Volume 219 — South Western Reporter

<p>1. Railroads <^=>5%, New, vol. 6A Key-No. Series — Exclusive control vested in Director General by Federal Control Act.</p> <p>Under the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115%a-3115%p), the possession, control, and management of railroads was completely and exclusively vested in the Director General.</p> <p>2. Railroads <3=5%* New, vol. 6A Key-No. Series — Railroad, not liable for EMPLOYE’S INJURY DURINGI FEDERAL CONTROL.</p> <p>During the period of government control of railroads under the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115%a-3115%p), relation of master and servant did not exist between an employé and the railroad company, and the company was not liable for injury to employé sustained during such a period.</p> <p>3. Appeal and error <3=1061(4) — Refusal to DIRECT VERDICT FOR RAILROAD ON HOLDING Director General liable, harmless.</p> <p>In an action under the federal Employers’ Liability Act (U. S. Com.p. St. §§ 8657-8665) for injuries to railroad employé sustained at a time when the Director General was in exclusive control under Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp/ 1919, §§ 3115§4a-3115%p), refusal to direct verdict for railroad company joined as defendant with Director General, was harmless, where the judgment for the employé expressly provided that judgment was payable by the United States.</p> <p>4. Master and servant <3=107(3) — Rule requiring ORDINARY CARE TO PROVIDE SAFE PLACE INAPPLICABLE TO REPAIRS NECESSARY TO MAKE PLACE SAFE.</p> <p>The rule making it the master’s duty to use ordinary care to provide a safe working place has no application where the servant is engaged for the very purpose of repairing and making a dangerous place safe.</p> <p>5. Master and servant <8=107(3) — Stopping LEAK IN RAILROAD WATER TANK NOT REPAIRS * WITHIN RULE AS TO PLACES DANGEROUS.</p> <p>A railroad employé who under orders of his foreman, went upon top of a water tank to pour cinders into tank to stop a leak, could recover fbr injuries sustained on collapse of tank because of its defective condition on theory that employer was negligent in failing to provide safe place in which to work; the rule that employer is not required to use ordinary care to provide a safe working place where servant is engaged for the very purpose of repairing and making á dangerous place safe being inapplicable to such case.</p> <p>6. Master and servant <3=278(3) — Finding OF NEGLIGENCE IN FAILURE TO PROVIDE SAFE PLACE WARRANTED.</p> <p>In an action under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) for injuries to railroad employé from collapse of decayed and defective water tank while he was on top pouring cinders into it to stop a leak, evidence held to support a finding of negligence in failing to provide him with a safe place in which to work.</p> <p>7. Master and servant <3=217(13) —Risk FROM FAILURE TO FURNISH SAFE PLACE NOT ASSUMED.</p> <p>The servant has a right to assume that the master has discharged his duty in providing a safe working place, and does not assume the risks arising from master’s failure to so do, unless he knows of such failure and the attendant risks, or in the ordinary .discharge of his own duty must have necessarily acquired the knowledge.</p> <p>S. Appeal and error <§=>930(3) — Finding PRESUMED' TO HAVE BEEN MADE BY COURT IN SUPPORT OP JUDGMENT IN ACTION TRIED UPON SPECIAL ISSUES.</p> <p>In action under the federal Employers’ liability Act (U. S. Comp. St. §§ 8657-8665) for injuries to a r'ailroad employé from collapse of a tank on top of which he had gone to stop leaks, where jury found that employé did not know of dangerous condition of the tank, but made no finding as to obvious defective condition, and where there was evidence to support a contrary finding, it will be presumed, under Rev. St. 1911, art. 1986, in favor of judgment for employé, that such contrary finding was made by the court, where case was tried on special issues.