Volume 217 — South Western Reporter

<p>Appeal from District Court, Cameron County; W. B. Hopkins, Judge.</p> <p>Suit by George Gorter and wife against Warren Morrow and others. Prom judgment ■for. plaintiffs, defendants appeal.</p>

<p>1. Boundaries <&wkey;3(5) — Cales forcourseand DISTANCE PREVAIL OVER CALL FOR LINE OF A SENIOR SURVEY IF LINE IS UNCERTAIN.</p> <p>Calls for course and distance prevail over a call for the line of a senior survey, if that line itself is indefinite and uncertain.</p> <p>2. Boundaries <&wkey;37(3) — Evidence as to surveyed line.</p> <p>Evidence held to support finding that the’ location of a boundary line of a senior survey was uncertain and continued uncertain for a number of years.</p> <p>3. Boundaries <&wkey;33 — Burden on one CLAIMING BOUNDARY TO BE FIXED BY SUR- ■ VEYED LINE.</p> <p>One claiming under a boundary as fixed by surveyed line had the burden of proving the actual location of such line on the ground, before a call for course and distance, giving him a. smaller area of land, could be ignored.</p> <p>4. Trespass . to try title <5&wkey;12 — Effect on CLAIM OF FENCING AND CULTIVATING LAND.</p> <p>Where claimants under a senior patent had fenced a strip of land in dispute and cultivated, used, and enjoyed it, these facts raised a presumption of title and entitled them to recover in trespass to try title against one showing no better title.</p> <p>5. Appeal and error <&wkey;728(l), 733 — Assignments OF ERROR TOO GENERAL AND INDEFINITE.</p> <p>In trespass to try title, assignments of error that the court erred in rendering judgment on defendant’s cross-action “because the defendants did not show title to the land described in their cross-action,” 'and “because such judgment is contrary to the evidence,” and that “the court erred in failing and refusing to render and enter judgment in this cause for plaintiff for the land sued for by him,” describing it, and that “the court erred in admitting in evidence” certain survey field notes, were too general, and failed, as required by rules 24 and 25 of the Court of Civil Appeals (142 S. W. xii), to specify distinctly the grounds of error relied on.</p> <p>6. Appeal and error <&wkey;1050(2) — Harmless ERROR IN ADMITTING EVIDENCE.</p> <p>If there is sufficient evidence to sustain the verdict, the judgment will not be reversed because immaterial facts are admitted, unless such admission probably influenced the jury in its findings.</p> <p>7. Appeal and error <&wkey; 1071(5) — Harmless ERROR IN FINDING IMMATERIAL FACTS.</p> <p>The finding of immaterial facts is not ground for reversal, if the judgment-is not in conflict with the findings upon material issues.</p>

Error from Dallas County Court; W. L. Thornton, Judge. Default judgment was rendered against Jack Reed as garnishee in suit by McCutch-eon & Church against another, and he prosecutes writ of error.

<p>Appeal from Coleman County Court; W. Marcus Weatherred, Judge.</p> <p>Suit by the Adams-Childers Company against the Diamond Mill Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Wilson County ; Covey V. Thomas, Judge.</p> <p>Suit by Mrs. Felix Beasley against J. M. Faust. From judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Liberty County ; J. L. Manry, Judge.</p> <p>Action by, W. A. Goodson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Nueces County; W. B. Hopkins, Judge.</p> <p>Suit by Lizzie Baxter against the Corpus Christi Railway & Light Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Municipal corporations <&wkey;518(l) — Allowance OP" INTEREST IN JUDGMENT ON STREET PAVING CERTIFICATE EXCESSIVE.</p> <p>In judgment upon a street paving certificate a provision that the aggregate sum of principal and interest should bear interest from its date at the rate of 8 per cent, per annum and the attorney’s fees at 6 per cent, per annum was erroneous so far as providing that interest should bear interest at 8 per cent., and not 6 per cent.; the certificate not providing that past due interest should bear interest at 8 per cent.</p> <p>2. Constitutional law &wkey;>63(2) — Street improvement STATUTE NOT DELEGATION OP LEGISLATIVE POWER.</p> <p>Acts 31st Leg. 2d Called Sess. 1909, c. 14, now Rev. St. arts. 1006-1017, is valid as against the objection' that article 1016 provides for delegation of legislative power to the people of the several cities of the state.</p> <p>3. Municipal corporations <&wkey;46 —Enabling) Act does not require previously GRANTED POWERS TO BE WRITTEN INTO CHARTER AMENDMENTS.</p> <p>Under the Enabling Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, .arts. 1096a to 1096i), providing that all municipal .powers previously granted are preserved and granted to cities under the act “when embraced in and made a part of the charter adopted by such city,” the powers so preserved are not lost if an election be held under the act to amend an old charter, and such powers are not expressly written into the amendment, as such powers need not be embraced in an amendment, as distinguished from a new charter.</p> <p>4. Municipal corporations <&wkey;48(l) — Charter ELECTION COMPLETE WITHOUT CANVASS OF VOTES, SO FAR AS VESTING RIGHTS.</p> <p>That the result of an election whereby a city adopted the provisions of Aqts 31st Leg. 2d Called Sess. 1909, c. 14, now Rev. St. arts. 1006-1017, was not canvassed until after the effective date of Acts 33d Leg. 1913, c. 147 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 1096a to 1096i), putting into effect the 1912 constitutional amendment relating to the adoption and amendment of charters by cities, did not invalidate the election, as the election was complete without the canvass of the votes, and the powers given by the 1909 act were vested in the city by virtue of the election.</p>

<p>1. Appeal and error <&wkey;733 — Assignment THAT judgment IS CONTRARY. TO LAW AND EVIDENCE TOO GENERAL.</p> <p>An assignment of error complaining of a judgment on the ground that it was contrary to the law and the evidence was too general to constitute any assignment of error at all. "</p> <p>2. Husband and wipe &wkey;>274(4) — Surviving husband’s repudiation oe interest oe heirs in community property unnecessary TO START LIMITATIONS RUNNING.</p> <p>Where wife dies, and husband takes possession of community property, after the expiration of a reasonable time for payment of community debts an action may be brought by the heirs of the deceased wife for their interest, and limitations then begins to run without the surviving husband’s expressly repudiating any claim on the part of the heirs.</p> <p>3. Limitation oe actions <gp>197(2) — Finding OE NO EXPRESS TRUST SUSTAINED BY EVIDENCE.</p> <p>In an action by heirs against the husband of deceased to recover an interest in community property, a finding that defendant had not held the property in question under an express trust thereby preventing limitations from running held supported by the evidence.</p> <p>4. Limitation oe actions <&wkey;103(2) — Repudiation OE EXPRESS TRUST NECESSARY TO START LIMITATIONS RUNNING.</p> <p>If, when wife died, husband took possession of community property and held it under an express trust, limitations did not begin to run as against the heirs of the deceased until there was an express ‘repudiation of interest or claim in the heirs.</p> <p>5. Appeal and error <&wkey;994‘(3) — Credibility OE WITNESSES EOR TRIAL COURT.</p> <p>In the absence of a jury the credibility of the witnesses is a matter for the trial court, and not the appellate court.</p> <p>6. Husband.and w-iee <&wkey;273(4) — Survivor ENTITLED TO REIMBURSEMENT EROM COMMUNITY PROPERTY EOR PAYMENT OF COMMUNITY DEBTS.</p> <p>Where wife dies and husband pays community debts, he is entitled to be reimbursed out of the community estate.</p>

<p>1. Appeal and error &wkey;>19 — Moot question NOT REVIEWABLE.</p> <p>Where, pending appeal from an order refusing to enjoin defendants from paying money and before the filing of the appeal bond, the money was paid, the appellate court cannot entertain the appeal.</p> <p>2. Appeal and error t&wkey;19 — No appellate JURISDICTION WHERE ONLY QUESTION OP COSTS REMAINS.</p> <p>Where the subject-matter of the litigation has ceased to exist, an appeal will not be entertained merely to determine a question of costs.</p> <p>3. Appeal and e^ror <&wkey;1175(3) — Cause dismissed WHERE SUBJECT-MATTER CEASES TO EXIST.</p> <p>Where, pending an appeal from -an order refusing to enjoin payment of money, money was paid, the rule is to dismiss the case and not the appeal.</p>

<p>1. Master and servant <&wkey;>418(5) — Workmen’s Compensation Act; assignment op error insufficient.</p> <p>The statement under an assignment of error: “This injury occurred about July 24, 1916. Claim for compensation was filed with the State Board April 30, 1917. Claimant testified that he was confined to his bed 115 days after his injuries and was then out occasionally driving in a ear” — was insufficient to enable the court to review the trial court’s finding that the claim was filed within the time provided by Acts 1913, c. 179, pt. 2, § 4a (Vernon’s Sayles’ Ann. ,Civ. St. 1914, art. 5246ppp).</p> <p>2. Master and’ servant <&wkey;385(20) — Workmen’s Compensation - Act; judgment in LUMP SUM FOR AMOUNT ALREADY DUE.</p> <p>An injured employs suing an indemnity company in which the employer was insured, in the absence of agreement, is entitled to judgment in lump sum for the compensation already due and his weekly installments during the balance of the time in which he is entitled to compensation, but not to a lump sum judgment for the whole period.</p>

<p>1. Sales <&wkey;267 — Exclusion of implied by express warranty; “defective.”</p> <p>A mere, agreement by seller to repair free of charge if the scale sold proved defective in two years under ordinary use was not such an express warranty as to exclude an implied warranty of quality and fitness, “defective” meaning a defect or flaw, imperfect, incomplete, lack-, ing, faulty, and referring, as used in the agreement, to a lack or absence of something essential to a complete scale, as a part of the mechanism, or to some part of the machinery imperfectly or incompletely molded or cast, as distinguished from any warranty or representation concerning the material out of which the scale was constructed or its ability to' perform the service for which sold.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Defective.] .</p> <p>2. Sales <&wkey;273 (3) — Implied warranty of fitness.</p> <p>Where the seller knew the purpose for which the buyer desired to use the flour mill scales sold, the scales were impliedly warranted to be reasonably fit for or adapted to that purpose.</p> <p>3. Sales t&wkey;273(5) — Effect on implied warranty OF FITNESS OF SELECTION OF GOODS BY BUYER.</p> <p>The failure of flour mill scales to weigh accurately or meet the government test in that respect rendered the seller'thereof liable on an implied warranty of fitness, notwithstanding the scales were ordered by particular number and name.</p> <p>4. Evidence <&wkey;434(ll) — Parol evidence; FALSE REPRESENTATIONS INDUCING ENTERING INTO CONTRACT.</p> <p>Where flour mill scales sale contract provided that it contained all agreements and that “no representation made by an agent or other person, not included herein, shall be binding,” the parol evidence rule did not render inadmissible evidence that the seller’s agent represented that its scales were accurate and peculiarly fitted for weighing flour in the buyer’s mill, whereas the scales as purchased wore inaccurate; such evidence showing a false representation inducing the buyer to purchase.</p>

<p>Appeal from District Court, McLennan County; H. M. Richey, Judge.</p> <p>Action by Anton Slovak and wife against the Amicable Life Insurance Company. Judgment for plaintiffs, and defendant appeals.</p>

