintiff brings error.</p>

<p>Contracts <&wkey;321(4) — Oil Well Cleaning Contract — Abandonment of Contract-Recovery of Advances.</p> <p>Where oil well drilling contractors abandoned contract to clean oil well, because of oil company’s noncompliance with agreement to furnish them necessary tools wherewith to 4° the work, they were not liable to the company for advances made and used by them in part for purchase of supplies which the company had agreed to furnish, and in part as part payment on contract, where their damages exceeded such part payment in amount.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by L. Zbranek and wife against Mattie Brader and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Mandamus <®=o!6(1) — Moon Case — Compliance WITH REQUIREMENT.</p> <p>Where county treasurer, seeking mandamus to revoke vacation order requiring transfer of county funds from one bank to another bank held to be legal depository, gave his check to-latter bank drawn on first bank for the funds, he did all that was required to comply with order, regardless of fact that draft accepted in payment of check was not paid, and mandamus proceedings will be dismissed.</p> <p>2. Mandamus <®=3l6(l) — Moot Case — Retention to Decide Public Question.</p> <p>Original application by county treasurer for mandamus to tost appointment of depository of county funds by revoking order of judge compelling transfer of funds to bank held legal depository will not be retained to determine that question after county treasurer has complied with order of transfer.</p> <p>Levy, J., dissenting.</p>

<p>1. Wills <§=>219 — Who May Propound for Probate — Executor.</p> <p>Under Rev. St. 1911, art. 3262, a will is properly presented for probate by the person named in it as executor, regardless of whether he is competent to act. as executor.</p> <p>2. Wills <§=>274 — Probate—Trust Company —Application.</p> <p>Since a trust company could probate the will in which it was named as executor, without seeking to have an executor appointed, it was not bound to state, in the application for probate, that it was not disqualified by law from - accepting letters.</p> <p>3. Wills <§=>219 — Probate.</p> <p>That testamentary executor in writing declined the executorship of the will could have no effect on the right of such executor to propound the will for probate.</p> <p>4. Descent and Distribution <§=>90(1) — Action by-Heirs.</p> <p>Even if a temporary administrator should not have been appointed for an estate, under Rev. St. 1911, art. 3301, yet where the will of the deceased had been duly probated, and there was an administration of the estate pending, and debts in a large sum had been filed and approved, the heirs and devisees of deceased could not bring trespass to try title to land belonging to the estate against others claiming it.</p> <p>5. Executors and Administrators <§=>15— Corporation Acting as Executor.</p> <p>A corporation may be appointed and act as executor; the creation of such corporations being authorized by Rev. St. 1911, art. 1121, subd. 37.</p> <p>6. Wills <§=>211 — Compelling Probate.</p> <p>Under Rev. St. 1911, art. 3225, the court may compel probate of a will upon ascertaining its existence.</p> <p>7. Constitutional Law <§=>38 — Constitutionality oe Statute.</p> <p>Where a statute is not prohibited expressly nor impliedly by the Constitution, it must be sustained.</p> <p>8. Constitutional Law <§=>48 — Presumption oe Constitutionality.</p> <p>Every doubt is resolved in favor of the constitutionality of a'statute.</p> <p>9. Affidavits <§=*2 — Power to Make — Office» OF CORPORATION.</p> <p>In view of Rev. St. 1911, arts. 4928-4964, 5004, corporations may make affidavits through their officers and agents when such affidavits are required.</p> <p>10. Executors and Administrators ®=»22(3) —Appointment of Tempobary Administrator — Recit ads.</p> <p>Where the court, in appointing temporary administrator, recited sufficient grounds in the order to justify the appointment, the decree would not be affected by any invalid reason that might have been recited therein.</p>

<p>Original application for mandamus by the State National Bank of Mt. Pleasant against J. A. Ward, Judge of Seventy-Sixth Judicial District of Texas.</p>

<p>Husband and Wine <§=>162 — Contracts by Wine — Ownership op Mercantile Business.</p> <p>In view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4629a-4629d; and notwithstanding article 4621, and the Married Woman’s Act of 1913, wife’s contract to purchase wood for wood yard, owned by her, is void, wife having no right to make personal contract in conducting mercantile or trading business such as wood yard, as distinguished from contract of conveyance or disposition of her separate property.</p>

