Volume 216 — South Western Reporter

.of Fifth Supreme Judicial District. Suit by the Texas Fidelity & Bonding Company against the General Bonding & Casualty Insurance Company. A judgment for defendant was affirmed by the Court of Civil Appeals (184 S. W. 238), and plaintiff brings error.

<p>Appeal and error <⅜=»843(2) — Matters not NECESSARY TO DECISION ON REVIEW.</p> <p>Question as to effect of Const, art. 12, § 6, on liability of a stock subscriber not being involved in the case under consideration, or necessary to its decision, motion to express an opinion on the question will be overruled.</p>

Action by Lewis Goodman against A. L. Thornton and wife, a judgment for plaintiff was affirmed in the Court of Civil Appeals, (185 S. W. 926), and the defendants bring error.

Trespass to try title by the Angelina County Lumber Company against L. R. Hines, A. J. Tucker, and others. There was a judgment in.favor of some of the defendants which was reversed in the Court of Civil Appeals (184 S. W. 596), and defendants Tucker and others bring error.

<p>Error to Court of Civil Appeals of Seventh Supreme Judicial District</p> <p>Action by Wellington Railroad Committee and others against C., W. Crawford and others. Judgment for plaintiffs reversed by Court of Civil Appeals (174 S. W. 1004), and plaintiffs bring error.</p>

<p>1. Contracts <§=>169 — Construction in LIGHT OF CIRCUMSTANCES.</p> <p>The rule that the contract must be read in the light of surrounding circumstances in arriving at a just interpretation of the terms does not admit of a violation of the express language which the parties have employed in defining their obligations, nor the reading into the contract of terms which its express provisions exclude.</p> <p>2. Sales <§=>90-t-Mergeb of negotiations in WRITTEN CONTRACT.</p> <p>Seller, having agreed by writing to furnish certain specified machinery and do certain specified things with reference to the installation of the irrigation machinery sol'd, was not bound beyond the obligations specifically imposed, since all negotiations relating to installation of the machinery were merged in the written contract.</p> <p>S. Sales <§=>85(1) — Obligation of seller of' IRRIGATING MACHINERY TO INSTALL IT.</p> <p>Seller of irrigating machinery, having agreed by written contract that the writing was the complete agreement to ship machinery within certain time, to furnish blueprints for the foundations, and to provide an engineer to supervise the installation, and instruct buyer’s operators, was not required to install the machinery, being bound to do only those things specified in the contract.</p> <p>4. Sales <§=179(3) — Acceptance as waiver OF DELAYED DELIVERY.</p> <p>Under irrigating machinery sales contract, providing that “receipt of material constitutes a waiver of any claim for damages on account of delay,” buyer could not recover damages resulting from delayed installation of the machinery due to delay in delivery thereof; the claim for such damages having been waived by acceptance of machinery upon delayed delivery.</p> <p>5. Trial <§=>343 — Construction of verdict IN LIGHT OF TESTIMONY.</p> <p>Verdict, in being construed, should be viewed in the light of the testimony.</p> <p>6. Sales <§=>422r-CoNSTRucTioN of verdict.</p> <p>Verdict for buyer of irrigating machines for damages to rice crop resulting from seller’s breach of contract held, in view of the findings, to embrace damages for delayed installation of machinery, which damages buyer, by acceptance of the machinery, upon delayed delivery, had waived under stipulation of the contract.</p>

<p>¡LANDLORD AND TENANT <§=>249(1) — LIABILITY TO LANDLORD OF CREDITOR LEVYING ON TENANT’S CROPS.</p> <p>Judgment creditor of tenant who levied upon the crops when the tenant was indebted to his landlord for rent, supplies, or advancements held, liable to the landlord for conversion to the extent of so much of the converted crops as might be necessary to satisfy the landlord’s •claim, liability not being limited to the pro rata part of the tenant’s debt to the landlord which the part of the crop levied on bore to the whole ■of the crop raised by the tenant; the principle of marshaling of securities not being involved.</p>

<p>Appeal from District Court,. Tarrant County; Ben. M. Terrell, Judge.</p> <p>Suit by Ben T. Wright and wife against J. N. Brooker. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Suit by Ottis Grimes against the Goodman Drilling Company and others. From judgment for defendants, plaintiff appeals.</p>

<p>1. Municipal corporations <&wkey;741(l), 845(1) —-Notice op injuries to peopeety by obstruction OP SEWEE.</p> <p>As provisions requiring notice are in derogation of common right and should be construed with reasonable strictness and not extended by implication, the provision in the San Antonio charter that before the city should be liable for damages of any kind the person injured or some one in behalf of such person shall give written notice held to apply to personal injuries, and not injuries to property, as resulting from the obstruction of sewer which caused the flooding of basement of plaintiff's store, or injuries to plaintiff’s automobile, which was struck by street sprinkler.</p> <p>2. Judgment, <&wkey;256(7) — Addition op interest BY COuRT TO AWARD OP JUEY.</p> <p>Where the question of the amount of damage suffered by plaintiff when the basement of his store was flooded, due to the obstruction of a sewer, was submitted to the jury, and a verdict was returned thereon fixing the damage, the court cannot add to the assessment an allowance of interest.</p> <p>3. Judgment <&wkey;256(7) — Addition op interest BY C0UBT TO AWARD OP JUEY.</p> <p>In an action for injuries to an automobile, where the jury was only required to find facts from which the court could ascertain the damage, interest may be awarded by the court, provided it is sued for.</p> <p>4. Interest <&wkey;66 — Pleading of demand for INTEREST.</p> <p>Where interest is not claimed by the pleadings, none can be recovered.</p> <p>5. Interest <&wkey;66 — Sufficiency op demand IN PLEADING.</p> <p>In suit against city on two causes of action, overflow of sewer, damaging plaintiff’s goods, and injury to his automobile by street sprinkler, where damages from the first cause were alleged to be $2,000, and by an exhibit attached it was shown that the total damage was $2,019, and, as to the second claim, his general averment of $1,000 damages was explained by subsequent allegation that the' automobile was worth at least $1,000 less after the damage than it was before, the petition affirmatively disclosed that interest was not included in the amounts sued for, so that interest could not be deemed to be included in the prayer for general relief; and, there being no specific prayer for interest, the petition could not be deemed to claim interest.</p>

D. Guinn, Judge. Suit by Henry Meadows for the benefit of his wife against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals.