<p>1. Insurance <&wkey;745 — Law as to misrepresentations to fraternal benefit societies NOT APPLICABLE.</p> <p>The law that misrepresentations do not avoid a policy of life insurance unless material to the risk or actually contributing to the contingency has no reference, and does not apply, to fraternal benefit societies, such as the Woodmen of the World.</p> <p>2. Insurance <&wkey;723(6) — Examining doctor FOR FRATERNAL BENEFIT SOCIETY MUST REQUIRE ANSWER TO QUESTIONS IN APPLICATION.</p> <p>An insurance contract written by a fraternal order, making it the duty of the examining doctor to require answer to every question, and to explain to the applicant the meaning of terms used, does not give the doctor or the applicant the right not to require or give an answer to a question as to previous medical attendance, because he may not have thought the thing for which he previously prescribed and treated the applicant was a disease within the meaning of the term as used.</p> <p>3. Insurance <&wkey;723(6) — Cold and fever a “DISEASE” WITHIN FRATERNAL BENEFIT CERTIFICATE.</p> <p>The word “disease,” as used in an insurance contract, made by a fraternal order and application question as to previous medical attendance, comprehended a cold and fever, being a morbid condition of body, and having as synonyms “disorder,” “distemper,” and “malady.”</p> <p>[Ed. Note. — For other definitions, see Words and” Phrases, First and Second Series, Disease.]</p> <p>4. Insurance <&wkey;723(6) — Failure to disclose MEDICAL CONSULTATION RENDERS CERTIFICATE OF BENEFIT COMPANY VOID.</p> <p>A fraternal order had a right to a truthful answer from its applicant for membership as to whether he had consulted physicians prior to his application; and, failing to get such answer, the applicant in fact having consulted physicians for a cold and fever, coming within the term “disease” as used in the contract of insurance, though he represented he had not done so, the insurance was rendered void.</p>

<p>Error from District Court, Tom Green County; C. E. Dubois, Judge.</p> <p>Action by Blaekstone & Slaughter against the Kansas City, Mexico & Orient Railway Company and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. APPEAL AND ERROR &wkey;>500(2) — RULING OB’ COURT MUST BE SHOWN BY RECORD.</p> <p>An objection to sustaining special exceptions to certain portions of a petition is not properly preserved, where there does not appear to be any ruling of the court thereon.</p> <p>2. Appeal and error <&wkey;1040(4) — Sustaining EXCEPTIONS TO PORTIONS OE PETITION HARMLESS IN VIEW OE EVIDENCE ADMITTED.</p> <p>Sustaining of special exceptions to certain portions of a petition, if error, is harmless, where plaintiff was permitted to introduce his evidence fully on the issues .upon which his rights were predicated in the petition.</p> <p>3. Eminent domain <&wkey;293(l) — Necessary ELEMENTS OE PETITION EOR DAMAGES RESULTING FROM STREET IMPROVEMENT.</p> <p>In an action against a city for damages to property resulting from street improvement,'it is permissible to set out in the petition the definite injuries, the property taken and destroyed, its intrinsic character, and peculiar value and adaptability for specific purposes, though it is neither necessary nor proper to set out in minute detail all the surrounding circumstances, since the jury under the control and direction of the 'court may consider them in determining the diminution of market value caused by the improvement.</p> <p>4. Appeal and EBRon &wkey;>670(2) — Qualified BILL OF EXCEPTIONS CANNOT BE VARIED BY EX PARTE AFFIDAVIT OF APPELLANT’S COUNSEL.</p> <p>Where the qualified bill of exceptions discloses that a different charge was requested and refused than the one alleged on appeal, appellant’s counsel may not contradict the court’s qualification and thus vary the facts by their ex parte affidavit.</p> <p>5. Eminent domain &wkey;»300 — Evidence sufficient TO' SUSTAIN FINDING THAT CITY DID NOT TAKE OR APPROPRIATE PLAINTIFFS-’ LAND.</p> <p>In a suit against a city for damages resulting from street improvement and to recover for land alleged appropriated by the city, evidence held to justify the jury’s finding that no part of plaintiffs’ land was taken and appropriated.</p> <p>.6. Pleading &wkey;>115 — Plea of not guilty TO WRONGS, TRESPASSES, AND INJURIES. TO REAL PROPERTY NOT ADMISSION OF POSSESSION OF DEFENDANT’S PREMISES.</p> <p>An assignment that, because the city’s answer pleaded “not guilty of the wrongs, trespasses, and injuries complained of,” it admits possession of plaintiffs’ premises, and the jury should have been instructed to find for defendant the title and possession of the land, must be overruled, where the suit against the city is not for title and possession, nor in .trespass to try title, but merely seeks to recover for land alleged appropriated.</p> <p>7. Eminent domain &wkey;>297 — Evidence of CHARACTER OF HOUSES OTHER THAN THOSE ON PLAINTIFFS’ PREMISES IN STREET IMPROVEMENT DAMAGE ACTION ADMISSIBLE.</p> <p>In an action against the city for damages to real property resulting from street improvement, permitting the city to show the character of other houses, in - the neighborhood, and not limiting it to evidence as to plaintiffs’ houses, held not error, in view of the wide scope allowed to both parties in the matter of evidence.</p> <p>8. Appeal and error <&wkey;930(3) — It is presumed THAT PARTY FAILING TO SUBMIT SPECIAL ISSUES IS SATISFIED WITH CAUSE SUBMITTED BY OPPONENT.</p> <p>Where a cause is submitted on special issues and there are no special issues submitted by the opposite party from his viewpoint, it will be presumed such party is satisfied with those submitted.</p> <p>9. Eminent domain <&wkey;302 — Special benefits TO BE CONSIDERED IN ASCERTAINING EXTENT OF DAMAGES FROM STREET IMPROVE- ' MENT.</p> <p>In ascertaining damages to property affected by street improvement, the special benefits to the particular property should be considered, while general benefits to the public should be excluded, and that other property on the same street was damaged or benefited in the same way would not exclude such damages or benefits from consideration.</p> <p>10.Eminent domain i&wkey;307(3) — Evidence <{&wkey;547 — Elements of and methods of ascertaining DAMAGES TO REAL PROPERTY FROM STREET IMPROVEMENT.</p> <p>The usual way to ascertain market value of real estate is by permitting expert witnesses to state their several methods in ascertaining it, the cotnparison of value of> contiguous property by relation, and the particular uses of the property and those to which it may be put controlled by the court’s instructions, and it was proper in a suit for damages resulting from street improvement to instruct the jury to find the reasonable market value of the property prior to the beginning of the improvements and also just after their completion, leaving the jury to an unlimited field of inquiry and the correct standard of values to work a verdict.</p>

<p>1. LANDLORD AND TENANT <&wkey;66(2) — GRANTEES 03? SUBTENANT CANNOT ACQUIRE TITLE UNDER FIVE-YEAR STATUTE.</p> <p>Where record title to land was in defendant, and H. obtained and held possession as subtenant of defendant’s tenant, plaintiffs who obtained and had recorded a warranty deed from II. and wife could not acquire title by adverse possession; the execution of the deed not being a repudiation of the tenancy, and' there being no other repudiation.</p> <p>2. Landlord and tenant <&wkey;64 — Grantee oe SUBTENANT ESTOPPED TO DENY TITLE O'E LANDLORD.</p> <p>A subtenant, like an assignee, is ordinarily precluded from questioning the title of the head landlord.</p> <p>3. Vendor and purchaser <&wkey;235 — Purchaser FROM SUBTENANT AT GROSSLY INADEQUATE PRICE CHARGED WITH NOTICE OE TENANCY.</p> <p>That plaintiffs paid $12 for all the other land of a tract, and paid only $2 for the land in. question, indicates they had knowledge that their grantor was selling the land of his landlord, and they were charged with knowledg'e that he had no record title.</p> <p>4. Estoppel <&wkey;110 — Defense available UNDER PLEA OE NOT GUILTY IN TRESPASS TO TRY TITLE.</p> <p>In trespass to try title, defendant could, in view of Rev. St. 1911, art. 7740, under plea of not guilty, invoke defense that plaintiffs claiming through subtenant were estopped to deny defendant’s title.</p>

<p>1. Venue &wkey;>32(2) — Plea of privilege not PRESENTED IN TIME WAIVED.</p> <p>Pleas of privilege may be waived by failure to present them to the trial court within the time and manner required by law.</p> <p>2. Appeal and eeeor &wkey;>912 — Presumption OF WAIVER OF PLEA OF PRIVILEGE WHERE NO ACTION SHOWN BY RECORD.</p> <p>Where plea of privilege was filed but neither the judgment of the court nor any other portion of the record disclosed any action by the trial court thereon, it will be assumed the plea was waived.</p> <p>3. Abatement and revival <&wkey;>81 — Special EXCEPTION PRESENTING PRIVILEGE OF BEING SUED IN COUNTY OF RESIDENCE NOT TIMELY IN AMENDED ANSWER.</p> <p>If special exception presenting defendants’ privilege of being sued in the county of their residence was filed for the first time in the amended answer, it came necessarily after other and prior pleading, and consequently was not filed in due order.</p> <p>4. Evidence &wkey;>418 — Parol evidence admissible TO SHOW UNDISCLOSED PRINCIPAL OF INDEMNITY CONTRACT.</p> <p>Exception, based on the parol evidence rule, was properly overruled to allegation in petition that the indemnity contract sued on, although executed in the name of a named building company as principal, was in fact the contract of a certain bank for which the building company was acting, where the petition did not disclose that plaintiff knew that the building company when it signed was acting for the bank as the real party in interest; the rule being that real party, if another than the one signing a nonnegotiable instrument or contract ‘ not under seal, may be shown by parol evidence, where the beneficiary at the time of accepting the contract does not know that the party signing is not the real party in interest. ,</p> <p>5. Evidence <&wkey;418 — Parol evidence inadmissible TO SHOW REAL PARTY IN INTEREST IN CONTRACT WHERE RELATIONSHIP WAS KNOWN AT TIME OF CONTRACTING.</p> <p>Where the beneficiary, at the time he accepts a contract, knows that the party signing is not the real party in interest, parol evidence is not admissible to show the relation of the real party in interest to the contract, for there is then no undisclosed principal and the beneficiary can proceed alone against the party signing, because, knowing the facts, he is held to have elected to rely upon the obligation of the agent or substitute.</p> <p>6. Appeal and error <&wkey;1039(2) — Allegations as to money in hands of one defendant owned by other defendants NOT PREJUDICIAL TO LATTER.</p> <p>In action on indemnity contract, in which the liquidating agent of the insolvent bank which was the real party principal in the indemnity contract was made a party together with the sureties On the contract, allegation in the petition that such agent had in his possession money belonging to the other defendants, as stockholders of the bank, which he intended to pay to-said defendants, was not subject to exception by such other defendants as immaterial and calculated to prejudice their rights; such allegation being in no manner related to the merits of their defense.</p> <p>7. Corporations <&wkey;370(l) — Powers limited to those granted or implied.</p> <p>The powers of a private corporation are such only as its charter confers, and any .act beyond those powers expressly conferred or fairly implied is ultra vires and ordinarily void.</p> <p>8. Corporations <&wkey;447 — Have power to AGREE TO REPAY MONEY.</p> <p>It is not beyond the power of the ordinary private corporation to agree to repay money delivered to it by another and claimed by third parties in case it is determined that such third parties are in law entitled thereto.</p> <p>9. Banks and banking <&wkey;261 (3) — -Estop-pel TO URGE ULTRA VIRES AS DEFENSE TO INDEMNITY CONTRACT.</p> <p>Even if national bank’s contract of indemnity against materialmen’s liens given to secure payment to it of money due its debtor on building contract was ultra vires, yet the bank having received the money would be estopped to deny its liability on that ground.</p> <p>10. Corporations <&wkey;385 — Defense of ultra VIRES NOT ACCEPTED WHERE WORKING LEGAL WRONG. • •</p> <p>Where to avoid an ultra vires act would work a legal wrong, injustice, or loss to another, equity does not look with favor upon and will not accept’such defense.</p> <p>11. Contracts <&wkey;175(2) — Indemnity <&wkey;15 (7) — Evidence admissible as to disposition BY PARTIES OF MONEY PAYMENT OF WHICH WAS SECURED BY INDEMNITY CONTRACT.</p> <p>In action against the officers of a bank as sureties on an indemnity contract on which the bank was the undisclosed principal, testimony of plaintiff, who was an officer in another bank, that the money hold by him, and to secure the payment of which to the first bank the indemnity contract was given, was placed to the credit of the first bank, was admissible, as it is always permissible to show what the parties did under their contract, as disclosing their construction of its purpose.</p> <p>12. Indemnity, <&wkey;15(7) — Evidence of ultra VIRES CONTRACT ADMISSIBLE TO SHOW REAL PARTY PRINCIPAL.</p> <p>In action on an indemnity contract against liquidating agent of insolvent national bank on the ground that the bank was the real party principal on the contract, and against certain officers of the bank as sureties, .proof that the bank agreed to keep on deposit with another bank a sum equal to the amount which the first bank borrowed under an arrangement to enable it to conceal the fact of its loan of more than a legal amount to a building company was admissible as against the objection that such arrangement was ultra vires, to show that the loan by the second bank was in fact made to the first bank, and hence that the indemnity, which was given to secure the payment to the building company of money due on a building contract, as against materialmen’s liens, was really for the benefit of the first bank.</p> <p>13. Appeal and error <&wkey;500(l) — Refusal OF MOTION TO DIRECT VERDICT NOT REVIEWABLE WHERE RECORD SHOWS NO RULING.</p> <p>No issue was presented by assignment of error by a defendant that he requested and the court refused an instruction peremptorily directing verdict for him where the record, while containing what purported to be such a charge, did not show that it was ever presented to or acted upon by the court below.</p>

