Volume 214 — South Western Reporter

Suit by the State of Texas to enjoin the Country Club from selling intoxicating‘liquors, from selling liquors on Sunday and election days, etc. Decree granting an injunction only against selling intoxicating liquor on election days.

<p>1. Courts <&wkey;247(7) — Jurisdiction—Finality — Texas Court or Civil Appeals — Appeal proM County Court.</p> <p>In a county court case, the jurisdiction of the Court of Civil Appeals is final, unless the Supreme Court has jurisdiction under Rev. St. 1911, art. 1623, because the decision of the Court of Civil Appeals is in conflict with the decisions of other Courts of Civil Appeals.</p> <p>2. Courts &wkey;>247(7) — Jurisdiction — Conflict Between Decision.</p> <p>There is no conflict between decisions sustaining the right to attack findings of the court for insufficient support in the evidence and a decision denying the right to attack special findings of the jury for lack of evidence tó support them, so as to sustain the jurisdiction of the Supreme Court in a county court case in which the jurisdiction of the Court of Civil Appeals is otherwise final under Rev. St. 1911, art. 1623.</p> <p>3. Courts <&wkey;247(7) — Appellate Jurisdiction — Conflicting Decisions — Jurisdiction oe Supreme Courts and Court op Civil Appeals.</p> <p>A decision, merely sustaining a right of appeal from a judgment, in the absence of a motion to set aside a special verdict or for a new trial, is not in conflict with the decision that a review may be had on appeal of the sufficiency of the evidence to support the jury’s special verdict, so as to give the Supreme Court jurisdiction in a case appealed from the county court, where the jurisdiction of the Court of Civil Appeals is otherwise final under Rev. St. 1911, § 1623.</p>

Certified Question from Court of Civil Appeals of Second Supreme Judicial District. Action by J. M. Nichols against the American Type Founders’ Company and another before a justice of the peace. On appeal to the county court by the named defendant judgment was entered on trial de novo for plaintiff, and the named defendant appeals to the Court of Civil Appeals. On certified question.

<p>1.Partition <§=»87 — Money Expended foe Peeseevation óf Common Estate — Con-TBIBUTION.</p> <p>For the satisfaction of H.’s claim for contribution for money expended for the preservation of the common estate, the H. interest was entitled in the partition to no more land than was necessary for the purpose, and, if an excessive allotment was made to the prejudice of G., he would have the right to challenge it.</p> <p>2. Appeal and Eeeoe <§==>882(14) — Invited Eeeoe.</p> <p>A party cannot complain of the submission of an issue, where he requested its submission.</p> <p>3. Evidence <§=>419(2) — Pabol Evidence— CONSIDEBATION FOB CONVEYANCE.</p> <p>The actual and entire consideration for a conveyance can be shown by parol.</p> <p>4. Appeal and Eeeoe <§=»1073(7) — Eeeoe Without Pbejudice.</p> <p>One not prejudiced by an award is in no position to. complain of it on appeal.</p>

<p>Appeal from District Court, Jim Wells County; V. W. Taylor, Judge.</p> <p>Action by P. A. Presnall against Carl C. Adams and another. Erom a judgment sustaining defendant’s plea of privilege, plaintiff appeals.</p>

<p>1. Replevin @=> 125 — Bond — Judgment fob Defendant.</p> <p>Under Rev. St. 1911, arts. 7110, 7111, as to bond by plaintiff in replevin and judgment on the bond for defendant in case of decision against plaintiff, where plaintiff’s suit is de•cided against him, it Is the duty of the court to enter judgment for defendant on the bond, whether defendant has filed formal affirmative pleadings or not.</p> <p>2. Dismissal and Nonsuit @=>19(1) — Rights of Defendant — Affirmative Relief — “Decided.”</p> <p>Where plaintiff in sequestration replevied, giving bond, required by Rev. St. 1911, art. 7110, conditioned for the forthcoming of the property, to abide the decision of the court, and later plaintiff dismissed, defendant had the right to judgment for the value of the property, although his answer consisted only of general demurrer and general denial, for, under article 7111, providing for judgment on the replevy bond in case of decision against plaintiff, the suit had been “decided” against plaintiff by his voluntary act, and Jiy virtue of such statute defendant’s answer had the legal effect of affirmative pleading.</p> <p>[Ed. Note. — Eor other definitions, see Words and Phrases, Decide.]</p> <p>3. Trial @=>6(1) — Notice of Trial — When Necessary.</p> <p>In action for rents, consisting of 275 bushels of oats, plaintiff having sequestrated oats and subsequently replevied the same, giving a replevy bond, where case was dismissed merely as to plaintiff’s cause of action, plaintiff and his bondsman were not entitled to service of citation, or to any given period or form of notice that case would be tried at the following term.</p> <p>4. Replevin @=>125 — Title to Property— Necessity.</p> <p>In action for possession of certain oats, claimed as rent, where petition, affidavit and bond for sequestration, writ, and replevy bond showed conclusively that plaintiff took or caused the oats to be taken from defendant’s possession, and it was alleged by plaintiff that oats were a part of crop raised by defendant, held, defendant was entitled to judgment, without reference to where actual title was; plaintiff having voluntarily discontinued action.</p> <p>5. Sequestration @=>20 — Bond—Measure of Damages.</p> <p>Contention that court erred in entering judgment on bond for value of sequestrated property at date of trial, in that true measure of damages is value at time of sequestration, cannot be sustained.</p>

<p>Appeal from District Court, Travis County; George Calhoun, Judge.</p> <p>Suit by the State of Texas against the Prairie Oil & Gas Company and others. From an order granting a temporary injunction, de--fendants appeal.</p>

Error from District Court, Bexar County; W. S. Anderson, Judge. Interpleader by the Gulf, Colorado & Santa Fé Railway Company and another against J. P. Nelson and others. Prom a judgment awarding a part of the sum in controversy to others, J. P. Nelson brings error.

<p>Appeal from District Court, Castro County; R. C. Joiner, Judge.</p> <p>Action by Slade & Bassett against J. L. Crum. From judgment for plaintiffs, defendant appeals.</p>

<p>1. Vendor and Purchaser &wkey;>244 — Rights oe Innocent Purchasers — Vendor’s Lien.</p> <p>In an action on a vendor’s lien note, evidence held to show that the purchaser of part of the property, who had paid the purchase price upon being shown a release of the lien, was an innocent purchaser not affected by the fact that the vendor’s lien note' had not in fact been paid.</p> <p>2. Vendor and Purchaser <&wkey;274(l) — Action on Vendor’s Lien Note — Misappropriation oe Funds by Defendant’s Agent —Negligence oe Holder.</p> <p>Where plaintiff, holding a vendor’s lien note against defendant, sent a' release to the representative of a loan company to take up the note' in making a loan on the land to the amount of the difference between the purchase price of a part thereof sold to a third party and indebtedness to plaintiff, and' the representative procured checks both from the third party and from defendant but misappropriated them, a judgment for defendant could not be sustained on the ground that plaintiff’s negligence in delivering the release to representative was the proximate cause of the injury to defendant, where it appeared that he did not use it to obtain defendant’s check, which was given solely because the third party’s attorney had approved the transaction and sent his client’s check for the purchase price.</p> <p>3. Bills and Notes <&wkey;452(l) — Maturity oe Note — Notice oe Nonpayment.</p> <p>In the absence of an agreement to do so, no duty rests upon a creditor to notify his debtor that the debt has not been paid, although past due, so that the fact lhat the creditor did not notify the debtor that a note had not' been paid until after the death of a third party to whom defendaut had intrusted funds for its payment, and who had misappropriated them, did not avail as a defense in an action on the note.</p> <p>4. Appeal and Error <&wkey;931(4) — Review-Presumptions on Appeal.</p> <p>In an action on a vendor’s lien note wherein the defense of payment to plaintiff’s agent who had misappropriated it was interposed, although the case was submitted on special issues and neither party requested the submission of the question of agency, it will not be presumed on appeal that the trial court found in favor of defendants on such issue and rendered judgment on the theory of payment, where an inconsistent finding of fact was made showing that judgment was rendered on the theory that the agent was not the agent of plaintiff but of 'defendants, to which defendants made no objection.</p>

<p>Appeal from District Court, Dallas County; W. L. Thornton, Judge.</p> <p>Suit by A. A. Green against W. G. Russell. Defendant’s plea of privilege was overruled, and he appeals.</p>

<p>Error from District Court, McLennan County ; Geo. N. Denton, Judge.</p> <p>Suit by A. P. Angier against the Allemania Eire Insurance Company. To review judgment for plaintiff, defendant brings error.</p>

Error from District Court, Hale County; R. C. Joiner, Judge. Suit by the Nunn Electric Company, a co-partnership, against the I-Iickox-Whyman Engineering Corporation and others, in which a writ of garnishment was issued against L. C. Wayland, and Ira W. Hall intervened. From a judgment therein in favor of the Nunn Electric Company, Ira W. Hall brings error.

<p>1. Appeal and Error <§=>1062(1) — Harmless Error— Submission of Issue — Release — “Know” — “Understand” — “Appreciate” — '“Effect.;’</p> <p>In action on accident policy defended on ground that' insured had executed release, submission of issue of whether insured was “possessed of sufficient mental capacity to know, understand, and appreciate the nature and effect and result of his act,” held not prejudicial, the words “know, understand, and appreciate” having been used with the same meaning and the word “effect,” with same meaning as “result,” the question being merely whether insured had mental capacity to understand the nature and effect of execution of release.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Appreciate; Effect; Know; Second Series, Understand.]</p> <p>2. Insurance <§=3668(11) — Accident Insurance — Cause op Disability — Death— Disease.</p> <p>In action on accident policy, whether the injuries were effected, directly and independently of all other causes, through accidental means, or whether disease or use of alcoholic liquors caused or contributed thereto, held for the jury.</p> <p>3. Insurance @=668(14) — Release — Mental Competency — Jury Question.</p> <p>Whether insured, at time of executing release to insurance company, was competent to fully comprehend the nature of the release was for the jury.</p> <p>4. Insurance @=665(5) — Accident Insurance — Cause oe Disability and Death —SUFFICIENCY OE EVIDENCE.</p> <p>Evidence held sufficient to warrant finding that insured’s injuries resulted through accidental means,- and that such injuries, independently of other causes, totally .disabled insured, and caused permanent paralysis, and finally his death.</p> <p>5. Trial @=352(5) — Special Issues.</p> <p>In suit on accident policy to recover both weekly indemnity for disability and initial principal sum for insured’s death, the submission, for a “Yes” or “No” answer, of a special issue whether the claimed injuries to insured did “continuously and wholly disable” insured, “and result in his death,” held erroneous, as combining distinct issues, which might be answered differently.</p> <p>6. Trial @=352(5) — Accident Insurance-Submission oe Issue.</p> <p>In action on accident policy, where defense was that either one of two diseases, or use of intoxicants caused or contributed to insured’s death, the submission in one issue of whether plaintiffs had proved that neither the use of liquor nor either disease caused, or contributed to cause, the injury which resulted in insured’s death, was erroneous, involving several issues of fact, which insurer was entitled to have separately submitted.</p> <p>7. Insurance @=466 — Accident Insurance-Proximate Oause.</p> <p>Under accident policy insuring against bodily injuries inflicted, “directly and independently of all other causes,” through accidental means, if disease with which insured was suffering caused apoplexy resulting in insured’s death, or if injury received by insured in a fall concurred with such disease in causing such apoplexy, the insurance company was not liable, but was liable if the injury from the fall was the sole cause of the apoplexy.</p> <p>8. Appeal and Error @=207 — Improper Argument — Necessity oe Objection.</p> <p>.Where court fails, on its own motion, to confine counsel strictly to the evidence, under court rules 39 and 41 (142 S. W. xx), the opposing counsel has the privilege of presenting his point of objection, but is not required to do so to subsequently avail himself thereof.</p> <p>9. Appeal and Error @=106t»(l) — Trial @=125(5) — Conduct of Counsel in Argument-Prejudicial Remarks. ’</p> <p>In action by insured’s surviving widow against insurance company on accident policy, conduct of counsel for surviving widow, in referring to the widow as a “poor old woman without friends and without money,” and in criticising insurer’s counsel for objection to such remarks, held improper and prejudicial.</p>

M. Overshiner, Judge. Action by Estes & Alexander against James Ferguson, John Ferguson, and another. Citation not having been served on the first-named defendant, the cause was dismissed as to him, and, from a judgmén't for plaintiffs against the remaining defendants, they appeal.