<p>1.Homestead <&wkey;70 — Separate Parcels.</p> <p>Under Const, art. 16, § 51, providing that a city homestead shall consist of lot or lots not to exceed $5,000 in value, used for a home or place of business, a block of land not improved, but inclosed by fence, and used occasionally, by the owner, who resided on property across the street, as a pasture and for agriculture, the whole property not exceeding the value named, constituted a part of the owner’s homestead.</p> <p>2. Homestead <&wkey;31 — Separate Parcels — Intent of Owner.</p> <p>Under Const, art. 16, § 51, the right of homestead in disconnected tracts of land depends on the actual use made of the land, and in determining the homestead character the intent of the owner as evinced by his declarations negativing homestead quality are not to be considered.</p> <p>3. Homestead <&wkey; 192 — Persons Entitled to Assert Right.</p> <p>A purchaser of land constituting part of a homestead may, as against one holding a prior deed of trust', assert that the land constituted a homestead, and that the deed of trust was invalid under Const, art. 16, § 50; the right to make such assertion not being personal to the owner of the homestead.</p> <p>4. Homestead <&wkey;122 — Estoppel of . Purchaser-Prior Liens.</p> <p>A purchaser of land constituting part of a homestead is not estopped to deny the validity of a prior deed of trust thereon which was invalid under Const, art. 16, § 50.</p> <p>5. Homestead &wkey;>128 — Liability of Purchaser-Assumption of Payment of Invalid Deed of Trust.</p> <p>If a purchaser of land constituting a homestead agrees to pay a prior deed of trust thereon as a part of the consideration of the conveyance, he is liable to the mortgagee for the amount due on the deed of trust, though the lien created thereby is void under Const, art. 16, § 50.</p> <p>Jenkins, J.. dissenting in part.</p>

<p>Appeal from District Court, Travis County; Ireland Graves, Judge.</p> <p>Suit by the State against the Producers’ Oil Company and others. From the decree, certain defendants appeal.</p>

<p>Appeal from District Court, Hopkins County ; Wm. Pierson, Judge.</p> <p>Suit by C. C. Johnston against Cobb & Gregory and others. From an order refusing a temporary injunction, plaintiff appeals.</p>

S. Prince, Judge. Proceedings under the Workmen’s Compensation Law by Mrs. Talitha Prater and another to recover for death of O. L.. Prater, employs, opposed by the Western Indemnity Company. The Indemnity Company sued to set aside the award for claimants, and from judgment denying it relief and awarding recovery to claimants according to findings of the Industrial Accident Board, the Indemnity Company appeals.

<p>1.Limitation of Actions <§=34S(1) — Certificate of Deposit — Accrual of Cause of Action.</p> <p>Cause of action against bank on certificate of deposit payable to order of depositor “six months after date in current funds on return of this certificate properly indorsed, with interest at the rate of 4 per cent, per annum. No interest after maturity” — accrued upon expiration of the six months’ period and was barred by limitations upon failure to bring action within the prescribed period thereafter, not being a general deposit and being in the nature of a promissory note maturing six months after date.</p> <p>2. Limitation of Actions <9=66(9)-Gener-al Deposits — Demand,</p> <p>The period of limitations does not begin to run against general deposits in banks represented either by passbooks or other evidences of deposits in contradistinction to deposits under certificate of deposits, payable at specified time, until demand.</p> <p>3. Limitation of Actions <9=66(9) — Certificate of Deposit — Mexican Monet.</p> <p>That certificate of' deposit payable six months after date was made payable in Mexican money did not postpone accrual of action thereon until demand.</p>

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Suit by Nellie Bell Guerra against Manuel Guerra, Jr. From judgment for plaintiff, defendant appeals.</p>

<p>Error from District Court, McLennan County; H. M. Richey, Judge.</p> <p>Action by Elmer Barnett against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error <©=>1094(1) — Review-Intermediate Appeal — Finding.</p> <p>The Commission of Appeals is. bound by the finding of the Court of Civil Appeals, if there is any evidence to sustain the finding.</p> <p>2. Master and Servant <©=>286(3) — Injury to Railroad Employé — Defective Drain-way — Jury Question.</p> <p>In car repairer’s action for injuries from defective drainway, the questions whether defendant railroad had invited its employes to use the ground in performance of their duties, and whether it had furnished such ground as place for them to work, held, under the evidence, for the jury.</p> <p>3. Master and Servant <©=>293 (7) — Injuries to Railroad Employé — Action for Damages — Instructions — Defective Drain-way.</p> <p>In car repairer’s action for injuries from defective drainway involving issues of whether the ground was furnished as a place to work, and whether car repairer in performance of his duties properly walked over such land, court’s charge held to properly present issues to jury.</p>

Action by W. J. Glover against the Houston Belt & Terminal Company. Judgment for defendant, and plaintiff brought error to the-Court of Civil Appeals, where the judgment was reversed and the cause remanded1 (163 S. W. 1063), and plaintiff brings error.