<p>Appeal from Jefferson County Court; D. P. Wheat, Judge.</p> <p>Suit by W. P. Daniels against the Lone Star Shipbuilding Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Accokd and satisfaction &wkey;>26(3) — -Sufficiency OF EVIDENÓE OF DISPUTE AS TO AMOUNT DUE.</p> <p>In an employé’s action to recover an additional month’s pay upon discharge pursuant to an alleged agreement, evidence that both plaintiff employé and defendant’s superintendent agreed that there was such a contract does not-show any dispute as to amount due which would' establish an accord and satisfaction upon plaintiff -accepting a check for services only up to date of his discharge.</p>

<p>1. APPEAL ' AND ERR OB &wkey;>272(l) — NECESSITY ■OP TIMELY OBJECTION TO SUEPICIENCY OP PETITION.</p> <p>The sufficiency of the petition to show a cause of action cannot be raised on appeal where not excepted to until motion for new trial.</p> <p>2. Appeal and eeeoe <&wkey;242(3) — Necessity OP RULING ON DEMUEBEB POE PURPOSE OP EEVIEW.</p> <p>The sufficiency of petition to state a cause of action will not be reviewed in absence of ruling on demurrer interposed thereto.</p> <p>3. Pleading &wkey;>212 — Waiver of demurrer.</p> <p>Where, although defendants pleaded the general demurrer as part of their answer, it was never presented to or acted upon by the trial court, it was waived. •</p> <p>4. Evidence &wkey;>417(ll) — Mechanics’ liens <&wkey;73(2) — Contract poe lien on homestead.</p> <p>A contract signed by husband and wife giving a materialman’s lien upon their described homestead for material for “the erection, repairs, and improvements on our homestead,” and reciting consideration, time of payment, and rate of interest, held sufficient, under Const, art. 16, § 50, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5631, although containing no itemization or description of material, since it could be shown by parol the quantity, pieces, or articles that were agreed on, and that they were thereafter actually delivered.</p> <p>5. Mechanics’ liens <5&wkey;277(3) — Lien on homestead; evidence admissible under PLEADING.</p> <p>A contract for materialman’s lien on a homestead being complete on its face, evidence that the real contract was that it should secure payment, not only’ of price of material, as appeared on its face, but also of labor, in order to show that such real-contract was invalid because resting partly in writing and partly in parol, was inadmissible under a pleading only that there was no valid lien, and not pleading omission of such material part of the agreement by fraud, accident, or mistake.</p> <p>6. Trial &wkey;>252(3) — Effect op erroneous admission OP EVIDENCE.</p> <p>The admission of evidence inadmissible under the pleadings did not authorize the court to submit the issue raised by such evidence.</p> <p>7. Mechanics’ liens <&wkey;76 — Contract for LIEN ON HOMESTEAD ERRONEOUSLY OMITTING ITEM TO BE SECURED BY LIEN.</p> <p>One who with his wife gives a material-man’s lien on his homestead' by written contract cannot defeat the lien by showing he also intended to cover the cost of the labor in such contract, but that he or his creditor failed to do so.</p> <p>8. Homestead <&wkey;165 — Abandonment op part BY INCONSISTENT USE.</p> <p>The permanent appropriation of a part of the homestead tract to an inconsistent use is an abandonment thereof.</p> <p>9. Homestead <&wkey;165 — Abandonment op PART BY ERECTING BUILDING THEREON TO RENT.</p> <p>The erection of a building upon a portion of the homestead tract with no view of making it a part of the homestead, but with the intention of renting it, is an abandonment of such portion of the tract.</p> <p>10. Mechanics’ liens <&wkey;310(3) — Attorney’s pees.</p> <p>Where a portion of the homestead has been abandoned, in foreclosing a materialman’s lien on such portion there is no legal objection to including the amount of attorney’s fees in the foreclosure.</p>

<p>1. Pleading <@=5367(3) — Allegations as to MAKING Of CONTRACT BY BOHR DEFENDANTS TO BE MADE MORE SPECIFIC AS TO PASTIES, TIME, AND PLACE.</p> <p>In action against four defendants where petition alleged the making of a contract by defendants without specifying which of the defendants made the contract or when and where contract was entered into, and where the transactions under such contract extended over a period of months, defendants were entitled to have plaintiffs plead specifically both when and where the representations and agreements alleged were made, and to allege which of the defendants made the promises and agreements relied on.</p> <p>2. Contracts &wkey;>346(4) — Indefinite allegation AS TO CONTRACT MADE BY SEVERAL DEFENDANTS SUFFICIENT IN ABSENCE OF SPECIAL EXCEPTION.</p> <p>In action on contract against four defendants, allegation that defendants made the contract without specifying by which of defendants it was made, and where and when it was entered into, would have been sufficient to support proof of such contract had no special exception been urged thereto.</p> <p>3. Contracts <&wkey;346(10) — Variance between CONTRACT IN EVIDENCE AND CONTRACT PLEADED MATERIAL.</p> <p>In subcontractor’s action against road contractor for damages sustained because of contractor’s refusal to furnish gravel wherewith to perform subcontract, where petition alleged an express agreement by contractor to furnish gravel, proof of a contract whereby contractor did not either' expressly or impliedly agree to furnish gravel was not admissible; such proof being a material variance from contract pleaded.</p> <p>4. Contracts 4&wkey;312(l) — Highway contractor NOT "LIABLE TO SUBCONTRACTOR UPON DEFAULT BY COUNTY WHERE SUBCONTRACT IS SUBJECT TO COUNTY’S CONTRACT.</p> <p>Where subcontractor’s contract with road contractor was made subject to all of the conditions and limitations contained in the contract between contractor and county and where such contract did not require contractor to furnish gravel, subcontractor could not recover against contractor for damages sustained by reason of inability to complete work, where such inability was due to default of county to furnish gravel.</p> <p>5. .Contracts <&wkey;166 — Subcontractor presumed TO CONTRACT WORK SUBJECT TO CONTRACT BETWEEN OWNER AND CONTRACTOR.</p> <p>A subcontractor is presumed to undertake his work subject to conditions and limitations in the contract between the principal contractor and the owner, if he knows these conditions and limitations; the presumption being conclusive if latter contract is made a part of the former contract.</p> <p>On Rehearing.</p> <p>6. Contracts <&wkey;248 — Existence of contractor’s AGREEMENT TO FURNISH SUBCONTRACTOR GRAVEL JURY.QUESTION.</p> <p>In subcontractor’s action against road contractor for damages for inability to perform contract because of failure of contractor to furnish gravel, question of whether contractor orally agreed with subcontractor to furnish and have on hand sufficient gravel wherewith subcontractor was to do work held for jury.</p>

<p>1. Hikes and Minerals <&wkey;58 — Unilateral MISTAKE AS TO PERSON WITH WHOM LEASE WAS MADE NOT GROUND FOR CANCELLATION.</p> <p>That plaintiff had agreed to give gas and oil lease to a person to'be furnished by one D., and that she executed a lease to defendant lessee thinking she was dealing with D.’s prospective lessee, was a unilateral mistake, affording no ground for cancellation; there having been no misrepresentation, the contract terms having been fully agreed upon, and the identity of the lessee not being of the essence of the contract.</p> <p>2. Appeal and error <&wkey;719(4) — • Where LEASE SOUGHT TO BE CANCELED WAS VOID ON PACE SUSTAINING GENERAL DEMURRER WAS FUNDAMENTAL ERROR.</p> <p>If lease set out in haec verba in petition for cancellation was void on its face for want of consideration, it was fundamental error apparent of record on the part of the court to sustain a general exception to the petition.</p> <p>3. Mines and minerals <&wkey;58 — Obligation OP OIL AND GAS 'LEASE MUTUAL AND NOT UNILATERAL.</p> <p>Under contract whereby plaintiff for consideration of one dollar and a certain per cent, of minerals “does hereby grant and convey to said lessee the oil, gas, sulphur and other minerals under said land,” lessee to' begin and prosecute the work of mining within a given time, held, the obligations were mutual and not unilateral.</p> <p>4. Mines and minerals <&wkey;58 — Inconsistent PROVISION NOT RENDERING LEASE VOID.</p> <p>Covenant to begin operation in drilling on the land leased or the community lands in the immediate vicinity by April 1, 1919, held not so inconsistent with clause providing that consideration for lease and for all common leases is the covenant to begin actual development on some part of the premises within 12 months, as 'to require a holding that lease is void.</p> <p>5. Contracts <&wkey;162 — Conflicting clauses to be reconciled.</p> <p>Apparent conflicting clauses- must be reconciled by a reasonable interpretation, and in case of variance the one which contributes most essentially to the contract is entitled to the most consideration.</p> <p>6. Mines and minerals t&wkey;58 — Oil and gas LEASE NOT VOID FOR UNCERTAINTY.</p> <p>In gas and oil lease, an agreement that diligent operations by lessee looking towards discovery of gas and oil “in the immediate vicinity, by which is meant within fifteen miles of some portion-of the land,” shall operate as a substitute for operation on the leased land, held not so contradictory of a covenant to put down a well in the immediate vicinity as to ren- , der the lease void for uncertainty.</p>

<p>Courts &wkey;>170 — Amount in controversy GIVING JURISDICTION TO COUNTY COURT MUST APPEAR IN PETITION.</p> <p>The county court being a court of limited jurisdiction, it must affirmatively appear that the amount sued for is within the jurisdiction of the court, and defendant’s general demurrer should have been sustained in an action by a piano company asking for judgment on promissory notes aggregating $300 and to foreclose a chattel mortgage lien on a piano given to secure the payment of the note, where the value of the piano was not stated by plaintiff in his petition.</p>