</p> <p>■ 9. Master and servant <§=>204(1) — Risk op INJURY PROM COLLAPSE OP WATER TANK NOT ASSUMED.</p> <p>A railroad employé who, under foreman’s orders to so do, went on typ of water tank to pour cinders into it to stop leaks, without knowledge of the defective condition of the tank, did not assume the risk of injury by the collapse of the tank so as to prevent recovery under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665).</p> <p>10. Master and servant <§=>235(7) — Railroad employé not required to ascertain IF WATER TANK WAS SAFE.</p> <p>An employé who was ordered by his foreman to go upon a railroad water tank to pour cinders into it to stop leaks was not required to ascertain if the tank was a safe place to go upon to perform his task.</p> <p>11. Appeal and error <§=>994(2) — Credibility op witnesses for jury. It was the province of the jury to pass upon the credibility of the witnesses.</p> <p>12. Master and servant <§=>281(5) — Finding THAT RAILROAD EMPLOYÉ DID NOT KNOW OP DEFECTIVE CONDITION OP WATER TANK WARRANTED.</p> <p>In a railroad employé’s action under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-S665), for injuries from collapse of a tank evidence held sufiicient to sustain the jury’s finding that plaintiff in going on tank did not know of 'its dangerous and defective condition.</p> <p>13. Master and servant <§=>101, 102(8) — Duty to provide safe place defined. It is the employer’s duty to use ordinary care to provide employé a safe working place.</p> <p>14. Trial <§=>114 — Counsel’s argument to JURY AS TO WHAT ANSWER THEY SHOULD GIVE TO SPECIAL INTERROGATORY HELD IMPROPER.</p> <p>In action under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) for injuries to a railroad employé, statement by plaintiff’s counsel that jury should answer certain special verdict “No,” since an answer “Yes” would make it appear that jury thought that employé was a fool in going upon tank on which he had been working at time of injury, held improper.</p> <p>15. Trial <@=>125(3) — Argument of counsel THAT NO ONE KICKED CORPORATION DEFENDANT LIKE IT KICKED PLAINTIFF IS IMPROPER.</p> <p>In action under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665), for injuries to a railroad employé, statement of em-ployé’s counsel, in argument to jury, that he did not know whether the railroad company had any soul or not, and that no one kicked it about like it was kicking the plaintiff, held an appeal to the passion and prejudice of the jury and improper.</p> <p>16. Evidence <§=>477(3), 501(2) — Opinion as TO PER CENT, op USE OF LEGS AND ARMS OF INJURED PARTY INADMISSIBLE IN ABSENCE OF FOUNDATION SHOWING WITNESS QUALIFIED.</p> <p>In a personal injury action testimony that plaintiff at time of trial had only 75 per cent, use of his legs and arms, held inadmissible as against objection that it was opinion testimony by witness not qualified, and that facts upon which opinion was based had not been stated by witness.</p> <p>17. Appeal and error <§=>1060(1) — Question OF WHETHER IMPROPER ARGUMENT IS REVERSIBLE ERROR IN DISCRETION OF COURT.</p> <p>Whether improper argument by plaintiff’s counsel in address to the jury is reversible error depends upon the facts in each case and involves the exercise of certain discretion by the court.</p> <p>18. Appeal and error <§=>1050(1) — Whether IMPROPER ADMISSION OF OPINION EVIDENCE IS REVERSIBLE ERROR IN DISCRETION OF COURT.</p> <p>Question of whether improper admission of opinion testimony without foundation being made by showing qualification of witness, and whether the statement of facts upon which opinion is based is ground for reversal, depends on facts in the case, and involves the exercise of certain'discretion by the court.</p>