Action by Sid Post against J. W. Riggins. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which affirmed the judgment (172 S. W. 210), and defendant brings error.

Action by John Bartek against the International & Great Northern Railway Company for personal injuries. Judgment for plaintiff was affirmed on appeal to the Court of Civil Appeals (177 S. W. 137), and defendant brings error.

Action by S. W. Merchant and another against W. M. Gunter. Judgment for plaintiffs, and defendant appealed to the Court of Civil Appeals, .where the judgment was affirmed, and motion for rehearing was overruled (172 S.’ W. 191), and a rehearing was denied (173 S. W. 260), and defendant brings error.

■ Error to Court of Civil Appeals of Seventh Supreme Judicial District. Action by Belle Thompson Davis and others against J. F. Howe. Judgment for defendant was affirmed by the Court of Civil Appeals (176 S. W. 759), and plaintiffs bring error.

A. Wilson against T. I. Richardson and another. Judgment for plaintiff, and, on appeal to the Court of Civil Appeals by defendant named, the judgment was reformed and affirmed (178 S. W. 566), and defendant brings error.

<p>Error to Court of Civil Appeals of Fifth Supreme Judicial District.</p> <p>On motion for rehearing.</p>

Application by F. X. Adams for the probate of certain papers as the will of E. Van-law, deceased, opposed by C. H. Maris. From a judgment admitting the papers to probate, the contestant appealed, and, from a judgment of the Court of Civil Appeals (166 S. W. 475) reversing and rendering in part and affirming in part, proponent brings error.

<p>Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.</p> <p>Walter Furlough was convicted of theft, and appeals.</p>

<p>Cbihinal Law <§=>1090(1) — Appeal-Record.</p> <p>A record which does not contain a statement of facts or bill of exceptions cannot be considered on appeal.</p>

B. Muse, Judge. Garnishment proceeding by Y. O. McAdams against the City National Bank of Dallas to collect judgment rendered in favor of the Murray Company against J. P. Bass and W. E. Barrow, and assigned to Y. O. McAdáms, in which J. P. Bass intervened and moved to quash writ of .garnishment for defect in affidavit. Judgment for plaintiff, and inter-vener appeals.

<p>Error from District Court, Trinity County; E. A. Berry, Judge.</p> <p>Suit by L. P. Atmar and others against E. J. Riley. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Bills and Notes <§=92(1) — Considebation.</p> <p>In action on promissory notes held by innocent purchaser, release of liability on contract, return of earnest money, and loan of money on sale of stock by payee to maker, held ample consideration for note.</p> <p>2. Coepoeations <S=>99(2) — Issuance of Stock — Payment in Cash.</p> <p>Where corporation had authorized capital stock of $20,000, all of which had been paid in money with exception of $5,000, which had been paid for by transfer of land of the reasonable value of that amount, its stock was legally issued.</p> <p>3. Bills and Notes <§=»370 — Considebation —Sale of Stock — Insolvency of CokpobaTION.</p> <p>That consideration for note was sale of stock in corporation which subsequently became insolvent would not be a defense, especially where the note was in the hands of an innocent purchaser for value.</p> <p>4. Pleading <§=>111 — Plea of Privilege— Detebmination.</p> <p>Where defendant in an action filed a cross-action against other parties who filed a plea of privilege, and plaintiff pleaded misjoinder of causes by reason of such cross-action, and plea of privilege was properly sustained, but plea of misjoinder was not sustained, the cross-action should not have been dismissed, but should have been trhnsferred to proper county for trial.</p>

<p>Appeal from District Court, McLennan County; H. M. Richey, Judge.</p> <p>Action by the Meehanics’-American National Bank of St. Louis against the New England Equitable Insurance Company and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1.Appeal and Brroe <®=215(1) — Objection to Charge — Waivee.</p> <p>Objection that trial court erred in submitting to jury question of defendant interurban ■railroad’s failure to fence its right of way was an objection-to the charge, and where not made in court below is waived, by force of Vernon’s" Sayles’ Ann. Civ. St. 1914, art. 1971.</p> <p>2. Appeal and Eeeoe <§⅜>215(1) — Waivee of Eeeoe in Charge — Statute.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, relativé to waiver of error in charge by failure to object below, includes every error, fundamental and otherwise, which can be waived, though there are some errors, including jurisdiction of the -subject-matter, which cannot be waived, and therefore included any error in submitting to jury question of defendant interurban railroad’s failure to fence its right of way, on ground that such a road is .no.t a railroad, within article 6603.</p> <p>3. Railroads <§=3224 — Fencing Right of Way — “Railroad” as Including Interue-ban Elegteic Railway.</p> <p>An interurban railway using electricity as a motor power is a “railroad,’.’ within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6603, requiring railroads to fence their -rights of way, which is a remedial statute, to be liberally construed.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Railroad.]</p>