<p>Appeal from District Court, Tyler County; D. F. Singleton, Judge.</p> <p>Action by Maggie Walls and.others against R. A. Cruse. From a judgment for defend-, ant, plaintiffs appeal.</p>

<p>1. Wills <&wkey;297(4) — Declarations of TESTATOR COMPETENT TO PROVE EEVOCATION.</p> <p>Where a will cannot he produced, and its last custodian has been some person, other than the testator, testator’s declarations that he had destroyed it for the purpose of revoking it are admissible.</p> <p>2. Wills <&wkey;290 — Presumptions as to revocation.</p> <p>When a lost will has been established, if, when last seen, it was in testator’s possession, the presumption is that he destroyed it; but if, when- last seen, it was in the possession of some one other than testator, no such presumption arises, and the burden is on one claiming testator destroyed the will to prove that fact.</p> <p>3. Wills <&wkey;290 — Revocation by destruction ESTABLISHED ; “DESTROY.”</p> <p>Where lost will had been delivered into another’s possession by testatrix,' and after such other’s death it was not found, evidence that testatrix stated she had “destroyed” the will held sufficient to rebut the presumption that the will had not been revoked; such statement not being a conclusion, but a statement of ultimate fact, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7859, the term ■ “destroy,” as applied to wills, meaning to burn or tear into fragments, and the destruction being the essential fact to be proved, as distinguished from the means used.</p> <p>[Ed. Note. — For other definitions, see Words and Phrases, First, and Second Series, Destroy.]</p> <p>4. Wills <&wkey;331(2) — Confusing instructions ON REVOCATION PROPERLY DENIED.</p> <p>Where the only issue was whether a lost will had been revoked by destruction, and such issue was submitted to the jury in appropriate language in a special charge, a requested charge that a will could be revoked only by “subsequent will, codicil, declaration in writing, or by the testator destroying,, canceling, or obliterating same or causing it to be done in his or her presence,” was properly refused as unnecessary and confusing.</p>

<p>Appeal from District Court, Jefferson County; E. A. McDowell, Judge.</p> <p>Action by Elizabeth Barras against Lucian Barras. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Mastek and servant &wkey;>284(3) — Scoípe or EMPLOYMENT QUESTION EOE JUEY.</p> <p>Whether the injured employé was acting within the scope of his employment is a question for the jury, when the evidence is conflicting or when a difference of opinion may be reasonably entertained as to the proper inference to be drawn therefrom.</p> <p>2. Masteb and seevant <&wkey;89(l) — Scope oe EMPLOYMENT NOT GOVERNED BY VERBAL DESIGNATION.</p> <p>The scope of a servant’s duties is determined by what he was employed to perform and what, with thie knowledge and approval of his employer, he actually did perform, rather than by the mere verbal designation of his position.</p> <p>3. Master and servant <&wkey;284(3) — Scope oe EMPLOYMENT QUESTION EOE JUEY.</p> <p>In an action for the death of a foreman who climbed a ladder to superintend repairs of a flagpole on employer’s shop preparatory to raising of flag purchased by employés as evidence of their loyalty to the government, the question of whether he acted within the scope of his employment held for jury.</p> <p>4; Master and servant <&wkey;267(l) — Evidence COMPETENT TO SHOW SCOPE OE EMPLOYMENT.</p> <p>In an action for the death of an employé superintending repairs of a flagpole on employer’s shop where defense was that he was not acting" within scope of employment, plaintiff’s evidence that employer directed other employés to finish the work was admissible.</p> <p>5. Death <&wkey;99(4) — Verdict oe $15,000 eor DEATH OE HUSBAND AND EATHEE NOT EXCESSIVE.</p> <p>' A verdict for $15,000 in favor of widow and $5,000 in favor of daughter for death of husband and father, 49 years old, who had been earning $125 a month, most of which was spent on the wife and daughter, held not excessive.</p>

<p>1. Libel and blandee <&wkey;15 — Woeds' charging OBSTEUCTION OF JUSTICE LIBELOUS.</p> <p>Written language charging plaintiff with destroying valuable testimony, with conspiring to defeat the jurisdiction of courts to which he had submitted his litigation, and with trying to appropriate to himself valuable property in such a way as to avoid responsibility, held libelous under Rev. St. 1911, art. 5595.</p> <p>2. Libel and blandee &wkey;>38(l) — Woeds used IN JUDICIAL PEOCEEDING PEIVILEGED.</p> <p>Words spoken, written, or printed in the course of a judicial proceeding are privileged when material, relevant, and pertinent to the issues involved in the case.</p> <p>3. Libel and slandeb <&wkey;38(2) — Allegations IN MOTION POE CONTEMPT PEIVILEGED.</p> <p>Allegations, in motion for contempt, that plaintiff had disobeyed the supersedeas granted by the trial court, in having willfully destroyed certain house on the premises involved in the action, which, was valuable evidence, and in cutting and removing a great amount of timber from premises, held privileged, being pertinent, material, and relevant to the charge of contempt.</p> <p>4. Libel and blandee <&wkey;38(2) — Motion fob CONTEMPT ABSOLUTELY PEIVILEGED.</p> <p>Allegations in motion for contempt held absolutely privileged.</p> <p>5. Libel and blandee <&wkey;38(l) — Civil court . PEOCEEDINGS ABSOLUTELY PEIVILEGED.</p> <p>Proceedings in civil courts are' absolutely privileged.</p> <p>6. Libel and blandee <&wkey;38(3) — Limitations ON PRIVILEGE OP PUBLISHING ACCOUNT OP JUDICIAL PEOCEEDINGS STATED.</p> <p>The privilege of publishing an impartial account of judicial proceedings under Rev. St. 1911, art. 5595, does not justify the publication of a libelous written pleading properly filed upon which no action has been taken by the court, and is limited to proceedings while the court is in session and may have an opportunity to prohibit- publication.</p> <p>7. Malicious peosecution <&wkey;12 —Motion POE CONTEMPT NOT BASIS FOE SUIT.</p> <p>The making of a motion for contempt cannot be the basis for a suit for malicious prosecution, in absence of a showing of arrest; arrest being an essential element of such cause of action. an</p>

<p>1. Tendee <&wkey;22 — Answee belying on WAIVER OE FORMAL TENDEE MUST ALLEGE DEPOSIT IN COURT.</p> <p>An answer, admitting part of the claim sued on and pleading waiver of formal tender of the amount ■ admitted, must also plead the deposit in court of the amount admitted to be due.</p> <p>2. Tendee <&wkey;5 — Waiver oe tendee must be MADE ON DATE PAYMENT IS DUE.</p> <p>A waiver of tender, like the tender itself, to be binding must be made o.n the date payment is due. . ,</p> <p>3. Sequestration &wkey;>21 — No liability fob SEQUESTRATION OF PROPERTY PLAINTIFF HAD EIGHT TO TAKE UNDER CHATTEL MORTGAGE.</p> <p>Where plaintiff took by sequestration property- which he was entitled to take under a chattel mortgage, he is not liable in damages though the ground of sequestration was not established.</p> <p>4. Sequestration <&wkey;15 — Plaintiff not LIABLE FOE INJURY TO PROPERTY SEIZED IN HANDLING.</p> <p>Plaintiff is not liable for the scratching of the sequestered piano, unless he took part in the handling of it, or directed it.</p>

R. Spencer, Judge. Proceeding by the State of Texas, on the relation of J. H. Wayland and others, against Charles Vincent and others. Judgment for defendants, and relators appeal.

<p>1. Master and servant <&wkey;88(4) — Injuey to VOLUNTEER NOT ACTIONABLE.</p> <p>A person, by merely volunteering his services to another, or by assisting the servants of another without authority to employ such assistance, cannot establish the relation of master and servant, and so establish liability for injuries under the principles of law governing master and servant. •</p> <p>2. Master and servant c&wkey;88(4) — Station AGENT NOT INTERMEDDLER IN ASSISTING IN DELIVERY OE FREIGHT BY ANOTHER ROAD.</p> <p>Station agent of one railroad, in the box car of another in discharge of his duty as agent of the first to check a shipment of iron being delivered to his railroad by the other, held not aD intruder, meddler, stranger, or mere volunteer to the work of unloading the other railroad’s car, in which he was injured when a colored brakeman of the other road let go of the heavy bundles of iron which they were holding up together.</p> <p>3. Master and servant <&wkey;88(4) — Injuries BY SERVANTS TO EMPLOYÉ' OE OTHER RAILROAD PROPERLY IN CAR ACTIONABLE.</p> <p>Where the station agent of one railroad rightfully entered the box car of another to discharge his duty as agent for the first, the servants of the other road could not negligently injure him without subjecting their company to liability, even if the agent was not the agent of such company in handling freight, and not a joint agent of the two roads.</p> <p>4. Trial <&wkey;352(4) — Refusal oe issue involving QUESTION NOT IN CONTROVERSY PROPER.</p> <p>In an action by the' station agent of one railroad against his employing road and another for injuries received in the car of the latter from a fall of heavy iron bundles he was steadying with the latter’s brakeman, refusal of' the trial court to submit the issue whether plaintiff volunteered his services in unloading freight held proper, on the ground that it would have confused, rather than assisted, the jury in determining any issue; it not being disputed by plaintiff that what he did was voluntary, in the sense that he was not requested to hielp.</p> <p>5. Trial <&wkey;352(4) — Refusal oe special issue INVOLVING POINTS NOT IN CONTROVERSY PROPER.</p> <p>In action by station agent of one railroad for injuries from the fall of heavy iron bundles he was assisting the brakeman of another road to hold up, where it was not contended by plaintiff that the weight of the iron or the mode of its placing constituted negligence which proximately caused his injuries, the trial court properly refused to submit the issue whether plaintiff knew the weight of the iron and the mode of the placing.</p> <p>6. Appeal and error <&wkey;1050(l) — Error in ADMISSION OE OPINION TESTIMONY HARMLESS, IN VIEW OE EACTS DETAILED BY WITNESS.</p> <p>In an action for injury by a railroad station agent against his employer and another road, whose servants he was helping when injured, admission of testimony of plaintiff that he was joint agent for all purposes of both roads held not prejudicial error, when supported by full and detailed testimony of the agent as to what he meant by joint agent, also detailing the services he performed.</p> <p>7. Master and servant <&wkey;268 — Evidence to ESTABLISH RELATION COMPETENT.</p> <p>In a servant’s action for injuries, his sworn evidence, adduced in open, court on trial, that lie was the joint agent of both defendant railroads, was not prohibited by the rule making inadmissible the declarations of an agent outside of court to establish a claimed agency.</p> <p>8. Appeal and error ¡&wkey;104S(3) — -Leading QUESTIONS HAEMLESS.</p> <p>In an action by the station agent of one railroad ‘ against such road and another, whose •employés he was assisting in removing freight from a- car when injured, action of the trial court in permitting leading and suggestive questions to be propounded to plaintiff by his counsel held harmless to the railroad whose servants plaintiff was helping when injured.</p> <p>9. Damages <&wkey;132(6) — $12,500 foe bkoken THIGH AND LEG NOT EXCESSIVE.</p> <p>Verdict for $12,500, in favor of station agent of one railroad^, against another, whose employés he was assisting in handlihg freight, for injuries consisting of a broken left thigh and broken right leg, which confined him to bed and subjected him to pain for some months, and impaired his powers of locomotion and earning capacity, though he later secured employment more remunerative than his former position, held not so manifestly excessive as to warrant' setting aside.</p> <p>10. Damages <&wkey;166(l) — Testimony as to SUEEERING FROM INJUEY ADMISSIBLE ON DAMAGES.</p> <p>In an action for personal injuries sustained by the station agent of one railroad while assisting employés of another in handling freight, plaintiff’s testimony as to the treatment he underwent and the pain and suffering caused thereby held admissible on the issue of damages.</p> <p>11. MASTER AND SERVANT' <&wkey;99 — JOINT SERVANT’S JUDGMENT AGAINST SINGLE NEGLIGENT EMPLOYEE PEOPEE.</p> <p>Where the joint station agent of two railroads was injured while helping the employés of the second road unload freight from a box car, through the negligence only of a brakeman of the second road, the first road was not liable for the injuries, and judgment in the agent’s suit against both roads was properly rendered in his "favor against the second only.</p>

<p>Appeal from District Court, Harris County; K. C. Barkley, Judge.</p> <p>Action 'by Emily Belle Williams against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff, and defendant appeals.</p>

M. Sleeper, Special Judge. Suit by Jno. K. Rose, trustee, against W. H. Hoffman and others. Judgment perpetuating injunction, defendants’ motion for new trial overruled, and defendants appeal.