M. Spann, Judge. Consolidated actions .by Lampasas County against the Hess & Skinner Engineering Company and others, wherein certain parties intervened, and John Scharbauer and others were made parties defendant. From judgment for plaintiff against John Schar-bauer and certain other defendants, etc., such defendants appeal.

<p>1. CORPORATIONS <&wkey;503(2) — Venue—County in Which Cause of Action “Arose" — Action for Services.</p> <p>Under Rev. St. art. 1830, providing that suits against any private corporation may be commenced in any county in which the cause of action, or a part, arose, suit for compensation by the general agent of a life insurance company held properly brought in L. county in and around which he was to perform services, and for part o'f which he was paid in the county, in which he made his office headquarters; “arose” referring to every fact which has arisen and inheres in the cause of action.</p> <p>2! Corporations <&wkey;503(l) — Actions Against —Venue—“Cause of Action.”</p> <p>A “cause of action,” within Rev. St. art. 1830, providing that suits against private corporations may be commenced in any county in which the cause of action arose, is not confined to the genesis of the right, and does not comprise every piece of evidence which is necessary to prove each fact, but it embraces every fact necessary to be shown in order to recover.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cause of Action.]</p> <p>3. Appeal and Error <&wkey;994 (3) — Review-Finding on-Conflicting Evidence.</p> <p>It was peculiarly within the province of the trial court to determine the weight of the testimony of plaintiff, and the only witness for defendant, and their credibility.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Action by L. M. McKee against M. C. Lynch. Prom a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Foree, Judge.</p> <p>Action by the Kaplan Dry Goods Company and others against Sanger Bros, and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>Equity <§=>57 — Maxims — Equity Regabds that as Done Which Should be Done.</p> <p>A lease contract provided that the lessee should on 30 days’ written notice' surrender possession of premises after expiration of the first 2 years. The lessor contracted to sell the. premises, but the contract was not consummated because defendant, the assignee of the lease, stated he would not surrender possession at expiration of the 2-year period, and defendant thereafter sold the lease' to plaintiff, the agreement providing that, in event of a sale of the premises before expiration of the 2-year period, the consideration should be returned. 'Held that, where defendant represented the sale was fictitious, etc., he was bound to return the consideration, on application of maxim that equity treats that as done which should be' done.</p>

<p>1. Tkial <®=>1 — Answer—Effect.</p> <p>Defendants cannot prevent trial from commencing by filing answer and not appearing for trial.</p> <p>2. Taxation ¡§=3421(1) — ASSESSMENT — SUFFICIENCY 01? DESCRIPTION.</p> <p>Sufficiency of a tax 'assessment description is measured by same rules as apply to conveyances and partition decrees.</p> <p>3. Taxation ¡©=>421(1) — Assessment — De-' soeiption — Sufficiency.</p> <p>A tax assessment description of unrender-ed land held sufficiently definite to support a tax judgment, where owners readily identified and rendered it for taxation under same description, except that acreage and value of land was decreased.</p> <p>4. Municipal Ookpokations <S=>978(7) — Taxes — Pleaping—Limitations.</p> <p>San Antonio City Charter, § 123, barring delinquent taxes after 10 years, fixes a limitation period, and is not available to taxpayer unless pleaded.</p> <p>5. Limitation of Actions ⅞»182(2) — Pleading — Waiver. . '</p> <p>Limitation statutes are waived, if not pleaded.</p> <p>6. Taxation ¡©=>573½ — Collection — Personal Judgment — Ownership of Land-Presumptions.</p> <p>Where unrendered land was assessed in husband’s name until 1909', and was then rendered in his wife’s name, it will be presumed that wife did not acquire title until that year, and no, personal judgment for taxes prior to 1909 can be had against her.</p> <p>7. Appeal and Error ¡©=>714(1) — Reserving Grounds for Review — Evidence.</p> <p>On appeal in a tax judgment ease, the Court of Civil Appeals will not consider a city map, and assertions, not contained in statement of facts, designed to show that city contained no such block or street as tax assessment described.</p>

<p>1. Injunction <&wkey;135 — Temporary Injunction — DISCRETION.</p> <p>Granting of temporary injunction is as a rule matter of discretion with the trial court.</p> <p>2. Appeal and Error &wkey;>954(l) — Review-Discretion — Temporary Injunction.</p> <p>Granting or refusing of temporary injunction will not be disturbed on appeal, unless from all the' record it appears manifestly wrong.</p> <p>3. Injunction <&wkey;5 — Mandatory Injunction.</p> <p>Plaintiff must make out a clear case before a mandatory injunction will issue.</p> <p>4. Appeal and Error .<&wkey;839(.l) — Review — Matters Not Passed on Below.</p> <p>Questions raised in the pleadings, but which the trial court in refusing a temporary injunction refused to consider, so that the record is not in such condition as to allow an intelligent passing thereon, and which are not necessary to a proper disposition of the appeal, will not be considered.</p>

T. Sluder, Judge. Consolidated actions by Will Alsbury and others and by S. S. Markham and wife against E. E. Linville. Judgment for defendant, and plaintiffs appeal.

<p>1, Trial <§^>209 — Instructions — Circumstantial Evidence.</p> <p>Where a litigant relies on circumstantial evidence, it is not only proper, but it is Ms right, to have the court charge the jury that they may consider that character of testimony in determining the issue.</p> <p>2. Wills ⅞=»158 — Validity—Undue Influence.</p> <p>Undue influence, to vitiate will, need not consist of overt acts of undue influence exercised at time of execution; influence exercised previously to and operating at time of execution being sufflcient.</p> <p>3. Trial <⅜=3261 — Requested Instructions— Technical Objections — Proper Charges.</p> <p>Special charges, though technically objectionable, may be sufficient to call court’s attention to the subject-matter, and require its presentation by proper charges.</p> <p>4. Wills <3^165(1) — Will Contest — Undue Influence — Evidence.</p> <p>In will contest on ground of undue influence, fraud, and duress, evidence as to declarations of testatrix is admissible.</p>

<p>Appeal from District Court, Wilbarger County; J. A. Nabers, Judge.</p> <p>Suit by Cleo Gladys Cherry Anders against the California State Life Insurance Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Harris County ; L. B. Moody, Special Judge.</p> <p>Suit by T. J. Poole and another against Elliott Cage and another. From judgment for defendants, plaintiffs appeal.</p>

<p>Error from Dallam County Court; J. E. Moore, Judge.</p> <p>Action by George F. Atkinson against Carl Williams. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, McLennan County; H. M. Richey, Judge.</p> <p>Suit by Edna Dean against Chas. Dean for the cancellation of a deed. Judgment for plaintiff, and defendant appeals.</p>

Action by Mrs. L. L. Horton against the Trinity Portland Cement Company, which was consolidated with an action by R. M. Horton against the same defendant. Judgment for plaintiffs, and defendant appeals.

<p>1. Sales <§s=>164 — Contracts—Repudiation. A seller is bound to deliver the quantity</p> <p>stipulated, and has no right either to compel the buyer to accept a less quantity or to require him to select part of a greater quantity, so, where a seller agreed to deliver 1,000 barrels of flour according to sample, but part of the flour delivered was damaged, the buyer may refuse to accept the undamaged portion.</p> <p>2. Sales <S^153 — Performance—1Tender of Performance.</p> <p>Where a seller agreed to deliver 1,000 barrels of flour, but part of the shipment was damaged, the seller cannot hold the buyer liable on the1 theory that by letter he tendered delivery of other flour, and that the letter was returned to him without proof as to how the letter was delivered or returned.</p> <p>3. Sales <®=^153 — Delivery—Tender.</p> <p>Where the seller agreed to deliver 1,000 barrels of flour, but part of the flour tendered was damaged, a letter by tbe- seller, stating that he was willing to deliver additional iflonr in good condition, or would deduct the amount of that damaged from the contract price, is not such a tender of performance as would entitle the seller to recover for the buyer’s refusal to accept the flour.</p> <p>4. Sales <§=>379 — Action by Selles —Resale.</p> <p>Where a seller after refusal of the buyer to accept resold the flour, and his action for damages was based on the propositions that he had made such a tender as to place him in the position of having done all that..he was required to do to transfer title to the buyer, or, if not, that he had made such an offer of tender as relieved him of an actual tender, proof of such facts are essential to recovery.</p> <p>5. Evidence <§=>318(1) — Heabsay Declaba-tions.</p> <p>Where plaintiff, who purchased Minnesota flour, contracted to resell the same, evidence that the waybill and expense bill covering the shipment contained the notation that 52 bags were caked at Duluth was inadmissible on behalf of defendant, who, the seller claimed, wrongfully refused to accept delivery, being simply hearsay declarations of third parties not under oath.</p> <p>6. Sales <§¡=>388 — Contbacts—Instruction.</p> <p>In an action by a seller for breach of contract, an instruction that an exhibit on the billhead of the seller amounted to an ofEer to sell the flour, and that, if it was communicated to defendant and accepted and the acceptance was communicated to the seller, then the seller became bound to deliver the flour and defendant to- accept it, held erroneous; defendant’s agent having denied receiving any offer to sell or communicated any acceptance, and the exhibit tending to show on its face that the sale was made to a third person other than defendant.</p>

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Action by John J. Gallagher against Helen L. Gallagher. Prom a judgment granting plaintiff a divorce, defendant appeal's.</p>

<p>Appeal from District Court, Williamson County; Cooper Sansom, Special Judge.</p> <p>Action by J. Gottlieb against tlio Early-Foster Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Dallas County; Kenneth Eoree, Judge.</p> <p>Action by Deck Martin against J. L. Ross and others, wherein E. P. Bryan intervenes. Judgment for defendants upon setting aside a verdict for plaintiff and intervener appeals.</p>

B. Hopkins, Judge. Suit by'Joe Mireur and others against the City of Corpus Christi and others. From an order for plaintiffs, except in part, defendants appeal.