L. Lockett, Judge. Suit by W. L. Blisard against the Texar-kana Telephone Company and another. From an order overruling the named defendant’s plea of privilege to be sued in Bowie County, Tex., it appeals.

Terrell, Judge. Suit by W. O. Roundtree against the Leeper-Curd Lumber Company, wherein Thomas Barbuzza and others intervened. From the judgment, defendant lumber company and two others appeal.

E. L. Roy, Judge. Action by Mrs. M. A. Clark and others against the Texas Co-operative Investment Company and others. From a judgment for plaintiffs, defendants appeal.

<p>Appeal from District Court, Dallas County. Action by Armour & Co. and others against the City of Dallas and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, Nolan County; W. W. Beall, Judge.</p> <p>Trespass to try title by J. C. Gray against S. W. Crutcher and wife, in which E. W. Pierce and others intervened as defendants, and in which Mrs. A. A. Allen was allowed to intervene, being substituted as plaintiff: From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by Mrs. Mae Sims and others against the Royal Neighbors of America. Judgment for plaintiffs, and. defendant appeals.</p>

<p>1. Carriers @=>303(8) — Peesonal assistance TO ALIGHTING PASSENGER.</p> <p>Ordinarily a carrier is not burdened with the duty of extending personal assistance to a passenger alighting from a train.</p> <p>2. Carriers &wkey;>303(8) — Failure to assist ALIGHTING PASSENGER.</p> <p>Employés of a carrier were not negligent in failing to assist a healthy young woman, carrying a small traveling bag, to alight from a train, where she did not request assistance and the step was in good order, except that rubber covering was worn smooth.</p> <p>3. Evidence @=>20(2) — Judicial notice.</p> <p>Relative to duty of carrier to assist female passenger, it is a matter of common knowledge •that often women resent the laying of hands on their person under any pretense.</p> <p>4. Appeal and error <&wkey;>1062(l) — Harmless error; submission op issues.</p> <p>Where two issues of negligence were submitted to the jury, one of which was improperly submitted, and the appellate court is unable to tell upon which issue a verdict rested, judgment for plaintiff must be reyersed.</p> <p>5. Carriers <&wkey;318(9) — Injuries to passenger; evidence op proximate cause.</p> <p>In an action by a passenger who fell while alighting from a train, evidence held insufficient to sustain a finding that slippery condition of steps was proximate cause of fall.</p> <p>6. Carriers <&wkey;318(9) — Injury to passenger; CERTAINTY AS TO CAUSE.</p> <p>Where it was as reasonable to conclude from the evidence that a passenger fell while alighting by reason of her three-inch heel catching on the edge of the steps as that she slipped because of smooth condition of the steps, verdict in her favor cannot be sustained.</p> <p>On Motion for Rehearing.</p> <p>7. Evidence <&wkey;6 — Judicial notice; shadow CAST BY SUN.</p> <p>The court must judicially know that in August at 6 o’clock in the evening at Paradise, Tex., the sun cast a shadow on the east side of a train facing north, and on the steps on the east side of a coach.</p> <p>8. Evidence <&wkey;383(10) — Photographs outweighing testimony op condition op cab steps.</p> <p>In an action by a passenger for personal injuries from a fall while alighting from a train, testimony of a 17 year old boy, who stood some distance away, that the rubber on the steps of the coach from which plaintiff was alighting was entirely worn through, held not sufficient to raise a conflict or to warrant the jury in finding that the rubber was worn entirely through, where photographs were immediately taken which showed that, although the rubber was worn, it was not worn through.</p> <p>9. Evidence <&wkey;20(2) — Judicial notice.</p> <p>The court may judicially know that rubber on a car step merely worn smooth will not become “slick” from this cause alone, so as to invite a slipping of the foot.</p> <p>10. Appeal and error &wkey;>1001(l) — Review &P QUESTION OP PACT.</p> <p>To sustain the verdict on appeal, the evidence must amount to something more than inferences, and must be legally of a probative force, mere detached statements of witnesses .which may positively furnish an argumentative basis not being controlling, and a jury is not authorized to arbitrarily reject testimony that is unimpeachable and without suspicion.</p> <p>Buck, J., dissenting.</p>

Error from District Court, McLennan County; Geo. N. Denton, Judge. • Action by J. C. Healer and others against the Texas Power & Light Company. To review judgment for plaintiffs, defendant brings error. On motion to dismiss the writ.

<p>1. Evidence <&wkey;354(U) — Book entry admis-SIBI.E ALTHOUGH WITNESS DID NOT MATTE ENTRIES.</p> <p>In suit submitted upon sole issue whether deed from defendant and wife to plaintiff was intended as a mortgage or for security, where plaintiff claimed that at time of conveyance he paid to defendant $500 in cash for the land, the court erred in excluding evidence of the cashier of the bank as to whether plaintiff’s account showed a charge of $500 on said date, though the cashier had not made the entry.</p> <p>■ 2. Evidence <&wkey;273(3) — Self-serving declarations OF GRANTOR.</p> <p>In suit upon issue whether deed from defendant and wife to plaintiff was intended as a mortgage or for security, testimony as to declarations of defendant grantor to the effect that he was the owner, made vwhen plaintiff was not present, claimed to be self-serving, was inadmissible.</p> <p>3. Trial <&wkey;349(3) — Submission of special issue without request.</p> <p>Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a, leaves with the court discretion to submit special issue without request.</p> <p>4. Trial <&wkey;>232(2) — Necessity of accompanying specific issue with instruction.</p> <p>Where court submitted cause on sole issue whether deed from defendant and wife to plaintiff was intended as a mortgage or security, a charge on burden of proof, and question whether defendant after conveying the land remained in possession and attorned to plaintiff as his landlord for such time as would be' a bar under statute of limitations, held necessary.</p>

Munroe, Judge. Habeas corpus by Mrs. Lillian Whitten-berg against E. A. Craven to recover the custody of Grace Lee Grimes, a dependent child. From a judgment granting the application for the writ, respondent appeals.