Gibbs, Judge. Action by S. W. Ward against J. M. Keith-ley and Sam Keithley. Defendant Sam Keithley was discharged, and there was judgment for plaintiff against J. M. Keithley, and he appeals.

<p>1. Mines and minerals @=>48 — Minerals PART OP REALTY. '</p> <p>Minerals such as oil are part of the realty.</p> <p>2. Trespass -to try title @=>32 — Nature op ACTION NOT CHANGED BY ALLEGATION THAT DEPENDANT’S CLAIM OAST CLOUD ON TITLE.</p> <p>Defendant’s petition, which sounded in trespass to try title, was not changed by allegations that defendant’s title was void, and that record thereof cast a cloud on the title of plaintiffs.</p> <p>3. Trespass to try title @=>6(1) — Plaintipp MUST RECOVER ON STRENGTH OP HIS OWN TITLE.</p> <p>In action for trespass to try title, plaintiff must recover on the strength of his own title, and not on want of title in defendant.</p> <p>4. Trespass to try title @=>38(1) — Direction op verdict for plaintipp erroneous.</p> <p>. In action of trespass to try title, where plaintiffs asserted title to one half interest in the lands and a contract for purchase of the other half, while defendant who pleaded not guilty also alleged ownership of an oil lease on the other half from record owner, the burden of proving title was on plaintiffs, and direction of verdict for them without proof of title was error.</p> <p>5.Appeal and error @=843(4) — •Questions . as to pleading not reviewed on reversal FOR IMPROPERLY DIRECTING VERDICT.</p> <p>Where the trial court improperly directed a verdict in favor of plaintiffs in trespass to try title, held, that the appellate court will not review rulings on special exceptions to defendant’s answer which set up a lease to the land involved from the holder of the record title.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge.</p> <p>Suit by Tom M. Hamilton against Lee R. Davis, Tax Collector. From judgment for defendant, plaintiff appeals.</p>

<p>1. Appeal and error <&wkey;1069(l) — Laughter OP JUEY TO OBJECTION MADE TO ARGUMENT NOT CAUSE POE REVERSAL IN ABSENCE OP PREJUDICE. ;</p> <p>That the jury laughed at counsel’s objection to argument when the court was absent held not to necessitate reversal, in the absence of a showing of prejudice, or that the opposite party or his attorney were responsible for such laughter.</p> <p>2. Appeal and error &wkey;>237(l) — -Intervention POR PURPOSE OF EVADING RULE NOT GROUND FOR REVERSAL WHERE NO REQUEST WAS MADE TO PUT INTERVENER UNDER THE RULE.</p> <p>In trespass to try title, that the former owner of the land on his own initiative was made a party defendant, as being the warrantor of one of the defendants, even if done so that he might remain in the courtroom during the trial, was not apparently prejudicial, in the absence of any showing that any request was made that the former owner be placed under the rule with other witnesses.</p> <p>3. Trial <&wkey;133(6) — Argument op counsel NOT GROUND FOR REVERSAL IN VIEW OP IN-’ STRUCTION NOT TO CONSIDER.</p> <p>In trespass to try title, wherein a former owner had intervened, a statement of counsel in argument that he had made himself a party to protect his warranty held not reversible error in view of instructions not to consider it.</p> <p>4. Evidence <55=^273(2) — Declarations as to ■ NATURE OP POSSESSION ADMISSIBLE IN TRESPASS TO TRY TITLE.</p> <p>Declarations, made while in possession, to others than the owner, are admissible in trespass to try title to determine whether such possession was adverse to the owner. .</p> <p>5. Adverse possession <&wkey;96 — Evidence as TO PAYMENT OP TAXES BY FORMER OWNER ADMISSIBLE.</p> <p>In trespass to try title, wherein a former .owner had intervened, it was not error to permit proof that he had rendered the property . and paid taxes, thereby showing that he was claiming against all parties.</p>

<p>Appeal from District Court, Young County ; William N. Bonner, Judge.</p> <p>Suit by the Aliar Company against W. H. Roeser and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from McLennan County Court; James P. Alexander, Judge.</p> <p>Suit by J. H. Whitaker against J. C. Kill-gore & Co. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Tarrant County; Bruce Young, Judge.</p> <p>Suit by D. G. Wooten against Jost Marti and others. Prom a judgment for plaintiff, the defendant named appeals.</p>

Error from District Court, McLennan County; H. M. Richey, Judge. Suit by Crespi & Co. against J. B. Snell, doing business as the Snell Hardware Company, and First National Bank of Moody. Judgment for plaintiff, and defendants bring error.

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by J. J. Bruton and others against the Hill County Board of School- Trustees and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>1. Judgment <@=143(2) — Party seeking to OPEN DEFAULT MUST SHOW EXCUSE AND GOOD DEFENSE.</p> <p>A party seeking to set aside a default judgment must show not only that he was prevented from presenting his defense at the proper time by some cause unmixed with negligence on his part, but that he has a good defense.</p> <p>2. Judgment <@=151 — -Party seeking to open DEFAULT MUST SHOW PARTICULARS OF DEFENSE.</p> <p>A party seeking to set aside a default judgment must set out his defense with such particularity that the trial and appellate courts may know of what it consists.</p> <p>3. Waters and water courses <@=231 — Nqn-IRRIGABILITY OF LAND NOT DEFENSE TO TAX SUIT BY IRRIGATION DISTRICT.</p> <p>Under Acts 35th Leg. (1917) c. 87 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5107 — 1 to 5107— 117), relative to water improvement districts, which provides for a hearing and the exclusion of nonirrigable lands, it is not a'defense to a delinquent tax suit after the organization of the district, the issuance and sale of bonds, and the making of tax assessments, that the lands are nonirrigable.</p> <p>4. Judgment <@=151 — Allegation in motion TO OPEN DEFAULT INSUFFICIENT TO JUSTIFY RELIEF.</p> <p>An allegation in a motion to set aside a default judgment in a water improvement district’s suit for taxes that the moving party believed the assessment and levy illegal and exorbitant, without alleging facts showing that it was illegal or exorbitant, was insufficient to justify relief.</p> <p>5. Waters and water courses <@=231 — Evidence in irrigation district’s suit for taxes sufficient to make prima facie' CASE.</p> <p>In a water improvement district’s suit for delinquent taxes, evidence that the lands were in the district, that defendants were record owners, and evidence showing a proper tax levy, the valuation of lands, and the tax rate, that the tax was uniform, the amount of the tax, interest, penalities, and costs, the time of the tax levy and year for which made, and demand and nonpayment, made a prima facie case.</p> <p>On Motion for Rehearing.</p> <p>6. Waters and water courses <@=231 — Citation in suit by irrigation district for delinquent taxes.</p> <p>Under Vernon’s Ann. Civ. St. Supp. 1918, art. 5107 — 46, requiring the process in suits for delinquent taxes by water improvement districts to be served as provided for suits of like character, the citation is not governed by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1874, relative to suits in general, but by article 7698, relative to suits for delinquent taxes, which requires the citation to be directed to all persons owning, having, or claiming any interest instead of to the sheriff or constable.</p> <p>7.Waters and water courses <@=231 — Citation in suit by irrigation district fob DELINQUENT TAXES SUFFICIENT.</p> <p>The citation in a water improvement district’s suit for delinquent taxes under Vernon’s Ann. Civ. St. Supp. 1918, art. 5107 — 46, need not state the file number of the suit nor the date of filing suit.</p>

Suit by tbe C. C. Slaughter Company against John Nicholson, in which defendant files cross-bill making C. C. Slaughter a party defendant- Judgment for plaintiff against defendant Nicholson, and that defendant Nicholson take nothing by his cross-action, and defendant Nicholson appeals.

<p>1. Mechanics’ iiens <&wkey;122 — Verbal notice OF MATERIAL BURNISHED - NOT SUFFICIENT.</p> <p>Verbal notice, when either given to the owner or his agent, is not a sufficient compliance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5623, as it read prior to amendments by the Thirty-Fourth and Thirty-Fifth Legislatures (Acts 34th Leg. [1915] c. 143, and Acts 35th Leg. [1917] c. 17 [Vernon’s Ann. Civ. St. Supp. 1918, arts. 5623, 5639a]), providing that persons furnishing materials to contractors could obtain a lien by giving written notice to the owner or his agent.</p> <p>2. Mechanics’ liens <&wkey;120 — No notice to CONTRACTOR NECESSARY OF MATERIALS FURNISHED SUBCONTRACTOR.</p> <p>One who furnished material to a subcontractor to be used in the construction of a building may, by complying with provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5623, as it.read prior to the amendments by the Thirty-Fourth and Thirty-Fifth Legislatures (Acts 34th Leg. [1915] e. 143, and Acts 35th Leg. [1917] c. 17 [Vernon’s Ann. Civ. St. Supp. 1918, arts. 5623, 5639a]), fix a lien upon the property and secure the payment of the price of the material so furnished, without regard to the original contractor; the latter not being entitled to written notice referred to in such statute.</p> <p>3. Mechanics’ liens <&wkey;120 — Agent to WHOM NOTICE OF MATERIALS FURNISHED MAY BE GIVEN.</p> <p>The agent of the owner of a building being constructed to whom notice may be given under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5623, as it read prior to the amendments by the Thirty-Fourth and Thirty-Fifth Legislatures (Acts 34th Leg. [1915] c. 143, and Acts 35th Leg. [1917] c. 17 [Vernon’s Ann. Civ. St. Supp. 1918, arts. 5623, 5639a]), relating to giving of notice of the owner of a building of materials furnished, must be such agent as the owner has expressly vested with authority to receive such notice, or referred to as the one to whom such notice might be given, or be an agent of general authority in such managerial or directing situation with reference to the construction of the building as constitutes him the alter ego of the owner.</p> <p>4. Mechanics’ liens <&wkey;281(5) — Finding THAT NO NOTICE OF MATERIALS FURNISHED REACHED OWNER SUSTAINED BY EVIDENCE.</p> <p>In an action to foreclose a mechanic’s lien, a finding that the owner had not been served with a written notice of materials furnished as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5623, as it read prior to the amendments by the Thirty-Fourth and Thirty-Fifth Legislatures (Acts 34th Leg. [1915] -c. 143, and Acts 35th Leg. [1917] c. 17 [Vernon’s Ann. Civ. St. Supp. 1918, arts. 5623, 5639a]), held sustained by the evidence.</p> <p>5. Mechanics’ liens <&wkey;279 — Burden of PROOF UPON MATERIALMEN TO ESTABLISH NOTICE TO OWNER,</p> <p>In a proceeding to foreclose a mechanic’s lien, the burden of proof is upon materialmen to establish the notice required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5623, as it read prior to the amendments by the Thirty-Fourth and Thirty-Fifth Legislatures (Acts 34th Leg. [1915] c. 143, and Acts 35th Leg. [1917] c. 17, [Vernon’s Ann. Civ. St. Supp. 1918, arts. 5623, 5639a]), upon the owner, or his duly authorized agent.</p> <p>6. Mechanics’ liens <&wkey;281(5) — Architects NOT SHOWN TO BE AGENTS UPON WHOM NOTICE OP MATERIAL FURNISHED COULD BE SERVED.</p> <p>In a proceeding to foreclose a mechanic’s lien, evidence held insufficient to show that architects had either express or implied authority to receive notice of materials furnished, required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5623, as it read prior to amendments by the Thirty-Eourth and Thirty-Eifth Legislatures (Acts 34th Log. [1915] c. 143, and Acts 35th Leg. [1917] c. 17 [Vernon’s Ann. Oiv. St. Supp. 1918, arts. 5623, 5639a]).</p>