<p>Appeal from District Court, Brown County; J. O. Woodward, Judge.</p> <p>Suit for injunction by the City of Brown-wood against P. W. Grogan and others. From judgment for plaintiff, defendants appeal.</p>

<p>1. Appeal and Error <©=>742(5) — Assignments op Error — Peoposition.</p> <p>Where the assignment-of error complained of refusal to give peremptory instruction for defendant on the sole' ground that the negligence was not shown to be the proximate cause of the injury propositions that the evidence showed contributory negligence are not germane to the assignment and cannot be considered.</p> <p>2. Raileoads <©=398(1) — Injuey to Peeson on Track — Sufficiency op Evidence — Proximate Cause.</p> <p>In an _ action for injuries to a pedestrian struck by’ a train, admittedly running faster than permitted by city ordinance', evidence that a train running at the lawful speed could have been stopped after the plaintiff’s danger was seen, or that plaintiff could have cleared the track, is sufficient to warrant the jury’s finding that the negligence was the proximate cause of the injury.</p> <p>3. Evidence <©=>587, 595 — Weight—Circumstantial Evidence.</p> <p>Direct evidence on an issue is not required by law, but juries can indulge all reasonable inferences from facts revealed by the evidence or deducible by unbiased and rational minds frpm such facts.</p> <p>4. Raileoads <©=>389(5) — Injuby to Person on Track — Proximate Cause — Speed.</p> <p>For the negligent speed of a railroad train to be the proximate cause of an injury to one near the track it is not necessary that the operators of the train should have anticipated injury occurring- in the particular manner it' did occur, but it is sufficient that they should have anticipated that some injury might occur.</p> <p>5. Railroads <©=373 — I-njuey to Person on Track — Violation op Speed Ordinance.</p> <p>The violation of an ordinance limiting the speed of a railroad train to six miles an hour, attended with injury to one near the track as a consequence thereof, is negligence per se.</p> <p>6. Railroads <©=>389(5) — Injury to Person Near Track — Proximate Cause — Speed-.</p> <p>Where plaintiff’s peril could have been seen in time to have stopped a train running at a lawful rate of speed the jury may infer that the train operatives would have performed their duty to keep a reasonable lookout, and have discovered his peril, so that the speed was the proximate cause of the injury.</p> <p>7. Railroads <©=386 — Injuries to Person on Track — Contributory Negligence — Escaping Danger prom Frightened Horse.</p> <p>Where plaintiff was hemmed in between the wheels of a wagon hitched to a horse, which was frightened at approaching train, his attempt to escape by his only avenue across the railroad track was not contributory negligence.</p> <p>■8. Appeal and Error <S=719(6) — Review — Fundamental Error — Sufficiency op Evidence.</p> <p>The appellate court cannot, in the absence of an assignment of error, review a finding that plaintiff was eontributorily negligent as being unsupported by the evidence, such error not being fundamental.</p> <p>9. Appeal and Error <©=3866(3) — Review-Sufficiency of Evidence.</p> <p>On review of refusal of peremptory instruction the only question is whether there was no evidence as a matter .of law, not the weight or sufficiency of evidence as a matter of fact.</p> <p>10. Negligence .<©=>136(28) — Contributory Negligence — Impulsive Act.</p> <p>Where one under the impulse of fright, in a sudden situation of 'danger, chose an unwise alternative he cannot, as a matter of law, be held eontributorily negligent therefor.</p> <p>11. Exceptions, Bill op <®=>56(1) — Authentication— Objections to Instructions.</p> <p>A purported bill of exceptions showing that objections were presented to the court before the charge was read to the jury, which is not approved by the judge or authenticated in any manner, but merely filed by the clerk, is not sufficient under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1971, to present objections to instructions for review.</p> <p>12. Trial <9=352(4) — Special Issue — Applicability to Evidence.</p> <p>A special issue as to whether the cause of the injury was inevitable accident was properly refused where defendant’s train was admittedly running at a speed forbidden by ordinance.</p> <p>13. Trial @=>351(5) — Special Issues — Unavoidable Accident.</p> <p>The issue of unavoidable accident is comprehended within issues as to negligence' as the proximate cause of the injury, being the negative thereof, and defendant is not entitled to have it separately submitted.</p> <p>14. Appeal and Error @=>1062(2) — Harmless Error — Refusal of Special Issue-Evidential Issue.</p> <p>A special issue as to whether plaintiff was warned of the approach of the train is merely evidential on the issue of contributory negligence, and refusal to submit it is not prejudicial- where the jury found freedom from contributory negligence.</p> <p>15. Appeal and Error @=>1032(1) — Harmless Error — Burden to Show Error.</p> <p>The burden is on appellant to show injury as well as error in the refusal of a special issue requested by him.</p> <p>16. Appeal and Error @=>1062(2) — Harmless Error — Submission of Issues — Undisputed Pact.</p> <p>Refusal to submit a special issue whether plaintiff was injured substantially as alleged is not prejudicial where that fact was established by undisputed evidence.</p> <p>17. Appeal and Error @=>1047(4) — Harmless Error — Reopening for INjrtiier Testimony-Pact Already Established.</p> <p>Defendant is not prejudiced by reopening of case after the charge to admit testimony that the accident occurred within the city whose ordinance had been introduced in evidence where' that fact had already been established by undisputed evidence.</p> <p>18. New Trial @=140(3) — Evidence—Misconduct of Juror.</p> <p>Evidence on a hearing for new trial showing that the amount of plaintiff’s attorney’s' fee was mentioned in the jury room, but discussion thereof suppressed by the foreman, held to show that the amount of the verdict was not influenced by consideration of the attorney’s fee.</p> <p>19. Witnesses @=>41 — Mental Incompetency.</p> <p>In an action for personal injuries where there was evidence that plaintiff had lost his memory and power to control his thoughts, but was not actually insane, it was not error to put him on the stand and "question him as to relevant matters in his past life, and as to the accident, though at defendant’s request plaintiff’s wife' had, during the’ trial, intervened as plaintiff’s next friend because of his incompetency.</p> <p>On Motion for Rehearing.</p> <p>20. Negligence @=>56(1) — “Proximate Cause.”</p> <p>An instruction defining proximate cause as not necessarily the cause nearest in time or physical sequence, but a cause without which the injury would not have happened, and from which the injury or a like injury might reasonably have been anticipated, is substantially correct.</p> <p>[Ed. Note. — Por other definitions, see Words and Phrases, Pirst and Second Series, Proximate Cause.]</p>

<p>1. Cancellation op Instruments <®=>35(1) —Necessary Parties.</p> <p>In suit to cancel, for fraud inducing sale, deeds of plaintiff and his son-in-law to defendant, which conveyed lands owned hy plaintiff and his son-in-law, all of which plaintiff was authorized by his son-in-law to contract to sell, the son-in-law was a necessary party.</p> <p>2. Parties <§=>4 — Use Plaintiep.</p> <p>Although plaintiff’s son-in-law was a necessary party to the suit, yet, in view of Rev. St. 1911, art. 1894, this requirement would be met if it were proper for plaintiff to conduct the suit for the use and benefit of his son-in-law.</p> <p>3. Parties <®=>76(2, 5) — Use Plaintiep — Authority — Demurrer—Plea in Abatement.</p> <p>■Plaintiff’s authority to sue for the use and benefit of another cannot be raised by general demurrer, but only by plea in abatement.</p> <p>4. Appeal and Error <©=3913 — 'Use Plain-tipp — Authority.</p> <p>Where the authority of plaintiff to sue for the use and benefit of a necessary party to the suit did not otherwise appear, it will be presumed, in support of judgment for plaintiff, that such party was personally present at the trial directing the suit so far as it affected his interests.</p> <p>5. Appeal and Error <§=>1036(1) — Judgment <®=> 675(1) — Use Plaintipp — Participation .</p> <p>If a necessary party, for whose use and benefit plaintiff assumed to sue, were personally present at trial of the suit, directing the suit as far as it affected his interests, judgment therein would bind him, and there would .be no reversible error in refusing to make him an actual party of record.</p> <p>6. Cancellation op Instruments <®=>22— Notice and Demand.</p> <p>In suit to rescind for fraud a land sale and cancel deeds given pursuant thereto, notice and demand prior to suit is not necessary, but bringing of suit with offer to restore to defendant what plaintiff has received in the transaction is sufficient.</p>

<p>Error from District Court, Dallas County; E. B. Muse, Judge.</p> <p>Shit by C. D. Donoho and others against W. L. Carwile and others.. Judgment for defendants, and plaintiffs bring’ error.</p>

<p>Appeal from Dallam County Court; Lawrence Ashby, Judge.</p> <p>Action by W. L. Griffith against G. W. Peeples. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Action by Z. L. Simmons against the Texas Electric Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Bills and Notes <§=293, 296 — Indorsement Without Recourse — Forged Signature.,</p> <p>An indorser “without recourse in any way” is liable to bona fide holder of note executed by husband and wife, and taken on strength of wife’s signature, which was a forgery, the indorser warranting the genuineness of her signature.</p>

Habeas corpus by George Carter against Henry Lambert and wife, to obtain tbe custody of a minor daughter of petitioner. From a judgment awarding the custody of the child during part of the year to respondents, her grandparents, petitioner appeals.

<p>1. Boundaries <&wkey;3(5) — Description—Calls—Controlling Elements.</p> <p>A call for a natural object will not control a call for course and distance, when it appears that the same was made by mistake, or upon an erroneous conjecture.</p> <p>2. Boundaries tg=o37(3) — Description— Calls — Mistake — Evidence.</p> <p>In an action involving a boundary of a survey calling for the “head of the drain of M„ deceased,” evidence held, to show that such call was inserted by mistake, where the call for distance would cause a discrepancy of 2.7 miles.</p> <p>3. Boundaries ⅞^33(5) — Description—calls—Con- • trolling Elements — Distance and Natural or Artificial Objects.</p> <p>while distance is often the most uncertain call in field notes, there are no set rules as to whether a call for natural or artificial objects or a call for distance should control, and, in the absence of elements showing that a call for distance was inserted by mistake, it will control the location of the survey.</p> <p>4. Boundaries <&wkey;>3(9) — Description—Calls for Quantity.</p> <p>while quantity in a survey is immaterial when the lines and corners can be located with reasonable certainty by reference to calls for natural or artificial objects or for other surveys, when they cannot be thus located quantity becomes a material circumstance, there being no presumption of law that the surveyor made a mistake in his call for quantity.</p> <p>5. Judgment &wkey;>736 —Res Ad judicata — title in Boundary.</p> <p>A decision as to title not involving boundaries is not res adjudicata in a suit to establish boundaries not involving title. „</p> <p>On Motion for Rehearing.</p> <p>6. Boundaries (®=o4 — Description—Calls—“Canada.”</p> <p>The Spanish word “cañada,” when used as a call in field notes, means valley.</p> <p>7. Boundaries &wkey;>3(B) — Description— Calls — Controlling Elements.</p> <p>In an action involving a boundary of a survéy, a call for “the lands of the Rio Grande,” if held to refer to the back lines of adjacent porciones, will be rejected, when to adopt it would be to disregard the calls for course, distance, quantity, and the express configuration of the survey.</p>

<p>Pleading <§==>111 — Plea off Privilege — Proceedings on Issue.</p> <p>Where a suit was brought for circulation of a libel in T. county in the district court thereof against defendant domiciled in M. county, and defendant pleaded privilege, and after filing controverting affidavit plaintiff for the first time and in an amended petition alleged circulation of the libel in H. county without praying removal thereto, and the court found it had not been circulated in T. county, the case should have been transferred to M. county^ and it was error to transfer it to H. county, the circulation of the libel therein not being in issue, in view of Rev. St. 1911, arts. 1832, 1833, 1902, and article 1903 amended by Acts 35th Leg. c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), relating to pleas of privilege.</p>

Suit by E. W. Emde and wife against B. J. Johnson and others to cancel a lease and for an injunction. Judgment for defendants, and plaintiffs appeal.