W. Taylor,. Judge. Action by Marvin Evans against Dent N. Cobb and others. From the judgment overruling the pleas of privilege of defendants Eduardo Izaguirre and Will J. Rutledge and their motions for' new trial on such pleas, they appeal.

<p>Appeal from District Court, Brown County; J. O. Woodward, Judge.</p> <p>Suit by the United States Fidelity & Guaranty Company of Baltimore, Md., against Mrs. J. S. Lowry. Judgment of dismissal, and plaintiff appeals.</p>

<p>1. Railroads &wkey;5y2, New, vol. 6A Key-No. Series — Receiver op Railroad under federal control entitled to dismissal prom CASE.</p> <p>In a servant’s action for injuries on a railroad under federal control, it was error to deny a motion to dismiss receiver of the railroad, so that the case could be prosecuted against the Director General alone, under Order No. 50, Oct. 28, 1918, and Act Cong. March 21, 1918 (U. S. Comp. St. 1918, TJ. S. Comp. St. Ann. Supp. 1919, §§ 3115%a — 3115i%p.)</p> <p>2. Master and servant &wkey;293(17) — Requested CHARGE ON DUTY TO SWITCHMAN BETWEEN CARS NOT EQUIPPED WITH AUTOMATIC COUPLERS PROPERLY REFUSED.</p> <p>Where the foreman of a switching crew knew plaintiff was attempting to couple cars not equipped with automatic coupler, necessitating going between the cars when the foreman gave “kick-back signal” a requested special charge, submitting the question whether the foreman when he ga^g the signal knew that plaintiff was between cars “and attempting to make the coupling,” was properly refused, as making right of recovery dependent upon knowledge of foreman at very instant of time when it was negligent for him not to know.</p> <p>3. Master and servant <&wkey;125(6) — Master LIABLE IF BY ORDINARY CARE HE COULD HAVE KNOWN OP DANGER.</p> <p>If by ordinary care a master who has sent a servant to do a perilous thing should have known of the danger, or by the exercise of ordinary care might have known, though actual knowledge was absent, he would be guilty of negligence if the situation was such that he might have known the danger to the servant by ordinary care.</p> <p>4. Trial <&wkey;351(5) — Special issue as to plaintiff’s knowledge of defective coupling properly refused where covered BY ISSUES SUBMITTED.</p> <p>Where issue of contributory negligence was properly submitted, it would have served no useful purpose to submit either question whether plaintiff, after discovering defect in coupling, notified foreman, or question whether plaintiff’s knowledge of defect was sufficient to put a reasonably prudent person on notice that it was dangerous to go in behind car and attempt to couple, and there was no error in refusal to submit.</p> <p>On Motion for Rehearing.</p> <p>5. Damages i&wkey;l32(12) — Fob loss of abm $25,000 EXCESSIVE.</p> <p>For the loss of an arm hy plaintiff switch-man, who was 47 years old at the time of the accident and was earning $150 a month, a verdict of $25,000 is excessive, and will be reduced to $15,000.</p> <p>6. Appeal and eeeoe <&wkey;1004(4) — Yekdict WILL BE HELD EXCESSIVE ONLY IN EXCEPTIONAL CASES.</p> <p>The court on appeal, though believing that verdict is excessive, will not reduce it, unless there were such grave circumstances connected with it as to justify conclusion that duty requires the.court on appeal to reduce it.</p>

<p>Appeal from District Court, Bexar County; M. Kennon, Judge.</p> <p>Action by H. M. Wurzbaeh against the Galveston, Harrisburg & San Antonio Railway Company and Walker D. Hines, Director General of Railroads. Judgment for plaintiff, and defendants appeal.</p>

<p>1. LANDLORD AND TENANT <@=>252(5) — AVERMENT OE NOTICE OF LANDLORD’S LIEN TO ■PURCHASERS HELD SUFFICIENT.</p> <p>Plaintiff’s allegation of notice to defendants, before they purchased the bale of cotton in controversy, that he claimed a “landlord’s lien on said cotton for the full amount that said cotton brought,” constituted sufficient allegation of notice that plaintiff was claiming the bale of cotton, or its value or proceeds, to satisfy his lien, and averred the notice sufficiently as against general demurrer.</p> <p>2. Action &wkey;>ll — Cause of action arises WITHOUT DEMAND WHEN OBLIGATION COMPLETE.</p> <p>When an obligation to pay is complete, a cause of action at once arises, and no formal demand is necessary.</p> <p>3. Landlord and tenant <&wkey;246(2) — Lien EXTENDS TO WHOLE CROP AND IS NOT SATISFIED UNTIL PAYMENT.</p> <p>A landlord’s preference lien, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5475 et seq., as amended by Laws 1915, c. 38 (Vernon’s Ann. Civ. St. Supp. 1918, art. 5475), on indicated property of the tenant, extends to all of the crop raised, and the lien is not satisfied until all of the rent and advances have been paid.</p> <p>4. Landlord and tenant &wkey;>256 — Working OF PLACE BY TENANT’S SON DID NOT DESTROY TENANCY.</p> <p>If one tenant made the contract of rental with the landlord, the fact that he did not live on the place, but that his son, a married man, did so, worked the farm, and made a crop, did not of itself destroy the relation of landlord and tenant existing between the landlord and the occupant’s father; and the landlord had a lien on all crops whether the land was cultivated by the tenant in person or by such agent or subtenant.</p> <p>5. Landlord and tenant <&wkey;252(5) — Evidence HELD TO MAKE PRIMA FACIE PROOF THAT COTTON WAS RAISED ON PREMISES BY TENANT AND SO SUBJECT TO LIEN.</p> <p>In a landlord’s action to enforce his lien on a bale of cotton grown on the rented premises, evidence held, sufficient to make prima facie proof that the bale was raised on the landlord’s premises during the particular crop year, either by the tenant himself, or by an agent or subtenant, his son.</p> <p>6. Landlord and tenant &wkey;>254(2) — Removal OF CROP TO BE PREPARED FOR MARKET DOES NOT WAIVE LIEN.</p> <p>Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5478a, removal of agricultural products to be prepared for market, as cotton for ginning, does not constitute a waiver of the landlord’s lien, which continues and attaches to the product so removed as if remaining on the rented premises.</p> <p>7. Evidence <&wkey;75 — Presumption from failure to PRODUCE.</p> <p>Failure to produce evidence within a party’s control raises a presumption that, if produced, it would operate against him, and every intendment will be in favor of the opposite party.</p>