<p>1. Corporations @=>666 — Foreign Corporations — Venue—Local Agent’s Commission Contract.</p> <p>Terms of commission contract relative to sale of goods of foreign corporation and the evidence adduced held to constitute corporation having the contract local agents, so that suit against foreign corporation was properly brought in county in which agents were located, as authorized by Rev. St. 1911, art. 1830, § 24, and article 1861, though foreign corporation had main office in other county.</p> <p>2. Corporations @=>666 — Foreign Corporation-Action — Venue — Agency Contract.</p> <p>If terms of contract constitute party local agent of foreign corporation, suit in county of residence of which is authorized by Rev. St. 1911, art. 1830, § 24, stipulation of contract that agent has no authority to accept process, etc., is of no effect.</p> <p>3. Judgment @=829(1) — Full Faith and Credit — Federal Court Judgment— Foreign Corporation.</p> <p>Where a foreign corporation had been put through receivership proceedings in federal court with ancillary appointment of receiver in Texas, and property of foreign company had been sold to another corporation under decree providing limit of time for filing claims and selling free ,of claims, judgment of Texas court in action by Texas creditor not submitting himself to jurisdiction of federal court, establishing money demand against purchaser based on claim that creditor had obtained judgment against insolvent corporation before jurisdiction of federal court attached, though appeal was heard thereafter and purchaser was merely a continuation of old corporation having knowledge of claim, held not to deny full faith and credit of federal court’s judgment.</p> <p>4. Corporations’ @=>560(5) — Purchase of Property of — Receiveeship Proceedings —Liability of Purchaser.</p> <p>In a suit by judgment 'creditor to establish liability of purchaser of property of debtor, a foreign corporation, sold under receivership proceedings in federal court, evidence held insufficient to establish that purchaser was a continuation of foreign corporation or was party to any fraud in attempt to defeat claim of judgment creditor.</p> <p>5. Corporations @=>547(1) — Insolvency — Trust Fund Doctrine.</p> <p>When a corporation becomes insolvent and ceases to be going concern or takes steps which substantially incapacitate it from continuing . business, all its assets and property becomes a trust fund for benefit of creditors, subject only to rights of other creditors holding prior valid liens.</p> <p>6. Corporations @=>560(5) — Insolvency — Federal Court Sale — Trust Fund Doctrine.</p> <p>Where assets and property of insolvent corporation are transferred to purchaser under federal court decree authorizing sale free of lien, purchaser held not liable on trust fund theory to judgment creditor who obtained judgment after receivership proceedings in a suit pending prior thereto and who had not submitted himself to jurisdiction of federal court.</p> <p>On Motion for Rehearing.</p> <p>7. Appeal and Error @=>768 — Briefs — Statement of Facts.</p> <p>Under Supreme Rules of Court 40 and 41 (142 S. W. xiv), court will accept unchallenged statement of facts in appellant’s brief as part of statement of facts.</p> <p>8. Judgment @=>707 — Conclusiveness—Persons Not Parties — Frivolous Appeal.</p> <p>Though court refused to rule that an appeal was frivolous, for purpose of awarding costs, such holding would not make applicable 'the doctrine of stare decisis as against a party not party to suit attempting to base liability for fraud on ground that appeal was frivolous and for delay in attempt to hinder plaintiff in collection of a judgment.</p> <p>9. Appeal and Ebrob '<©=>1001(1) — Review-Verdict.</p> <p>A mere suspicion or scintilla of evidence is not sufficient to authorize an appellate court to uphold a verdict based on such evidence.</p>