Suit in form of trespass to try title and to remove cloud by County School Trustees of Eastland County and others against A. A. Hilliard and others, who filed plea in nature of cross-action. Prom a judgment granting receivership, plaintiffs appeal.

<p>1. Libel and Slander <&wkey;42(l) — Privileged Communications — Grand Jurors.</p> <p>In action against grand jurors for making a report to the court that sheriff and others were guilty of immoral conduct unbecoming to dignity of their positions, defendants had the legal right to assert the common-law defense of conditional privilege, despite Acts 27th Leg. c. 26, § 4, as to what publication shall be privileged.</p> <p>2. Trial &wkey;>169 — Direction of Verdict.</p> <p>There being no issue to go to the jury, the trial court properly instructed a verdict for defendants.</p>

<p>1. Evidence i&wkey;71 — Presumption—Receipt op Mail Matter.</p> <p>In an action on a mutual assessment insurance policy, testimony of the secretaries of defendant association that they mailed notices of assessment to insured, with postage prepaid, ' and properly addressed to insured at the post office address given by him on the records of the association, constituted prima facie proof that insured received the notices.</p> <p>2. Insurance <&wkey;373(l) — Mutual Benefit Insurance — Agreement to Collect Assessments — Right op Reliance.</p> <p>After receiving several notices that assessments on him had not been paid, the holder of a policy in a mutual assessment insurance association had no right to continue to rely on the agreement of the secretary of the association to collect assessments on the policy holder by checks on the bank account of a brother-in-law of the policy holder.</p> <p>3. Insurance <&wkey;373(l) — Mutual Benefit Insurance — Agreement as to Assessments —Right op Reliance.</p> <p>An agreement on the part of the former secretary of a mutual assessment insurance association to collect assessments on a policy holder by check on his brother-in-law’s account did not justify either the brother-in-law or the policy holder in relying on the arrangement after a new secretary had taken office and notified the policy holder that four assessments against him had not been paid.</p>

<p>Appeal from District Court, Mitchell County; W. W. Beall, Judge.</p> <p>Action by Byrne against Earl Morrison and others, in which W. H. Neely and wife filed.cross-action against Morrison and Hastings. From a judgment for Neely on the cross-action, Morrison and Hastings appeal.</p>

H. Davidson, Judge. Suit by the George W. Smyth Lumber Company and others against Tarkington Prairie Lodge, A. E. & A. M. No. 498, and others.

F. Mullally, Judge. Suit by Maria Volpe de Benavides and others against Arturo 'Volpe and others, executors of the will of Miguel Volpe, deceased, to recover balances due on legacies. Judgment for plaintiffs, and defendants .appeal.

<p>1. Animals <§=29—Creation oe Live Stock Board—Statute—Validity.</p> <p>Rev. St. 1911, art. 7312 et seq. (creating live stock sanitary board), as amended by Acts 35th Leg. (Reg. Sess.) c. GO, and Acts 35th Leg. (1st Called Sess.) c. 12.(Vernon’s Ann. Civ. St. Supp. 1918, art. 7314 et seq.), is constitutional.</p> <p>On Motion for Rehearing.</p> <p>2. Constitutional Law <§=>62—Tick Eradication — Delegation oe Power — Live Stock Sanitary Commission.</p> <p>Acts 35th Leg. c. 60, § 19 (Vernon’s Ann. Civ. St. Supp. 1918, art. 7314n), as to dipping of cattle to eradicate fever ticks, is not subject to the objection that it attempts to delegate and confer upon the live stock sanitary commission legislative authority and discretion.</p> <p>3. Constitutional Law <§=>278(1)—Eminent Domain <§=>2(2)—Due Process—Compensation—Tick Eradication.</p> <p>Acts 35th Leg. c. 60, § 19 (Vernon’s Ann. Civ. St. Supp. 1918, art. 7314n), as to dipping of cattle to eradicate fever ticks, is not subject to objection that it attempts to vest in the sheriff, acting under direction of the live stock sanitary commission, authority to enter upon plaintiff’s premises and seize and mistreat plaintiff’s cattle without due process of law and without compensation for, or protection against, injuries likely to result in such seizure and treatment.</p>

<p>1. Insurance <©=>646(3) — Life Insurance-Default in Payment of Premium — Recovery on Policy.</p> <p>Beneficiary cannot recover on 15-year settlement policy giving insured share in profits upon maturity of 15-year period to be creditable to future premiums, where insurer had defaulted in payment of premium, without proof of the value of policy at time of insured’s death, either as to the cash surrender value or as to the amount of profits earned by policy and apportionable to it, or proof of whether such profits, when applied to payment of future premiums, were sufficient to keep insurance in force at date of insured’s death.</p> <p>2. Insurance <§=>90 — Life Insurance — Authority of Agent — Limitations in Policy.</p> <p>Provisions of application and policy, limiting agent’s authority, are binding upon both insurer and insured.</p> <p>3. Insurance <§=>141(4) — Contract—Representations of Agent — Application—Policy.</p> <p>Where application and policy were expressly made the entire contract between insurer and insured, and application provided that insurer was not bound by any statements or representations of the agent, and where insured signed receipt, stating that he had examined policy and found it as represented, neither insured nor beneficiary could legally claim that the policy, as issued, was not the contract between the parties.</p> <p>4. Insurance @=>94 — Representation s of Agent — Adoption .</p> <p>If insurer issued policy with knowledge that agent had represented that premiums paid on a canceled policy would be credited on the new policy, it would be bound by such representation.</p> <p>5. Insurance @=>558(4) — Proof oe Death— Waives.</p> <p>Insurer, by declining to send blanks for making proofs of death, waived compliance with provision of policy, requiring such proofs of death.</p> <p>6. Limitation oe Actions @=>127(4) — Amended Petition — New Cause oe Action — Action on Policy.</p> <p>Amended petition suing on same life policies, for same amount of insurance and upon same risk, as original petition, merely amplifying and stating in different form the same cause of action as alleged in original petition, did not set up new cause of action so as to be barred by limitations.</p> <p>7. Limitation oe Actions @=>99(1) — Accrual oe Action — Reeoemation oe Policy.</p> <p>Where insured upon delivery of policy signed receipt stating he had examined the policy, and found it as represented, the cause of action, if any, for reformation of the policy on ground of fraud accrued at time of delivery of policy, in absence of evidence that he did not examine policy and of some reasonable excuse for his not .doing so.</p>

<p>1. Judgment 17(9) — Process -to Support —Defects.</p> <p>The provision of Yernon’s Sayles’ Ann. Civ. St. 1914, art. 1852,- requiring the citation to state the' date of filing of plaintiff’s petition, is mandatory, and a citation failing to give the, date of the petition, or incorrectly stating the same, is insufficient to support a judgment by default.</p> <p>2. Judgment <®=3l7(10) — Process to Support — Service — Sufficiency — Foreign Corporation.</p> <p>Where the petition alleged a cause of action against a foreign fire insurance company having an agent in Texas, said agent being a partnership, a return reciting service of citation 1 on one of the partners will not support a default judgment; Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1861, .providing for service upon foreign corporations, stating that process may be served on a president, vice president, secretary, treasurer, or general manager, or upon any local agent, and the return not affirmatively showing that partner served was a local agent.</p>

<p>Appeal from District Court, Hunt County; A. P. Dolioney, Judge.</p> <p>Action by J. L. Greer against Hunt County. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.</p> <p>Suit by C. H. Clark and others against T. R. Boone and others. -Erom order for plaintiffs, defendants appeal.</p>

<p>1. Injunction <§=>148(1) — Bond—Statute.</p> <p>Provisions of Vernon’s Saylos’ Ann. Civ. St. 1914, art. 4654, making a bond a condition precedent to award of injunction, are mandatory,</p> <p>2. Execution <§=>172(4) — Injunction — Pleading.</p> <p>A petition to enjoin execution on ground of fraud in violating agreement not to take personal judgment against petitioner as purchaser of property subject to vendor’s lien notes, held deficient where not alleging a defense to suit if no agreement had been made.</p> <p>3. Pleading <§^8(2) — Conclusion of Pleader — Injunction.</p> <p>A petition to enjoin execution on ground of fraud in violating agreement not to take personal judgment against petitioner as purchaser of property subject to vendor’s lien notes, alleging that petitioner had been prevented by the fraud from “presenting his valid and meritorious defense which he had prior to and at the time of said suit,” states a mere conclusion.</p> <p>4. Execution <§=>172(4) — Enjoining Sale— Pleading — Diligence.</p> <p>Where petition to enjoin execution on ground of fraud in violating agreement not to take personal judgment against purchaser of property subject to vendor’s lien notes is not brought until three years after judgment, petition should exhibit due diligence.</p> <p>5. Injunction <§=>146 — Verified Answer-Effect — Statute.</p> <p>In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4663, providing that no injunction shall be dissolved before final hearing because of denial of material allegations of plaintiff’s petition, unless answer is verified, where answer denying allegations of petition for injunc-tibn is verified general equity practice' of refusing the writ should ordinarily be followed.</p> <p>6. Execution <§=>172(6) — Sale—Injunction —Verified Answer — Effect.</p> <p>Where verified answer to petition to enjoin execution on ground of fraud in violating agreement not to take personal judgment against purchaser of property subject to", vendor’s lien notes alleges that petitioner had notice of judgment before term expired, and had actual knowledge of judgment more than two years before suit, it was error to award temporary injunction on the pleadings.</p>

<p>Appeal from District Court, Bastrop County ; R. J. Alexander, Judge.</p> <p>Suit by P. A. Neely against Mary Catherine Brogdon and others. Judgment for defendants, and plaintiff appeals.</p>

E. Bower, Judge. Action by L. F. 'Burleson against the Ft. Worth & Rio Grande Railway Company and others. Judgment for plaintiff against named defendant, and the latter appeals.