<p>1. Army and navy ⅜=334 — Validity on Soldiers’ and Sailors’ Civil Relien Act.</p> <p>In view of Const. U. S. art. 1, § 8, relating to its war and military power, Congress had the power to pass the Soldiers’ and Sailors-’’ Civil Relief Act, title 16a, arts. 1, 2 (U. S. Comp. St. 1918, §§ 3078%a-3078Vi.e), relating, among other things, to matters of procedure in the state courts.</p> <p>2. Army and navy <®=>34 — Issuance on mandate on anneal without nayment on costs as annected by Soldiers’ and Sailors’ Re-lien Act.</p> <p>Soldiers’ and Sailors’ Civil Relief Act (U. S. Comp. St. 1918, § 3078%d), authorizes the appellate court to grant a motion of an appellee, requesting it to instruct the clerk to issue a mandate, although costs had not been paid within one year from the reversal of a judgment in favor of appellee, it appearing that appellee entered the military service of the United States, before he became aware of reversal of his judgment, and served overseas until within three months - of filing his motion, notwithstanding Rev. St. 1911, art. 1559, which leaves the appellate court without discretion to order the issuance of the mandate when costs are not paid within the year.</p>

Suit by W. T. Crier against E. F. ShotweU. Judgment for plaintiff for the difference between the verdict for plaintiff and the verdict for defendant on the cross-action or counterclaim, and defendant appeals.

<p>1. Evidence <&wkey;474(3) — Nonexpert testimony AS TO PHYSICAL CONDITIONS.</p> <p>Testimony of witnesses, who knew plaintiff and saw him just before and just after his injury, being their personal observations of outward manifestations of condition, open to all who came in contact with him after his injury, held competent, as showing his condition at the time, and not open to objection of being speculative and the opinion of a nonexpert.</p> <p>2. Appeal and error <&wkey;1060(l) — Harmless error; counsel’s argument.</p> <p>Remarks of plaintiff’s counsel in argument, being in the verbiage of plaintiff, who as witness, without objection, explained why, after his injury, he sought work of others under an assumed name, even if objectionable, could not alone have influenced the jury.</p> <p>3. Trial <&wkey;121(l) — Argument op counsel COMMENT ON EVIDENCE.</p> <p>There being evidence that though Dr. M., who testified that he found plaintiff uninjured, was first called in by plaintiff to attend him, continuance of his attendance was at request of R., defendant’s surgeon, statement of plaintiff’s counsel in argument that R. sent M. to see plaintiff was unobjectionable.</p> <p>4. Trial <&wkey;>133 (6) — Instruction to disregard ARGUMENT OP COUNSEL.</p> <p>Reiterated statement in argument by plaintiff’s counsel, without support in the evidence, that a doctor, who testified that there was nothing the matter with plaintiff, was a fake, held not prejudicial, the jury having been instructed to disregard it, and counsel having been twice fined for repeating it.</p> <p>5. Damages <&wkey;208(2) — Question por jury AS TO INJURY AND RESULT.</p> <p>Conflicting testimony held to make a question for the jury whether plaintiff’s skull had been injured, causing pressure on the brain.</p>

<p>1. Deeds <§==>73 — In consideration oe agreement TO DISMISS CRIMINAL PROCEEDINGS VOID.</p> <p>A conveyance of realty by defendant to plaintiff in consideration of dismissal of criminal proceedings based upon the seduction of plaintiff by defendant’s son, and of the marriage of defendant’s son and plaintiff, is void, and will not form the basis of a suit in trespass to try title.</p> <p>2. Deeds <§=>17(3) — Marriage- sufficient CONSIDERATION.</p> <p>A conveyance of land may be supported upon marriage contracted by the grantee and the grantor’s son.</p> <p>3. Contracts <§=>137(1) — Effect of illegality OF ONE OF SEVERAL CONSIDERATIONS.</p> <p>A promise made upon several considerations, one of which is unlawful, no matter whether the illegality be at common law or by statute, is void.</p> <p>4. Deeds <§=>73 — Illegality of . consideration RENDERS INDIVISIBLE CONTRACTS VOID.</p> <p>Where a grantor conveyed real property to grantee in consideration of the dismissal of criminal proceedings for seduction of grantee by grantor’s son, and,of the marriage of the son to grantee, the contract was not divisible, and the conveyance was vitiated by the illegal consideration relative to dismissal of the criminal proceeding.</p> <p>5. Specific performance <g=s>56 — Conveyance BASED UPON ILLEGAL CONSIDERATION AS EXECUTORY CONTRACT.</p> <p>Where land is conveyed upon several considerations one.of which is illegal, as requiring dismissal of criminal proceedings against grantor’s son, but the grantee is not put in possession, and the contract remains executory, a suit for specific performance will not lie.</p>

<p>Appeal from District Court, Trinity Coun-. ty; E. A. Berry, Judge.</p> <p>Trespass to try title by the Louisiana & Texas Lumber Company against the Southern Pine Lumber Company and others. Judgment for certain defendants as to part of the land involved, and plaintiff appeals.</p>

Error from District Court, Brooks County; V. W. Taylor, Judge. Election contest between George O. Frank and Ed. Sufford. ’ There was a judgment for the latter, and the former brings error.

<p>1. Contracts <§=>10(2) — Executed contract NOT UNILATERAL.</p> <p>A written contract for the construction of a house was not unilateral and unenforceable because signed only by the person for whom the house was to be constructed, where it was accepted by the other party and acted upon by him by building the house.</p> <p>2. Reformation of instruments <§=>18 — Mistake of law by scrivener.</p> <p>A mistake by a scrivener in drawing an instrument which would warrant a reformation applies to mistakes of law as well as mistakes of fact, and a contract can be reformed where a scrivener uses a word in a mistaken sense.</p> <p>3. Limitation of actions <§=5127(4) — Amendment to pleadings not new cause of action.</p> <p>In an action on a contract, an amendment by plaintiff to the pleadings, setting up a mistake in the contract and asking that the same be corrected, was not a new cause of action as respects the statute of limitations.</p>

<p>Appeal from District Court, Frio County; Covey C. Thomas, Judge.</p> <p>Suit by W. L. Crawford against Mrs. T. M. Hurst and others. Judgment for plaintiff, and the named defendant brings error.</p>