<p>1. Divobce <&wkey;326 — Collateral attack on FOREIGN DECREE.</p> <p>Decree of divorce obtained in a foreign state may be collaterally attacked to show that the court which rendered it had no jurisdiction, even though it recites all necessary jurisdictional facts.</p> <p>2. Divorce &wkey;>329 — Foreign decree procured BY FRAUD ON SUBSTITUTED SERVICE VOID.</p> <p>Where wife left husband in Texas, and, going to Illinois, sued him for divorce, and citation by publication was based on false affidavit that he could not be found, the substituted service was insufficient; and, where by the statutes of Illinois the wife-,was required to have transmitted to defendant husband a copy of her petition, and by, fraud induced the clerk to send copy to a post office where it would not be received by her husband, there was such a fraud on the jurisdiction of the Illinois court as to void wife’s divorce.</p> <p>On Motion for Rehearing.</p> <p>3. Divorce <&wkey;329 — Validity of foreign decree DEPENDS ON ACCURACY OF AFFIDAVIT FOR SUBSTITUTED SERVICE.</p> <p>The validity of a decree of divorce, procured in the Illinois courts by a wife who left her husband in Texas, depended on the truthfulness of the facts stated in the wife’s affidavit for substituted service upon the husband, rather than upon the good faith of the wife or her attorney in making the affidavit.</p> <p>4. Husband and wife &wkey;>3(l) — -Domicile of HUSBAND NOT FIXED BY WIFE.</p> <p>In Texas an erring wife, by leaving her husband, cannot fix his domicile at the place of her own residence, to enable her, after removal to a foreign state,, to make accurate affidavit of his residence there in her divorce suit, based on substituted service.</p> <p>5. Attorney and client <&wkey;86 — Attorney MAY STIPULATE AS TO FACTS TO BE ESTABLISHED.</p> <p>Attorneys are authorized to stipulate concerning any facts to be established by the evidence.</p> <p>6. Divorce &wkey;>327 — No jurisdiction in COURTS OF STATE REMOVED TO WITHOUT INTENTION TO REMAIN.</p> <p>A wife’s act in merely going to another, state to secure divorce, and in residing there the required length of time, but without any intention to remain permanently or indefinitely, is not sufficient to give the courts of such state jurisdiction of her divorce proceedings.</p> <p>7. Judgment <&wkey;820 — Collateral attack ALLOWED ON FOREIGN JUDGMENT PROCURED BY FRAUD ON JURISDICTION.</p> <p>A judgment in an action in rem or in per-sonam, procured in a court of foreign jurisdiction by willful fraud upon the jurisdiction, may be collaterally attacked.</p> <p>8. Divorce <&wkey;330 — Void foreign decree obtained BY FRAUD OF WIFE. NOT VALIDATED BY HUSBAND’S VISITS TO WIFE.</p> <p>Divorce decree of a foreign court in favor of the wife, procured through her fraud and falsehood, was not vitalized and validated by the act of the husband, never made a party to the suit, and who knew nothing of the action until after rendition of the decree, in subsequently visiting the wife after her return from the foreign state, and by failing to go there and attack the judgment because of fraud.</p> <p>9. Appeal and error <&wkey;281(l) — No avoidance OF STIPULATION IN ABSENCE OF MOTION FOR NEW TRIAL BELOW.</p> <p>Where no effort was made in the trial court by motion for new trial to set aside á stipulation as improvident, the effect of the stipulation cannot be avoided in the Court of Civil Appeals.</p>

Action by K. C. Redmon against the City of Polytechnic and the Northern Texas Traction Company for personal injuries. Judgment for the Northern Texas Traction, Company and Stone & Webster Engineering Company, and for plaintiff against the City, and the City appeals.

<p>1. Appeal and error <&wkey;971(2) — No error IN PERMITTING- WITNESS TO TESTIFY AS TO MARKET VALUE IN ABSENCE OF ABUSE OF DISCRETION.</p> <p>Action of court in permitting witness to testify as to market value will not be held error on appeal on ground that qualification of witness was not shown, in absence of a showing of abuse of discretion.</p> <p>2. Carriers <&wkey;94(3) — Burden of proving TAKING OF GOODS IN ATTACHMENT UPON CARRIER SUED FOR CONVERSION.</p> <p>In shipper’s action against carrier for conversion where defense was that goods had been taken from carrier under writ of attachment, the burden of establishing such defense was upon carrier.</p> <p>3. Carriers &wkey;>94(3) — Evidence insufficient TO PROVE GOODS ATTACHED SAME AS THOSE SHIPPED BY PLAINTIFF SUING IN CONVERSION. ,</p> <p>In shipper’s action against carrier for conversion defended upon ground that the goods had been taken from carrier under writ of attachment, evidence held insufficient to prove that the goods taken under attachment were those shipped by plaintiff.</p>

<p>Error from District Court, Presidio County; Jos. Jones, Judge.</p> <p>Action by J. W. Weaver against the Kansas City, Mexico & Orient Kailway Company of Texas. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from District Court, El Paso County; Ballard Coldwell, Judge.</p> <p>Action by Duncan Campbell against John M. Wyatt. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Clay County Court; E. W. Coleman, Judge.</p> <p>Action by Leo Grimminger against the Texas Moline Plow Company. Judgment fo> plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, El Paso County; P. R. Price, Judge.</p> <p>Action by Cruz Pastrana against the C. C. Slaughter Cattle Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Wise County Court; J. W. Walker, Judge.</p> <p>Suit by I. R. Williams against R. G. Hoge, in which the Knight Realty Company and A. L. Bane intervened. Prom judgment in favor of the interveners, plaintiff appeals.</p>

<p>1. Homestead <&wkey;57(2) — In foreclosure DECLARATIONS OE MORTGAGOR AS TO OWNERSHIP OE LAND AND USES THEREOF ADMIS- ' SIBEE.</p> <p>In mortgage foreclosure action where defendant interposed plea of homestead rights in a 160-acre tract covered by mortgage, testimony of attorney for mortgagee as to declarations of mortgagor at time of execution of mortgage as to his ownership of 1,200 acres of land and as to the uses he had been making thereof held admissible.</p> <p>2. Homestead c&wkey;70 — No homestead rights IN SEPARATE TRACT OF LAND ON WHICH OWNER DID NOT LIVE.</p> <p>Where 160-acre tract of land was situated about a mile from 15-acre tract on which owner lived and was not a part of the tract owner had designated as his homestead in executing a mortgage, and where owner divided his attention between mercantile business and farming, doing most of the farming by hired help, he had no homestead rights in the 166-acre tract.</p>

<p>Appeal from Wichita County Court; J. P. Jones, Judge.</p> <p>Action by the Imperial Motor Sales Com-' pany against J. A. Brannon, begun in justice court, and appealed by plaintiff to county court. From a judgment there dismissing the action, plaintiff appeals.</p>

<p>1. Railroads @==>282(5) — Evidence insufficient TO snow NEGLIGENCE IN OPERATION OF CAR COLLIDING WITH CAE BEING UNLOADED.</p> <p>In an action against railroad receivers by the employé of a third party for personal injuries sustained when the box car in which he was unloading brick was struck by another car, evidence held, not to support a finding of defendant’s negligence.</p> <p>2. Pleading @=>280 — Contradictory statements AND SUPPLEMENTAL ANSWER CANNOT DESTROY PLEA OF GENERAL DENIAL.</p> <p>In action by an employé of a third person for injuries when another box car struck the one in which he was unloading brick, wherein defendant answered by general denial, etc., the allegations of its supplemental answer, to the effect that plaintiff had accepted compensation under Workmen’s Compensation Act from a surety company with which defendant had made a settlement, could not be used to nullify the plea of general denial, in view of the statute permitting defendant to plead as many several matters of law or fact as he may choose, and one plea, though contradictory in terms, cannot be used to destroy another.</p> <p>3. Master and servant @=3354 — Acceptance OF COMPENSATION BY EMPLOYÉ DOES NOT BAR ACTION AGAINST THIRD PARTY. ■</p> <p>Notwithstanding Workmen’s Compensation Law 1917, pt. 2, § 6a (Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 47), dedaring that an injured employé of a subscriber within the terms of the act may not proceed both against the association and a third party liable to him because of negligence, the receipt of compensation by plaintiff, an employé of a third party subscriber from a surety company for injury by defendant railroad, and his assignment of so much of recovery as might be had or would indemnify it, did not absolutely bar Ms action against railroad.</p> <p>4.Master and servant @=3389 — Extent of RIGHT OF SURETY WHO HAS PAID COMPENSATION TO SUBROGATION UNDER ' WORKMEN’S Compensation Act defined.</p> <p>Under Workmen’s Compensation Law 1917, pt. 2, § 6a (Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 47), the right of a surety corporation to be subrogated to rights of injured em-ployé after its payment of compensation is given for the surety’s benefit, and its suit against a negligent third party is for its benefit to extent of compensation paid by it, and for benefit of injured employé for any excess, so that the intervention of a surety company which had so paid compensation to an employé claiming damages from a third party should not be dismissed.</p>

<p>Appeal from District Court, Harris County; Wm. Masterson, Judge.</p> <p>Suit by Mrs. Hattie L. Flattery and another against the Houston Electric Company and another. From judgment for plaintiffs, defendants appeal.</p>

A. Hill, Judge. Suit by the State of Texas against A. J. Barry. From judgment for plaintiff, defendant appeals; plaintiff moving that defendant be cited for contempt.