<p>Appeal from Harris County Court; W, E. Manteith, Judge.</p> <p>Suit by Mrs. A. C. Gillette against Allen and Sidney Mitchell and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal and Error <®=719(8) — Review — Findings — Assignment op Error.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612, a finding of fact will not be reviewed on appeal in absence of assignment of error attacking the finding.,</p>

<p>1. Appeal and Error &wkey;s569(2) — Statements of Fact—Consideration.</p> <p>Where no statement of facts appeared in the rpcord, instruments incorporated in the transcript which were not agreed to by attorneys, nor approved by the court as statements of fact, nor attached to the pleadings in the trial court, cannot be considered.</p> <p>2. Habeas Corpus &wkey;>46—Custody of Child —Jurisdiction of County Court.</p> <p>The district court has jurisdiction under Const, art. 5, §§ 8 and 16, of a proceeding in habeas corpus to determine . question of the custody of a minor, notwithstanding the county court, under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4091 and 4122, had appointed a, guardian who had taken the custody of the minor; for the district court, as a court of equity, had jurisdiction to determine whether the guardian was fulfilling his duty and exercising his authority in a manner conformably to the best interests of the minor.</p> <p>3. Habeas Corpus <&wkey;99(3) — Custody op Child — Ijstteeest op Child. ,</p> <p>In a habeas corpus proceeding involving the custody of an infant child, the disposition of the custody of the child must be made for the best interests of the child.</p>

<p>1. Appeal and Error c&wkey;569(2) — Statement op Facts—Records of Former Trial.</p> <p>Whore in the transcript of the case certain documents appear which purport to be the records of a former suit introduced in evidence, but which are not agreed to by counsel, nor approved by the court as a true statement of the evidence introduced, such documents, on appeal cannot be given consideration as a statement of facts.</p> <p>2. Appeal and Error <&wkey;601—Record—Ne- . cessity of Statement of Facts—Appeals</p> <p>from County Courts.</p> <p>That a statement of facts should not be included in the transcript, but the original statement of facts sent up to the appellate court, with the agreement of counsel thereto and approval of the judge, also applies in appeals from the county court to the Court of Civil Appeals.</p> <p>3. Appeal and Error <&wkey;907(3)—Questions Presented—Sufficiency of Evidence — Absence of Statement of Facts — Presumption.</p> <p>Where the questions presented upon appeal involve the sufficiency of the evidence in sustaining the judgment, and there is no statement of facts, it will be presumed that the evidence sustains the judgment rendered.</p>

E. L. Roy, Judge. Petition by James H. Cox for a writ of habeas corpus against Rozena Cox to obtain the custody of two minor children. From judgment for respondent, petitioner appeals.

G. Morris, Special Judge. Action by Efren Aguirre Guzman against the Rio Grande, El Paso & Santa Fé Railroad Company and the National Mine & Smelter Company. Fhom a judgment for the Smelter Company and in favor of plaintiff against the Railroad Company, the Railroad Company appeals.

<p>1. ATTORNEY AND CLIENT <&wkey;lCC(l) — GOOD Faith — Burden oe Prooe — Employment Contract.</p> <p>Attorneys, suing for compensation, are not required to prove that they acted in good faith; the rule that burden of proving good faith is upon attorney having no application to a mere contract whereby attorney’s compensation is fiped upon employment.</p> <p>2. Trial <&wkey;3C5(l) — Special Issues.</p> <p>In attorneys’ action for compensation, special issues submitted as to whether attorneys in entering into employment contract made and breached agreement not to accept employment from, or be under influence of, party being sued by client, belli to have been submitted on pleadings of client setting up breach of contract, and not to refer to issue setting up fraud and violation of fiduciary relationship.</p> <p>3. Trial <&wkey;365(l) — Special Issues — Construction.</p> <p>In attorneys’ action to recover fee, defended upon ground of attorneys’ fraud in procuring employment contract and their lack of good faith in their relations to client, held, that special issue did not require client to prove actual fraud instead of merely lack of good faith and scrupulous fidelity in the litigation.</p> <p>4. Trial <&wkey;352(5) — Special Issues.</p> <p>In attorneys’ action to recover fee, whore answer alleged fraud in procuring employment and also in obtaining abandonment of original contract and the making of contract sued on, special issue as to whether attorney made fraudulent representations to procure employment and the contract sued on was not erroneous for intermingling original contract and subsequent contract.</p> <p>5. Attorney and Client <&wkey;143 — Contracts Between — Validity.</p> <p>Contracts between attorneys and client are scrutinized closely because of the relation existing between them, but where contract is reasonable, and where attorney has taken no unfair advantage and has made full and fair disclosure of facts, client is liable thereon.</p> <p>6. Attorney and Client <®=o143 — Contracts —Abrogation—Fraud.</p> <p>Attorney and clients have the right to abrogate original contract of employment and enter into new contract in absence of fraud or undue influence on part of attorneys exercised by reason of their relation to client.</p> <p>7. Trial <&wkey;351(5) — Requests—Special Issues.</p> <p>In attorneys’ action to recover fee under contract entered into upon abandonment of original contract, defended upon ground of fraud in procuring the contract, refusal to submit issues as to whether attorneys, in making contract, concealed facts from client and failed to exercise good faith, ■ held not error in view of issues submitted and instructions given.</p> <p>8. Trial <&wkey;215 — Special Issues — General Charge eor Verdict.</p> <p>Where case was submitted to jury on special issues, a general charge for a verdict if certain facts be found true would have ■ been improper.</p> <p>9. Trial <&wkey;323 — Jury—Signing oe Verdict-Waiver.</p> <p>Where all members of jury declared the verdict to be the one agreed to by them, the formality of signing verdict was waived; the verdict not being affected by fact that foreman was afterwards required to sign it.</p> <p>10. Appeal and Error <&wkey;1033(3) — Review —Harmless Error.</p> <p>Admission of letter from defendant to plaintiffs containing declarations more _ favorable to defendant than against Mm was not prejudicial to defendant.</p> <p>11. Appeal and Error <&wkey;1078(4) — Bribe-Issues and Charges.</p> <p>Assignments complaining of issues and charges not set out in brief will be treated as waived.</p> <p>On Motion for Rehearing by Appellant.</p> <p>12. Attorney and Client <&wkey; 143 — Contracts — Abandonment oe Suit.</p> <p>Where a suit which attorneys had agreed to prosecute was abandoned by mutual agreement, attorneys were not required to defend the client in action brought against him by adverse party; and a contract to so do for stipulated fee was based on a good consideration.</p> <p>Hall, J., dissenting.</p>

Action by C. E. Gordon against C. E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company of Texas, and another. Judgment for, plaintiff against defendant named, and he appeals. Affirmed.

<p>Appeal from District Court, Bexar County; J. T. Sluder, Judge.</p> <p>Suit by Yirgil Ryan, by next friend, against the Illinois Central Ráilroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Randall County; Hugh. L. Umplires, Judge.</p> <p>Suit by J. M. Conner against C. R. Mc-Afee. Judgment for defendant, and plaintiff appeals.</p>

<p>Error from Nueces County Court; H. M. Holden, §pecial Judge.</p> <p>Action by Falfurrias Mercantile Company against A. S. Harlan and another. Judgment for plaintiff, and defendants bring error.</p>

F. Whitehurst, Judge. Action by O. P. Pyle against Milton Park, in which M. C. Owen, as administrator of defendant Park’s estate was made party defendant upon death of defendant Park. Judgment for defendants, and plaintiff appeals.

<p>Appeal from District Court, Tarrant County ; R. E. L. Ray, Judge.</p> <p>Suit by the Ft. Worth Elevators Company ¡ against the Tradesmen’s State Bank. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Tarrant County ; Bruce Young, Judge.</p> <p>Action by the Central Exchange National Bank of Waco against the First National Bank of Pt. Worth. Prom judgment for defendant, plaintiff appeals.</p>

A. Watkins and also B. F. Taylor, as to whom plaintiff dismissed. From a judgment for plaintiff, the first named defendant appeals.

<p>1. Appeal and Error &wkey;> 1064(1) — Harmless Error — Instructions.</p> <p>In an action against seller for losses resulting from cattle being diseased, defended on ground that defendant acted merely as plaintiff’s agent, an instruction presenting such defense, if erroneous, for not stating that if defendant used his “best skill and care” to buy only sound cattle that fact would negative fraudulent misrepresentations, could not have misled the jury to defendant’s injury.-</p> <p>2. Appeal and Error <&wkey;231(9) — Objection to Instructions Below.</p> <p>Defendant appellant’s lailure to present a particular objection to a charge waives his right to urge such objection on appeal, and commits him to an approval of the language thereof so that he is in no position to complain of the refusal of a requested instruction drawn to cover the particular objection.</p> <p>3. Principal and Agent <&wkey;79(5) — Skill AND JUDGMENT — FRAUDULENT MISREPRESENTATIONS by Agent to Principal — Evidence.</p> <p>In an action defended on the ground that defendant was merely plaintiff’s agent in the purchase of cattle, held that there was evidence to support the jury’s finding that defendant failed to use his best skill and judgment in purchasing only sound cattle, and that defendant induced plaintiff to purchase by fraudulent representations.</p> <p>4. Principal and Agent &wkey;>79(4) — Fraudulent Misrepresentations by Agent to Principal — Pleading.</p> <p>Misrepresentations pleaded by plaintiff in an action against seller of unsound cattle, taken in connection with defendant’s pleading that he was only an agent of plaintiff, held, under plaintiff’s prayer for general relief, to entitle him to recovery upon the theory of fraudulent misrepresentations by defendant as plaintiff’s agent.</p> <p>5. Principal and Agent <&wkey;71 — Misrepresentations — Belief that Representations were True.</p> <p>Where plaintiff had known defendant for some time, had confidence in him, was assured by defendant that the cattle came from a safe country, and did not have the fever, and by such representations was induced to buy them not knowing them to be diseased, the defendant cannot, whether he be ‘seller or plaintiff’s agent, escape liability, for such misrepresentations on the ground that he in good faith believed them to be true.</p> <p>6. Sales &wkey;>7 — Receipt of Commission Not Conclusive Evidence of Agency.</p> <p>The fact that a seller, misrepresenting diseased cattle as sound, realized his profits in the form of a commission, did not ojf itself necessarily show that he was handling the cattle merely as broker and agent for plaintiff.</p>

<p>Appeal from District Court, Harris County; J. D. Harvey, Judge.</p> <p>Suit by Louis Gericke against the Texas & New Orleans Railroad Company, W. J. Lemp Brewing Company, and the Falstaff Manufacturing Company. Plaintiff dismissed suit as to the Brewing Company. Verdict in favor of the defendant Falstaff Company and in favor of the plaintiff as against the defendant Railroad Company, and the latter appeals.</p>

<p>Appeal from Potter County Court; T. W. McBride, Judge.</p> <p>■Suit by O. G. Roquemore against the Emerson-Brantingham Implement Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Venue ©=22(1) — Change oe — Cboss-Action.</p> <p>Where cause of action involved in cross-action by one defendant against codefendants is severable from plaintiff’s cause of action, codefendants are entitled to have venue, as to cross-action, changed to county of their residence, where main action was brought in county in which defendant bringing cross-action resided.</p> <p>2. Abatement and Revival <®=?84r — Dilatory Plea — Waiver.</p> <p>Generally, when a defendant answers in bar before he presents his dilatory plea, he will be held to have waived his plea of privilege.</p> <p>3. Venue ©==532(2) —Change oe — Waiver — Answer.</p> <p>Defendant, by answering to merits upon codefendant’s cross-petition, submitted himself to court’s jurisdiction and waived plea of privilege to be sued in county of his residence, notwithstanding dismissal as to plaintiff and mis-joinder of plaintiff’s cause of action with that of’ codefendant.</p> <p>4. Brokers ©=586(8) — Real Estate Transaction — Agreement to Split Commissions —Evidence. ,</p> <p>Evidence held insufficient to show that real estate broker agreed to split his commissions with purchaser.</p>

<p>1. Adverse Possession ⅞=>82 — Title to Land — Possession—Registered Deeds.</p> <p>Where plaintiffs had unbroken possession of the land in suit from August, 1909, until September, 1915, for them to perfect title under the five-year statute of limitation (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5674), it was not necessary that their deeds be of record; they holding under a deed to their predecessor duly registered within the meaning of the statute.</p> <p>2. Adverse Possession- <®=^>94 — Five-Year Statute — Payment oe Taxes on Land.</p> <p>Payment of taxes on the land in suit by plaintiffs for the years held by them, though taxes were not paid every year before becoming delinquent, held a full compliance with the five-year statute of limitations.</p>

Suit by Olga V. Knight, as guardian of the estate of Mrs. C. E. Rogers, a lunatic,‘against W. T. Waggoner and another. Judgment for defendants, and plaintiff appeals.