<p>Appeal from El Paso County Court at Daw; W. P. Brady, Judge.</p> <p>Action by McGregor & Henger against J. A. Escajeda and another. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Brokers <®=>49(2) — No commission for PROCUREMENT OF OPTION TRANSACTION.</p> <p>A mere option to buy was not a contract of purchase, procurement of which of itself entitled the broker to his commission, even though the vendor failed to enforce it.</p> <p>2. Executors and administrators <§=>221(4) —Evidence insufficient to show employment of broker by coexecutobs.</p> <p>Evidence held insufficient to support finding that the estate of decedent was bound by the contract of only one of three executors and trustees' employing plaintiff broker to sell the land on commission.</p> <p>3. Principal and a&ent <§=>23 (2) — Circumstantial evidence of relation.</p> <p>Proof of agency may he made by circumstantial evidence.</p> <p>On Motion for Rehearing.</p> <p>4. Tenancy in common ⅞=>43 — One of joint</p> <p>TENANTS CANNOT SELL WHOLE TITLE.</p> <p>One of two joint tenants cannot make a valid contract of sale of the entire title to the joint property without the consent of the other.</p> <p>5. Trusts <g=»230 — No sale by single trustee.</p> <p>One of several trustees in whom confidence has been reposed jointly, with no power given him, either expressly or by implication, to act singly, cannot sell the entire title to the trust property without the consent of the others.</p>

<p>1. Telegraphs and telephones <®=>66(4) — Sufficiency op evidence to authobize be; COVEET FOB DISCONNECTING PHONE.</p> <p>Evidence held, to support verdict of $250 for vexation, annoyance, and inconvenience caused plaintiff subscriber by reason of his telephone being wrongfully disconnected by defendant company.</p> <p>2. Telegbaphs and telephones <§=>71 — Excessive BECOVEEY FOB DISCONNECTING PHONE.</p> <p>Verdict of $250 for vexation, annoyance, and inconvenience caused plaintiff subscriber by reason of his telephone being wrongfully disconnected by defendant company held not so excessive as to show passion or prejudice.</p> <p>3. Appeal and eebob <©=>688(2) — Assignment AS TO AEGUMENT NOT SHOWN BY BECOBD OVEBBULED.</p> <p>Assignment with reference to argument of counsel will be overruled, where there is nothing in the record to shbw any such argument as complained of, though there is a statement in motion for new trial that such argument was made.</p> <p>Pleasants, C. J., dissenting.</p>

<p>1. Evidence @=460(2) — Parol evidence to IDENTIFY LAND CONVEYED BY AMBIGUOUS DEED.</p> <p>Where plaintiff in,trespass to try title to a 100-acre tract of land claimed under a deed granting 87½ acres in a certain survey, “being the remaining part and interest in 400 acres deeded to me,” evidence of a prior parol sale of the tract in controversy to a third party after a division of the entire tract into parcels, one containing 87½ acres and another 100 acres, was admissible to identify the land conveyed under plaintiff’s deed.</p> <p>2. Evidence <&wkey;271(10) — Declarations by</p> <p>GRANTOR SHOWING INTENT.</p> <p>Where plaintiff in trespass to try title claimed under a deed with an ambiguous description, testimony that defendant continued to claim the .land after the execution of the deed held not self-serving, but admissible to show defendant’s intention. ,</p> <p>3. Evidence <&wkey;271(10), 460(2) — Self-serving DECLARATIONS TO EXPLAIN AMBIGUOUS</p> <p>DESCRIPTION.</p> <p>Where plaintiff in trespass to try title claimed under a deed with an ambiguous description, testimony that defendant subsequent to the conveyance claimed the timber on the land in controversy and sold it to another held not inadmissible as self-serving declarations, where a person has parted with title, nor as contradicting the written instrument.</p> <p>4. Trespass to try title <&wkey;39(l) — Admis-</p> <p>J3ILITY OF EVIDENCE OF TERMS OF CONTRACT.</p> <p>In trespass to try title, evidence as to the terms upon which plaintiff purchased the property from its immediate- predecessor in title held immaterial and properly excluded.</p> <p>5. Deeds &wkey;>118 — Sufficiency of evidence</p> <p>TO IDENTIFY LAND SOLD.</p> <p>In trespass to try title, where plaintiff claimed under a deed conveying 87½. acres, evidence held to sustain findings that the deed did not convey a 100-acre tract previously sold to another.</p>

<p>Appeal from McLennan County Cotirt; James P. Alexander, Judge.</p> <p>Action by the J. L. Collins Piano Company against Adams & Allcorn. Judgment for defendants, and plaintiff appeals.</p>

<p>On motion to retax costs.</p>

<p>Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.</p> <p>Action by the South Texas Lumber Company, a corporation, and another, against G. W. Gregory. From a judgment for plaintiffs and a denial of a new trial, defendant appeals.</p>

<p>Venue <&wkey;5(2) — Action on notes and MORTGAGE IN COUNTY WHERE LAND IS SITUATED.</p> <p>Under the express provision of Rev. St. 1911, art. 1830, suhd. 12, fixing venue of suits to. foreclose liens on land, suit to recover on notes and foreclose a trust deed or mortgage securing them may be brought in the county where the land is situated, though defendant resides in another county.</p>

<p>Appeal from Hartley County Court; J. H. Phillips, Judge.</p> <p>Action by J. E. Matthews against E. M. Hedrick. Judgment for plaintiff, and defendant appeals. On motion by appellee to affirm on certificate.</p>

<p>Error from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Suit by the J. I. Case Threshing Machine Company against W. G. Street- arid another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Trial ©=>86 — Objection to evidence admissible FOR PARTICULAR PURPOSE.</p> <p>In an action for the burning of grass on leased land, an objection to testimony of plaintiff and his son as to reasonable value of the grass, when they were not shown to be qualified to testify as to its market value, was not well taken, and the testimony was admissible to show that the leased premises were used by plaintiff exclusively for pasture and their reasonable value therefor.</p> <p>2. Damages ©=>112 — Measure of damages FOR BURNING GRASS.</p> <p>The measure of damages for the negligent burning of grass by a railroad company is its market value for any use or purpose for which it may be valuable to its owner, but in the event that it has no market value then the measure of damages is its value to its owner for any uses to which he may put it.</p> <p>3. Damages ©=>188(2) — Market value of GRASS BURNED.</p> <p>In an action against a railroad company for burning grass, evidence held to support finding that the grass burned had no market value.</p> <p>4. Evidence ©=>113(11) — Rental value of LAND FOR PASTURAGE AS MEASURE OF VALUE -OF GRASS DESTROYED.</p> <p>In an action against a railroad company for damages, the contention that the value of the grass burned should be determined by what rental other persons paid for pasture land is not tenable, since what plaintiff and others paid per acre may or may not have been the value of the land for pasturage or other purposes at the time of making the rental contract, and at the time of the fire the value of the grass might have been more or less than the rental price.</p> <p>5. Appeal and error ©=>1033(7) — Harmless ERROR IN FAILURE TO FIND MARKET VALUE OF BURNED GRASS.</p> <p>The defendant railroad company, on appeal from a judgment for damages for destruction of grass by fire, has no just reason of complaint that the jury should have found from the evidence that the land had a market value for hay-making purposes, where the evidence of such value showed a larger damage than found by the jury.</p> <p>6. Damages ©=>174(3) — Evidence of expense OF FEEDING CATTLE CAUSED SOLELY BY BURNING OF GRASS.</p> <p>In an action against a railroad company for damages for the burning of grass, proof that plaintiff had to spend 10 cents per head per day to feed his cattle, which he would not have been required to feed had the grass not been destroyed, was admissible and could be considered in arriving at the value to him of the grass for the purpose for which he leased the land. ■ •</p> <p>7. Damages ©=>174(3) — Evidence of destruction OF GRASS BY FIRE.</p> <p>In an action against a railroad company for damages resulting from the burning of 'grass, evidence as to the amount of hay plaintiff could have cut from the land had the grass not been burned and the turf destroyed was admissible, since plaintiff was entitled to have the damages measured by the extent of the injury to the grass and land for any lawful purpose.</p>