<p>Appeal from District Court, Hill County; Horton B. Porter, Judge.</p> <p>Action by J. W. Robinson against the American Central Insurance Company, in which defendant, by plea in the alternative, vouched in West, White & Woodall, a partnership agency, and asked judgment over against them for amount of any judgment in favor of plaintiff. Judgment for plaintiff ordering action against partnership to remain on docket for trial at a later term, and defendant appeals.</p>

<p>1. Insurance &wkey;>665(2) — Finding against A CONSUMMATED ORAL CONTRACT OF INSURANCE WARRANTED.</p> <p>Evidence in action on alleged oral contract of life insurance held to warrant finding that it was understood between the parties that the making of the contract of insurance would not be consummated till the policy should be issued, and that till then the company could, as it did, refuse the application in accordance with the stipulations in the receipt given to applicant.</p> <p>2. Evidence <&wkey;155(5) — Plaintiff introducing TESTIMONY OF PART OF LETTER MAY NOT OBJECT TO TESTIMONY OF OTHER PART AS HEARSAY.</p> <p>Witness having, at plaintiff’s instance, testified to part of a letter which could not be produced, could, over plaintiff’s objection of hearsay, testify to other contents thereof.</p>

<p>Error from Collin County Court; R. L. Moulden, Judge.</p> <p>Suit by the Commercial Credit Company against John Ki Wilson. Judgment for defendant, and plaintiff brings error.</p>

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

<p>Appeal from District Court, Lynn County ; W. R. Spencer, Judge.</p> <p>Action by W. R. Standefer against W. F. Vaughan and others. Judgment for defendants, and plaintiff appeals.</p>

A. Johnson, Special Judge. Action by Edna Wood against the Sovereign Camp, Woodmen of the World, and another. Judgment for plaintiff, and the named defendant appeals.

<p>Appeal from District Court, McLennan County; H. M. Richey, Judge.</p> <p>Action by Thomas W. Grice against the Herrick Hardware Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Pleading <&wkey;381(3) — In absence of GENERAL DENIAL, ADMISSIONS IN ANSWER PROPERLY ADMITTED.</p> <p>Where there was no general denial by defendant in his answer, but merely a denial of such matters as were not admitted, the trial court properly overruled objection to the admission in evidence of portions of the answer containing certain admissions.</p> <p>2. Joint adventures &wkey;>5(2) — Evidence HELD NOT TO SUSTAIN FINDING IN ACTION BETWEEN PERSONS FARMING LAND ON SHARES.</p> <p>In suit for $926, on allegations that plaintiff and defendant farmed certain land together, and that plaintiff was entitled to receive one-fourth of the proceeds, or 34 bales of cotton and 7 bales of seed, less one-quarter of the cost of ginning and of the cost of bags, ties, and picking, evidence as to the cost of picking and the weight of bales held insufficient to sustain finding for' plaintiff for full amount sued for.</p> <p>3. Attachment <&wkey;217 — Judgment on re-plevy BOND AND FOR FORECLOSURE OF ATTACHMENT LIEN NOT ERROR.</p> <p>. In suit by plaintiff, who had farmed land together with defendant, to recover an amount due him, the trial court did not err in rendering judgment on defendant’s replevy bond, and also for. foreclosure of the attachment lien.</p>

<p>Carriers <&wkey;58 — Bank acquiring draft WITH BILL OF LADING ENTITLED TO PROCEEDS AS AGAINST CONSIGNEE REQUIRED BY Pood Administration to receive shipment NOT GUARANTEED.</p> <p>Where a bank acquires title to a draft with bill of lading attached by crediting the amount to consignor’s account, and the consignee pays the draft, being compelled to do so before receiving the bill of lading by the United States Pood Administration, and the shipment is not as guaranteed, and a judgment is obtained against the consignor, the consignee cannot recover the amount of damages due him in a garnishment against the bank.</p>