<p>Appeal from District Court, Callahan County; Joe Burkell, Judge.</p> <p>Action by I. N. Jackson against the Pure Oil Operating Company and another. From judgment denying plaintiff relief sought, he appeals.</p>

<p>Appeal from Tarrant County Court; George E. Hosey, Judge.</p> <p>Action by Mrs. Joella D. Henderson and others against Wells Fargo & Co. Express. From a judgment for plaintiffs for partial relief only, they appeal.</p>

<p>1. Landlord and tenant i®=»150(1) — Without COVENANT LANDLORD IS NOT OBLIGED TO REPAIR.</p> <p>In the absence of a covenant to that effect, the landlord is under no obligation to repair the premises, even when they become defective through decay or deterioration. ,</p> <p>2. Landlord and tenant <©=>164(2) — Landlord MAT BE LIABLE IN-TORT FOR FAILURE TO REPAIR AS AGREED.</p> <p>Where the landlord agrees to repair the premises, liability for personal injuries to the tenant, resulting from failure to repair, may arise on theory of negligence.</p> <p>3.. Landlord and tenant <@==>152(3) — Covenant TO REPAIR FOR TENANT BY MONTH PRESUMED TO CONTINUE FOR SUCCEEDING MONTHS..</p> <p>The covenant of a landlord to make repairs on premises leased from month to month is presumed to continue as a covenant for the' months after the first, where the tenant is permitted to remain in possession on paying the stipulated rent without a new agreement.</p> <p>4. Landlord and tenant <@=164(2) — Landlord NOT LIABLE FOR INJURIES RESULTING FROM BREACH OF COVENANT TO REPAIR, EXCEPT WHERE HE CO'NOEALS A LATENT DEFECT, OR LEASES THE PROPERTY FOR PUBLIC USE.</p> <p>A landlord is not liable to his tenant for personal injuries resulting from a breach of covenant to repair, except where he conceals a latent defect and is guilty of fraud, or leases the property for public use.</p> <p>5. Landlord and tenant <©=>164(3) — Landlord IS LIABLE FOR NEGLIGENT FAILURE OF HIS EMPLOYES TO REPLACE DEFECTIVE FLOOR PLANK.</p> <p>A landlord who agreed to repair floor of rented premises is liable for the negligent failure of his employs to replace a defective plank in the floor, whereby injury resulted to the tenant.</p> <p>6. Landlord and tenant <@=>164(6) — Landlord CHARGED WITH KNOWLEDGE OF DEFECTS OF WHICH HIS EMPLOYÉ TO MAKE REPAIRS KNEW.</p> <p>A landlord who employed a carpenter to repair a defective floor is chargeable with knowledge of the defect in the floor of which the carpenter had knowledge.</p> <p>7. Landlord and tenant <@=169 (6) — Evidence HELD TO WARRANT FINDING THAT LANDLORD’S SERVANT HAD' KNOWLEDGE OF DEFECT.</p> <p>Evidence that landlord’s employe had opportunity to ascertain the defective condition óf a plank, and that it was in the same condition then as when it broke under plaintiff, held sufficient to warrant the jury in finding that the servant had knowledge of the defective condition of the plank, so that it was negligence not to repair it.</p> <p>8. Landlord and tenant <@=169(11) — Evidence HELD NOT TO SHOW TENANT’S CO'N-TRIBUTORY NEGLIGENCE AS A MATTER OF LAW.</p> <p>Evidence that a tenant knew that the floor under linoleum was bending at a certain spot, held not to establish contributory negligence as a matter of law which precludes recovery for injuries resulting from the breaking of the plank in that spot.</p> <p>9. Landlord and tenant <@=169(11) — Question OF TENANT’S CONTRIBUTORY NEGLIGENCE IS ORDINARILY FOR JURY.</p> <p>Ordinarily the question whether a tenant was contributorily negligent is a question of fact for the jury.</p> <p>10. Trial <@=139(1) — Circumstances must BE DECISIVE TO JUSTIFY THE WITHDRAWAL O'F CASE FROM JURY.</p> <p>The circumstances of the case must be dear and decisive to justify its withdrawal from the consideration of the jury.</p> <p>11. Landlord and tenant <@=169(6) — Evidence HELD NOT TO SHOW CONCEALMENT OF DEFECT BY LANDLORD.</p> <p>Evidence that a defective flooring was concealed by linoleum, which tenant requested to have left on the floor, held not to establish that the landlord intentionally concealed the defective floor.</p> <p>12. Appeal and error <@=1062(5) — Error in SUBMITTING IMMATERIAL ISSUE HARMLESS.</p> <p>Assignments of error to the submission of special issues will be overruled where the issues were immaterial and harmless.</p> <p>13. Appeal and error <@=1062(1) — Issue assuming FACT CONCLUSIVELY PROVED HARMLESS.</p> <p>A special issue, assuming that the jury would find the floor unsafe and dangerous, does not require reversal, where the evidence conclusively showed that fact.</p> <p>14. Trial <@=352(5) — Issue held not erroneous AS MISLEADING THE JURY IN ANSWERING ANOTHER ISSUE.</p> <p>An issue whether plaintiff discovered that the floor was as unsafe as the jury found it is not erroneous as misleading the jury to believe that plaintiff was not contributorily negligent unless she discovered the floor was as unsafe as they found it.</p> <p>15. Appeal and error <@=1070(2) — Failure TO SET ASIDE FINDING UNSUPPORTED BY EVIDENCE, HARMLESS WHERE OTHER FINDINGS SUPPORTED THE JUDGMENT.</p> <p>Failure of the court to set aside a finding that defendant concealed the defect from plaintiff, which was unsupported by evidence, is harmless where other supported findings warranted recovery by plaintiff.</p> <p>16. Damages <@=132(4) — $3,750 held not excessive FOR INTERNAL INJURIES CURABLE ONLY BY MAJOR OPERATION.</p> <p>$3,750 damages for injuries to a woman’s internal organs which inflicted continuing pain, and which would be permanent unless relieved by a major operation involving more or less danger, are not excessive.</p>

<p>1. Vendor and purchaser (®=>278 — Extension OF TIME OF PAYMENT EXTENDS VENDOR’S LIEN, THOUGH PURCHASER FROM VENDEE IS NOT PARTY THERETO.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5694, barring a recovery on a vendor’s lien in four years from the maturity of debt, and article 5695, providing that the debt may be’ extended by a contract signed by the “party obligated to pay such indebtedness,” an extension contract between the vendor and vendee extends the time for recovery under the lien, though a purchaser from the vendee is not a party thereto. ,</p> <p>2. Vendor and purchaser <§=>279 — Purchaser FROM VENDEE NOT NECESSARY PARTY ON FORECLOSURE OF LIEN.</p> <p>One purchasing from 'the vendee land subject to a vendor’s lien is not a necessary party to the foreclosure of the lien.</p>

<p>1. Associations <&wkey;>16 — Members of association HAVE THE LEGAL LIABILITIES OF PARTNERS.</p> <p>Parties constituting members of a voluntary association, as a syndicate, have the legal liabilities, rights, and duties of partners, except there ordinarily is no delictus person®, and the affairs are usually conducted by managers designated according to the by-laws, and as the rights of each member are fixed by certificate, the death of a member will not dissolve the association.</p> <p>2. Partnership <&wkey;>79 — Right of majority OF PARTNERS TO CONTROL MAY BE CHANGED BY BY-LAWS.</p> <p>While ordinarily the majority of the partners will control, the management of the business may by agreement be committed to one or more of the partners.</p> <p>3. Associations <&wkey;>18 — Under by-laws directors OF AN ASSOCIATION CHOSEN BY STOCKHOLDERS SUPERSEDE EXECUTIVE COMMITTEE. .</p> <p>The by-laws of a syndicate formed to buy and sell- oil leases provided for an executive committee, which should perform all acts necessary to complete the organization, and further provided for the election of a board of directors by the stockholders, and that such directors should assume control of the business. Held, that, despite conflicting provisions in the bylaws, which apparently would have given the executive committee continuing control, the directors elected by the stockholders are thereafter entitled to control the affairs of the association as against the executive committee.</p> <p>4.” Appeal and error <@=1024(2) — Conclusions of trial court supported by evidence WILL NOT BE DISTURBED.</p> <p>A finding of fact by the trial court, which granted a temporary injunction, when supported by evidence, will not be disturbed on appeal.</p> <p>5. Injunction <&wkey;136(2) — Enforcement of CONTRACT MADE BETWEEN EXECUTIVE COMMITTEE OF A SYNDICATE AND CORPORATION WHICH COMMITTEEMEN CONTROLLED WILL BE TEMPORARILY ENJOINED.</p> <p>Where the executive committee of a syndicate formed to acquire oil leases entered into a contract with a corporation, which the members of the committee controlled, enforcement of such contract will be temporarily enjoined, in a controversy between directors subsequently elected by the stockholders and the executive committee; all the parties being before the court, and it being the purpose of thg' executive committee to enforce the contract, unless temporarily enjoined.</p> <p>6. Injunction <&wkey;157 — Interlocutoey de-CEEE NOT OBJECTIONABLE BECAUSE QUANT-ING ALL BELIEF PBAYED.</p> <p>An interlocutory injunction is not open to attack because it granted all the relief prayed for.</p> <p>7. Juey &wkey;jl3(12) — Issues of fact in injunction SUITS TO BE TBIED BY JUBY IF DEMANDED.</p> <p>In a suit where relief by way of injunction is sought, the parties are entitled to jury^ trial on disputed fact issues, on regular assignment of the case, if demanded.</p> <p>8. Injunction <&wkey;148(l) — Bond fob tempo-baby INJUNCTION MAY BE FILED IN APPELLATE COUBT.</p> <p>Whore an interlocutory injunction was granted without the filing of the bond required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4654, the injunction may- be upheld after appeal by the filing of a bond in the amount fixed by the Court of Civil Appeals.</p>

<p>Appeal from District Court, Milam County ; John Watson, Judge.</p> <p>Suit by the Continental Gin Company against the Thorndale Mercantile Company and others. From judgment for plaintiff, defendants appeal.</p>

Bishop, Judge. Action by M. B. Harris against G. T. Thomas and others. Prom an order dissolving a temporary injunction theretofore granted, the plaintiff appeals.