<p>Appeal from District Court, San Patricio County; M. A. Childers, Judge.</p> <p>Action by Bettie A. Koger and Stephen H. Koger against Fred A. Clark and others. •Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Nueces County ; W. B. Hopkins, Judge.</p> <p>Suit by R. O. Cook, Sr., and others against Mrs. Eva Noessel Denike and others. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. Appeal and error <©=>1043(7) — Harmless ERROR IN DENIAL OP CONTINUANCE.</p> <p>Where defendant railroad company requested a continuance on the ground that persons in its service were necessary witnesses, that it would cripple the operation of the road to take them from service, and that it was not practicable to take their depositions, the denial of the petition will not be reviewed where such witnesses in fact were present and testified.</p> <p>2. Railroads @=>5½, New, vol. 6A Key-No. Series — Abatement op actions by eederal CONTROL.</p> <p>Though the President, as a war measure, pursuant to Act Cong. Aug. 29, 1916, § 1 (U. S. Comp. St. § 1974a), assumed control of the railroads, such control is no ground for the abatement of suits on causes of action accruing before governmental operation.</p> <p>3. Trial @=191(10) — Instructions assuming PACTS.</p> <p>A charge submitting issues of negligence causing injury to servant which prefaced such issues with the words “if you find,” etc., did not assume that defendant was guilty of the negligence submitted.</p> <p>4. Appeal and error @=31066 — Submission op issues not raised by evidence prejudicial ERROR.</p> <p>It is error to submit an issue not made 'by the evidence, unless it clearly appears the jury were not misled.</p> <p>5. Master and servant @=>286(32) — Care as to car inspector question por jury.</p> <p>In an action for injuries to a car inspector struck by a locomotive while he was looking under a car, evidence held to warrant the submission of the issue as to whether the locomotive was operated without proper lookouts.</p> <p>6. Evidence @=>514(3) — Expert testimony as to distance in which locomotive may BE STOPPED.</p> <p>There is no error in allowing witnesses of experience to give their testimony as to the distance in which a locomotive may be stopped.</p>

<p>1. Insubance <©=>452 — Recovery under accident INSURANCE EOR DEATH OE ONE TRAVELING AS PASSENGER.</p> <p>Where accident policy provided for specific indemnity for loss of life “only when * * * sustained in the manner specified in section D, clause I,” which specified accidents while insured was traveling as a passenger, beneficiary could not recover thereon for death of insured, which occurred in a manner not specified in such clause, but in a manner specified in another clause of section D, even though there was no provision in policy for indemnity for death resulting from accidents sustained in manner specified, in such other clause, where there was another section in policy referring to all clauses of section D.</p> <p>2. Insurance ©=>146(1) — 'That policy was UNPAVORABLE TO INSURED IMMATERIAL.</p> <p>That a policy is a poor one for the insured cannot alter or affect its provisions.</p>

<p>Appeal from District Court, Tom Green County; C. E. Debois, Judge.</p> <p>Action by C. C. Culwell against the Gulf, Colorado & Santa Fé Bailway Company. From judgment for plaintiff, defendant appeals.</p>

<p>1. Master and servant <§=>389 — Workmen’s ■ Compensation Act; subrogation of insurer LIMITED SO THAT EMPLOYÉ MAY SUE THIRD PARTY AETER RECEIVING COMPENSATION.</p> <p>Under Workmen’s Compensation Act, § 6a, authorizing an injured employe to either sue a third party injuring him or seek compensation, but not to do both, and providing that insurer paying compensation should be subro-gated to, the employe’s rights and should pay any sum recovered in excess of the compensation to the injured employe, an employe after receiving compensation, may sue a third party upon the insurer’s failure or refusal to sue, and recover full damages minus the compensation previously received.</p> <p>2. Master and servant @=>410 — 'Workmen’s Compensation Act; instructions in action AGAINST THIRD PARTY PROPER.</p> <p>In an employe’s action against a third party instituted after the employe had received workmen’s compensation, an instruction that the jury should deduct the compensation paid for whatever damages they may have found is proper, since a failure to make this deduction would result in double damages.</p> <p>3. Appeal and error @=>1033(5) — Error in instructions favorable to appellant.</p> <p>In an action against a- third party by an employe who had already received workmen’s compensation, any errdr in an instruction that such compensation should be deducted from any damages found is favorable to defendant, and it cannot complain thereof on appeal.</p>

<p>Appeal from Harris County Court; ,W. E. Monteith, Judge.</p> <p>Suit by P. J. Corsey against the Home Life & Accident Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Adverse possession <&wkey;7(2) — Refusal of STATE TO ISSUE PATENT NO DEFENSE.</p> <p>In trespass to try title based on adverse possession, it is no defense that state has refused to issue a patent to defendants, where defendants could at any time have obtained a patent by making a correction in field notes; there being no issue as to the boundaries to the land in controversy, the'boundaries as existing on the ground being old recognized established surveys.</p>

<p>Appeal from District Court, Maverick County; Joseph Jones, Judge.</p> <p>Habeas corpus proceedings by Margarito Cardenas against Mrs. George Barrera and another. From a judgment denying relief, the plaintiff appeals.</p>

Jones, Judge. Action by Felis Hernandez against Bartola Garcia and others. Judgment for defendants after a directed verdiqt in their favor, and plaintiff appeals.