<p>Appeal from Titus County Court; J. W. Tabb, Judge.</p> <p>Action by the Moon Automobile Company against A. ft. Avery. From a judgment dismissing the case for want of jurisdiction plaintiff appeals.</p>

<p>1. Railroads &wkey;j411(5) — Owner of animal KILLED ON TRACK NOT REQUIRED TO BE FENCED, MUST SHOW NEGLIGENCE APPROXIMATELY CAUSING DEATH.</p> <p>Where an animal is killed at a point on the track not required to be fenced, the railroad’s negliggnce, proximatcly causing animal’s death; must be shown to justify a recovery.</p> <p>2. Appeal and error <&wkey;931(l) — Facts to BE VIEWED MOST STRONGLY IN FAVOR OF VERDICT AND JUDGMENT.</p> <p>On appeal from judgment rendered after trial before court without a jury, the facts will be viewed most strongly in favor of court’s verdict and judgment.</p> <p>3. Railroads <&wkey;415(l) — Failure to give STATUTORY SIGNALS AT CROSSING, NEGLIGENCE AS TO ANIMAL KILLED.</p> <p>Failure of trainman to blow the whistle and ring the bell at a public crossing, as required by Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 6564, is, as to an animal killed at crossing, negligence as a matter of law.</p> <p>4. Railroads <&wkey;443(7) — Evidence held to show negligent failure to give statutory SIGNALS, CAUSING MULE’S DEATH AT CROSSING.</p> <p>In an action for killing a mule at a public crossing, evidence held to warrant finding that failure to blow whistle and ring bell at crossing, as required by Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6564, was negligence proximately causing mule’s death.</p> <p>5. Railroads <&wkey;443(7) — Evidence held to SHOW NEGLIGENT FAILURE TO KEEP PROPER LOOKOUT FOR ANIMALS.</p> <p>Evidence held insufficient to warrant conclusion that employfis in charge of locomotive which struck a mule at a crossing were negligent in failing to keep á proper lookout.</p> <p>6. Railroads <&wkey;416 — Obstruction of view BY BOX CARS, ETC., NEAR CROSSING HELD NOT NEGLIGENCE AS TO ANIMAL KILLED.</p> <p>The presence of box cars, lumber, and cord-wood, placed near a public crossing for railroad purposes, though an obstruction of trainmen’s view, is not negligence upon which, liability for killing,a mule at the crossing can be based, but may be considered in determining, as a question of fact, whether train was operated .with proper care in approaching crossing.</p>

Jones, Judge. Suit by J. M. Slator and others against Joseph Veltmann and another. From judgment for plaintiffs, defendants appeal. Judgment reversed in part, and reformed and affirmed in conformity to answers to certified questions from the Supreme Court (217 S. W. 378).

<p>Appeal from District Court, Wichita County; Edgar Scurry, Judge.</p> <p>Suit for specific performance by W. E. Conner against E. M. Blue and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from District Court, Wise County; F. O. McKiDsey, Judge.</p> <p>Action by Millie May Atcheson against the Modern Woodmen of America. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Hunt County; A. P. Dohoney, Judge.</p> <p>Action by J. T. Moss against 0. E. Schaff, reoeiver of the Missouri, Kansas & Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.</p>

<p>Criminal law <&wkey;1090(16) — Motion for new TRIAL NOT RE VIEWABLE WHERE NO FACTS OR EXCEPTIONS.</p> <p>Where the record does not contain a statement of facts or bill of exceptions, matters presented by the motion for new trial cannot be revised on appeal.</p>

<p>Appeal from District Court, Johnson County; O. L. Lockett, Judge.</p> <p>Suit by E. W. Robertson against W. M. Wakeland. Judgment for plaintiff, and defendant appeals.</p>

Action by Permalla C. Rudasill against Emanuel Rudasill and -others. From the judgment denying part of the relief sought, plaintiff appeals.