<p>1. Boundaries &wkey;>8 — Survey — Abandoned Lines.</p> <p>Surveyors often run preliminary lines that become of no locative value, but merely indicate the work on the ground unless written in and made part of the field notes, and in a boundary case no attention need be taken of the action of a surveyor in running a line which he abandoned as soon as he encountered difficulties.</p> <p>2. Boundaries <&wkey;25 — Conflicts — Senior Survey.</p> <p>Where there are conflicts between a senior and junior survey, the conflict is resolved in favor of the senior survey.</p> <p>3. Boundaries <&wkey;46(3) — Actions — Agreements.</p> <p>In trespass to try title, an agreement as to the parties’ ownership of different surveys held, not to amount to an agreement by plaintiff that no part of the land sued on was embraced within the boundary of one of his surveys, which was senior to that of defendant.</p>

<p>1. Electricity <&wkey;>19(2, 3) — Death Due to Shock — Doctrine of Res Ipsa Loquitur— Applicability.</p> <p>Petition, alleging that electric shook resulting in death of plaintiff’s husband was proximately and directly caused by negligence of defendant “in permitting a dangerous, excessive, and deadly current of electricity to traverse the wire running to and into said house of deceased,” sufficiently alleged manner in which injury occurred; the doctrine of res ipsa loqui-tur being applicable in case of death by electric shock.</p> <p>2. Electricity <&wkey;19(4) — Permitting Excessive Current to be Conducted into-House of Consumer.</p> <p>Evidence as to the construction of wires in the alley in the rear of the residence of deceased, from which wires electricity was conducted into the house of deceased, was pertinent to the inquiry as to whether defendant was negligent in permitting an excessive current of electricity to enter deceased’s residence.</p> <p>3. Electricity &wkey;>19(4) — Death by Shock-Contributory Negligence — Evidence,</p> <p>Testimony of a witness that he had placed a porcelain socket in residence of deceased and had told plaintiff, deceased’s wife, that the. socket was safe, and testimony of the wife that she had told deceased just before deceased attempted to attach electric iron to socket that electrician had told her there was no danger in using same, was pertinent on issue of contributory negligence of both deceased and plaintiff.</p> <p>4. Evidence <&wkey;141 — Other Occurrences— Electbic Shock.</p> <p>In action for death of husband due to his receiving electric shock while attempting to connect electric iron to socket in his residence, evidence as to electric shocks received by others in their homes a few days before the death of deceased was admissible; electricity being supplied to others through same transformer.</p> <p>5. Appeal and Error <S&wkey; 930(1), 994(2) — Review — SUFFICIENCY OE EVIDENCE.</p> <p>The jurors are the exclusive judges of credibility of witnesses, and weight to be given to their testimony, and in determining whether or not the verdict is supported by the evidence, the court on appeal will look only to the evidence in support of the verdict.</p> <p>6. Electricity <&wkey;>19(5) — Proximate Cause oe Death — Excessive Current.</p> <p>Evidence held sufficient to sustain verdict that deceased came to his death by reason of receiving a shock from an excessive current of electricity, while attempting to attach an electric iron to a socket in his residence.</p> <p>7. Electricity <&wkey;19(3) — Supplying to Dwelling — Negligence—Excessive Voltage.</p> <p>Deceased’s death being the result of an electric shock resulting from an excessive voltage, defendant which furnished electricity to deceased’s dwelling had the burden of showing that excessive voltage was not due to its negligence.</p> <p>8. Appeal and Error <&wkey;10G7 — Failure to Instruct as to Meaning oe Terms — Harmless Error.</p> <p>In action for death of husband due to his receiving electric shock while attempting to connect electric iron to socket in his residence, failure to instruct as to meaning of “preponderance of evidence” held not harmful error.</p> <p>9. Trial <&wkey;>234(7) — Instruction — Burden of Proof.</p> <p>Where the ease was submitted upon special issues and in each instance the jury was instructed to return an answer in accordance with the preponderance of the evidence, there was a sufficient charge as to the burden of proof.</p> <p>10. Trial <&wkey;260(8) — Instructions Sufficiently Given — Refusal.</p> <p>The court 'did not err in refusing to give defendant’s special requested charge with reference to contributory negligence of deceased, where the same was substantially given in the questions submitted.</p> <p>11. Pleading <&wkey;392 — Variance.</p> <p>Since petition alleged plaintiff’s name as Mrs.1 G. C. B., wife of G. O. B., deceased, contention that judgment should not be entered for her for the reason that the evidence showed her name to be Ola Mae B., will be overruled.</p> <p>12. Trial <&wkey;118*, 121(2) — Conduct and Argument oe Counsel.</p> <p>Counsel had the right to state to the court his understanding of the testimony in discussing the admissibility, and also the right to state to the jury what he considered to be the law of the case, if it was not contrary to any instruction given by the court.</p> <p>13. Death <&wkey;99(4) — Damages—Amount.</p> <p>For the death of husband and father, 31 years old, in good health, of exemplary habits and earning over $2,000 a year, a verdict of $28,000 in favor of wife and children held not excessive.</p>