<p>Appeal from Guadalupe County Court; J. B. Williams, Judge.</p> <p>Suit by Jim Dibrell against Walter Leber. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.</p> <p>Action by C. H. Fath against the Paris Transit Company. Verdict and judgment for plaintiff, and defendant appeals.</p>

Munroe, Judge. Action by R. F. Chandler and wife against Mrs. Mary Young and another. From judgment sustaining a general demurrer to the petition, plaintiffs appeal.

<p>Error from District Court, Hunt County; A. P. Doboney, Judge.</p> <p>Action by T. B. Melton and. wife against Lon Manning. Judgment for defendant, and plaintiffs bring error.</p>

<p>Attachment <&wkey;209(4) — Foreclosure op LIEN ON PROPERTY OP NONRESIDENT AFTER PERSONAL SERVICE.</p> <p>An attachment lien on land of a nonresident defendant, duly served personally by notice as provided' by statute, can be foreclosed, though the defendant was not informed by the nonresident notice served on him that foreclosure was sought. • ■</p>

<p>1. Evidence @=*376(9) — Testimony as to ACCOUNT WITHOUT IMMEDIATE RECOLLECTION ADMISSIBLE.</p> <p>In suit on an open account for materials and labor, testimony of plaintiff’s foreman as to items of the account sued on was admissible, where he testified that, though he had no personal knowledge at the time of suit of the accuracy of the items of the account, nevertheless he would not have O. K.’d time slips from which they were made up unless at'the time he had known them to be accurate.</p> <p>2. Evidence @=377 — Proper authentication op TIME SLIPS.</p> <p>In suit on an open account for labor and materials, the trial court properly admitted in evidence certain time slips from which the items of the account were made up; plaintiff’s foreman having testified that he would not have signed the slips and turned them in at the office unless he had known at the time that such slips, in their charges of hours of labor, were accurate.</p>

Tom Higgins, Judge. Suit by T. J. Hufstutler against the Gulf, Colorado & Santa Fé Railway Company in the justice court, where plaintiff obtained a judgment against defendant, and on appeal to the county court a verdict and judgment were rendered for plaintiff. On motion for new trial, a plea to the jurisdiction was sustained, the verdict and judgment set aside, and the cause dismissed by the trial court, fromi which order and judgment plaintiff appeals.

<p>Appeal from District Court, Randall County; Henry S. Bishop, Judge.</p> <p>Action by B. Frank Buie against Frank T. Miller and others. Judgment for defendants, and plaintiff appeals.</p>

<p>Dismissal and nonsuit <⅜=>60(9) — Nonap-peahance by plaintiff requires dismissal, not judgment for defendant.</p> <p>Notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1944, that every suit shall bfe tried when called, unless continued, postponed, or be placed at the end of the docket, a suit in which there is no pleading for affirmative relief by defendants should be dismissed for want of prosecution if plaintiff fails to appear at time set for trial, not tried in plaintiff’s absence, and judgment on the merits rendered for. 'defendants. . '</p>

C. Joiner, Judge. ■Suit by James B. Allen and others against Josephine Berkmier and others. Judgment for defendants, and plaintiffs appeal. Motion to strike out bills of exception sustained.

<p>1. Taxation @=668 — Judgment foe tax SAKE INVALID FOR EXCESSIVE FEES.</p> <p>Costs in excess of lawful amount taxed by reason of clerk’s error in making out an original order of sale upon tax foreclosure renders the judgment therein a nullity as against a minor owner, regardless of the smallness of the amount.</p> <p>2. Taxation @=692 — Collateral attack on TAX SALE JUDGMENT.</p> <p>If a tax sale judgment was without binding force, the objection that the attack upon it was a collateral one would make no difference.</p> <p>3. Municipal corporations @=980(3) — Va-LIDITr OF TAX SALE OF MINOR WARDS’ LAND.</p> <p>In view of Houston City Charter of 1905, art. 2, § 2, providing no ordinance shall be enacted inconsistent with, nor shall the city exercise powers prohibited by, general laws or the Constitution, and article 3, § 8, providing that on tax foreclosure an order of sale shall be issued and the land sold “as in other cases of foreclosure,” and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2000, excepting judgments against executors and administrators and guardians, and article 2004, providing for payment of such taxes as a claim against the estate, a sale of ward’s land under a tax judgment was invalid.</p> <p>4. Appeal and ebbob @=843(2) — Unnecessary QUESTION NOT DETERMINED.</p> <p>Where a tax sale of a minor ward’s land is invalid, it becomes unnecessary on appeal to decide whether the general principle that one who owes the duty to pay the tax cannot acquire the title at a sale thereof is applicable to the guardian.</p> <p>5. Taxation @=>814(1) — Reimbursement OF OWNER OF INVALID TAX TITLE.</p> <p>In plaintiff’s suit in trespass to try title to land claimed by others under tax sale, held that equity and conscience required that defendants be given back what they were properly shown to have paid out for such taxes as constituted a lien upon the property, particularly in view of the petition’s otter to do all equity required of plaintiff.</p> <p>On Motion for Rehearing.</p> <p>6. Taxation @=>810(3) — Evidence showing TAXES PAID WERE LIEN ON PREMISES.</p> <p>In an action of trespass to try title, defended on the ground of tax title, evidence in the absence of objection thereto held sufficient to show that taxes paid by defendants for certain years constituted a valid lien against the land, for which defendants should recover from plaintiff owner.</p> <p>7. Municipal corporations @=>980(3) — Fees in suit foe tax sale.</p> <p>Under the Houston City Charter 1905, except as otherwise specified therein, the fees of officers in suits for sale of property to pay taxes are the same as those in similar suits for state and county taxes under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7691.</p> <p>8. Municipal corporations @=980(3) — Attorney’s FEES IN TAX SALE SUITS.</p> <p>The 5 per cent, allowance for attorney’s fees in city tax suits under Houston City Charter, art. 3, § 8, supersedes the provision of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7691, which is otherwise applicable, in view of articles 7693, 7699, so that such fee is allowable.</p>

E. Mullally, Judge. Trespass to try title by. Francisco Martinez against A. M. Bruni and others. From a judgment for only part of the relief sought, plaintiff appeals.