<p>Appeal from District Court, Wise County; P. O. M. Kinsey, Judge.</p> <p>Action by J. H. Mitchum against the Chicago, Rock Island •& Gulf Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Boundaries <&wkey;>25 — Prior Surveys — Definitely Fixed and Located Surveys Controlling over Uncertain Locations.</p> <p>In an action of trespass to try title, where the older surveys on the north were definitely fixed and located, they control the location of the land in cuestión as against uncertain locations of the southern tier of surveys.</p> <p>2. Boundaries <&wkey;36(5), 37(3) — Corners— Original and Corrected Field Notes— Ee ASURE — EVIDEN CE.</p> <p>In. an action of trespass to try title, where the court had before it the original and corrected field notes, and calls for a' common corner had been erased from original field notes, it was the duty of the court in locating such corner to consider the original field notes, it appearing that the surveyor had made only one trip to the land, and the judgment of the court finding- that the original field notes and the corrected field notes included the same land Its Id amply sustained.</p> <p>3. Api’Eal and Error &wkey;Jl010(l) — Review— Questions of Fact.</p> <p>Where there are sufficient facts and circumstances of record to sustain the judgment appealed from, it must be affirmed.</p> <p>4. Boundaries <&wkey;37(l) — Surveys —Intention op Surveyor, op State, and Parties.</p> <p>In an action of trespass to try title involving the question of surveys, facts of record held sufficient to sustain the judgment of the court that it was the intention of the surveyor and of the state in issuing patents and of the parties accepting the same to include in two certain surveys all of the land as shown on the official map.</p> <p>5. Boundaries ⅞=^37(1) — Surveys — Actual Survey — Evidence.</p> <p>In an action of trespass to try title involving the question of surveys, facts held sufficient to sustain an actual survey rather than a paper survey, had the trial court so found.</p>

A. Berry, Judge. Suit by the Price Oil Mill Company against the Madisonville Oil Mill & Fertilizer Company, F. A. Hardin, and R. L. Wiley. From that portion of the judgment in favor of the last-named defendant, plaintiff appeals.

Terrell, Judge. Suit by W. Decker against E. L. Race. Ifrom an order granting temporary injunction defendant appeals. Temporary writ of injunction vacated, order of the district judge set aside, cause remanded, and petition dismissed.

<p>Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.</p> <p>Suit by J. H. Wentzel and wife against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Railroads @=320 — Duty ot Flagman-Discovered Peril.</p> <p>A brakeman on the rear of a train backing toward a crossing, on discovering that an automobile will go upon the tracks, must exercise ordinary care to‘ use all means at his command to avert collision, but he is not bound at all hazards to use all the means at his command.</p> <p>2. Railroads @=307(4) — Public Crossings— Maintenance oe Watchman.</p> <p>A railroad is not required to keep watchmen at public crossings except when crossing is peculiarly or extraordinarily dangerous.</p> <p>3. Trial @=253(4) — Instruction—Contributory Negligence.</p> <p>In action for death of jitney car passenger in collision with train at crossing, defended on ground of contributory negligence, instruction on railroad’s negligence in failing to keep' watchmen at crossing was erroneous, where it authorized recovery upon a finding of such negligence as the proximate cause of the accident, irrespective of a finding of contributory negligence.</p> <p>4.Railroads @=313 — Operation—Signals— Violation oe Statutes.</p> <p>Failure of trainmen in backing train toward erosamg to give signals required by Vernon’s Saylos’ Ann. Civ. St. 1914, art. 6504, does not constitute negligence per se.</p>

<p>Appeal from District Court, Harris County; Wm. Mas'terson, Judge.</p> <p>■ Action by David. Hand against the Sovereign Camp, Woodmen of the World, and others, From an adverse judgment, plaintiff appeals.</p>

<p>Appeal from District Court, Tarrant County; R. E. L. Ray, Judge.</p> <p>Action by A. F. Crowley and another against the Galveston, I-Iarrisburg & San Antonio Railway Company and the Houston & Texas Central Railway Company. Judgment for plaintiffs, and defendants appeal.</p>

<p>Error from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Action by Robert G. Johnson against Jost Marti and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Limitation or Actions <©=>96(2), 100(1)— Statute or Limitations — Initiation or Peeiod — Fbaud and Mutual Mistake.</p> <p>• In suits for relief against fraud and deceit, the statute of limitation does not begin to run until complainant discovers the fraud, or has learned facts sufficient to put a person of ordinary prudence on inquiry, which, if pursued, would have led to a discovery of the fraud; and the rule applies when a suit is predicated on mutual mistake.</p> <p>2. Limitation or Actions <©=>180(2), 199(2)— Statute or Limitations — Mistake—Negligence in Failuke to Discovee.</p> <p>Petition of purchaser of land for shortage in acreage held not to show on its face that the purchaser was guilty of negligence as a matter of law in failing to discover the shortage before the day when possession was delivered to him, so that it was a question for the jury whether the purchaser was guilty of negligence barring his suit by limitation.</p> <p>3. Limitation or Actions <®=^39(2) — Foub Yeaes Statute — Puechasee’s Suit foe Shoetage.</p> <p>The four-years statute of limitation (Rev. St. 1911, art. 5690), and not the two-years statute, is applicable to a suit for shortage in acreage by the purchaser of land.</p> <p>4. Vendoe and Puechasee <©=>349 — Sale by Acee — Petition foe Shoetage.</p> <p>Petition of the pur-chaser of land, suing for a shortage in acreage, held to show that the sale was by the acre and not in bulk.</p> <p>5. Vendo-e and Puechasee <©=>345 — Right to Bakgain — Shoetage Theough Mistake.</p> <p>The purchaser of land by the acre, who, on account of mutual mistake, received a smaller number of acres than he bargained for, was entitled to the benefit of his bargain, and could recover damages for the shortage, despite the seller’s offer, after the shortage had been discovered, to return the whole consideration for a reconveyance of all the land.</p> <p>6. Husband and Wife <©=>239 — Shoetage in Acbeage^-Judgment Against Wife.</p> <p>In suit to recover for a shortage in land purchased by the acre, in the absence of allegation that the property was the separate property of a defendant, the wife of the other defendant, and allegation showing that any of the proceeds of the sale became her separate estate, and in the absence of proof .of such facts, personal judgment for plaintiff purchaser against defendant wife was improper.</p> <p>On Motion for Rehearing.</p> <p>7. Vendoe and Puechasee <©=>351(6) — Shobt-age in Aceeage — Damages.</p> <p>Where land is sold by the acre, and throqgh mutual mistake there is a shortage in the acreage, the measure of the purchaser’s damages is the difference between the price paid by him and the value of what he actually received as of the date of the sale, with interest.</p> <p>8. Vendoe and Puechasee <©=>349 — Suit foe Shoetage —Pleading —Evidence as to Damages.</p> <p>Where count in petitioff’seeking recovery on allegation of mutual mistake of parties to a sale of land in supposing the tract sold to contain 128 instead of 114 acres did not allege the value of the 14 acres of shortage, testimony with respect to its value was not available to plaintiff purchaser for reeovery of such value as the measure of his damages.</p> <p>9. Appeal and Eeeob <©=>1169(3) — Defect in Pleading — Reveesal.</p> <p>Where petition for shortage in acreage of land sold by the acre did not allege the value of the 14 acres shortage, and the trial court adopted rule that value of shortage was the measure of damages, the case will be reversed on defendant seller’s appeal, though the correct rule for measuring the purchaser’s damage has not been invoked by him.</p>

<p>Appeal and Error <⅞^754(1), 1173(1) — Reversal as to One or More Coparties.</p> <p>In an action against several defendants, where evidence was introduced by plaintiff against all of the defendants, ‘but the court ruled that it was not admissible against certain defendants, refusal of the court to submit certain issues raised by such evidence is not ground for reversal as far as the defendants against whom the court ruled the evidence was not admissible are concerned, where there is no assignment of error in the brief bringing up for review the action of the court in ruling on the admissibility of the evidence, although such ruling was excepted to.</p>

D. Harvey, Judge. Suit by London Pearson and others against W. H. Lloyd, as temporary administrator of George Gostick, deceased, and others. Judgment for defendants, and plaintiffs appeal.

<p>1. Taxation <S=^260 — Personal Property — Situs — Residence of Owner.</p> <p>Under Const, art. 8, § 11, and Rev. St. arts. 7510, 7514, the proper place to tax personal property is the residence of the owner, provided it has not acquired a situs for purpose of taxation elsewhere, in which instance it is taxable where situated.</p> <p>2. Municipal Corporations <S=»966(1) — Taxes — Personal Property — Vessels — Galveston.</p> <p>Vessels, derricks, horses, and wagons used in business of dredging and marketing mud shell, permanently situated at places other than city of Galveston, under control of agents of owner permanently residing at such places, were not subject to Galveston’s personal property tax under Galveston City Charter, § 54, though Galveston was place of owner’s residence, and though tugboats were registered for port of Galveston under U. S. Comp. St. § 7719, and discharged cargoes thereat, and though property was not taxed at place of its situs.</p> <p>3. Taxation <⅞^>528 — Penalties—Interest— Erroneous Assessment — Tender.</p> <p>Taxpayer was not liable for interest or penalties on back taxes, where he could not have paid the taxes because collector refused to accept payment therefor unless payment was also made of taxes erroneously assessed; a tender of such taxes háving been unnecessary, because position taken by collector rendered it a useless proceeding.</p>