<p>1. Courts <&wkey;89 — Decisions of Intebstate Commerce Commission not authoritative.</p> <p>Since the Interstate Commerce Commission is but an administrative body, its opinions interpreting interstate commerce acts, although entitled to. great respect from state courts, are not authoritative.</p> <p>2. Commerce <&wkey;28 — Common carriers subject to Interstate Commerce Act as construed BY FEDERAL COURTS.</p> <p>Act Cong. June 18, 1910, fixed the status of interstate telegraph companies as that of common carriers, and they are not only subject to requirements of Interstate Commerce Acts, but are entitled to have their liabilities determined by the law as administered by the United States courts.</p> <p>On Motion for Rehearing.</p> <p>3. Telegraphs and telephones <&wkey;54(l) — Interstate telegraph company may limit LIABILITY FOB NEGLIGENCE IN TRANSMISSION OF UNREPEATED MESSAGE.</p> <p>An interstate telegraph company may limit its liability in damages for negligence of its servants in transmitting unrepeated interstate messages involving different rates.</p> <p>4. Telegraphs and telephones <&wkey;54(6) — Contract limiting liability for mistake OR NEGLIGENCE CONSTRUED.</p> <p>Under provisions on the back of a telegram to the effect that the company should not be liable beyond the cost of transmission for mistakes or delays in transmission, unless the message was repeated, and that the company should not be liable for" damages for mistakes in transmission, whether caused by negligence of its servants or otherwise, beyond the sum of $50, the company was liable to the extent of $59, where a mistake in an unrepeated message was caused by the negligence of the company.</p>

Error from District Court, Cooke County; John .Speer, Judge. Suit by Annie Simons and others against H. P. Ware and others. To review a judgment for defendants on demurrer to the petition, plaintiffs bring error.

<p>Appeal from District Court, Tarrant County ; Ben M. Terrell, Judge.</p> <p>Suit by Graham Stewart against E.' L. Aurelius. Judgment for plaintiff, and. defendant appeals.</p>

F. Lindsey, Judge. Proceedings by Thomas Branscum against John R. Bannister, Sheriff, and another, defended on the ground that money which had come into defendants’ hands by virtue of plaintiff’s execution had been applied by them in satisfaction of a prior execution of Jeff Reese against plaintiff. From a judgment adverse to plaintiff, on appeal by defendants from a justice to the county court, plaintiff appeals.

<p>Appeal from District Court, Bexar County; R. B. Minor, Judge.</p> <p>Action by H. A. Wilkinson against the Merchants’ Transfer Company and another. From a judgment for plaintiff, defendants appeal.</p>

Second Supreme Judicial District. Suit by J. J. Breen, against W. P. McLean, Sr., and another. A judgment for plaintiff was affirmed by the Court of Civil Appeals (183 S. W. 394), and defendants bring error.

<p>Appeal fr'om Wood County Court; R. E. Bozman, Judge.</p> <p>Action between W. M. Rhone and Hardee Russell and others. From an adverse judgment, the former appeals.</p>

O. Joiner, Judge. Suit between John A. Loring and Minor C. Keith and others, trustees. The appeal of Loring was dismissed, and the trustees move to affirm on certificate.

<p>1. Pleading <&wkey;204 (3) — Petition von specific PERFORMANCE STATED CAUSE OF ACTION FOR BREACH OF CONTRACT AS AGAINST GENERAL DEMURRER.</p> <p>A petition asking for specific performance of an oil lease, or, in the alternative, damages sustained “by reason of the breach of said contract in the sum of $554,490, the reasonable market value of the said leases which were delivered to the defendant by the plaintiff,” which alleged “that the defendant has not returned said leases to plaintiff,” stated a cause of action for damages for failure to reassign the leases as provided in the contract, as against a general demurrer.</p> <p>2. Mines and minerals i&wkey;78(l) — Oil lease HELD TO REQUIRE REASSIGNMENT ON BREACH.</p> <p>Under an oil lease providing “that in case the party of the second part fails to drill said wells, * * * said $500 shall be forfeited, * * * also oil leases hereby conveyed to be returned to the party of the first part,” the party of the second part contracted to return or re-' assign the leases if the wells were not dug as contracted to be dug.</p>

<p>Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge. Noce Smith was convicted of theft,' and he appeals.</p>

<p>Appeal from District Court, Potter County; Henry S. Bishop, Judge. Dick Fitzgerald was convicted of burglary, and he appeals.</p>

<p>Appeal from District Court, Camp County; J. A. Ward, Judge. Noland Pope was convicted of forgery, and appeals.</p>

<p>Appeal from District Court, McLennan County; Richard I. Munroe, Judge. J. W. Hale was convicted of forgery, and appeals.</p>