<p>Appeal from District Court, Eloyd County; R. C. Joiner, Judge.</p> <p>Suit by W. A. Huckabee and wife against the Panhandle & Santa Eé Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>Error from District Court, Victoria County; John M. Green, Judge.</p> <p>Suit by the Knowlan Machine & Supply Company against the Pittman & Harrison Company. Judgment for plaintiff, and defendant brings error.</p>

B. Hopkins, Judge. Action by A. H. Meuly against E. C. West-ervelt, with cross-action by defendant against plaintiff. From a judgment for plaintiff and a denial of relief to defendant, defendant appeals.

<p>1. Carriers <@=3211 — Refusal to permit FEEDING AND WATERING OF STOCK SHIPMENT.</p> <p>Where railroad’s agents, knowing that train was delayed, refused to permit shipper to unload stock for feed and water, and where because of such refusal the stock stood in cars at certain station for about 17 hours without water, the railroad was negligent, even though the delay was unavoidable.</p> <p>2. Carriers <@=>228(5) — Recovery by shipper OF EXTRA FEED CHARGE CAUSED BY DELAY.</p> <p>In live stock shipper’s action against railroad to recover charge for extra feed necessitated by railroad keeping stock confined in cars pending delay in transportation, evidence held, insufficient to show that the feed was an extra feed, or that the charge was a reasonable charge for the feed. *</p> <p>3. Evidence <@=>471(24) — Conclusion as to CAUSE.</p> <p>In live stock shipper’s action against railroad to recover charge for extra feed necessitated by delay in transportation, statement by witness that necessity for extra feed was caused by the stock standing in the cars at point of delay held a mere conclusion.</p> <p>4. Carriers <@=>228(5) — Delay in live stock transportation; increase in market VALUE.</p> <p>In action for damages from shrinkage in live stock because of negligence of railroad in keeping stock confined in cars without water pending delay in transportation, evidence held not to justify finding of an increased market value during the delay.</p> <p>5. Appeal and error <@=>930(2) — Presumption THAT JURY FOLLOWED COURT’S INSTRUCTIONS.</p> <p>Court on appeal will presume that jury followed court’s instruction to disregard improper remarks of counsel, unless the contrary is made to appear.</p>

Error from Bexar County Court; John H. Clark, Judge. Action by Roberta Brooks and husband against A. D. Zucht and others, dismissed as to all except defendant Zucht Judgment for plaintiff, and defendant Zucht brings error.

<p>Taxation &wkey;>642 — Notice before suit to FORECLOSE TAX LIEN.</p> <p>In suit by state to foreclose tax lien for delinquent taxes for year 1915, where notice required by Acts 34th Leg. c. 147, § 1 (Vernon’s Ann; Civ. St. Supp. 1918, art. 7687a), although not mailed to defendant by May 1, 1916, was mailed June 2, 1916, and suit was filed after 90 days from mailing of such notice, state was entitled to judgment and foreclosure, till other requirements of the law having been complied with; the time of giving notice being immaterial, provided taxpayer has 90 days’ time from srfch notice before suit is filed.</p>

. Appeal from District Court, Brazoria County; Sam’l J. Styles, Judge. Suit by Mrs. Mila Morris and others against E. R. Moore, T. L. Smith, and others. Judgment for named defendants, and plaintiffs appeal.

Street, Judge. Suit by James B. Stubbs against the Manhattan Life Insurance Company to recover on an endowment policy. Judgment for plaintiff for less than sum asked, and both parties appeal.

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Trespass to try title by the Woodlawn Real Estate & Improvement Company against ■Carmen Holguin and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Coryell County Court; H. E. Bell, Judge.</p> <p>Action by L. T. Gribble against Ed. feu-channan and others. From judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Bandera County; R. I-I. Burney, Judge.</p> <p>Suit by J. A. Miller against the Bandera Independent Telephone Company. Judgment for defendant and plaintiff appeals.</p>

<p>Appeal from Collingsworth County Court; ,C. C. Small, Judge.</p> <p>Action by R. L. Scott against Charles and Henry Fourmentin. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Harris County; Henry J. DanneDhaum, Judge.</p> <p>Suit by Mrs. Bessie B. Barnett and another against the Eureka Paving Company and others. Prom judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Terrell County; Walter F. Jones, Special Judge.</p> <p>Suit by Joe Kerr and others against D. E. Hume. Prom order refusing temporary writ of injunction, plaintiffs appeal.</p>

<p>Appeal from Dallas County Court; T. A. Work, Judge.</p> <p>Condemnation proceeding by the Dallas Power & Light Company against Walker G. Edwards and others. From judgment rendered, the company appeals.</p>