<p>Appeal from District Court, Walker County; E. A. Berry, Judge.</p> <p>Suit by Mrs. L. A. Abercrombie against Jemimah Harrison and others. Judgment for plaintiff, and defendants appeal.</p>

Error from District Court, Bexar County; J. T. Sluder, Judge. Suit by Jose G. Trevino against Miers & Rose, the State National Bank, the Commonwealth Bank & Trust Company, and others. Judgment for' plaintiff, and the named defendants bring error.

<p>1. Appeal and Error <©=>839(1) — Review-Determination.</p> <p>Where the trial court disposed of a case splely on defendant’s plea of privilege, although the case was also submitted to the jury on the' merits, held that on appeal by plaintiff from an order transferring the case to another county only the question of venue will be disposed of.</p> <p>2. Venue <®=w22(1) — Actions Against Nonresident — Co defen dants .</p> <p>When it is sought to sustain the venue of a suit against a nonresident on the ground that the codefendant resides in the county, the cause of action against the nonresident must be the same, or at least connected, and when they are separate and distinct, the nonresident’s plea of privilege should be sustained.</p> <p>3. Venue ⅞==>21 — Residence—Privilege.</p> <p>The right to maintain a suit in a county away from the residence or domicile of a de'-fendant who pleads his privilege depends upon the existence of facts which constitute the exceptions to the statute, and not upon the mere allegation of facts. .</p> <p>4. Venue @=^22(1) — Privilege — Codefend-ants — Fraud.</p> <p>Where plaintiff’s own agent induced the maker of a note to draw a second draft which the defendant bank honored and plaintiff paid, held that though the fraud of plaintiff’s agent occurred in the county in which the defendant bank did business, a right of action for such fraud was so disconnected with the right of action" against defendant bank that its plea of privilege, made under Rev. St. art. 1830, must be sustained.</p> <p>5. Venue <®=»22(1) — Privilege—Joint Tort-Feasors.</p> <p>In an action by plaintiff against defendant bank, which honored a second draft drawn by a borrower from plaintiff, etc., held that though the borrower resided in the county where suit was instituted, defendant’s plea of privilege to be sued in the county in which it did business could not be overruled, on the theory that defendant bank and the borrower were joint tort-feasors or converters of the fund.</p> <p>6. Venue <@=>27 — Privilege—Assignment of Cause of Action.</p> <p>Where one of the1 defendants assigned to plaintiff his right of action against a nonresident defendant, held that action could not, under Rev. St. art. 1830, subd. 4, be maintained in the county in which the assignor resided, for 1 as the assignment was necessary to give plaintiff a right of action, venue' could not, under Act 1913, be obtained in that fashion.</p> <p>7.Venue ⅞=>16½ —Privilege —Joinder of Actions.</p> <p>Jurisdiction of an action against a nonresident defendant, based on the fact that such action was joined with other actions against the same defendant, cannot be 'obtained, where the court did not have jurisdiction over the actions to which it was joined, none of them falling within the exceptions of the statute as to venue. Rev. St. art. 1830.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by Nueces County and others against H. D. C. Gussett and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Street Railroads @=>117(8) — Collisions —Jury Question.</p> <p>In an action for injuries to one riding in an automobile struck by an interurban car at a street crossing, where there was evidence that the motorman saw the automobile, and that, though it showed no sign of slowing up, he did not signal the approach of his car, the question whether he was guilty of negligence was properly submitted to the jury.</p> <p>2. Damages @=>216(3) — Instruction — Double Damages.</p> <p>In a personal injury action, an instruction accompanying a special issue submitting the question of the amount of damage, which informed the jury that'they might take into consideration any loss of time, diminished capacity to labor, impairment of health, pain, and mental suffering, etc., but that they should allow only such.sum as would compensate plaintiff for the injuries she had suffered, is not improper as influencing the jury to allow a double recovery for disability to earn money.</p> <p>3. Appeal and Error' @=>1068(4) — Review-Harmless Error.</p> <p>In a personal injury action, where defendant abandoned on appeal, the contention that the verdict was excessive, an instruction on damages, though it be considered as allowing a double recovery, must be deemed harmless.</p> <p>4. Trial @=>260(1) — Instructions—Refusal.</p> <p>Where the court at plaintiff’s request gave an instruction on a particular issue, the refusal of a similar instruction covered by the one given was not error.</p> <p>6. Appeal and Error @=>1002 — Review-Verdict.</p> <p>Where there is evidence to support it, a verdict is conclusive as to the facts found, notwithstanding that there was evidence contrary to the facts so found.</p>