<p>Appeal from District Court, Tarrant County ; R. E. L. Ray, Judge.</p> <p>Action by W. T. Wilson against the Galveston, Harrisburg & San Antonio Railway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Courts <§=>169 (1) — Jurisdiction — Amount.</p> <p>In an action in the county court for water rent, a cross-action for damages for flooding of corn, placing the value of the corn destroyed at $400, was not a fraud on the court, where it was filed and the value fixed in good faith by defendant’s counsel, although the real value of the crop was $1,128.75.</p> <p>2. Evidence <§=>489 — Opinion — Value op Corn Crop — Qualification op Witness.</p> <p>A farmer who had been raising, buying, and selling corn for 15 years, and, during year when it was claimed that a' crop was destroyed, bought 200 bushels, and read crop reports and market quotations constantly and kept himself advised fis to the condition of the corn market and the value of the same, and knew the market value of corn such as would have been raised where the crop was destroyed, was qualified to testify as to what would have been the reasonable value of the crop had it fully matured, and not been destroyed.</p> <p>3. Trial <§=>140(1) — Questions por Jury— Credibility op Witnesses.</p> <p>Credibility of a witness is a question for the jury, and the court cannot assume the truthfulness of the unsupported testimony of an interested party.</p> <p>4. Evidence <§=>590 — Credibility op Witness-Interested Person.</p> <p>Notwithstanding the rule that the credibility of a witness is a question for the jury, and the court cannot assume the truthfulness of the unsupported testimony of an interested person, a jury is not authorized to disregard the testimony of an interested party and render a judgment unsupported by even an indication from any source that the testimony of such person was not true.</p> <p>5. Trial <§=>140(1) — Questions por Jury-Credibility op Witness.</p> <p>Where a party, testifying concerning a transaction, introduced original entries made by him at the time covering the points involved, his testimony was taken out of the rule that the court cannot assume the truthfulness of the unsupported testimony of an interested party.</p> <p>6. Trial <§=>352(4) — Special Issues — Matter Not in Issue — Damages — De-penses. ■></p> <p>In action by a rice company to recover a balance due for water rent, where defendant set up a counterclaim for damages by reason of flooding of corn, plaintiff was not entitled to have submitted as a special issue the question of whether defendant was negligent in not building a levee to protect his corn, where it did not specially plead such defense.</p> <p>7. Appeal and Error <§=>1070(2) — Harmless Error — Bindings.</p> <p>A party cannot complain that an answer of the jury on a" certain question was not supported by the testimony, where such question was not properly before the court, by reason of failure to specially plead the matter.</p> <p>8. Damages <§=>188(1) — Extent'op Damages —Sufficiency op Evidence.</p> <p>In an action wherein damages were sought for destruction of a crop of corn by flooding, evidence held, insufficient to sustain a finding of the jury that the crop was totally destroyed.</p> <p>9. Appeal and Error <§=>694(1) — Record —Review—Uncertainty in Testimony.</p> <p>An assignment of error to the effect that a finding of the jury was not supported by the evidence and was against the uncontrovorted testimony must be overruled, whore the appellate court, by reason of the witnesses having referred to maps, etc., when testifying, cannot determine from the statement of facts that the answers were not sustained.</p> <p>10. Damages <§=>188(1) — Sufficiency of Evidence.</p> <p>In an action for water rent, wherein defendant filed a counterclaim for damages to a corn crop, alleging the value of the corn destroyed to be $400, and that expense of harvesting would have been $100, the court erred in entering judgment foi' $300 on the cross-action, although the jury found the reasonable value of the corn crop to be $1,128.75, the defendant having filed a remittitur of $828.75, where all the witnesses testified that the cost of .raising and harvesting it would have been from $258 to $301.</p>

<p>Appeal from District Court, Harris County; K. C. Barkley, Judge.</p> <p>Action by E. C. Jeffries and others against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals.</p> <p>Reversed and remanded.</p>

<p>Appeal from District Court, Galveston County; Robt. 'G. Street, Judge.</p> <p>Suit by Ullmann, Stem & Krausse, Incorporated, against J. H. Francklow and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Carriers <§==229(1) — Live Stock — Damage-Loss OX PlEXi.</p> <p>In an action against a carrier for damage to a shipment of live stock by delay, if the shipment was delayed by defendant, and on account of such delay plaintiffs’ cattle were damaged in appearance and lost in weight by reason of “loss of fill,” reasonably in contemplation, such loss of fill may properly be shown as affecting market value.</p>

Alexander, Judge. Suit by C. L. McDonald and others against W. W. Lastinger. From judgment against the named and in favor of the unnamed plaintiffs against defendant, and in favor of defendant on his cross-action against the named plaintiff, the latter appeals.

E. Wilcox, Judge. Suit by the Plano Milling Company against the Chicago & Great Western Railway Company and others, wherein J. G. Puterbaugb intervened. From judgment for the inter-vener, the named defendant and another appeal.

<p>1. Account &wkey;>17(l) — Petition Not Defective in Not Stating Whether Contract was Oral or Written.</p> <p>Petition by the buyer of merchandise to recover from the seller the difference between what the seller had agreed to account for, on account of sales made by him after the transaction, but before possession changed, and the amount which he had actually accounted for, was not defective because it did not' state whether the contract between the seller and buyer was oral or in writing.</p> <p>2. Account <&wkey;8 —Evidence Sufficient to Show Oral Agreement to Account.</p> <p>In suit by the buyer of merchandise to recover difference between what the seller had agreed to account for, on account of sales after the transaction, but before possession changed, and what he actually did account for, merely because the written contract showed the seller was the owner prior to a certain date, he was not necessarily excused from responsibility for what he had disposed of previously, there having been an oral arrangement to that effect.</p>

<p>Appeal from District Court, Hunt County.</p> <p>Suit by W. F. Courtney and wife against the Ft. Worth & Denver City Railway Company. From a judgment for plaintiffs, defendant appeals.</p> <p>December 31, 1915, appellees, husband and wife, were passengers on one of appellant’s trains from Wichita Falls to Ft. Worth. They claimed that Mrs. Courtney was injured in alighting from the train at the latter place under circumstances which she, testifying as a witness, stated as follows:</p> <p>“When I started to get off the train, I wds coming down the steps, and as I got down to the bottom step, and went to go down on the step box, the porter placed his foot, and as I raised my foot to step he extended his knee over the step, until I was forced to step on the edge of the box and fell. I had to step in a careening position, and sprained my ankle, and I fell. I had a glass cake stand under my arm, and fell tinder back to my side like and across the porter’s knee. I picked my foot up to make my step, and he extended Ms knee oyer, and I couldn’t stop my step, because I was too near stepping to stop, and X made my step and fell. X got on the box, but near the edge, and my ankle turned, and I sprained my ankle and fell across his knee. The porter had his knee on the step box. As to whether he had it on top of the step box, he had it on it some way as I wont to place my foot — he had his foot on it in some manner, and as I made my step to place my foot on the box his knee projected. X can’t say that he did, and I can’t say that he didn’t have his foot stuck in the hole in the step box. * * * I can’t say positive whore he did place his foot”</p> <p>—and which Courtney stated as follows:</p> <p>“My wife went down the steps first, and while she was getting off the train I was stepping right behind her. There were a lot of people getting off, and there was a lady with some small children ahead of my wife and I. The lady was ahead, and then came the children next to her, and my wife was next to them. The porter picked up the little child from the bottom step of the car and turned and set it down on the platform of the depot. Then my wife stepped on the bottom step, and as she picked her fodt up the porter turned and put his knee across the box, and she had to put her foot in this position (illustrating), and that made her in a strained position, and her ankle turned, and she fell backward across his knee. * * ⅜ When she fell, she had the fruit stand under her left arm this way (illustrating), and the foot of it caught her-back here and bruised a pla'ce that long.”</p> <p>The porter had no recollection of the incident, and there was no other testimony than that of appellees as to the circumstances accompanying it.</p> <p>There was testimony warranting a finding that the injury Mrs. Courtney suffered as a result of the accident consisted, in part, of a broken rib, a dislocated rib, and a twisting or rotation of her spine.</p> <p>Alleging that the porter was guilty of negligence in projecting his knee over the step box, appellees sued, and recovered the judgment for $2,000, from which the appeal is prosecuted.</p>

A. Ward, Judge. Suit by John Bonura & Co. against C. S. Martin & Son. From judgment for plaintiff, defendants appeal. The suit is by appellee, a corporation, against the appellants, a partnership, to recover damages. for the breach of a written contract to deliver for shipment, f. o. b. the cars, 10 cars of Elberta peaches at $1.25 per bushel.

B. Steed, Judge. Suit by the Howe Grain & Mercantile Company against H. H. Watson' and the receivers of the Texas & Pacific Railway Company. Prom a judgment overruling defendant Watson’s plea of privilege, he appeals.

<p>Appeal from District Court, Hopkins County; Wm. Pierson, Judge.</p> <p>Action by Lois Skinner and others, by next friend, against W. T. Waits and others. From a judgment for defendants on demurrer to the petition, plaintiffs appeal.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Suit by Mary Harris and others against the Southwestern Telegraph & Telephone Company. From judgment for plaintiffs, defendant appeals.</p>

Alexander, Judge. Action by Henry Landfried. and wife against J. R. Milam and others. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from District Court, Harrison County; P. O. Beard, Judge.</p> <p>Suit by C. T. Becknell against H. H. Wood-ley. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Eannin County; Ben H. Denton, Judge.</p> <p>Action by G. M. Agee against W. P. Mynatt and others. To review a judgment fpr plaintiff, defendants bring error.</p>