<p>1. Husband and wife <&wkey;119(3) — Conveyance FROM HUSBAND TO WIFE AS HEB SEPARATE ESTATE.</p> <p>Where deed of husband to wife upon its face discloses that the property is conveyed to her as her separate estate, this makes the property her separate estate.</p> <p>2. Husband and wife <&wkey;262(l) — Presumption THAT MONEY BORROWED IS COMMUNITY PROPERTY.</p> <p>Money borrowed by the husband or the wife, in the absence of agreement to the contrary, is presumed to be community property, even though the separate property of one of the spouses is mortgaged to secure the loan.</p> <p>3. Husband and wife <&wkey;249 — Borrowed MONEY AS WIFE’S SEPARATE PROPERTY.</p> <p>If the wife borrow money for the benefit of her separate property, intending to repay it out of her separate estate, and both she and her husband intend that the borrowed fund shall not be community property, but shall belong separately to the wife, such will be its status, though the husband has signed the note and pledged his separate property 'to secure the loan.</p> <p>4. Husband and wife &wkey;>249 — Borrowed MONEY AS WIFE’S SEPARATE PROPERTY.</p> <p>That there was an agreement between husband and wife that money borrowed on notes signed by them should be used in making improvements on her separate estate, and that the loan should be paid out of her separate estate, is sufficient to show an agreement that such money was to belong separately to the wife, and was not to be community property.</p> <p>5. Appeal and error <&wkey;931 (3) — Presumption OF FINDING-.</p> <p>Under Rev. St. 1911, art. 1985, where the jury made no finding as to a certain matter, but the facts disclosed by the record warrant a finding thereon in support of the judgment, it will be presumed that the court made the necessary finding.</p> <p>6. Husband and wife <&wkey;257 — Rents from wife’s SEPARATE PROPERTY AS COMMUNITY PROPERTY.</p> <p>Although the rule that rents arising from wife’s separate realty become community property was not changed so as to make such rents the_ wife’s separate property, by Act March 21, 1913 (Acts 1913, c. 32 [Vernon’s Sayles’ Ann. Giv. St. 1914, arts. 4621, 4622, 4624]), this statute made a great change in the law respecting such rents, in that the control, management, and disposition were vested in the wife alone, and were no longer subject to the payment of debts contracted by the husband, and so far as the husband’s creditors are concerned they occupy the same status as property which is strictly the wife’s separate property.</p> <p>7. Husband and wife <&wkey;249 — Borrowed MONET AS WIFE’S' SEPARATE PROPERTY; EFFECT OF AGREEMENT THAT REPAYMENT BE OUT OF RENTS OF WIFE’S SEPARATE PROPERTY.</p> <p>Agreement between husband and wife that money borrowed on notes signed by them both should be repaid out of rents of her separate property had the same legal effect in making the borrowed money the wife’s separate property as if it had been intended that repayment was to be made out of her separate property.</p> <p>8. Husband and wife <&wkey;266 — Postnuptial AGREEMENT CHANGING COMMUNITY INTO SEPARATE PROPERTY.</p> <p>Husband and wife cannot, by mere post-nuptial agreement between themselves, change ’ the character of their property to be thereafter acquired so as to convert community into separate property.</p> <p>9. Husband and wife @=>266 — Gifts of community PROPERTY TO WIFE.</p> <p>A husband may make to his wife a gift of, his interest in the community property then in esse, when it can be done without injury to the rights of others.</p> <p>10. Husband and wife <&wkey;>266 — Gifts of COMMUNITY PROPERTY To WIFE.</p> <p>While the community status of rents collected from wife’s separate property could not be affected by the mere agreement between the husband and wife, made when he conveyed the property to her, that the rents that should thereafter accrue from the premises should be her separate property, yet if such agreement was thereafter observed and actually carried out by delivering the rents into her possession, such collected rents became her separate property, unless the gift was in fraud of creditors’ rights.</p> <p>11. Husband and wife <&wkey;269 —Gift to WIFE OF RENTS FROM HER SEPARATE PROPERTY.</p> <p>Since, under the act of March 21, 1913 (Acts 1913, c. 32 [Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4621, 4622, 4624]), rents from wife’s separate property were not subject to the payment of debts contracted by the husband, the donation by a husband to his wife of his community interest in such rents was not in fraud of any rights of creditors, as they had no interest in such rents.</p> <p>12. Husband and wife &wkey;>256 — Conveyance TO WIFE AS CONVEYANCE TO HER SEPARATELY.</p> <p>The status as wife’s separate property of property conveyed to wife is not affected by the fact that the deed does not on its face disclose that the property was conveyed to her as her separate property, where it appears that both husband and wife directed that the deed be made to her for the purpose and with the intent to make the conveyed property her separate property, and that at the time of the delivery of the deed it was their mutual intention that it .should be her separate and not community property, and was to be taken in her name to effect that purpose.</p> <p>13. Husband and wife &wkey;>256 — Property PURCHASED AS WIFE’S SEPARATE PROPERTY.</p> <p>. „ . Where property was acquired after marriage, and deeded by the vendor to his wife, in consideration of separate property of the wife trhded for it, the husband and wife álso giving their note for a certain sum, and it was the mutual intention of husband and wife that the acquired property should be her separate property, and the title was taken in her name for that purpose, and they also intended that the note should be paid out of the wife’s separate funds, and such payments thereon were made from rents accruing from the property subsequent to the taking effect of Act April 4, 1917 (Acts 1917, c. 194 [Vernon’s Ann. Civ. St. Supp. 1918, art. 4621]), making rents derived from wife’s separate realty her separate property, the acquired property became her separate property, and not community property, notwithstanding the fact that the husband joined in the note and that the deed, though made to the wife, did not disclose that the property was conveyed to her as her separate property.</p>

<p>1. Bailment <§=»35 — Right or bailee to recover DAMAGES FOB INJURY TO PROPERTY.</p> <p>Where property is damaged by a third person and the bailee brings an action for damages. the right to recover for damages beyond those suffered by him as bailee or lessee must rest upon the theory that he is the agent of the owner and is suing for his benefit, and, if the third party settles with the owner to the extent of his interest therein, the bailee can only recover the amount of his own damage.</p> <p>2. Limitation of actions @=>121(2) — Amendment AS TO PARTIES NOT SETTING UP NEW CAUSE OF ACTION.</p> <p>Where a lessee of a horse sued for injuries to the horse, and, without his consent, made the lessor a joint plaintiff, but on the owner’s protest filed another petition and sued in his own name, the amended petition did not set up a new cause of action to which limitations would apply.</p> <p>3. Limitation of actions @==>24(2) — Bill of LADING A CONTRACT IN WRITING WITHIN FOUR-YEAR STATUTE.</p> <p>A bill of lading executed by a carrier is a contract in writing to which the four-year statute of limitation applies.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by Meuteria Garcia against the Texas-Mexican Railway Company and others. Judgment for plaintiff, and defendants appeal.</p>

Bishop, Judge. Suit by the City of Clarendon and another against A. B. Nave. A temporary injunction was granted, and, from an order denying defendant’s motion to dissolve the same, he appeals.

H. Burney, Judge. Suit by Lizzie Zoeller against August Offer and others. From a judgment sustaining a special exception to plaintiff’s petition seeking to enjoin maintenance of certain fences, plaintiff appeals.

<p>Appeal from District Court, Kleberg County ; W. B. Hopkins, Judge.</p> <p>Action by Gerald Sckkade against the Western Union Telegraph Company. Verdict and judgment for defendant, and plaintiff appeals.</p>

<p>Sales <®=418(2) — Damages for failure to DELIVER.</p> <p>The measure of damages for failure to deliver merchandise is the difference in value Of the'merchandise when contracted for and when it should have been delivered.</p>

W. Robinson, Judge. Application by R. G. Cox for a writ of habeas corpus for admission to bail. From a.judgment remanding petitioner to custody without bail, he appeals.

<p>Appeal from Criminal Distinct Court, Dallas County; C. A. Pippen, Judge. Charles Coffee, was convicted of theft, and he appeals.</p>

<p>Appeal from Criminal District Court, Travis County;</p> <p>James R. Hamilton, Judge. Andy Cleveland was convicted of assault to rape, and he appeals.</p>

<p>Appeal from District Court, El Paso County; W. D. Howe, Judge.</p> <p>Prince Thompson was convicted of a violation of the Ten Mile Zone Law, and he appeals.</p>