<p>Appeal from Coleman County Court; W. Marcus Weatherred, Judge.</p> <p>Suit by T. L. Stafford against IT. .J. McDonald. Fro.m judgment for plaintiff, defendant appeals.</p>

<p>Carriers <©=»219(7) — Carriage op Live Stock —■Notice op Loss — Contract.</p> <p>A shipper of live stock is bound by provision of the contract, signed by him with the second carrier, requiring notice of injury to stock, if he had opportunity to read the contract before signing it, though he testified he had a previous oral contract with the initial carrier for the shipment to final destination.</p>

<p>1. Appeal and Error <§=499(4) — Record-Review — Objection Not Shown on Record.</p> <p>Where the record shows that appellant filed with the record written objections to the court’s charge, but fails to show that such objections were presented to the trial judge as required by the amendatory act of 1913 (Acts 33d Leg. c. 59 [Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1971]), such objections cannot be presented on appeal.</p> <p>2. Husband and Wipe <§=162 — Warehouse-men — Action for Loss — Cross-Action — Defenses — Coverture.</p> <p>In suit by a married woman against a warehouseman for loss of goods, plaintiff cannot object to defendant’s judgment on cross-action for storage fees, where she did not plead cov-erture as a defense to such cross-action, and in a supplemental petition she alleged facts showing that the goods were her separate property, that she had separated from' her husband, and that she had power to make the contract of storage.</p>

Suit by Henry C. Gammage against the Gamer Company. A judgment for plaintiff was reversed by the Court of Civil Appeals, and judgment rendered for defendant (162 S. W. 980), and, the Commission of Appears having reversed the judgment of the Court of Appeals, and affirmed that of the trial court (209 S. W. 389), the Supreme Court of its own motion returned the record for report of assignments of error not disposed of.

<p>Appeal and Error <§=824 — Oeal Abgu-MENTS ON REHEARING — COMMISSION OE APPEALS.</p> <p>Since the Commission of Appeals acts only in an advisory capacity as to motions for rehearing, and such a motion must also be considered by the Supreme Court, oral arguments will not be heard by the Commission on rehearing, except in exceptional cases, where the motion raises a doubt in the minds of the members of the Commission as to the correctness of the original decision by them.</p>

of Civil Appeals of Seventh Supreme Judicial District. Action by Mrs. Annie Ts Hutcherson and others against the Amarillo Street Railway Company. Judgment for defendant was affirmed by the Court of Civil Appeals (176 5. W. 856), and plaintiffs bring error.

Action by W. R. Horn against tbe County of Matagorda and Matagorda County Road District No. 2, a road corporation. From an order of the Court of Civil Appeals (182 S. W. 76), reforming and affirming a judgment in the district court against the road corporation, plaintiff brings error.

<p>Appeal from District Court, Galveston County; H. C. Hughes, Judge.</p> <p>Habeas corpus proceedings by E. Brent. From a judgment refusing' bail, accused appeals.</p>

<p>Appeal from District Court, Navarro County; H. B. Daviss, Judge.</p> <p>Suit by the Ray McDonald Company against S. L. McFarland. From judgment rendered, defendant appeals.</p>

D. Harvey, Judge. Suit by Mayme Moore against Ferdinand Moore for divorce and custody of a child, with cross-action by defendant. Judgment was rendered for defendant on his cross-bill, but'the custody of the child was awarded to plaintiff, and defendant appeals.

Error from Harris County Court; W. E. Monteith, Judge. Action by C. H. Vaughn and others against J. B. Charpiot, Sr. Judgment against plaintiff and the bondsmen on his replevy bond, and they bring error.