<p>Appeal from Titus County Court; J. W. Tabb, Jr., Judge.</p> <p>Suit by C. H. Wallace against James R. Adams. From order or judgment overruling defendant’s plea of privilege, he appeals.</p> <p>Appellee sued appellant in the county court ■of Titus county, alleging that the latter resided in Collin county. Appellee further alleged that he owned a tract of land, constituting his homestead, in Titus county; that he was indebted to appellant; that to secure said indebtedness he, joined by his wife at appellant’s request, and relying on appellant’s promise to reeonvey the same to them when the debt was paid, on December 23, 1914, conveyed said land to the latter by a deed absolute on its face, but which he and his wife intended, and which appellant pretended he intended, to operate only as a mortgage; that at the time appellant made said request and promise he did not in fact intend to treat said instrument as a mortgage, but instead intended to treat it as an absolute conveyance of the land, as it purported to be, and did not intend to reconvey the land to appellee when said debt was paid, but intended instead to convey it as his own to an innocent purchaser, and so defraud appellee of his title thereto; that said request and promise by appellant were made in Titus county, where appellee and his wife executed and delivered said deed to appellant; and that appellant afterwards did convey said land to an innocent purchaser, who, because he was such a purchaser, acquired title thereto as against appellee and his wife. The prayer was for damages.</p> <p>By a plea duly filed and in compliance with the requirements of the statute, Revised Statutes 1911, art. 190-3, as amended April 2,1917 (Acts 1917, c. 176 [Vernon’s Ann. Oiv. St. Supp. 1918, art. 1903]), appellant set up a right he claimed to have the cause transferred to Collin county for trial.</p> <p>, Controverting the plea, appellee insisted that when appellant induced him and his wife to execute the deed, agreeing it should 'operate only as a mortgage, but at' the; time intending to treat it as an absolute conveyance, as alleged in his petition, appellant perpetrated a fraud on him in Titus county,, and that the suit therefore was maintainable in that county by force of subdivision 7 of article 1830, Vernon’s Statutes. Appellee further insisted that when appellant, after agreeing to treat the deed as a mortgage, instead treated it as an absolute con-i veyance of the land to him and sold and conveyed it to an innocent purchaser, he was' guilty of a trespass within the meaning of subdivision 9 of said article of the Statutes, and that the suit was maintainable in Titus county on that ground.</p> <p>It appeared from testimony adduced' by appellee in support of his contentions that he and his wife, by a deed absolute in form, conveyed the land to .appellant for a consideration, it was recited in the deed, of $700 in cash, and the assumption by appellant of the payment of a note for $300 secured by a vendor’s lien on the land. As a matter of fact, appellee testified, no part of the $700. mentioned in the deed was paid, and the instrument was intended to operate merely as a mortgage to secure a debt he owed appellant. Appellee testified:</p> <p>“The way the deed came to be executed, Mr. Adams and I came up from Cookville to fix up — first I agreed to make him a deed of trust to the place. He phoned me that his attorney said a deed of trust was worthless, and he said, ‘Well, just make it a straight deed.’ I said, ‘All right.’ He said he was having me make, the t deed as collateral security for what I owed on the place. He wanted further security on a note that I had made, you understand, to Mr. Ford, and was then transferred to him. I told him to do anything he wanted; that I wanted to make it satisfactory to him. He said that when the note was paid off he would deed me back my place. The conversation I have mentioned took place in Titus county. . I made him the deed, relying upon the fact that he would deed it back when the note was paid. I never did agree for him to sell the place. * * * I have not paid anything on the vendor’s lien note that was against the place at the time I sold it to Mr. Adams. I have not ; paid off anything.’* ¡</p> <p>By a deed dated December 28, 1916, purporting to have been signed and acknowledged in Collin county, where appellant lived, he conveyed the land to one Harrington, who by a deed dated November 21,1917, also purporting to have been signed and acknowledged in said Collin county, conveyed same to one Friday, who, it seems, was in possession of the land</p> <p>The appeal is from a judgment overruling appellant’s said plea.</p>

B. Muse, Judge. Action by Julia Stewart and others against the Texas Electric Railway for wrongful death of H. E. Stewart. Judgment for plaintiffs, and defendant appeals.

<p>1. Sales <&wkey;181(4) — Amount shipped inadmissible TO SHOW GUARANTEED QUANTITY AT DESTINATION.</p> <p>Where goods were shipped, destination weights and grades being guaranteed by shipper, proof of weights at point of shipment, when not followed by other evidence showing there could have been no change in the weight after the car left the point of shipment, was inadmissible to show what the weights wore at destination.</p> <p>On Motion for Rehearing.</p> <p>2. Sales <&wkey;181(4) — Weights at destination of shipment subject to impeachment.</p> <p>Where peanuts were shipped, and seller guaranteed weights and grades at destination, weights at destination according to purchaser’s weights were subject by proper evidence to impeachment for error or mistake.</p>

<p>1. Appeal and error <&wkey;S45(l) — Notice not GIVEN WITHIN TWO DAYS AFTER JUDGMENT . WHERE MOTION FOR NEW TRIAL WAS NOT HEARD BY JUDGE WHO WAS DISQUALIFIED.</p> <p>Where case was tried before special judge and final judgment was rendered July 30th, and motion for new trial was not filed until August 30th, and was presented to the regular judge, who declined to enter any order thereon because of his disqualification, a notice of appeal given on August 30th was not given within two days after judgment, or two days after judgment overruling a motion for new trial, as required by Rev. St. art. 2084.</p> <p>2. Appeal and error <&wkey;396 — Proper notice OP APPEAL JURISDICTIONAL.</p> <p>Proper notice of appeal under Rev. St. art. 2084, is a jurisdictional matter.</p> <p>3. Judgment <&wkey;407(4)— Dismissal of appeal DOES NOT AFFECT SUIT TO SET ASIDE JUDGMENT.</p> <p>' The dismissal of an appeal because notice of appeal was not given within time does not affect any rights which appellant may have to set aside the judgment in a direct suit for that purpose.</p>

<p>1. Sales &wkey;>234(5) — Right of bona fide PURCHASER FROM FRAUDULENT BUYER.</p> <p>If owner of mare perpetrated fraud on owner of a mule in exchanging the animals, so that owner of mule might have demanded rescission and return, if a third person purchased the mule from the owner of the mare for value and without notice, the owner of the mule was deprived of right of rescission, and remedy, if any, was for damages against fraudulent owner of mare; the contract, at most, being voidable for fraud by owner of mule.</p> <p>2. Sales <®=»244(1) — Burden to prove notice of fraud by buyer as against subsequent purchaser.</p> <p>One who depends on the equitable right to rescind a contract of sale for the buyer’s fraud has the burden to prove that a subsequent purchaser, resisting the action, took the property with notice of the fraud.</p> <p>3. Sequestration <s=»20 — No judgment on REPLEVIN BOND SIGNED BY FRAUDULENT BUYER FROM'PLAINTIFF ON DENIAL OF JUDGMENT AGAINST BONA FIDE PURCHASER.</p> <p>Plaintiff in-sequestration, who exchanged his mule for the mare of a defendant claimed to have acted fraudulently, not being entitled to return of his mule as against a subsequent purchaser in possession without notice of the fraud, recovery will not ‘be awarded to him, on the re-plevin bond signed by the fraudulent owner of the mare.</p>

<p>Appeal from District Court, Harrison County; P. O. Beard,' Judge.</p> <p>Action by James Fults against the Waterman Lumber Company. From a judgment for defendant, plaintiff appeals.</p> <p>The appellant sued the appellee to recover damages for personal injuries. The appel-lee operates a sawmill and planing plant at Blocker, Texas. There are five planing machines in the -plant, situated on an elevated floor 80 by 70 feet in size’and 10 feet from the ground. These machines are propelled by means of belts over pulleys attached to the line shaft connected to the engine underneath the floor: The belts were about 12 inches wide, and the pulleys on the planing machines were between 12 and 14 inches from the floor. There was an idler, or “tightener,’’ located under the floor, to keep the bands tight that ran around the pulleys. On the morning of August 17, 1917, the belt driving one of the planing machines suddenly began to slip from side to side on the pulley and rub against the floor, causing injury to the belt. The appellant, seeing the injury to the belt, got a bar of soap from the cupboard a.few feet from him, and began to apply the‘soap to the belt for the purpose of causing it to right itself on the pulley. In «order to apply the soap to the belt, the appellant had tci assume a'stooping position. After he had sufficiently soaped the belt, and while rising from " his stooping position, 'the appellant slipped and fell,' and his arm was thrown''into the moving belt and suffered permanent injury. 'Appellant had been working at the planing plant for several years as a lumber: grader and trucker:"' When he was injured he was • not performing this character of' work, but'about two or three days before the injury had .been directed by the superintendent of the appellee to take the place of the regular machinist, who was temporarily absent for several days. According' to the appellant, he slipped by reason of “grease and shavings and things around there on the floor.”</p> <p>The negligence alleged is failure to use ordinary care to furnish a reasonably • safe place in which to do the work required of appellant and failure to keep the floor free from oil and-grease. The appellee pleaded' denial, contributory negligence, and compromise and settlement. The cáse was submitted to the jury'on special issues, ánd they answered that: (1) The Waterman Lumber Company did not pay any part of the consideration recited in thé release in evidence; ■ and (2) the floor upon which the plaintiff was working was covered with grease to an extent that rendered it slippery and unsafe; arid (3) the slippery condition of the floor was the proximate cause of the Injury; but (4) the Waterman Luriiber Company exercised ordinary care to keep the floor free from grease and in a reasonably safe condition to do work therCon; and (5) that the plaintiff either knew or could have known of the greasy condition of the floor; ■ but (6) the plaintiff did not through negligence on his part cause or contribute to cause his injury, and he was riot negligent' in the' way and while he soaped the belt; and (7) that ttle plaintiff suffered damages to the amount of 85,000. The court entered judgment in favor of the defendant company. The evidence, it is concluded, sustains the findings of the jury.</p>

<p>1. Appeal and error <&wkey;907(3) —Where CAUSE IS DISMISSED EOR PENDENCY OE ANOTHER SUIT IT WILL'BE PRESUMED THAT EVIDENCE SHOWED JURISDICTION OP OTHER COURT.</p> <p>Where there was no statement of facts and plaintiffs were denied relief on the ground of the pendency, of another suit in the federal bankruptcy court involving the same cause of action, it will be presumed in favor of the trial court’s' holding that there was sufficient evidence to show that the bankruptcy court had jurisdiction of the parties and of the subject-matter.</p> <p>2. Courts &wkey;>97(5) — -Latest decision op federal Supreme Court is precedent to be FALLOWED IN CONSTRUING FEDERAL STATUTES.</p> <p>In construing a federal statute, the latest decision of the federal Supreme Court should be followed by the state courts.</p>

R. Warren, Judge. Action by Grace Castleberry against the Tyler Commercial College. From a judgment for defendant, plaintiff appeals. August 20, 1918, appellant entered into a contract with appellee by the terms of which she became entitled,' by complying with ap-pellee’s' regulations, to a “complete course of shorthand” in its school.

Error from District Court, Smith County; J.,R. Warren, Judge. Action by E. E. Prince against R. .F. Yar-brough. From a judgment for defendant, plaintiff brings error. Prince was in business in Camp county as a manufacturer of crates. Yarbrough was in business in Smith county as a merchant. ,-In 1915 Prince, shipped to Yarbrough, for sale on. commission, it seems, crates worth $2,460.01.

<p>'Error from District Court, Smith County; J. R. Warren, Judge.</p> <p>Action by A. E. Glasgow against Walker D. Hines, Federal Director General of Railroads. To review judgment for plaintiff, defendant brings error.</p>

Error from District Court, Franklin County; J. A. Ward, Judge. Action by W. N. Williams, executor, against W. O. Crutcher and wife. Default judgment for plaintiff, and defendants bring error.

<p>On motion for rehearing.</p>

<p>Appeal from District Court, Franklin County; J. A. Ward, Judge. .</p> <p>Action by W. L. Richards & Co. against the St. Louis Southwestern Railway Company of Texas. From judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Upshur County Court; D. Walker, Judge.</p> <p>Action by M. C. Florence against A. S. Lewis and another, as partners under the firm name of Lewis & Knight. From an order overrating defendants’ plea of privilege to be sued in another county, they appeal.</p>

O. Beard, Judge. Action by H. V. Keebler against J. L. Lancaster and others, receivers. Judgment for plaintiff, and-defendants appeal. Appellee was a machinist in the shops of the Texas & Pacific Railway at Marshall and was operating an emery wheel grinding away the charred ends of certain pipes called su-perheater units. A flying spark or piece of metal from the pipe being ground struck the appellee in the right eye, permanently injuring it.

<p>Appeal and error &wkey;>755 — Appellant not BOUND TO BRIEF CASE TO HAVE APPEAL CONSIDEEED.</p> <p>An appellant is not required to brief the cause to have his appeal considered, but in case of failure the court is left to make its own search of the record for error.</p>

D.- Howe, Judge. Petition by Joe Dunne and others against the Wm. J. Lemp Brewing Company and others for a temporary writ of injunction. From an order refusing to grant the injunction, plaintiffs appeal.