<p>Appeal from District Court, Marion County ; J. A. Ward, Judge..</p> <p>Action by Mrs. E. V. Blair and others against the Jefferson & Northwestern. Railway Company. From a judgment for defendant, plaintiffs appeal.</p> <p>There was testimony which would have warranted a jury in finding as follows: The Jefferson Oil Company’s mill and seed house was on the north side of and adjacent to a spur track maintained by appellee for said' oil company’s use. A conveyor used to carry cotton seed unloaded from cars on the spur or mill track to the seed house was situated about 170 yards west of the point where the mill track intersected appellee’s main line track. Scales used for weighing cars were situated on the spur track 100 to 150 feet west of the seed conveyer. During November, 1917, cars loaded at the oil company’s mill and cars which had been Unloaded there were daily moved by appellee’s trainmen to its main line track, and cars to be loaded at the mill and also cars to he unloaded there were carried by said trainmen to and “spotted” on the mill track. The practice was for the trainmen to weight the cars to be moved from the mill track before moving same to the main line track, and, after said cars were so moved, to “shunt” from the main line track to mill track the cars to be spotted on the latter, in the order in which they were to be placed. The “spotting” of the cars after they were shunted on to the mill track was done by using the locomotive to move them to places designated by the oil company. In unloading seed from cars to the conveyer some of the seed always fell to the ground on the mill track. It was the practice of the oil company, after the cars to be carried to the main line track had been moved off of the spur track, to have its employés pick up the seed which had fallen to the ground. In accordance with this practice, B. J. Blair, an employs of the oil company, assisted by its superintendent, on November 12, 1917, was engaged in picking up seed which had so fallen, when appellee’s trainmen, having weighed and moved the cars on the mill track off of same, began to shunt cars onto same, preparatory to spotting them thereon. They first shunted an empty car to a point near the place where Blair and the superintendent were at work. A brakeman named Lockett was on this car, and stopped it at the point specified. Blair and the superintendent, who, it seems, , .had ceased to pick up seed and gotten off the track as the car approached, at once, when the car stopped, returned to the work they had been engaged in; Blair taking a position on the mill track five or six feet west of said car, and the superintendent a position ten to twenty feet still farther west. A few minutes later the trainmen shunted a loaded car onto the mill track, which struck the other car with such force as to cause it to suddenly move west, knocking Blair down and running over him, and thereby so injuring him as to cause him to die.</p> <p>The, cars were handled on this occasion in about the same way they had before been handled. Appellee’s said trainmen on other occasions had seen employes of the oil mill at work picking up seed, as Blair and the superintendent were on this occasion. There was nothing to prevent the brakeman, Lockett, from seeing Blair and. the superintendent while he was on the empty car; and Peterson, another one of the trainmen, after Lock-ett stopped and set the empty car, was in a position to see the track “all the way down to the hull house,” which was beyond the point on the track where Blair and the superintendent were at work. At the time he was injured as stated, Blair'had been working for the oil company only a few days, and, it seems, had never before engaged in the work he was then doing, and, so far as the record shows to the contrary, knew.nothing about the practice of the trainmen in shunting cars onto the mill track. Working as he was on the west side of the empty car, Blair could not see the loaded car after it-was shunted from the main line to the mill track.</p> <p>The suit was by appellants (Blair’s widow and children), on the theory that appellee’s trainmen, in shunting the loaded car onto the mill track, as they did, without warning. Blair, were guilty of negligence which rendered appellee liable to them.</p> <p>The appeal is from a judgment in appel-lee’s favor on a verdict returned in conformity to a charge by the trial court as follows:</p> <p>“In this case the undisputed evidence shows that the defendant’s servants and employés went onto the side track or spur where deceased, B. J. Blair, was injured, for the purpose of removing and placing cars- for the sole use and benefit of the Jefferson Oil Oompany, and gave notice to the superintendent of the said oil company of the presence and intentions of the said servants and c-mployés of defendant, and received from him instructions as to what said superintendent desired should be done by them. Having notified the superintendent of the oil mill of their presence and purposes, and having received instructions from him as to what he desired they should do with reference to moving and switching -cars on the industrial track for said oil mill, the defendant’s employés had the right to assume that the said spur track was open for their use, and that the said oil mill superintendent would keep the employés out of danger, and the servants of defendant railway company under the law were not required to keep a lookout to ascertain whether any persons were in danger or in peril on said spur track, while defendant’s servants were thus switching cars on said spur track. It therefore follows that defendant or its servants have not violated any duty to the said B. J. Blair, and were guilty of no negligence that could be the proximate cause of his death, and plaintiffs are not entitled to recover. You are therefore instructed to find for the defendant.”</p>

Red River County; Ben H. Denton, Judge. Suit by the Mt. Pleasant Oil Mill against Holder & Gibson, a partnership, and N. A. Gibson, individually, wherein plaintiff caused writ of sequestration to be levied on certain property, and the Roberts Seed Company, a partnership, filed claim under the statute. From a judgment against them, claimant firm appeals.

<p>Appeal from District Court, Coryell County; J. H. Arnold, Judge.</p> <p>Suit by F. M. Mayhew and others against the Commissioners’ Court of Coryell County and others. From judgment for defendants, plaintiffs appeal.</p>

<p>Appeal from District Court, Coryell County ; J. H. Arnols, Judge.</p> <p>Suit by Joe S. Culp against the Commissioners’ Court of Coryell County. Judgment for defendants, and plaintiff appeals.</p>

<p>Error from District Court, Hunt County; Wm. Pierson, Judge. •</p> <p>Action by Lon Wright and wife against C. E. Schaff, receiver. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Witnesses <§=>160(1) — Children suing to RECOVER DECEASED FATHER’S ESTATE INCOMPETENT.</p> <p>Children of the first marriage of their father, suing his children by later marriages for land left by him, are, under Rev. St. art. 3690. incompetent witnesses to the fact of it having been paid for with the property of their mother, although such transaction was between the deceased parents and a third party; all their knowledge being derived from their deceased parents.</p> <p>2. Appeal and error <§=>1051(5) — Admission OP EVIDENCE AS .TO FACT PRESUMED HARMLESS.</p> <p>Any error in admitting evidence of a fact which is presumed, with no evidence to the contrary, is harmless.</p> <p>3. Husband and wife <§=>262(1,2) — Presumption THAT LAND DEEDED TO MARRIED MAN WAS COMMUNITY PROPERTY.</p> <p>The presumption is that land deeded to a married man was community property; so one claiming it was the wife’s has the burden of showing it.</p> <p>4. Husband and wife <§=>275 — Community PROPERTY, PURCHASED DURING ONE MARRIAGE AND PAID FOE DURING OÍIÍERS, IS PROPERTY OF FIRST COMMUNITY.</p> <p>That land unconditionally conveyed to a man during his first marriage was paid for during his second and third marriages does not disturb the title of the first community; but, subject to reimbursement of the second and third communities for their funds nsed, the children of the first marriage aro entitled to their mother’s interest, and to share equally in the remainder with the children of the other marriages.</p>

<p>Master and servant ®=»375(1) — Death WHILE ENGAGED IN PEREOBMANCE OE EMPLOYE’S DUTIES.</p> <p>One employed by a laundry to collect and deliver, and to collect the charges on delivery, who, though he had turned in his wagon at night, was on his way to a customer’s residence to collect a laundry bill when he was killed by an automobile, was at the time engaged in the performance of his duties, within the Workmen’s Compensation Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz).</p>

‘Appeal from District Court, Marion County ; J. A. Ward, Judge. Action by E. C. Hynes against J. L. Lancaster and others, receivers. Erom a judgment for' plaintiff, defendants appeal. The appellee, a brakeman, was on a freight train of appellants which was being operated in interstate commerce, and by reason of an insecure and defective grabiron, or handhold, on a car in the train was caused to. fall and thereby received bodily injuries.

<p>1. Vendor and purchaser <§=5242 — Right OE HOLDER OE UNRECORDED DEED OR CONTRACT AS AGAINST VENDOR’S CREDITOR.</p> <p>In view of Rev. St. art. 6824, one holding an unrecorded deed or contract subject to registration has the burden of showing that a creditor of the grantor had notice of such instrument, or of facts sufficient to charge him with notice, at the time the creditor procured a lien on the land by virtue of the law, as by filing and indexing an abstract of judgment, as distinguished from a lien by contract.</p> <p>2. Vendor and purchaser <9=5232(8) — Right OE HOLDER OE UNRECORDED DEED AS AGAINST JUDGMENT CREDITOR</p> <p>Open, exclusive, and visible possession of land, either through himself or his agent and employés, maintained by the holder of an unrecorded deed when the lien of the grantor’s judgment creditor attaches by filing and indexing of an abstract of judgment against the grantor, is notice to the judgment creditor of the right under which the land is held.</p>

H. Phillips, Judge. Action by J. W. McLaughlin against P. M. Hedrick, begun in justice court and appealed to,county court. Prom a judgment for plaintiff, defendant appeals.

<p>1. Telegraphs and telephones <®=o54(6) —' Stipulation limiting liability for mistake UNLESS TELEGRAM REPEATED INVALID.</p> <p>Printed stipulation in telegram blank limiting liability for mistake in transmission to price of telegram, unless repeated, and in any event to $50 unless greater value is declared in writing and additional rate paid, is invalid.</p> <p>2. Courts <©=>91(1) — Court of civil appeals MUST FOLLOW DECISIONS OF SUPREME COURT.</p> <p>The Court of Civil Appeals, in an interstate telegram case, must follow decision of state Supreme Court, in absence of decision by federal Supreme Court.</p> <p>8. Brokers <©==>94 — Contract of sale executed BY BROKER UNENFORCEABLE AGAINST VENDOR.</p> <p>If real estate agents were acting merely under the usual enlistment contract, provision of their contract of sale that purchaser and vendor were each to deposit a sum to be paid in case of his default to the other as the other’s damages rendered the sales contract unenforceable against vendor.</p> <p>4.Telegraphs and telephones <©=>52 — Not LIABLE FOR MISTAKE IN TRANSMISSION WHEN SENDER ACCEPTS CONTRACT MADE.</p> <p>If, through error in transmission of owner’s telegram to real estate agents, too low a price for land was given them, and owner was not bound by the contract of sale made by the agents at such price, he could not, after discovery of the mistake, carry it out and hold telegraph company liable.</p> <p>5. Telegraphs and telephones <©=>65(6) — Plaintiff alleging mistake in transmission TO AGENT NEED NOT PLEAD AND PROVE CONDITIONS OF AGENCY.</p> <p>Plaintiff, in action for' damages for transmitting telegram authorizing sale of land at $55 per acre so as to read $50, pleading in general that sendees were handling the land as his agents, and that they, as his agents, on receipt of message made a certain contract of sale at $50 per acre, and he thereby became legally bound to convey, was not, in the absence of any is$ue raised in that respect, bound to develop by pleading or proof the details of the agency as to authority to insert provision in the sales contract for forfeit of a certain amount for default of either party; authority in such respect being collateral.</p> <p>6. Specific performance <©=>58 — Election BY VENDOR TO ACCEPT PROVISION FOR DAMAGES PÍftECLUDES ENFORCEMENT OF CONTRACT.</p> <p>Provision of contract of sale of land for deposit by each party of a sum to he paid, in case of his default, to the other party as his damages, precludes enforcement of the contract against the vendor electing to make such payment.</p> <p>7. Telegraphs and telephones <©=>52 — Extent OF LIABILITY FOB MISTAKE IN TRANSMISSION OF INSTRUCTIONS TO AGENT.</p> <p>One who has entered into contract of sale of his land below its value, through mistake in transmission of telegram, being entitled to abandon his contract on forfeiture of a certain sum as damages, may not perform and recover of telegraph company greater damages.</p>

<p>1. Animals <S=»50(2) — Adoption op stock LAWS VOID FOR VARIANCE IN PETITION AND ORDER POR STOCK LAW ELECTION.</p> <p>Election fpr adoption of the stock law for subdivision of county was void; the statute requiring the petition for election to specify the riasses of animals desired to be restrained and the order for election to conform to the petition, whereas the petition specified hogs, sheep, "and” goats, and the order hogs, sheep, “or” Soats.</p> <p>2. Animals <⅝^50(2) — Order por stock law ELECTION VOID AS MADE AT WRONG TERM ' OP COURT.</p> <p>Where 'order for election for adoption of stock law in a subdivision of a county was made at the term of the commissioners’ court during which the petition was filed, instead of at the next term, as required by the statute, election was void.</p> <p>3. Evidence @=⅛3(4) — Presumption of regularity op order por stock law election cannot prevail over pile mark op petition.</p> <p>Presumption that order of the commissioners’ court for an election for adoption of stock law in a subdivision of a county was, as required by statute, made at the term after the filing of the petition, cannot, in the absence of other evidence, prevail over file mark on petition, showing its filing was at same term as the order.</p> <p>4. Animals ®^>50(2) — Void order por stock LAW ELECTION NOT VITALIZED BY LAPSE OP YEARS.</p> <p>Order of commissioners’ court, under which election for adoption of stock law in a subdivision of a county was held, void because made, contrary to statute, at the same term that petition was filed, could not be vitalized by lapse of years.</p>