<p>1. Carriers <§=>223 — Live Stock Shipment-Liability or Carrier — Damages.</p> <p>Shipper cannot recover from carrier for damage to live stock sold after shipment under an option contract entered into before shipment for a price agreed upon.</p> <p>2. Carriers <§=3223 — Live Stock Shipment-Liability op Carrier — Sale Under Option.</p> <p>Shipper’s right to recover damages against carrier for damage to cattle was not affected by sale of cattle two w.eeks after arrival at destination to buyer who had option before shipment to purchase the cattle, where, upon arrival of cattle, buyer had refused, because of damages they had sustained, to purchase the cattle and terminated the contract; the subsequent sale not having been made under option.</p> <p>3. Carriers <⅜=>228(3) — Live Stock Shlpment — Action por Damages — Evidence.</p> <p>In action for damage to shipment of cattle, evidence as to the condition of the cattle at the time of their sale, ten days or two weeks after arrival at destination, was admissible as tending to show the actual and real condition of the cattle and the true extent of the damages sustained.</p> <p>4. Carriers <@=3227(3) — Live Stock Shipment —Extra Feed and Labor — Proop op Reasonable Charges.</p> <p>Shipper suing carrier for damages to live stock shipment cannot recover for expenditures for extra feed, and labor necessitated by negligent delay, in absence of evidence that the charges paid for such feed and labor were reasonable.</p> <p>5. Carriers <@=3219(5) — Live Stock Shipment-Liability op Initial Carrier — Connecting Carriers.</p> <p>Where cattle were shipped by initial carrier and other connecting carrier, the initial carrier' was liable for the entire damages sustained in the shipment; but each of the connecting carriers was liable only for such damages as may have resulted in consequence of its own negligence.</p>

<p>Appeal from District Court, Floyd County; R. C. Joiner, Judge.</p> <p>Injunction by S. D. Rushing against J. W. Howard and others. From a refusal to dissolve the Injunction, defendants appeal.</p>

<p>Error from Harris County Court; Murray B. Jones, Judge.</p> <p>Suit by E. M. Winstead against the Commercial Union Assurance Company, Limited. Judgment for plaintiff, and defendant brings error.</p>

B. Minor, Judge. Action between Imogens T. Hambleton and Hallie B. Dignowity and others. Judgment for the latter reversed, and cause remanded. On motion to issue mandate.

<p>1. Appeal and Error <©=5301 — Verdict Not Supported by Evidence — Time foe Objection.</p> <p>An assignment of error that the verdict is contrary to a great preponderance of the evidence, filed after the motion for new trial was overruled, cannot be considered, since it could have been presented in the motion for new trial.</p> <p>2. Appeal and Error <©=>1097(1) — Former Decision — Law of Case.</p> <p>The decision upon a former appeal was the law of the case; and, the trial court having followed the instructions of the appellate court in instructing the jury, it will decline to reconsider such questions upon a subsequent appeal.</p> <p>3. Damages <©=>131(2) — Excessive Damages —Sprained Ankle.</p> <p>An allowance of $500 for bodily pain and anguish resulting from a sprained ankle held excessive to the extent of $250.</p>

<p>1. Justices of the Peace <®=> 174(4)—Appeal — Plea in Abatement — Another Action Pending.</p> <p>By delaying making of plea in abatement, setting up pendency of prior suit, until case had been appealed from the justice court to the county court, defendant waived any right of abatement to which she might have been entitled, had timely objection been made.</p> <p>2. Landlord and Tenant <§^>288—Forcible Detainee—Tenant’s Improvements.</p> <p>In view of Rev. St. art. 3942, in action of forcible detainer by landlord against tenant at will, refusing to pay rent when raised, and also refusing to vacate, no issue as to tenant’s right to reimbursement for value of improvements made, or tenant’s right to remove same, is determined.</p>

<p>Appeal from District Court, Hidalgo County.</p> <p>On motion for rehearing.</p>

<p>1. Husband and Wife <§=276(1) — Right of Surviving Wife to -Administer Community.</p> <p>Right of surviving wife until she again marries to administer under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 8592-8614, the community property free from control of the probate court is, unless in some way forfeited or waived, exclusive of any other form-of administration or the right of any other person to administer.</p> <p>2. Husband and Wife <§=>276(1) — Right of Surviving Wife' to Administer Community.</p> <p>That surviving wife failed to file her application to be allowed to administer as survivor of the community property, free from control of the probate court, until after application for temporary and permanent letters of administration had been made by another and temporary letters granted, would not annul or work a forfeiture or waiver of wife’s right, or deprive her of that right in view of Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 8595-8598, and article 3609, where wife made application in less than 4 months from date of husband’s death.</p> <p>3. Executors and Administrators <§=>122(1) —Temporary Administrator — Authority-Presumption.</p> <p>Where the power conferred on temporary administrator by his appointment does not appear, it may be assumed in the absence of anything showing necessity for greater authority that he was simply clothed with the usual powers of temporary administrators.</p>